In Carlton v. Nat’l Debt Relief LLC, No. 2:26-CV-00944 (WJM), 2026 WL 1430099 (D.N.J. May 21, 2026), the court, inter alia, granted defendant’s motion to compel arbitration, rejecting plaintiff’s claim that her sex discrimination, retaliation, and any related claims are exempt from mandatory arbitration by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”).
From the decision:
According to Plaintiff, her pregnancy-based claims are “sexual harassment” disputes that fall under the EFAA because “[s]exual harassment is a form of sex discrimination,” Lehmann v. Toys R Us, Inc., 132 N.J. 587, 601 (1993), and pregnancy is sex-based discrimination, see Young v. UPS, Inc., 575 U.S. 206, 212 (2015). Despite that harassment is a subset of discrimination and both share the fact they are based on sex, sex discrimination and sexual harassment are “conceptually distinct.”2 Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 669 (2020). “ ‘Sex discrimination is discriminating against someone because of his or her sex, while sexual harassment is unwelcome sexual advances or other verbal or physical contact of a sexual nature.’ ” Cornelius, 2023 WL 6876925, at *3 (citing Friel v. Mnuchin, 474 F. Supp. 3d 673, 692 (E.D. Pa. 2020), aff’d 2021 WL 6124314 (3d Cir. Dec. 28, 2021)).
Moreover, the elements to satisfy these claims are different. To set forth a prima facie case of sex discrimination under the LAD, a plaintiff must demonstrate that: “(1) that she is female; (2) that she applied and was qualified for a job, or other compensation, terms, conditions, or privileges of employment; (3) that, despite her qualifications, she was rejected; and (4) a male employee with similar qualifications received the job, compensation, term, conditions, or privilege.” Ferraro v. Bell Atl. Co., 2 F. Supp. 2d 577, 586 (D.N.J. 1998); Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990). In contrast, sexual harassment generally divides into either “[q]uid pro quo sexual harassment [that] occurs when an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment” or hostile work environment sexual harassment that “occurs when an employer or fellow employees harass an employee because of his or her sex to the point at which the working environment becomes hostile.” Lehmann, 132 N.J. at 601. A hostile work environment sexual harassment claim requires a plaintiff to show that “harassing conduct” would not have occurred but for her sex and was severe or pervasive enough to make a reasonable woman believe that the conditions of employment are altered and her working environment is hostile.” See id. at 603-05.
Thus, a sex discrimination claim is not coextensive with a sexual harassment claim under the LAD and does not trigger the EFAA’s bar on arbitration. See e.g., Cornelius, 2023 WL 6876925, at *4 (finding that Title VII and LAD sex-based discrimination claims were not subject to the EFAA because the plaintiff did not include a sexual harassment claim or allege sexual advances or behavior motivated by a sexual desire); Foster v. Horizon Dental Care at Steamtown, Inc., No. 25-01424, 2026 WL 353243, at *9 (M.D. Pa. Feb. 9, 2026) (concluding that pregnancy and sex discrimination, retaliation, and equal pay act violations under federal and state law did not fall within the scope of the EFAA because the plaintiff failed to plausibly allege severe or pervasive sexual harassment giving rise to a hostile work environment claim); Moulds v. Skillcycle, Inc., No. 23-4873, 2024 WL 2206464, at 1, n.1 (E.D. Pa. March 27, 2024) (granting motion to compel arbitration because claims of pregnancy discrimination under federal law “simply do not constitute claims of sexual harassment or sexual assault, and thus do not implicate EFAA.”).
The court concluded that plaintiff’s sex and pregnancy-based discrimination claims are not sexual harassment claims that fall within the scope of the EFAA.