Legitimate or Frivolous? Pleading Standards Addressed in Ending Forced …

In 2021, the United States Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), a legislation that amended the Federal Arbitration Act (FAA) to invalidate predispute arbitration clauses in cases related to sexual misconduct allegations. Predispute arbitration clauses are contractual provisions agreed upon prior to any dispute or claim, compelling parties to resolve their issues through arbitration rather than seeking relief in court. The EFAA, passed in 2022, states that no predispute arbitration agreement shall be valid or enforceable concerning cases filed under Federal, Tribal, or State law that pertain to sexual assault or sexual harassment disputes.

The primary aim of the EFAA is to eliminate the hurdle of forced arbitration that often masks workplace sexual misconduct from public scrutiny due to the confidentiality requirements in arbitration proceedings. By granting survivors the option to pursue their claims in court, the EFAA seeks to enhance accountability for wrongdoers and encourage greater transparency in addressing sexual harassment and assault cases. Notably, the EFAA entrusts courts, rather than arbitrators, with the task of assessing the adequacy of a plaintiff’s allegations, leading to disagreements among federal district courts regarding the appropriate pleading standard to be applied under the Act.

While many courts have insisted that sexual misconduct claims in a plaintiff’s complaint must meet the plausibility standard outlined in the Supreme Court’s decisions in Ashcroft v. Iqbal (U.S. 2009) and Bell Atlantic Corp. v. Twombly (U.S. 2007), which require plaintiffs to assert sufficient facts to present a plausible claim for relief, a growing number of courts advocate for a less stringent standard demanding only that plaintiffs assert nonfrivolous claims related to sexual assault or harassment. This divergence in pleading standards across districts and circuits has significant ramifications for both litigants and employers and remains unresolved by higher courts.

The Essay begins by summarizing the EFAA and the divergence in courts over the appropriate pleading standard. It asserts that courts should adopt the “nonfrivolous” pleading standard as it better ensures access to justice for victims of sexual misconduct, aligning with Congress’s legislative intent behind the EFAA and resisting procedural shifts that marginalize civil plaintiffs in the legal realm.

The EFAA was first introduced in Congress in response to the #MeToo movement, which shed light on concerns that forced arbitration of sexual misconduct claims allows perpetrators and employers to evade public scrutiny by keeping proceedings confidential, findings sealed, and victims silenced. Advocates argued that without public accountability, real change cannot occur, emphasizing the significance of combatting the underreporting of gender-based workplace violence and harassment caused by the opaque nature of forced arbitration practices.

Despite initial setbacks faced by the EFAA in the face of pro-arbitration opposition, the legislation regained momentum and garnered bipartisan support, passing both the House and the Senate with resounding margins. President Joe Biden signed the EFAA into law on March 3, 2022, hailing it as a groundbreaking reform that would put an end to the shielding of wrongdoers, silencing of survivors, and concealment of episodes of sexual assault and harassment by employers due to a lack of accountability to drive systemic change. Researchers acknowledge that corporations and perpetrators will face heightened public scrutiny and pressure for change as a result of the EFAA’s enactment.