Introduction
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”) is one of the most significant statutory changes to federal arbitration law in decades. Codified as Chapter 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 401–402, the EFAA limits the enforceability of pre-dispute arbitration agreements in cases involving sexual assault or sexual harassment.
Narrow in subject matter but broad in consequence, it affects domestic and international arbitration agreements, overrides delegation clauses, alters who decides arbitrability, and raises difficult questions about timing, scope, and case management. Federal courts—including circuit courts of appeals—have already begun to grapple with these issues, and more appellate guidance will likely be forthcoming.
This post provides a high-level overview of (1) what the EFAA says, (2) how it works in practice, and (3) the key issues courts have addressed so far, without extensive case-by-case discussion and analysis.
What the EFAA Says
EFAA Covered Agreements and Covered Disputes
The EFAA applies to two types of contractual provisions:
- A “Predispute arbitration agreement,” which is an “agreement to arbitrate a dispute that had not yet arisen when the agreement was made,” 9 U.S.C. § 401(1); and
- A “Predispute joint-action waiver,” which is an “agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement[,]” id. § 401(2).
The statute applies only if the dispute qualifies as either a “sexual assault dispute,” which is defined by reference to 18 U.S.C. § 2246 or similar state or tribal law, id. § 401(3); or a “sexual harassment dispute,” which is defined broadly as a dispute “relating to conduct alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,” id. § 401(4).
The definitions of sexual harassment and assault are intentionally expansive and incorporate the relevant substantive law governing the claim.
EFAA Operative Rule
Section 402(a) is the statute’s principal substantive command:
Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual assault or sexual harassment dispute, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case filed under Federal, Tribal, or State law and relating to such dispute.
9 U.S.C. § 402(a).
Several aspects of this are critical. First, the statute applies “notwithstanding” the FAA’s usual enforcement provisions. Consistent with the text, Chapter 4 is a clear congressional override of FAA Chapter 1. 9 U.S.C. § 2 (Section 2’s enforceability applies “save. . . as otherwise provided in chapter 4”); see, Pub. L. No. 117-90, 136 Stat. 26 (2022) (codified at 9 U.S.C. §§ 401–402); see, e.g., Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74, 84-85 (2d Cir. 2024) (EFAA is a “contrary congressional command” overriding FAA Chapter 1).
Second, enforceability turns on the claimant’s election. The statute does not automatically invalidate arbitration agreements; it gives the person alleging sexual assault or sexual harassment the option of proceeding in a judicial forum or, if it so chooses, submitting the dispute to arbitration.
This empowers the person alleging such assault or harassment to make that election after the dispute arises, thereby requiring arbitration only if the plaintiff consents to it and then only after the dispute has already arisen.
Third, the statute refers to enforceability “with respect to a case,” not merely a claim or dispute—language that has become central, because it may render unenforceable a predispute agreement to arbitrate otherwise arbitrable disputes or claims that are part of or relate to “a case filed under Federal, Tribal, or State law. . . .” The only other requirement apparent from the statute’s text is that the “case” “relate[s] to” the “sexual assault or sexual harassment dispute. . . .” 9 U.S.C. § 402(a).
Fourth, the EFAA trumps not only Section 2’s enforceability command but also Chapters 2 and 3 of the FAA, which implement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and the Inter-American Convention on International Commercial Arbitration (the “Panama Convention”). Section 208 of the FAA, concerning the New York Convention, states (as amended by the EFAA) that “[t]his chapter [2] applies to the extent that this chapter is not in conflict with chapter 4.” 9 U.S.C. § 208. Section 307 of the FAA, concerning the Panama Convention, likewise states that Chapter 3 “applies to the extent that” it “is not in conflict with chapter 4.” 9 U.S.C. § 307.
Courts Decide Applicability, even if the Agreement Contains a Delegation Provision
Section 402(b) provides that a court—not an arbitrator—must decide whether the EFAA applies, “irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” 9 U.S.C. § 402(b); see also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (discussing, pre-EFAA, delegation clauses and who gets to decide arbitrability).
This provision overrides delegation clauses that would otherwise be enforceable under FAA precedent and ensures judicial control over threshold EFAA questions. Delegation clauses are discussed here, here, and elsewhere in the Arbitration Law Forum.
EFAA Temporal Scope
The EFAA applies only to disputes or claims that “arise or accrue” on or after March 3, 2022, the statute’s effective date. Pub. L. No. 117-90 § 3. That deceptively simple language has generated much of the appellate litigation to date. Disputes over the statute’s effective date are likely to decrease over time, because as time continues to elapse, the less likely it is that conduct concerning the “arising” or “accruing” of a claim or dispute will arguably have occurred exclusively on or prior to March 3, 2022.
How the EFAA Works in Practice
When a defendant moves to compel arbitration in a case involving alleged sexual assault or sexual harassment, and the plaintiff invokes Chapter 4, courts typically proceed in the following order:
- Does the plaintiff plausibly allege a covered dispute?
- Did the dispute or claim arise or accrue on or after March 3, 2022?
- Has the plaintiff elected to proceed in court?
- If so, what is the scope of unenforceability—only covered claims (sexual assault and sexual harassment) or all otherwise arbitrable claims properly joined to the lawsuit?
The answers to these questions determine whether arbitration of any disputes can be compelled without the post-dispute consent of the plaintiff.
EFAA Timing Issues: “Arises” and “Accrues”
Claim Accrual
The Second Circuit has held that “accrual” under the EFAA carries its traditional meaning from statute-of-limitations doctrine. In hostile-work-environment cases, claims may re-accrue with each wrongful act (sexual assault or harassment), meaning that, if at least one discriminatory act occurs on or after March 3, 2022, Chapter 4 applies, even if wrongful acts also occurred prior to March 3, 2022. See Olivieri, 112 F.4th at 88-91 (hostile-work-environment claims re-accrue with each discriminatory act).
This generous interpretation allows plaintiffs to invoke the EFAA based on continuing violations and avoids retroactivity concerns by tying coverage to post-enactment accrual.
When a Dispute “Arises”
Other courts have focused on when a “dispute” arises, as distinct from when a claim accrues.
Some courts treat a dispute as arising only when there is a disagreement or controversy between the parties—such as when an employee complains and the employer resists or denies the complaint. See Cornelius v. CVS Pharmacy Inc., 133 F.4th 240, 247–49 (3d Cir. 2025) (dispute arises when employee registers disagreement and employer resists); Memmer v. United Wholesale Mortgage, LLC, 135 F.4th 398, 404–09 (6th Cir. 2025) (dispute denotes a “conflict or controversy”). Others view the filing of an administrative charge or lawsuit as the point at which a dispute arises. See Memmer, 135 F.4th 406-07 (discussing EEOC charge as possible trigger). The result is a fact-specific inquiry, often turning on internal complaint processes, employer responses, and the timing of assertions of rights.
No Automatic Retroactivity
Courts have consistently rejected arguments that the EFAA applies retroactively to disputes that were fully formed before March 3, 2022. Olivieri, 112 F.4th at 90-91; Famuyide v. Chipotle Mexican Grill, Inc., 111 F.4th 895, 902–03 (8th Cir. 2024). The statute’s “arises or accrues” language reflects a deliberate temporal limitation. See Olivieri, 112 F.4th at 88-89; Memmer, 135 F.4th at 404–09 (difference between dispute arising and claim accruing); Cornelius, 133 F.4th at 247–49; Famuyide, 111 F.4th at 902–03. 8th Cir. 2024).
Does One Covered Dispute Bar Arbitration of the Entire Case?
One of the most important unresolved questions under the EFAA is whether the presence of a single covered dispute renders an arbitration agreement unenforceable only as to that dispute or as to the entire lawsuit.
Several courts—most notably in the Southern District of New York—have interpreted § 402(a)’s reference to “a case” to mean the entire judicial proceeding. See Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 548–55 (S.D.N.Y. 2023); Baldwin v. TMPL Lexington LLC, 23 Civ. 9899 (PAE), slip op. at 14-18 (S.D.N.Y. Aug. 19, 2024) (citing cases); Mera v. SA Hospitality Grp., 23 Civ. 3492 (PGG) (SDA), slip op. at 10-20 (S.D. N.Y. Nov 14, 2025). Under this view, once a plaintiff plausibly alleges a covered sexual harassment or assault dispute and elects to proceed in court, the arbitration agreement is unenforceable as to all properly joined claims.
Courts adopting this approach emphasize:
- Congress’s use of the word “case,” not “claim”;
- The EFAA’s “notwithstanding” clause; and
- The statute’s purpose of allowing victims to litigate in court rather than being forced into fragmented proceedings.
See, e.g., Everyrealm, Inc., 657 F. Supp. 3d at 548–55; Baldwin, slip op. at 14-18; Mera, slip op. at 10-20.
Under this approach, where the EFAA is “invoked and applies, a pre-dispute arbitration agreement is invalid and unenforceable as to the plaintiff’s entire case, and not just to plaintiff’s sexual harassment claims.” Mera, slip op. at 20; see Everyrealm, 657 F. Supp. 3d at 552–55.
Appellate Review Is Pending
The scope question is, we understand, now before the Second Circuit in at least two appeals apparently involving:
- Whether retaliation claims “relate to” sexual harassment disputes;
- Whether sex-based harassment without overtly sexual conduct qualifies as “sexual harassment”; and
- Whether arbitration agreements are unenforceable as to entire cases or only subsets of claims.
The two Second Circuit appeals to watch are:
- Diaz-Roa v. Hermes Law, P.C., No. 24-3223 (2d Cir.) (appeal from Diaz-Roa v. Hermes Law, P.C., 757 F. Supp. 3d 498, 530-42 (S.D.N.Y. 2024)); and
- Puris v. TikTok Inc., No. 25-322 (2d Cir.) (appeal from Puris v. TikTok Inc., No. 24-cv-944, 2025 WL 343905 (S.D.N.Y. Jan. 30, 2025)).
The Second Circuit heard oral argument in Diaz-Roa on October 16, 2025, but has not rendered a decision as of the date of this writing. Oral argument in Puris is scheduled for January 23, 2026.
Decisions in these cases may shape EFAA litigation for years to come.
What the EFAA Does Not Do
It is equally important to understand the statute’s limits.
- The EFAA does not ban arbitration of all employment disputes.
- It does not automatically invalidate arbitration agreements absent a claimant’s election.
- It does not eliminate (but in a given case could moot) traditional contract formation, validity, and enforceability issues, which continue to be governed by state law governing contracts in general.
Practical Takeaways
For practitioners, several points are noteworthy:
- Timing is critical. The difference between pre- and post-March 3, 2022, conduct can be dispositive.
- Continuing violations matter. Hostile work environment allegations often bring disputes within the statute’s reach.
- Courts decide EFAA applicability—delegation clauses do not control.
- Scope remains unsettled. Whether one covered dispute keeps an entire case in court is among the most consequential open questions.
- Appellate guidance on scope from the Second Circuit appears to be imminent.
Conclusion
The EFAA represents a focused yet very consequential modification of the FAA. By granting claimants alleging sexual assault or sexual harassment the right to avoid pre-dispute arbitration, Congress altered long-standing assumptions about enforceability, arbitrability, and forum selection.
Although many interpretive questions remain, the statute has already reshaped arbitration practice meaningfully. As appellate courts continue to address timing, scope, and definitional issues, staying current on EFAA developments is essential for anyone litigating or drafting arbitration agreements governed by the FAA.
Contacting the Author
If you have any questions about this article, arbitration, arbitration-law, or arbitration-related litigation, then please contact Philip J. Loree Jr., at (516) 941-6094 or PJL1@LoreeLawFirm.com.
Philip J. Loree Jr. is principal of the Loree Law Firm, a New York attorney who focuses his practice on arbitration, and trial court and appellate arbitration-related litigation. A former BigLaw partner, he has 35 years of experience representing a wide variety of corporate, other entity, and individual clients in matters arising under the Federal Arbitration Act, as well as in insurance- or reinsurance-related, and other, matters.
This blog features links to several arbitration-related videos and webinars in which Mr. Loree appears.
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Tags: Arbitrability, Delegation Clauses, EFAA, Employment Arbitration, Ending Forced Arbitration Act, Enforceability of Arbitration Agreements, FAA Chapter 4, Federal Arbitration Act, Retaliation Claims, Second Circuit Arbitration Law, Sexual Assault Claims, Sexual Harassment Claims
