Harassment Based on an Employee’s Sexual Orientation Is Not Subject to Arbitration

Both California law and the Federal Arbitration Act (FAA) strongly favor enforcing valid arbitration agreements. But in March 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which allows an individual alleging sexual assault or sexual harassment to proceed in court, even if a valid arbitration agreement exists between the parties. So, if an employee alleges conduct that constitutes sexual harassment under applicable state, federal or tribal law, the EFAA allows an employee to bypass arbitration and instead bring their claims to court.

In a recent case, the Second District California Court of Appeal decided whetherFair,