Sixth Circuit: Anti-Arbitration Law Could Apply to Conduct Occurring Before Law’s Effective Date

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act can apply to sexual harassment disputes arising from conduct that occurred before the EFAA was enacted, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held April 18 in Memmer v. United Wholesale Mortgage.

The EFAA is an amendment to the Federal Arbitration Act that prohibits employers from requiring employees to arbitrate sexual harassment claims.

In this case, sexual harassment allegedly occurred before the EFAA was enacted, but the Equal Employment Opportunity Commission charge and subsequent lawsuit were filed after the EFAA’s enactment. The Sixth Circuit found that the claim may still be viable because the law applies “to any dispute or claim that arises or accrues on or after the date of enactment of this Act,” which was March 3, 2022. The Sixth Circuit sent the case back to the trial court so it could determine whether the dispute arose after the EFAA’s enactment.

The court’s logic follows the interpretation of the EFAA adopted by the Second, Third, and Eighth Circuits.

Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.