It has been a little more than a year since President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) on March 3, 2022, which amended the Federal Arbitration Act (FAA) to prohibit the enforcement of otherwise enforceable arbitration agreements for claims arising from sexual harassment. See 9 U.S.C. Section 402(a). In that span of time, several cases have challenged the enforceability of cram down arbitration agreements in the employment world. The results have been a bit of a mixed bag.

In some instances, courts have been quick to uphold the EFAA and reject arbitration of sexual harassment claims, even when the harassment claims are presented with other unrelated discrimination claims. See, e.g., Johnson v. Everyrealm, No. 22 CIV. 6669 (PAE), 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023) (finding that when a plaintiff alleges sexual harassment alongside other discrimination claims, the entire case is exempt from arbitration so long as the act is properly invoked); Delo v. Paul Taylor Dance Foundation, 2023 WL 4883337 (S.D.N.Y. Aug. 1, 2023) (same).

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