In Toomey v. One Equity Partners, No. 24-CV-04088 (MMG), 2026 WL 458244 (S.D.N.Y. Feb. 18, 2026), the court denied defendant’s motion to compel arbitration under the Ending Forced Arbitration Act (“EFAA”).
Initially, the court held that “a plaintiff may invoke the EFAA to avoid a mandatory arbitration provision by plausibly alleging a claim of sexual harassment or sexual assault under an applicable law, which a court assesses by applying the familiar Twombly-Iqbal standard” and that “[t]o allege sexual harassment under the NYCHRL, a plaintiff need only allege unwanted physical or verbal behavior based on gender, not that such behavior also be of a romantic, lewd, or sexual nature.” (Internal quotation marks omitted.)
The court further explained:
Drawing all inferences in Toomey’s favor, as required at this stage of the case, Toomey has plausibly alleged a claim of sexual harassment under the NYCHRL. O’Connell and Porreca levied derogatory comments at Toomey targeting her appearance and makeup.6 Compl. ¶¶ 55–58. O’Connell berated Toomey in gendered terms, calling her a “bitch.” Id. ¶¶ 2, 47; see Davis v. City of New York, No. 09 CV 669 HB, 2010 WL 3895578, at *3 (S.D.N.Y. Oct. 5, 2010) (“While the use of the word ‘bitch’ often reflects an intensely degrading hostility towards women, it is for the trier of fact to determine whether in a particular instance such remarks evidenced gender animus.”). And Cashin subjected her to unwanted gender-based physical and verbal conduct. For example, Cashin would periodically ask her, “don’t we prefer skinny EAs over fat EAs?” Compl. ¶ 2. All the EAs referenced in the complaint, including Toomey, are women. These comments are reasonably construed as expressing a preference regarding women’s, including Toomey’s, appearance, drawing on highly-gendered expectations about women’s bodies and that women in the workplace be physically attractive to be valued. Cashin also expressed views about women being better suited for “unintellectual jobs” and repeatedly touched Toomey’s shoulder while she was seated at her desk, in a manner that made her feel uncomfortable. Id.; see Shkoza v. NYC Health and Hasps. Corp., No. 20-CV-03646 (RA), 2021 WL 4340787, at *5 (S.D.N.Y. Sept. 22, 2021) (noting that an incident of unwanted shoulder touching could plausibly state a hostile work environment claim under the NYCHRL when viewed in the context of other conduct evincing employer’s negative attitudes towards the role of women in the workplace).
Thus, the court concluded that “[e]xamining the totality of the circumstances, the Complaint plausibly alleges sexual harassment under the NYCHRL, at this stage of the case, because it describes numerous instances of unwanted physical and verbal conduct aimed at Toomey based on her gender” warranting denial of defendant’s motion to compel arbitration.