Mediator’s Minute: The 6th Cir. Confirms EFAA Exempts Entire Complaint From Arbitration

Photo Credit: Shireen Wetmore

TLDNR: In Bruce v. Adams & Reese LLP, the Sixth Circuit affirms that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) bars enforcement of otherwise valid arbitration agreements as to any claims included in a complaint properly alleging a claim of sexual harassment or assault.

What Is The EFAA And What Does It Do?

The Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”), now over 100 years old, permits parties to contractually agree to avoid the courts and have their disputes resolved through arbitration.  Despite its 100-year history, there are very limited exceptions to parties’ ability to draft enforceable arbitration agreements.  There is longstanding precedent holding that the FAA reflects a broad mandate to courts to enforce these agreements and a strong presumption in favor of arbitration.  In 2021, however, pressure mounted to add a new exception to the FAA’s short list.  The drafters of the EFAA sought to amend the FAA to reflect a public policy favoring access to court for victims of sexual harassment and sexual assault, highlighting the ubiquity of arbitration clauses in employment and consumer agreements, concerns that such clauses may contain provisions favoring the drafters, and the non-public nature of private arbitration.  See H.R. Rep. No. 117-234, at 3-4 (2022).  As enacted, the EFAA adds a new “Chapter 4” to the FAA that expressly permits plaintiffs to avoid otherwise valid and enforceable pre-dispute arbitration agreements and have their sexual assault or harassment claims heard in court.  The EFAA also states that disputes regarding the applicability of Chapter 4 will be determined under federal law and by a court and not an arbitrator.  See EFAA § 402(b).

The EFAA is, therefore, a seemingly straightforward mandate to exempt claims of sexual assault or sexual harassment from arbitration.  Following its enactment, however, courts have been faced with addressing the FAA and EFAA’s two potentially conflicting mandates in matters involving multiple claims, only some of the which are covered by the EFAA.

EFAA v. FAA And The Presumption Favoring Arbitration

In Bruce v. Adams & Reese LLP, No. 25-5210, (Feb. 25, 2026), the Court of Appeals for the Sixth Circuit addressed the question of whether the EFAA bars arbitration of an entire matter, inclusive of non-sexual-harassment claims, where a plaintiff meets the Rule 8 pleading standards on at least one claim of sexual harassment.  The Sixth Circuit’s answer was a definitive yes.  See p. 2 of the opinion (“Op.”), available here (“Does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) bar arbitration of each of Bruce’s claims against Adams and Reese, LLP (“A&R”), her former employer, or does it apply only to her sexual-harassment claim?”). 

Decades of precedent, along with heaps of legislative comment, underscore both congressional and judicial support for arbitration.  See, generally, George A. Bermann, The Supreme Court's Policy Favoring Arbitration and Its Limits, 36 Am. Rev. Int'l Arb. 109 (2026), available at: https://scholarship.law.columbia.edu/faculty_scholarship/4768 (discussing the history of the FAA and Supreme Court precedent regarding, and favoring, enforcement of arbitration agreements).  Indeed, the oft-quoted refrain is that the FAA reflects the “federal policy favoring arbitration,” which, as the Supreme Court explained in Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24-25 (1983), means that “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . . ..”  In short, where there is a valid agreement to arbitrate, courts will prioritize enforcement of the parties’ agreement and compel arbitration of all applicable claims.

However, the recent passage of the EFAA in 2022 represents a societal shift to prioritize the ability of plaintiffs to (1) bring claims of sexual assault and sexual harassment and (2) to allow those parties to have their day in court regardless of any previously executed agreement to arbitrate. 

These two competing priorities create a tension.  Where a plaintiff with a valid arbitration agreement brings both sexual harassment claims subject to the EFAA and non-harassment claims, say, wage-and-hour claims, subject to the FAA but not exempted from arbitration under the EFAA, which priority takes precedent?  Should the wage and hour claims be subject to arbitration while the sexual harassment claims proceed in court?  If so, which would go first? Or would they proceed together?

Ordinarily, applicability of the FAA and the ability to compel arbitration is a determination made on a claim-by-claim basis.  See KPMG LLP v. Cocchi, 565 U.S. 18, 22 (2011) (per curiam) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985)).  Indeed, courts must compel arbitration of arbitrable claims even where the result may be inefficient and result in multiple proceedings in different forums, such is the strength of the policy favoring enforcement of agreements to arbitrate.  Id; see also Berman, supra, at pp. 110-11  (reviewing cases).  

Nonetheless, the enactment of the EFAA and its broad language supporting the ability of victims of sexual harassment or assault to litigate their claims in court has reordered these priorities.  Rather than split the claims, the EFAA directs that the arbitration agreement is not “valid or enforceable” with respect to a “case” that alleges such a dispute.  See EFAA § 402(a).

The 6th Circuit Weighs In

In Bruce v. Adams & Reese LLP, the plaintiff brought both a sexual harassment claim and an ADA claim.  Op. p. 4.  The parties did not dispute that the ADA claim was subject to the parties’ valid agreement to arbitrate.  See id. p. 6.  The parties did dispute whether the EFAA permitted the plaintiff to bring all—or only some—of her claims in court.  The court provided a detailed analysis of the EFAA and ultimately held that the plain language of the statute left no room for debate regarding the breadth of this exemption from the Federal Arbitration Act.  See id. pp. 17-19.  The court emphasized that the statute exempts a “case” and not a “claim” from arbitration; and is triggered when that “case” “relates,” in the broadest sense, to a claim of sexual assault or harassment.  Id.  The court then addressed the defendant’s policy argument that plaintiffs might abuse the breadth of the statute to avoid arbitration of non-sexual-harassment claims.  Op. p. 20.  Here, too, the court returned to the plain language of the statute directing that the EFAA exempts the entire case from arbitration once triggered, leaving no room for policy debates.  Id.   

One might be tempted to conclude that this ruling will result in a stream of new cases adding or incorporating sexual harassment claims in complaints with otherwise unrelated claims.  The court in Bruce v. Adams & Reese LLP addressed this concern as well, stating “We note that our interpretation of the EFAA has prevailed for years in district courts across the country without any apparent calamitous effect.” Id. at p. 21 n.6.  

Shireen Wetmore is a mediator specializing in complex employment matters and can be reached for questions, comment, or booking at www.shireenwetmoremediation.com.  

This article is for informational purposes only and does not constitute legal advice.