The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) is one of the more important pieces of employment law in recent years. Removing cases from civil court to arbitration settings has been a major tool of employers. Now. Many of these employees can avoid arbitration and continue forward in civil court. Employees should be aware that the EFAA may apply to their cases, even if they did not experience sexual harassment themselves. An experienced New York sexual harassment lawyer can help you determine whether the EFAA can help you and decide what strategies are best for your case.
A case from a Hudson Valley museum sends a powerful message regarding how broad the EFAA can be.
The employee, G.O., began working in 2021 at an Italian art museum in Cold Spring. Not long after he started his job, he signed an agreement that called for the attendant and the museum to arbitrate “any dispute, controversy or claim between the parties arising out of, relating to or concerning [G.O.’s] employment with the Institute, termination of such employment or this Letter Agreement, other than claims that cannot be legally arbitrated.”
During 2021 and 2022, the man received numerous promotions, ultimately becoming Operations and Facilities Manager in September 2022.
In December 2023, the museum hired a new curator whom the employer promoted to director of the museum in January 2024. Not long after the director started at the museum, female employees allegedly began complaining to the manager about him. The manager reported the women’s complaints to management and, soon thereafter, the employer began retaliating against him, according to his lawsuit.
Specifically, the manager emailed the museum’s human resources director on February 28, 2024, to relay the women’s concerns and a male employee’s observation that the director plainly “treated women worse than men.” Just a few weeks after sending that email, the manager began receiving criticisms about his work. Less than four months after he sent the email, the museum fired G.O., purportedly for poor performance.
The manager sued for retaliation, and the museum filed a motion seeking to compel arbitration. Although the manager did not allege that anyone sexually harassed him, he nevertheless argued that the EFAA applied to his case and permitted him to avoid arbitration and proceed in civil court.
The EFAA Extends to the ‘Entirety of the Case’
The trial court agreed with the manager and denied the employer’s motion to compel arbitration. As the judge explained, the EFAA’s “invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual harassment dispute, not merely the discrete claims in that case.” In other words, a worker need not experience sexual harassment themselves for the EFAA to apply and to invalidate an arbitration agreement. If the case, overall, relates to sexual harassment, that is enough for the statute to apply.
The trial court also made another intermediate decision that was crucial to the manager’s successful avoidance of arbitration. The court’s opinion expressly declared “that ‘sexual harassment’ under the EFAA covers gender-based harassment under New York law.” In other words, the harassment underlying a complaint need not be sexual, romantic, or lewd to qualify and invoke the EFAA.
In explaining that conclusion, the court noted that the New York State Human Rights Law “is broadly defined to include any kind of gender-based harassment.”
G.O.’s allegations met those standards. The manager’s complaint alleged that the director treated a female Scholar-in-Residence “in a manner that exceeded mere incivility” and treated many women at the museum “in a similar manner, despite utilizing a different approach with men.” The director allegedly berated women, questioned their credentials, and made them sufficiently uncomfortable that several complained to human resources. The problem allegedly was sufficiently serious that other male employees noticed that the director treated women worse than men.
That, according to the court, added up to “a nonfrivolous allegation related to gender-based harassment,” which was enough to trigger the EFAA and allow the manager to proceed without going through arbitration.
The EFAA can be an important tool in certain discrimination, harassment, and retaliation lawsuits. Using this and other tools to their fullest requires a legal partner possessing extensive experience and in-depth knowledge of the law. Count on the skilled New York sexual harassment attorneys at Phillips & Associates, PLLC, to be that partner as you pursue your case. To find out more, contact us online or call (866) 229-9441 to set up a free and confidential consultation today.