As we previously reported here and here, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) amended the Federal Arbitration Act (“FAA”) by invalidating clauses in employment agreements mandating arbitration of sexual harassment and sexual assault cases. The EFAA permits a claimant in a sexual assault or sexual harassment case to forgo arbitration and pursue the case in court. (See 9 U.S.C. §§ 401-02.) That is, although claimants can choose to arbitrate such claims, they cannot be compelled to do so.
Since the EFAA’s enactment, courts have struggled with whether claimants asserting sexual assault or harassment claims along with other employment-related claims can be compelled to arbitrate the non-sex-related claims. In an appellate case of first impression, the Sixth Circuit Court of Appeals recently ruled that a claimant cannot be compelled to arbitrate the non-sex-related claims in a case that relates to sexual assault or harassment.
In Bruce v. Adams and Reese, No. 25-5210 (6th Cir. Feb. 25, 2026), a legal assistant with pre-existing mental health disabilities alleged that an attorney at the law firm where she worked made repeated sexually charged overtures toward her. The claimant, Ms. Bruce, was subject to an arbitration agreement requiring her to arbitrate all employment claims she may have against the law firm. After signing the arbitration agreement, the lawyer-supervisor continued to make inappropriate comments about Ms. Bruce’s appearance, clothing, private life and sexual acts with others. Separately, Ms. Bruce struggled with tardiness due to the side effects of medications she took for her mental health condition. Although the law firm implemented schedule changes to accommodate Ms. Bruce, her attendance issues continued and she was ultimately discharged.
Ms. Bruce subsequently filed suit against the law firm and asserted claims for a sexually hostile work environment and failure to accommodate her disability. The law firm moved to dismiss Ms. Bruce’s sexual harassment claim for failure to state a claim and moved to compel arbitration of her disability discrimination claim. The trial court denied the firm’s motion, finding that Ms. Bruce had adequately pled a claim for sexual harassment and that the EFAA therefore precluded arbitration of her entire case, including her disability claim. The U.S. Court of Appeals for the Sixth Circuit affirmed.
The Sixth Circuit acknowledged that, if Ms. Bruce’s sexual harassment claim were dismissed, her remaining disability claim would be arbitrable, but the Court concluded that Ms. Bruce alleged facts sufficient to state a claim of sexual harassment. The Court then considered whether, in enacting the EFAA, Congress intended for all claims in a case involving sexual assault or sexual harassment claims to be non-arbitrable. Most trial courts that have addressed this question since the EFAA’s enactment have found that, “where a claim in a case alleges conduct constituting a ‘sexual harassment dispute’ as defined, the EFAA…makes pre-dispute arbitration agreements unenforceable with respect to the entire case relating to that dispute.” The Bruce court joined the majority of courts to so rule, concluding that Congress’s use of the word “case” in 9 U.S.C. § 402(a) was intentional, and that the EFAA precludes arbitration of all claims in a case involving sexual harassment or sexual assault and not simply the sex-related claims. The court observed that Congress could have instead used the word “claim” instead of “case,” and thus precluded arbitration only of individual disputes involving sexual assault or sexual harassment. But because the EFAA’s plain language controls, where an employee has an otherwise valid pre-dispute arbitration agreement and they bring multiple claims against their employer, at least one of which involves a sexual harassment or sexual assault dispute, the EFAA renders the arbitration agreement unenforceable with respect to each claim or cause of action in the case.
Employers in the Sixth Circuit should thus be prepared to litigate all claims with employees, notwithstanding their having signed a pre-dispute arbitration agreement, if the employee brings a sexual harassment claim against them, while employers outside the Sixth Circuit should consider the possibility that other appellate courts will reach a similar conclusion. Employers are urged to review their alternative dispute resolution policies and agreements to ensure they reflect the law post-EFAA and appropriately make arbitration of sexual assault and harassment claims arbitrable only at the discretion of employees.
