Philip J. Loree Jr., Richard D. Faulkner, and Charles (“Chuck”) Bennett will Discuss the EFAA’s Application and Effect in an October 16, 2026, myLawCLE Webinar
On October 16, 2026, I will be joining my good friends and colleagues Richard D. Faulkner of Faulkner ADR Law and Charles (“Chuck”) Bennett of Bennett Legal for a two-hour live myLawCLE webinar, which discusses the EFAA’s application and effect: Start in Arbitration, Finish in Court: The Sexual Harassment Plaintiff’s Election to Litigate. The program begins at 2:30 p.m. Eastern and focuses on one of the most important practical consequences of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”): when, and how, a claimant who would otherwise be required to arbitrate may elect instead to litigate in court. That election to litigate may include not only sexual harassment and sexual assault disputes, but all otherwise arbitrable claims that are part of the same case.
The EFAA, codified as Chapter 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 401-402, gives persons alleging covered sexual-harassment or sexual-assault disputes a post-dispute choice that did not exist under the ordinary FAA regime. But identifying that choice is only the beginning. The statute has generated substantial litigation over when a covered dispute arises or accrues, what qualifies as a covered dispute, who decides those questions, how broadly the election extends in a mixed-claim case, and what happens when arbitration has already begun.
We have previously discussed the EFAA’s structure in a practical Arbitration Law Forum overview and examined the Sixth Circuit’s entire-case ruling in Bruce v. Adams & Reese. The October 16 program builds on those discussions and approaches the subject from both claimant-side and employer-side perspectives.
Part I: When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration
The first segment, When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration, addresses the threshold coverage questions.
We will begin with the statute itself: what constitutes a “predispute arbitration agreement” or “predispute joint-action waiver”; what counts as a “sexual harassment dispute” or “sexual assault dispute”; and how Section 402(b) assigns questions about the EFAA’s applicability to courts even when an arbitration agreement contains a delegation clause, and even if such an arbitral determination might be authorized by the doctrine of separability. We will also discuss the statute’s March 3, 2022 effective-date limitation and the developing case law concerning when a dispute “arises” or a claim “accrues.”
A central issue is the EFAA’s use of the word “case.” In Bruce v. Adams & Reese, LLP, 168 F.4th 367 (6th Cir. 2026), the Sixth Circuit held that a plausibly pleaded sexual-harassment dispute could render a predispute arbitration agreement unenforceable as to the entire case, including claims that otherwise would have been arbitrable. The Ninth Circuit subsequently reached the same basic conclusion in a different procedural context in Ding Ding v. Structure Therapeutics, Inc., No. 25-1532, slip op. (9th Cir. Aug. 19, 2026).
That entire-case rule substantially raises the stakes of the threshold pleading fight. If the claimant adequately alleges a covered dispute, the forum for all properly joined claims may turn on that one issue. If the alleged covered dispute fails at the pleading stage, however, the remaining claims may still be subject to arbitration. We will examine what the cases say about that distinction and what it means in practice.
Part II: Executing the Arbitration Exit in a Sexual Harassment Case
The second segment, Executing the Arbitration Exit in a Sexual Harassment Case, moves from coverage to the EFAA’s application. Section 402(a) speaks in terms of an “election,” but it does not prescribe a form of notice, a special deadline, a required pleading mechanism, or a detailed process for leaving an arbitration that is already underway. Those omissions make execution of the EFAA’s election a practical lawyering problem.
For claimants, we will discuss how to make the election explicit; how to plead the covered dispute with the anticipated motion to compel in mind; how to establish the relationship between the covered dispute and the rest of the case; and how to document timing and knowledge when facts supporting an EFAA claim emerge only after arbitration has begun.
Ding Ding is particularly important on that last point. The Ninth Circuit held that a claimant who initially arbitrated claims that did not allege sexual harassment was not necessarily locked into arbitration after later discovering facts supporting a covered sex-based harassment claim within the EFAA’s ambit. But the court also recognized that ordinary waiver principles remain relevant. The practical question therefore becomes what the claimant knew, when the claimant knew it, and whether the claimant intentionally chose to arbitrate a known EFAA-covered dispute.
We will examine the same problems from the employer’s side. An employer confronting an EFAA election must decide quickly whether a dispute alleged to be within the EFAA’s coverage can be challenged at the pleading stage, whether a waiver argument is available, how to preserve arbitration rights while litigating the threshold issue of the EFAA’s applicability, and whether severance or relatedness arguments have any realistic force under the emerging entire-case rule.
The program will also use Puris v. TikTok as a vehicle for discussing harder boundary questions, including third-party harassment, employer responsibility, retaliation, and sex-based hostile-environment allegations that may not involve overtly sexual conduct. Puris is pending before the Second Circuit, and we’ve got our eyes open for a decision that might be handed down any day now.
Why the EFAA’s Provisions Are of Interest to both the Employment and Arbitration Bars
The EFAA’s provisions are short and few but its procedural consequences are significant. It can override otherwise enforceable predispute arbitration agreements, displace delegation provisions and the doctrine of separability and determine the forum for an entire employment case. Recent appellate decisions have moved the law forward quickly, but they also make clear that outcomes may depend on pleading, timing, waiver, motion sequencing, and the substantive harassment law incorporated into the EFAA’s definitions.
Our goal on October 16 is to provide a practical framework for analyzing those issues, which can be procedural traps for the unwary. We hope the program will be useful to arbitration practitioners, employment lawyers, in-house counsel, and others who may have to determine whether a dispute that appears headed for arbitration can – or must – finish in court.
The program is live on October 16, 2026, at 2:30 p.m. Eastern and offers two hours of CLE credit. Additional information and registration are available on the myLawCLE program page.
Chuck, Rick, and I would like to thank Mishelle Villatoro, myLawCLE’s CLE Program Development Specialist for organizing and coordinating the program, and John Holloway, the CEO of myLawCLE, for inviting the three of us to speak.
Contacting the Author
If you have any questions about this article, arbitration, arbitration law, or arbitration-related litigation, then you may contact the author, 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 associated litigation. A former BigLaw partner, he has more than 35 years of experience representing a wide variety of domestic and international corporate, other entity, and individual clients in trial-court and appellate matters arising under the Federal Arbitration Act – including matters arising under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. He also has significant experience arbitrating and litigating insurance- and reinsurance-related and other commercial disputes, and in advising clients and co-counsel in arbitration-law-related matters.
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