In Brazzano v. Thompson Hine LLP et al, 24-CV-01420 (ALC)(KHP), 2025 WL 96311 (S.D.N.Y. March 31, 2025), the court, inter alia, denied the defendants’ motion to compel arbitration of plaintiff’s sexual harassment claim under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA).
Specifically, the court held that plaintiff plausibly alleged sexual harassment, triggering the EFAA’s protections.
From the decision:
To plausibly state a claim for sexual harassment under the NYCHRL, a plaintiff need only simply allege facts showing that she was subject to unwanted gender-based conduct. To that end, a plaintiff need only demonstrate by a preponderance of the evidence that she has been treated less well than other employees because of her gender. Although district courts must be mindful that the NYCHRL is not a general civility code, the NYCHRL should be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.
Brazzano’s key allegation is that De Palma told her while she was alone with him in his office that “judges know lawyers who provide legal services are working on a pro bono basis, and it’s like getting jerked off by a judge.” De Palma’s remark is lewd, refers to a sexual act, and was made when Brazzano was alone with De Palma in his office. In determining the plausibility of her claim at this stage, the Court can reasonably construe such conduct as unwanted gender-based conduct.
Moreover, the Second Circuit has held that sexual harassment under the NYCHRL can be pleaded as either quid pro quo harassment or the creation of a hostile work environment. Indeed, Brazzano pleads that she was subjected to an objectively hostile and abusive work environment and that she was treated less well than Plaintiff’s male colleagues by De Palma for more than a decade, that De Palma singled Plaintiff out because of her gender (because Brazzano would not subordinate herself to De Palma’s misogynistic values) and rallied his discriminatory efforts against her. Therefore, the Court can consider whether Brazzano was subjected to sexual harassment by De Palma in the form of a hostile work environment.
Still, Brazzano must plausibly allege a connection between De Palma’s sexual harassment and Brazzano’s April 29, 2022 termination, a linkage necessary for Brazzano to avail herself of the EFAA. Defendants argue that Brazzano was terminated for whistleblowing against De Palma’s flouting of Thompson Hine’s pro bono policies, arguing that holding otherwise would dramatically expand the potential scope of the EFAA and frustrate the legislation’s clear intention not to negate arbitration agreements based on years-old sexual harassment allegations.
Hostile work environment claims are different in kind from discrete acts. Such claims are based on the cumulative effect of individual acts. The Second Circuit held recently that the EFAA applied to a plaintiff’s claims for a hostile work environment where post-EFAA retaliation resulted from a report of sexual harassment that predated the statute’s enactment because the retaliation was related to conduct that is alleged to constitute sexual harassment.
Similarly here, the Court concludes that there is a plausible connection between Brazzano’s termination and the hostile work environment predicated on sex discrimination and sexual harassment. It is true that Brazzano states that her termination aligns with her complaints regarding De Palma’s dubious fraud on the firm in his fake pro bono case, just a week before she was terminated. However, she also pleads that De Palma specifically and intentionally retaliates against any female attorney (including Brazzano) who did not embrace his misogynistic culture or agree to his sexist submissive behavior by engaging in a campaign to end their employment, by freezing them out of billable litigation firm work, his pattern is unmistakenly pervasive. Even if the last triggering event was Brazzano’s the pro bono audit focused on De Palma, it is reasonable to infer that her termination was part of the hostile work environment allegedly fostered by De Palma.
[Internal citations, bracketing, and quotation marks omitted.]
Thus, the court concluded that, at this stage, plaintiff has sufficiently alleged a hostile work environment claim that avails her of the EFAA, and thereby concluded that any applicable arbitration agreement is unenforceable, warranting denial of defendants’ motion to compel arbitration.