Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFASASHA) represents a significant federal statutory carve-out from the Federal Arbitration Act, removing mandatory pre-dispute arbitration as a permissible mechanism for resolving claims of sexual assault and sexual harassment under federal law. Signed into law in March 2022 (Pub. L. 117-90), the Act amends Chapter 4 of Title 9 of the United States Code. This page covers the Act's definitions, operational mechanics, affected scenarios, and the boundaries of its application relative to other arbitration frameworks.

Definition and scope

EFASASHA, codified at 9 U.S.C. §§ 401–402, invalidates pre-dispute arbitration agreements and pre-dispute joint-action waivers to the extent those agreements purport to require arbitration of "sexual harassment disputes" or "sexual assault disputes." The statute defines these two categories with precision:

The Act applies to any arbitration agreement entered into before a dispute arose — so-called pre-dispute agreements. Post-dispute agreements, where both parties voluntarily agree to arbitrate after a specific claim has arisen, remain valid and enforceable. This distinction is central to understanding the Act's functional limits.

The scope is national: the Act applies to all employment contracts, consumer contracts, and any other agreement subject to the Federal Arbitration Act. The Federal Arbitration Act previously governed nearly all commercial and employment arbitration agreements in interstate commerce, making EFASASHA's override significant.

How it works

The Act operates by rendering pre-dispute arbitration clauses unenforceable for covered claims, regardless of what the contract says. Enforcement unfolds through a structured set of rules:

  1. Claimant election: The person alleging sexual assault or sexual harassment may elect to bring the claim in a court of law (state or federal) rather than in arbitration, even if a pre-dispute arbitration clause exists in the applicable agreement.
  2. Court determines applicability: Under 9 U.S.C. § 402(b), questions about whether EFASASHA applies to a specific dispute — including threshold questions of validity and applicability — are decided by a court, not an arbitrator. This is a direct reversal of the ordinary "arbitrability" doctrine discussed under arbitrability disputes, where arbitrators often decide their own jurisdiction.
  3. Severability of clauses: If an arbitration agreement contains a delegation clause — a provision sending all gateway questions to the arbitrator — that clause is also invalid with respect to covered sexual assault or harassment claims. Courts cannot refer those threshold questions to an arbitrator.
  4. Joint-action waivers: The Act also voids pre-dispute waivers of the right to participate in joint, class, or collective proceedings in court or arbitration when the dispute involves covered claims. This interacts with the separate body of law on class action arbitration waivers.
  5. Choice of law for definitions: Courts apply the definition of sexual harassment under the applicable federal, tribal, or state law. If state law provides a broader definition, that definition controls for purposes of assessing whether the dispute qualifies under the Act.

Critically, the Act does not retroactively invalidate arbitrations that were already concluded before March 3, 2022. For pending or future claims, the Act applies to any dispute or claim that arose or accrues on or after the enactment date, regardless of when the underlying arbitration agreement was signed (U.S. Senate Judiciary Committee Report, S. 2342).

Common scenarios

The Act's operative provisions appear most frequently in three distinct factual settings:

Employment settings: A worker with a mandatory arbitration clause in an employment arbitration agreement who alleges workplace sexual harassment by a supervisor or coworker may file a civil action in court despite that clause. The arbitration clause is unenforceable for that claim. Other claims in the same dispute — wage disputes, retaliation claims unrelated to protected activity — may still be subject to arbitration under the same agreement if they fall outside the Act's definitions.

Consumer and service contracts: A consumer who alleges sexual assault by an employee or agent of a company bound by a consumer arbitration agreement (such as a rideshare or hospitality contract) may proceed in court on that claim. The consumer arbitration clause is void as applied to that allegation.

Independent contractor and gig economy arrangements: The Act's language is not limited to "employees." It covers any arbitration agreement, which includes contracts with independent contractors. This matters significantly in sectors such as transportation and home services where pre-dispute arbitration in employment contexts and independent contractor agreements are common.

Mixed-claim disputes: When a plaintiff brings both covered claims (sexual assault or harassment) and non-covered claims (breach of contract, wage theft), EFASASHA applies only to the covered claims. Courts may bifurcate proceedings, allowing litigation to proceed on covered claims while arbitration continues on non-covered claims — or the parties may litigate all claims together depending on judicial economy considerations.

Decision boundaries

Understanding where the Act applies — and where it does not — requires precise boundary-drawing against adjacent legal frameworks.

EFASASHA vs. FAA general framework: The Federal Arbitration Act creates a strong presumption in favor of arbitration. EFASASHA carves a statutory exception into that framework. Outside the defined categories (sexual assault and sexual harassment), the FAA's pro-arbitration default remains fully operative.

EFASASHA vs. Title VII procedures: Title VII of the Civil Rights Act of 1964 already provided administrative remedies through the Equal Employment Opportunity Commission (EEOC) (eeoc.gov). EFASASHA does not displace EEOC charge-filing requirements. A claimant may still be required to exhaust administrative remedies before filing suit depending on the nature of the federal claim. EFASASHA removes the arbitration compulsion but does not alter the sequence of court-access prerequisites under Title VII.

EFASASHA vs. state arbitration laws: Fourteen states had enacted state-level restrictions on mandatory arbitration of sexual harassment claims before EFASASHA passed (National Conference of State Legislatures). EFASASHA establishes a federal floor; state laws that provide broader protections for claimants remain valid under the Act's savings language. For an overview of the interplay between federal and state frameworks, see state arbitration laws.

Pre-dispute vs. post-dispute agreements: The Act's most operationally significant boundary is temporal. A claimant who voluntarily enters an arbitration agreement with a specific, known counterparty after a specific dispute has arisen retains the ability to arbitrate. The Act targets only agreements signed before any dispute existed — the coercive element embedded in routine employment and consumer contracts. This contrast mirrors the broader principles examined in mandatory arbitration clauses.

Who decides applicability: Under pre-EFASASHA law, if an arbitration agreement delegated gateway questions to the arbitrator, courts generally enforced those delegation clauses under Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019) (Supreme Court). EFASASHA overrides this for covered claims: courts, not arbitrators, decide whether the Act applies. This is one of the more structurally significant procedural shifts the statute introduces.

References

📜 8 regulatory citations referenced  ·  ✅ Citations verified Feb 25, 2026  ·  View update log

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