In Thomas v. Poo Bah Enterprises, Inc., d/b/a Rick’s Cabaret Chicago, No. 25-cv-77, 2025 WL 2084159 (N.D.Ill. July 24, 2025), the court explained and clarified the pleading standard is contemplated by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 in the context of a sexual harassment dispute.
Here, plaintiff – a male employee of defendant – alleges that defendant engaged in unlawful retaliation by terminating him after he communicated reports of sexual harassment by female cocktail waitresses.
As to the EFAA pleading issue, the court explained:
Defendant argues that the plaintiff’s complaint must set forth plausible allegations that a defendant committed sexual harassment. Plaintiff responds that rather than requiring plausibility, the EFAA requires only a nonfrivolous claim of sexual harassment. To answer this question, the Court returns to the statutory text and notes Congress’s use of the phrase “alleged to constitute sexual harassment.” Adding the words “alleged to” to the phrase “constitute sexual harassment” means something different and broader than just “constitutes sexual harassment.” See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“In construing a statute [courts] are obliged to give effect, if possible, to every word Congress used.”). The meaning of “allege” is “[to] assert as true, [especially] that someone has done something wrong, though no occasion for definitive proof has yet occurred.” BLACK’S LAW DICTIONARY (12th ed. 2024). To “allege” does not necessarily mean “to state a claim upon which relief can be granted.” See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (distinguishing between allegations and plausibly pled claims by stating “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.”); Diaz-Roa v. Hermes L., P.C., 757 F. Supp. 3d 498, 534 (S.D.N.Y. 2024) (providing examples of other statutes where Congress clearly expressed an intent to require that a person state a claim upon which relief can be granted, none of which use the language “allege”). By using the word “alleged” to modify “sexual harassment,” the Court believes that Congress intended to reach more broadly than just plausible claims of sexual harassment. The Court therefore finds no textual support in the EFAA for Defendant’s interpretation that the sexual harassment must be plausibly alleged for the EFAA to apply.
The Seventh Circuit has not yet addressed the pleading standard required under the EFAA. Those cases that have addressed the issue are split. Compare Diaz-Roa v. Hermes Law, P.C., 757 F. Supp. 3d 498, 533 (S.D.N.Y. 2024) (holding that “a plaintiff need only plead nonfrivolous claims relating to sexual assault or to conduct alleged to constitute sexual harassment, with the sufficiency of those claims to be reserved for proper merits adjudication, be it a motion to dismiss, motion for judgment on the pleadings, motion for summary judgment, or trial.”); with Yost v. Everyrealm, Inc., 657 F. Supp. 3d 563, 585 (S.D.N.Y. 2023) (concluding that sexual harassment claims must be plausibly alleged for the EFAA to apply because it is “well-known to Congress that federal courts use the plausibility standard to measure viable claims under Rule 12(b)(6)” and Congress “was aware that only viably pled (that is, plausible) allegations of sexual harassment law had the capacity to proceed past the pleading stage in federal court.”). This Court finds the reasoning in Diaz-Roa most persuasive. There, the court listed several reasons why requiring sexual harassment claims to be plausibly pled would be inconsistent with the EFAA. Among those reasons, it noted that plaintiffs commonly fail to state a claim in their initial complaint, only for the claim to survive after direction from the Court and an opportunity to amend. Diaz-Roa, 757 F. Supp. 3d at 537. This iterative process between courts and litigants is baked into the procedural rules governing federal practice. See FED. R. CIV. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”); see also Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022) (plaintiff should be afforded “at least one opportunity to amend his complaint”). To read the EFAA as requiring plausibility in order to survive a motion to compel would deny plaintiffs whose first pleadings were technically flawed the opportunity to amend, sending claims to arbitration that would have been clearly within the EFAA’s scope if the plaintiff had submitted a better initial complaint.
Sending improperly pled but potentially viable claims to arbitration would be inconsistent with Congressional intent. In passing the EFAA, Congress expressed concern with arbitration’s lack of transparency and its tendency to favor employers, stating that “victims of sexual violence and harassment are often unable to seek justice in a court of law … or even simply share their experiences.” H.R. Rep. No. 117-234, at 3 (2022). Further, Congress criticized “office cultures that ignore harassment and retaliate against those who report it,” and stated that the EFAA would “help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.” Id. at 4, 11.
There is one additional reason to find that Plaintiff does not need to plausibly allege sexual harassment in this case: Plaintiff is bringing a claim of retaliation. Giving effect to the full phrase “a dispute relating to conduct that is alleged to constitute sexual harassment,” the Court has no trouble concluding that a plaintiff claiming that he was retaliated against for reporting allegations of sexual harassment can claim the protections of the EFAA even if the underlying sexual harassment is not plausibly pled.
The court proceeded to concluded that plaintiff plausibly pled a claim of retaliation under Title VII of the Civil Rights Act of 1964.