Escaping Arbitration and Class Action Waivers for Harassment Because of Pregnancy, Sexual Orientation or Gender Identity

Authors

Sandra F. SperinoFollow

Document Type

Article

Publication Date

2023

Abstract

In 2022, Congress amended the Federal Arbitration Act (FAA) through the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This amendment is being abbreviated to a rather clumsy acronym: EFASASHA. EFASASHA allows a person alleging sexual harassment or sexual assault to invalidate certain arbitration agreements and joint-action waivers. Congress passed the Act in response to testimony in which workers alleged that serial sexual harassment and assault continued because workers' claims were forced into private arbitration and could not be publicly adjudicated.

This Essay argues that the language that Congress used in EFASASHA is much broader than its title and underlying rationale suggest. EFASASHA not only applies to harassment that is sexual in nature, it also applies to sex-based harassment, as well as harassment because of pregnancy, sexual orientation, and gender identity. EFASASHA does not independently define the term "sexual harassment," but instead defines it by reference to federal and state law. Federal discrimination jurisprudence uses the term "sexual harassment" to encompass these concepts and thus EFASASHA does as well.

This Essay comes at an important time because no court has yet ruled on how to define sexual harassment under EFASASHA. It is vitally important that courts understand how the term sexual harassment in EFASASHA intersects with Title VII jurisprudence defining that term. Courts should interpret EFASASHA consistent with Title VII and its interpretive case law.

This Essay begins with a brief history of the Federal Arbitration Act and EFASASHA. It then demonstrates how the term "sexual harassment" in Title VII jurisprudence embraces sexualized harassment, sex-based harassment, pregnancy harassment, and harassment because of sexual orientation and gender identity. It argues that interpreting EFASASHA to include these types of harassment is not only consistent with the statute's text, but is also the best way to proceed practically and normatively.

Recommended Citation

Sandra F. Sperino, Escaping Arbitration and Class Action Waivers for Harassment Because of Pregnancy, Sexual Orientation or Gender Identity, 94 Ohio State Law Journal Online 18 (2023).
Available at: https://scholarship.law.missouri.edu/facpubs/1213