In Kelly v. Rosenberg & Estis, P.C. et al, 25-cv-4776 (CM), 2025 WL 2709157 (S.D.N.Y. Sept. 23, 2025), the court, inter alia, held that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) applied to plaintiff’s entire case – which included her allegations of sexual harassment – and thus denied defendants’ motion to compel arbitration.
Initially, the court determined that plaintiff plausibly stated a sexual harassment claim under the New York City Human Rights Law:
For the EFAA to preclude enforcement of an arbitration agreement, a plaintiff must first plausibly plead a sexual harassment claim. The use of the term “alleged” in Section 401(4) implicitly incorporates the Rule 12(b)(6) plausibility standard. See Yost v. Everyrealm, Inc., 657 F. Supp. 3d 563, 585 (S.D.N.Y. 2023). This is because “Congress legislates against the backdrop of existing law.” Pharaohs GC, Inc. v. United States Small Bus. Admin., 990 F.3d 217, 227 (2d Cir. 2021). Moreover, it would be illogical to interpret the EFAA as permitting a plaintiff to circumvent an arbitration agreement for other claims if her sexual harassment claim would not otherwise survive a motion to dismiss.
The court applies the familiar plausibility standards under Rule 12(b)(6). To survive a motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). In determining whether Kelly states a plausible sexual harassment claim, the court will focus on Kelly’s NYCHRL claim because it has the “most lenient applicable liability standard.” Yost, 657 F. Supp. at 578. “State law” under § 401(4) of the EFAA encompasses local laws prohibiting sexual harassment, including the NYCHRL. Id. at 578 n.10. The court finds that Plaintiff has plausibly pled a sexual harassment claim under the NYCHRL; indeed, Defendants concede as much.1
Under NYCHRL, sexual harassment is defined broadly. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (observing that the NYCHRL should be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof”); Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112, 116 (1st Dep’t 2011) (same). A plaintiff alleging sexual harassment under the NYCFIRL need only show “by a preponderance of the evidence that she has been treated less well than other employees because of her gender,” including being subjected to “unwanted gender-based conduct.”2 Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 38–39 (2009); see also McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 66 (S.D.N.Y. 2020).
Although NYCHRL does not explicitly define “sexual harassment,” it directs the New York City Commission on Human Rights to “post conspicuously on the commission’s website online resources about sexual harassment,” including “[a]n explanation that sexual harassment is a form of unlawful discrimination under local law” and “[s]pecific descriptions and examples of activities which may be sexual harassment.” N.Y.C. Admin. Code § 8-132(a)(1)(a)–(b). A city agency’s interpretation of the law, although not dispositive of the meaning of the law itself, remains persuasive authority. See Menos v. Uncle Nearest, Inc., No. 22-CV-1449 (PKC) (PK). 2025 WL 917347, at *9 n.15 (E.D.N.Y. Mar. 25, 2025).
The Commission’s website defines sexual harassment as “unwelcome verbal or physical behavior based on a person’s gender and can include unwanted touching; offensive and suggestive gestures or comments; asking about a person’s sex life or making sexualized remarks about a person’s appearance; sexualizing the work environment with imagery or other items; or telling sexual jokes.” Stop Sexual Harassment Act Notice, NYC Human Rights, https://www.nyc.gov/site/cchr/law/sexual-harassment-training-main.page [https://perma.cc/VBQ8-2VYZ] (last visited Sept. 20, 2025).
Kelly alleges that, during her employment, K&E employees frequently made unwanted sexual comments, including invasive remarks about her sex life and romantic relationships. Compl., Dkt. No. 11, at 48. Specifically, she claims, among other things, that a male partner had “compared her to Pamela Anderson and Daenerys Targaryen from Game of Thrones,” and that Kelly was “better than Daenerys” because she “hadn’t slept her way to the top.” Id. at 2. When Kelly recoiled from these comments, the partner allegedly responded, “Now don’t go filing a sexual harassment claim on me.” Id. Kelly alleges that another partner asked her, “Do you ever incorporate drug use when you have sex?” Id. The partner allegedly went on to describe his own sex life, stating, “Me and my wife do, it makes everything feel better, I highly recommend it.” Id at 10.
Under the NYCHRL, there is no requirement that the conduct alleged be severe or pervasive to support a sexual harassment claim because “even a single comment may be actionable in appropriate circumstances.” Gorokhovsky v. New York City Hous. Auth., 552 F. App’x 100, 102 (2d Cir. 2014). Kelly’s well-pleaded allegations that she was routinely subjected to unwelcome sexual comments and advances are sufficient to state a claim for sexual harassment under NYCHRL.
Therefore, at a minimum, the EFAA applies to this claim. Unless Kelly wants to arbitrate it, she cannot be forced to do so. She does not want to arbitrate it. It will be litigated.
The court then addressed the issue of “whether the arbitration agreement is enforceable with respect to the other claims that she asserts, none of which is a sexual harassment or sexual assault claim.” The court, interpreting the EFAA, concluded that the answer to this question is “no.” Specifically, it held that because plaintiff plausibly states a sexual harassment claim under the NYCHRL, this case “relates to … [a] sexual harassment dispute” under 9 U.S.C. § 402(a), such that the EFAA “applies to bar enforcement of the arbitration agreement as to the entirety of this case,” warranting the denial of defendants’ motion to compel arbitration in full.