Labels Are Not Enough: Why Calling It ‘Sexual Harassment’ May Not Be Enough To Defeat Arbitration

The federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) of 2022 allows a plaintiff alleging sexual harassment to opt out of an enforceable arbitration agreement. In some California cases, the plaintiffs’ bar has included sexual harassment claims alongside other workplace claims in an effort to invoke the EFAA and avoid arbitration.

The strategy has worked at times, but courts have begun to draw limits. The Northern District of California recently articulated a limiting principle: simply labeling a set of facts as “sexual harassment” is insufficient to invoke the EFAA (decision here). Rather, the court held that a plaintiff must plausibly allege conduct that actually constitutes sexual harassment under governing law before the EFAA applies.