In Cornelius v. CVS Pharmacy, Inc., Civil Action No. 23-01858 (SDW) (AME), 2023 WL 6876925 (D.N.J. October 18, 2023), the court, inter alia, held that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) did not excuse plaintiff’s claims from arbitration in the first instance. This decision illustrates, among other things, that while “sexual harassment” is a type of “sex discrimination”, the two terms are not interchangeable.
From the decision:
Plaintiff, quoting the elements of gender discrimination, argues that the complaint sufficiently alleges that “Defendants targeted [her] with severe and pervasive negative treatment, intentionally because she is a woman.” She relies on Bibby v. Philadelphia Coca Cola Bottling Co., and asserts that because Patel’s general hostility toward her was based on her gender that, constitutes sexual harassment in violation of Title VII. She concludes that because her gender-based discrimination claims are in fact sexual harassment claims, the [EFAA] permits her to circumvent arbitration and pursue her claims in court.
The EFAA is a significant act that rightfully pulls back on the long-held presumption towards arbitration where sexual harassment is concerned. The EFAA provides that at the election of the person alleging conduct constituting a sexual harassment dispute no predispute arbitration agreement shall be valid or enforceable with respect to a case which is filed under Federal [or] State law and relates to the sexual harassment dispute. In doing so, the EFAA unequivocally ends the era of employers being able to unilaterally compel arbitration in sexual harassment cases. Notably, for the purposes of a Title VII claim, sex discrimination differs from sexual harassment. Sex discrimination is discriminating against someone because of his or her sex, while sexual harassment is unwelcome sexual advances or other verbal or physical contact of a sexual nature. Bibby does not contradict this distinction. Indeed, in Bibby the Third Circuit addressed the specific issue of same-sex gender discrimination. There, the Third Circuit acknowledged that showing gender discrimination is not always easy in same-sex situations. It explained that in opposite sex situations it is easy to conclude or at least infer that [proposals of sexual activity] is motivated by [a person’s] sex i.e., gender, [s]imilarly, if a man is aggressively rude to a woman, disparaging her or sabotaging her work, it is possible to infer that he is acting out of a general hostility to the presence of a woman in the workplace. These inferences are not always so clear when the harasser and victim are the same sex. Curiously, Plaintiff relies on the Bibby Court’s statement that harassment might be present where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace as a way to argue that Patel’s hostility toward her was because she was a woman and thus was a form of “sexual harassment.” However, it is clear that the Third Circuit’s use of the phrase “sex harassment” in that case is interchangeable with the phrase “gender discrimination” and its use of “sex harassment” did not suggest that the plaintiff’s gender or “sex-based” discrimination claims were automatically converted to sexual harassment claims. Nor is that the case here.
Plaintiff does not allege sexual harassment claims in her complaint nor does she allege facts to suggest that Patel’s actions were sexually motivated. Indeed, the three-count complaint specifically alleges gender discrimination claims and facts to support discrimination based on sex. The complaint does not include a sexual harassment claim or allege any facts to suggest that Defendants engaged in unwelcomed sexual advances or behavior motivated by a sexual desire. Consequently, Plaintiff’s argument that the alleged discrimination amounts to sexual harassment and thus is not subject to the arbitration agreement are unsupported and unpersuasive. Therefore, her claims are not subject to the EFAA and are not excused from arbitration.
[Cleaned up.]
Having determined that the EFAA does not apply, the court assessed whether the arbitration agreement itself is valid and enforceable. (Answer: yes.)