In Cliff v. FreedomRoads, LLC, No. 3:25-CV-00296-CSD, 2026 WL 125625 (D. Nev. Jan. 16, 2026), the court denied defendant’s motion to compel arbitration under the Ending Forced Arbitration Act (“EFAA”).
The court dismissed plaintiff’s hostile work environment claim. Defendant argued that this precluded the application of the EFAA.
Not so, held the court:
Defendant’s argument against application of the EFAA centers on a Southern District of New York decision, Mitura v. Finco Services, Inc. 712 F. Supp. 3d 442 (S.D.N.Y. 2024). In Mitura, the court “agree[d] with every other judge in this District who has decided the issue,” and held that “to qualify as a sexual harassment dispute under the EFAA, the sexual harassment claim must be sufficiently pled to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Id. at 451-52. Applying this standard, the court found the plaintiff had sufficiently alleged a claim of sexual harassment, and therefore arbitration could not be compelled. Id. at 455.
Plaintiff’s argument for application of the EFAA relies on another Southern District of New York case, which adopted a different standard. In Diaz-Roa, 757 F. Supp. 3d 498, the court concluded that the language of the EFAA “does not require the case to state a claim ‘under Federal, Tribal, or State law” before the EFAA applies. Id. at 531. Rather, the court explained, “it is sufficient that the case invokes such law as a basis for relief” and “a plaintiff need only plead nonfrivolous claims relating to sexual assault or to conduct alleged to constitute sexual harassment” for the EFAA to apply. Id. at 532-33. In so holding, the court focused on the statute’s use of the word “dispute,” as opposed to claim, and its use of the phrase “conduct that is alleged to constitute sexual harassment.” Id. at 534-35 (emphasis added). The Diaz-Roa court explained: “[T]he EFAA speaks to ‘allegations,’ i.e. the content of a pleading, and not to the conclusion that those allegations plausibly state a claim for relief if the pleading is challenged under Rule 12(b)(6).” Id. at 535.
The parties’ positions, thus, trace a split among the district courts, the minority of which “apply a liberal standard according to which a plaintiff need only ‘plead nonfrivolous claims relating to sexual assault or to conduct alleged to constitute sexual harassment,” and the others which “ ‘evaluate EFAA arguments using the pleading standards of Federal Rule of Civil Procedure 12(b)(6).’ ” See Van De Hey v. EPAM Sys. Inc., No. 24-CV-08800-RFL, 2025 WL 829604, at *3 (N.D. Cal. Feb. 28, 2025).
The court agrees with the thorough analysis set forth in Diaz-Roa and that court’s conclusion that a complaint alleging a sexual harassment dispute is sufficient to invoke the EFAA, whether or not those allegations could survive a Rule 12(b)(6) motion to dismiss. However, the court need not and does not conclude that sexual harassment allegations asserted in connection with a claim that has been dismissed from a complaint pursuant to a litigated Rule 12(b)(6) motion will be sufficient to bring the case under the EFAA. What remains in this case is a retaliation claim predicated upon the reporting of alleged sexual harassment. This is, as several other courts have held, itself a “sexual harassment dispute” covered by the EFAA. See Diaz-Roa, 757 F. Supp. 3d at 536 (“The Second Circuit’s decision in Olivieri … strongly suggests that a plaintiff need not state a claim for sexual harassment to be considered to have made allegations ‘relating to conduct that is alleged to constitute sexual harassment.”); Molchanoff v. SOLV Energy, LLC, No. 23cv653-LL-DEB, 2024 WL 899384, at *5 (S.D. Cal. 2024) (unpublished disposition); Hix v. Dave & Buster’s Mgm’t Corp., Inc., No. 3:23-cv-623-AR, 2023 WL 9425283, at *9 (D. Or. 2023) (unpublished disposition); see also Olivieri v. Stifel, Nicolaus & Co., Inc., 112 F.4th 74, 92 (2d Cir. 2024) (“[R]etaliation resulting from a report of sexual harassment is ‘relat[ed] to conduct that is alleged to constitute sexual harassment.’ ”).
The court thus concluded that plaintiff’s “surviving retaliation claim – which the court has found to be sufficiently pled – is a sexual harassment dispute, and pursuant to the terms of the EFAA, arbitration of that claim may not be compelled.”