Sixth Circuit Finds EFAA Arbitration Bar to Entire Case — Not Just Sexual Harassment Claims

Overview

The United States Court of Appeals for the Sixth Circuit held, in an issue of first impression for that court, that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) renders an employer’s pre-dispute arbitration agreement unenforceable as to a plaintiff's entire lawsuit, whenever the lawsuit includes a viable sexual harassment claim.

In Bruce v. Adams and Reese, LLP, No. 25-5210 (6th Cir. 2026), the law firm Adams and Reese LLP argued that the EFAA prohibits sexual harassment claims from being subject to arbitration agreements but that other, unrelated claims (here, a disability discrimination claim) filed in the same lawsuit must go to arbitration. Analyzing the text of the EFAA, the Sixth Circuit disagreed. The court confirmed that “case,” as used in the EFAA, refers to a plaintiff’s entire civil proceeding — not only to a single cause of action. As a result of this finding, employers (at least in the Sixth Circuit) cannot selectively route non-harassment claim to arbitration while the sexual harassment claim proceeds in court.

The EFAA and Recent Holdings

The EFAA is a federal law enacted in 2022, which amended the Federal Arbitration Act (FAA) to invalidate mandatory, pre-dispute arbitration agreements for sexual harassment or sexual assault claims. The purpose of the law is to permit sexual assault and sexual harassment victims to have their day in court, preventing employers from enforcing mandatory arbitration agreements. Several courts, including appellate and federal courts in California, New York, and New Jersey, have already analyzed the EFAA’s protections broadly, finding that the EFAA permits a plaintiff to maintain their entire action in court if they have at least one viable sexual harassment claim as part of the lawsuit.^[1]In one case, the U.S. District Court for the Northern District of California went so far as to hold that the plaintiff’s complaint contained sufficient allegations of sexual harassment to qualify as a sexual harassment dispute as defined under the EFAA, even though there was no sexual harassment or sexual assault cause of action in the complaint.^[2]  

The Sixth Circuit’s Holding

Following this trend, the Sixth Circuit held that the EFAA renders an arbitration agreement unenforceable with respect to a plaintiff's entire case or action, and not only with respect to discrete sexual harassment claims within it.The Court's reasoning rested on three textual pillars:

• Statutory word choice. Congress could have used the word "claim" instead of "case" in Section 402(a), but deliberately did not do so.
• Canon against surplusage. Congress could have limited the EFAA's protection to sexual harassment claims alone by simply striking the phrase "a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute" from Section 402(a). 
• Comparison to other statutes. Congress knew how to draft a narrower arbitration bar, having done so in numerous whistleblower protection statutes that limit the bar to claims "arising under" specific sections. Because Congress chose not to replicate that narrower language in the EFAA, the court declined to read it into the EFAA.

Adams and Reese advanced several policy arguments, arguing in favor of the FAA’s “long standing presumption in favor of arbitration,” and arguing that this holding will cause plaintiffs to abuse the EFAA to avoid arbitration of claims not related to sexual harassment or abuse. The court found these arguments unavailing given the law’s plain meaning. Ultimately, the court concluded that where a plaintiff brings multiple claims in a single suit against a party with whom they have an otherwise-valid arbitration agreement, and one of those claims alleges a “sexual harassment dispute,” the EFAA renders the arbitration agreement unenforceable with respect to each of the claims comprising their case.

Practical Impact on Employers

Employers who previously relied on arbitration to resolve workplace claims will now face court proceedings whenever a sexual harassment allegation is joined. Employers should take time to:

• Review all existing employee arbitration agreements in light of this ruling. Understand that these agreements will not be enforceable as to any claim in a lawsuit that plausibly includes a sexual harassment dispute.
• Strengthen workplace harassment policies and training. The surest way to limit EFAA exposure is to prevent workplace sexual harassment from occurring in the first place. Ensure anti-harassment policies are current, well-communicated, and consistently enforced. And, when harassment complaints are raised, act quickly. A robust complaint and investigation process can limit the scope and severity of any later litigation.
• Reassess litigation strategy in mixed-claim cases. When an employee asserts both a sexual harassment claim and other employment claims, assume the entire case will remain in court. Plan litigation budgets and strategies accordingly, rather than relying on arbitration as the venue for any portion of the case.
• Monitor developments in other circuits. Lower courts interpreting the EFAA have generally held that a viable sexual harassment claim shields a plaintiff's entire case from arbitration. The Sixth Circuit has now formally joined this consensus as a published, binding precedent. Watch for further developments — including potential petitions for certiorari to the U.S. Supreme Court — that could further clarify or alter the landscape.