The Scope of the Ending Forced Arbitration Act When it Comes to Related Claims

Before getting started on the blog entry for the week, last week, the Federal Bar Association blog posted my piece on the interactive process. It’s an unusual piece of writing in that it talks about the step-by-step approach to the interactive process AND the psychological overtones of the process. Again, as I mentioned in that piece, my thanks to Robin Shea of Constangy Brooks for her blog entry on the step-by-step approach to the interactive process and for allowing me to borrow her steps and refine it from my perspective. You can find the Federal Bar Association blog piece here.

Turning to the blog entry of the week, it is a published decision from the Sixth Circuit decided on February 25, 2026. It asks the question of whether an attached claim to a sexual harassment claim allows the attached claim to circumvent an arbitration agreement. The Sixth Circuit holds that it does. The case is Bruce v. Adams and Reese, LLP, here. The Sixth Circuit majority opinion goes into elaborate detail about why the sexual harassment claim was properly pleaded, but for our purposes that discussion isn’t really relevant once it is known that the claim was properly pleaded in the first place. As usual, the blog entry is divided into categories and they are: the situation (I decided that “facts,” is just too boring); why a properly pleaded sexual harassment claim allows attached claims to circumvent arbitration after the enactment of the Ending Force Arbitration Act (EFAA); dissenting opinion of Judge Thapar; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

The Situation

Plaintiff has a history of childhood abuse as well as diagnosis of: PTSD, ADHD, social phobia, persistent depressive disorder, sleep apnea, insomnia, periodic limb movement disorder, and restless leg syndrome. While working for the law firm that she started with, which became part of another law firm, she experienced sexual harassment. She filed a sexual harassment claim, and she also filed ADA claims for failure to accommodate and/or engage in an interactive process. The issue faced by the Sixth Circuit was whether the EFAA allows attached claims, in this case ADA claims, to also escape arbitration.

II

Why A Properly Pleaded Sexual Harassment Claim Allows Attached Claims to Also Circumvent Arbitration After the Enactment of the Ending Force Arbitration Act

1. Section 402(a) reads, in full, as follows: IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute jointaction waiver shall be valid or enforceable with respect to a case (emphasis mine), which is filed under Federal, Tribal, or State law and relates (emphasis mine), to the sexual assault dispute or the sexual harassment dispute.
2. The keyword is “case,” because it is “respect to a case,” that an otherwise valid arbitration agreement is invalid and unenforceable. Therefore, that term points clearly in the direction of “case,” encompassing a plaintiff’s entire suit.
3. Black’s Law Dictionary defines “case,” as, “a civil or criminal proceeding, action, suit, or controversy at law or in equity.”
4. The Federal Arbitration Act uses the word “case,” to reference an entire matter, including all the claims associated with it. In fact, the term makes sense only if read to refer to a proceeding.
5. Numerous other provisions of federal law also support the premise that “case,” refers to a proceeding. For example, a party does not call a witness in a claim, or count, or cause of action.
6. “Claims,” are the component parts of a “suit,” “case,” or “action,” each of which encompasses the entirety of a civil proceeding.
7. The EFAA’s text renders an arbitration agreement unenforceable with respect to a plaintiff’s entire case, or action, and not only with respect to certain claims.
8. The cases the EFAA shields are those relating to sexual assault disputes or sexual harassment disputes.
9. “Relate,” means to have some connection to or stand in relation to per Black’s Law Dictionary.
10. In other contexts, the Supreme Court has held that one thing “relates to,” if it has a connection with or reference to that other thing (a deliberately expansive term).
11. The Sixth Circuit has also recognized that “relates to,” is an expansive term.
12. When a plaintiff files a case that includes a sexual harassment claim, that case certainly has “a connection with,” and “reference to,” the claim.
13. Congress could easily have drafted the EFAA to protect only sexual harassment claims and sexual assault claims from force arbitration, but it didn’t follow any of those paths. For example, Congress could have used the word “claim,” instead of the word, “case,” but they did not do so.
14. To hold that “claim,” and “case,” are synonymous ignores Congress’s deliberate choice of words.
15. The idea that every word and every provision of the statute must be given effect, disfavors a narrow reading of such a statute. Congress could have provided plaintiffs with protection limited to sexual assault claims and sexual harassment claims simply by striking the words “a case which is filed under federal, tribal, or State law and relates to the,” from §402(a) and they didn’t do so. To hold otherwise, would cause these words to have no consequence and such a reading therefore should not be preferred.
16. Congress also could have used the term “individual disputes,” as another way of making clear that attached claims to sexual harassment or sexual assault cases would also have to be arbitrated. Congress didn’t do that either.
17. The EFAA’s text and statutory structure all points in the same direction. A court has to presume that Congress says in a statute what it means and means in the statute what it says there. Accordingly, since EFAA’s bar to arbitration focuses on cases and not on claims or causes of actions, and Congress did not take obvious alternative paths when drafting the legislation, attached claims to sexual harassment or sexual assault matters do not have to be arbitrated.
18. Federal policy favoring arbitration has nothing to do with whether a statute mandates arbitration of certain claims where the statute unambiguously precludes arbitration of an entire case.
19. Since the EFAA’s plain language controls, each claim that is a part of plaintiff’s case may remain in court, whether that is taken claim by claim or as a whole.
20. When Congress enacts similar language to a statute that has been consistently construed in one way, it is presumed that Congress intended to incorporate that interpretation.
21. Policy arguments to the contrary simply cannot prevail over the plain language of a statute.
22. The sole function of courts where the disposition required by a statute is not absurd, is to enforce the statute according to its terms.
23. The stated purpose of the EFAA according to the House Report, “is to restore access to justice for millions of victims of sexual assault or harassment who are currently locked out of the court system and are forced to settle their disputes against companies in the private system of arbitration.” Allowing these “millions of victims,” to bring other claims alongside their sexual assault or harassment claims is far from “demonstrably at odds with this intention.”
24. It is entirely possible that Congress would view the holding that attached claims to sexual assault or sexual harassment claims survive as advancing the intent of the legislation because the alternative would discourage plaintiffs from accessing the court system as a result of the increased costs and time commitment in bringing parallel actions in different forums.
25. The defense has not demonstrated the effects of the holding in this case will contravene congressional policy, much less sufficiently so that the court could disregard the law’s plain text.

III

Dissenting opinion of Judge Thapar

1. Judge Thapar’s dissent focuses on his belief that plaintiff simply did not state a sexual harassment claim based upon prior precedent.
2. Since his belief is the sexual harassment claim should have been dismissed, the ADA claims should be arbitrated. He noted that the majority, the district court, and the parties all agreed on such an outcome if the sexual harassment claims were dismissed.

IV

Thoughts/Takeaways

1. I am seeing several cases coming down of late reaching the same conclusion as the Sixth Circuit. So, if a plaintiff properly pleads a sexual harassment or sexual assault claim, attached causes of action are also not subject to arbitration. Of course, a plaintiff should plead each and every claim with Iqbal/Twombly in mind. It will be interesting to see whether a circuit court split develops on whether attached claims to sexual harassment and sexual assault claims escape forced arbitration.
2. I am also seeing cases coming down where the very strict view of what constitutes a hostile working environment is being modified in the courts (See this blog entry for example). The courts are often using the same language they have always used, but they are, in many cases, being more flexible in allowing such claims to proceed or even survive summary judgment.
3. This case also illustrates, as my colleague Robin Shea has noted in her blog entries, how hard it is to throw out a case at the motion to dismiss stage. Defendants are going to have much more success throwing out cases at the summary judgment stage than they are at the motion to dismiss stage.
4. I have also seen commentators, such as Jon Hyman, who represents management and labor and employment matters, express reservation as to whether arbitration is all that it is cracked up to be. So, unclear how much this holding actually adversely affects defendants.