The Federal Arbitration Act (the FAA) was enacted to reverse the course of judicial hostility toward arbitration agreements, and it reflects a strong federal policy favoring arbitration. For some claims, however, Congress has explicitly overridden the FAA’s general mandate to enforce arbitration agreements. A recent example of this—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the EFAA)—was enacted in March 2022. The EFAA amends the FAA so that, at the election of a person alleging “conduct constituting a sexual harassment dispute,” an otherwise valid arbitration agreement become unenforceable “with respect to a case which is filed under federal, tribal or state law and relates to … the sexual harassment dispute.” 9 U.S.C. Section 402(a).

Since the EFAA’s enactment, plaintiffs have sought to use the statute to avoid arbitration of their claims, leading to litigation over the types of claims and cases to which the EFAA applies. In two recent such cases, Yost v. Everyrealm, 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023) and Johnson v. Everyrealm, 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023), Judge Paul A. Engelmayer addressed two issues of first impression regarding the applicability of the EFAA: (i) whether a plaintiff can use the EFAA to defeat an otherwise valid arbitration agreement by pleading a sexual harassment claim that ultimately fails to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and (ii) if a plaintiff pleads a cognizable claim for sexual harassment together with other claims that do not involve allegations of sexual harassment, does the EFAA prohibit arbitration of the entire case or only the sexual harassment claim?