In an amicus brief filed before the Third Circuit, the EEOC has taken the position that claims of harassment based on gender identity and sexual orientation fall within the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”).

EFASASHA was enacted in 2022 following the wake of the “Me Too” movement. The law amended the Federal Arbitration Act to allow victims of sexual assault or harassment to pursue their claims in a court even when the employee previously signed an enforceable arbitration agreement. This allows the victim to pursue a more public forum through the courts to publish their allegations.

EFASASHA applies to “sexual harassment disputes,” defined as a “dispute relating to conduct that is alleged to constitute sexual harassment under the applicable Federal, Tribal, or State law.” 9 USC. Sec 401(4). In Doe v. Saber Healthcare Group, the Third Circuit is addressing whether that definition includes conduct based on gender identity and sexual orientation. The EEOC has taken the position that it does. In Saber Healthcare, , the employee claims her employer treated her differently, including her shifts being cancelled without explanation, after learning she was in a same-sex relationship..

The EEOC’s position squares with textual analysis of EFASASHA and Title VII. Title VII protects employees from harassment “because of sex” even where that harassment is not prototypical “sexual harassment” like groping, sexually explicit comments, or forced sexual acts. For example, harassment because a man does not conform to gender stereotypes is deemed sexual harassment under Title VII even where that harassment is not sexually explicit or motivated by sexual desire. The Supreme Court expanded this framework in Bostock v. Clayton County, in 2020, in holding that Title VII prohibited discrimination based on sexual orientation because actions taken because of someone’s sexual orientation were “because of sex.” Claims of harassment based on pregnancy are also considered harassment because of sex under federal law and thus may fall within the scope of EFASASHA.

Other courts have also interpreted EFASASHA to exempt the entire case from arbitration in any case where a plaintiff brings a claim regarding sexual harassment. Under this framework, claims based on other protected classes, or tangential claims like intentional infliction of emotional distress may be exempted from mandatory arbitration if the plaintiff is bringing a claim of sexual harassment as well.

Employers should be aware that EFASASHA’s limitation on enforcement of arbitration agreements for claims of sexual harassment goes beyond quid pro quo harassment or explicit statements. Harassment claims relating to someone’s gender, gender identity, failure to conform to sex-based stereotypes, and sexual orientation will likely be allowed to continue in federal court despite an otherwise enforceable arbitration agreement.