In Smith v. Meta Platforms, Inc., 24 Civ. 4633 (JPC), 2025 WL 2782484 (S.D.N.Y. Sept. 30, 2025), the court held that a party invoking the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) must actually allege facts that constitute sexual harassment.
Here, the plaintiff did not:
To determine whether this case relates to conduct that constitutes sexual harassment under Federal, Tribal, or State law, the Court must determine the meaning of sexual harassment under those sources of law. In so doing, other courts in this District have looked to Title VII of the Civil Rights Act, the NYSHRL, and the NYCHRL.10 But looking to these statutes is often unilluminating.11 Title VII, the NYSHRL, and the NYCHR prohibit discrimination, but they do not define “sexual harassment” or create a distinct “sexual harassment claim”—sexual harassment is just one way in which discrimination can occur. See Singh, 750 F. Supp. 3d at 255-56 (“[S]tate and federal courts have yet to draw a clear line between what constitutes ‘sexual harassment’ and what constitutes ‘gender discrimination.’ Before the EFAA was passed, such a distinction was never at issue.”).12
These interpretive difficulties are of no moment here, however, because regardless of the source of law, sexual harassment must be sexual in nature. See Sexual Harassment, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “sexual harassment” as “[v]erbal or physical maltreatment, pestering, or abuse of a sexual nature, including lewd remarks, salacious looks, and unwelcome touching”); see also Singh, 750 F. Supp. 3d at 258 (“[N]ot all gender discrimination is sexual harassment.”). Indeed, Smith has not pointed to any source of law where this is not the case. In opposing Meta’s motion to compel arbitration, Smith generally cites federal cases applying federal law. Opposition at 6-8. But a number of federal statutes make clear that, under federal law, sexual harassment must be sexual. See, e.g., 38 U.S.C. § 533 (“The term ‘sexual harassment’ means unsolicited verbal or physical contact of a sexual nature which is threatening in character.”); 38 U.S.C. § 1720D(f) (same); 46 U.S.C. § 2101(46) (defining sexual harassment as “unwelcome sexual advances, requests for sexual favors, or deliberate or repeated offensive comments or gestures of a sexual nature”); see also Yates v. United States, 574 U.S. 528, 557 (2015) (Kagan, J., dissenting) (“[T]ypically only the most compelling evidence will persuade this Court that Congress intended nearly identical language in provisions dealing with related subjects to bear different meanings.” (cleaned up)).13
This requirement is dispositive here because Smith has not alleged any facts describing sexually-charged behavior. Rather, Smith’s Second Amended Complaint states that he was retaliated against for reporting “that women were being discriminated against because of their sex.” SAC ¶ 39 (emphasis added). In particular, Smith says that he complained about the treatment of four female Meta employees. The first employee was a woman whose role was inexplicably downsized after Meta’s Augmented Reality Inputs & Interactions Research & Development Team was reorganized. Id. ¶ 32. A second employee was a woman who was reassigned to a manager who criticized her work more harshly than the work of male employees. Id. ¶¶ 35-37. The third and fourth employees were women who were passed over for a promotion in favor of a “junior white man.” Id. ¶¶ 76-79.
Although Meta’s alleged treatment of these women is regrettable if true, none of these allegations relate to mistreatment that was remotely sexual.14 In cases where courts in this District have relied on the EFAA to deny motions to compel arbitration in light of allegations of sexual harassment, the alleged conduct was much more obviously sexual in nature. In Johnson v. Everyrealm, Inc., for example, the plaintiff alleged that her employer’s CEO “repeatedly pressured [her] to … have sex with colleagues, including herself, or with clients—despite [her] having repeatedly asked [the CEO] to stop.” 657 F. Supp. 3d at 554; see also Diaz-Roa, 757 F. Supp. 3d at 546 (“The alleged conduct—particularly that it was a term and condition of her employment that Plaintiff become romantically involved with potential clients—is alleged to satisfy, and readily satisfies, at least the New York State and New York City standards for sexual harassment.”); cf. Singh, 750 F. Supp. 3d at 258 (not finding sexual harassment when a plaintiff alleged that her boss “inappropriately questioned whether [her] pregnancy would impact her commitment to her job”).
Accordingly, since plaintiff’s allegations of gender discrimination were non-sexual in nature, the EFAA did not render the parties’ arbitration agreement unenforceable, and the court granted defendant Meta’s motion to compel arbitration.