In Einkorn v. UMortgage, No. CV 25-2546, 2025 WL 3023412 (E.D. Pa. Oct. 29, 2025), the court held that plaintiff did not allege a “sexual harassment dispute” within the meaning of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. §§ 401-402 (EFAA), such that the arbitration agreement she signed precluded her from pursuing her claims in court.
Central to the court’s reasoning is the important, yet subtle, difference between “sex discrimination” and “sexual harassment.”
From the decision:
Recently enacted in 2022 as an amendment to the Federal Arbitration Act, the EFAA allows complainants to circumvent otherwise enforceable arbitration agreements in sexual assault and sexual harassment cases. To implicate the EFAA’s protections, Plaintiff must “alleg[e] conduct constituting a sexual harassment dispute,” which the statute defines as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4).
Although sexual harassment falls within the category of sex-based (i.e., gender) discrimination, it is conceptually distinct from sex discrimination. … Under [Title VII], sexual harassment involves discriminatory conduct that is explicitly sexual in nature, not just based upon gender. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (“The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome.”) (citation modified); … 29 C.F.R. § 1604.11(a) (defining sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”).
Upon close review, I can discern no allegations in the Amended Complaint constituting sexual harassment under either federal or Colorado law. Rather, Plaintiff alleges unlawful sex-based (i.e., gender) discrimination, but not all such discrimination is sexual harassment. Sex discrimination differs from sexual harassment. Sex discrimination is discriminating against someone because of his or her sex. Sexual harassment is unwelcome sexual advances or other verbal or physical contact of a sexual nature.
(Cleaned up.)
The court concluded that since plaintiff did not allege “conduct constituting a sexual harassment dispute,” the EFAA does not bar the agreement’s enforceability as to her claims.