Your Employer Cannot Force You to Arbitrate a Sexual Harassment Claim in California

If you signed an arbitration agreement when you were hired, you may believe your sexual harassment case is locked out of the courthouse. That belief is wrong. Since March 3, 2022, federal law has given every California worker who experiences workplace sexual harassment or sexual assault the right to take that claim to court — regardless of what the arbitration paperwork says.

The Nourmand Law Firm, APC represents California employees in sexual harassment claims under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and the California Fair Employment and Housing Act. If you experienced workplace sexual harassment and your employer is now demanding arbitration, an employment attorney handling sexual harassment cases can review your arbitration paperwork and explain your options. Call 800-700-WAGE for a free, confidential consultation.

What Is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act?

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, often shortened to EFAA, is a federal statute codified at 9 U.S.C. §§ 401–402. It amended the Federal Arbitration Act and took effect on March 3, 2022. The law gives any person alleging conduct that constitutes sexual harassment or sexual assault the unilateral right to void a predispute arbitration agreement and litigate the case in court instead.

The statute uses precise language. Section 402(a) provides that “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute,” no predispute arbitration agreement or joint-action waiver “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” That election belongs to the worker alone. The employer has no corresponding right to demand arbitration once the worker chooses court.

The federal statute was Congress’s response to the #MeToo movement and growing concern that mandatory arbitration was being used to bury sexual misconduct claims in confidential proceedings. Predispute arbitration is now unenforceable for these claims by federal mandate, and California courts have been among the most aggressive in enforcing the statute on behalf of workers.

Who Decides Whether the EFAA Applies — the Court or the Arbitrator?

A court — never the arbitrator — decides whether the EFAA applies to a worker’s case. Section 402(b) of the statute makes this explicit, providing that the validity and enforceability of the arbitration agreement is determined by a court “irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” This is a critical protection. Many arbitration agreements contain delegation clauses that try to send threshold legal questions to the arbitrator, but the EFAA strips those clauses of effect when sexual harassment is alleged.

This means that even if the arbitration paperwork says the arbitrator decides everything, including whether the case belongs in arbitration at all, a California state or federal judge has the final word once the EFAA is invoked.

Does the EFAA Apply to All Claims in My Lawsuit, or Only the Sexual Harassment Claim?

In California, when a worker alleges sexual harassment alongside other employment claims, the EFAA exempts the entire case from arbitration. This is one of the most powerful aspects of the law as interpreted by California’s appellate courts.

The leading decision is Liu v. Miniso Depot CA, Inc., decided October 7, 2024, by the California Court of Appeal, Second Appellate District. The worker in that case alleged sexual harassment along with wage-and-hour violations, gender discrimination, retaliation, and other claims that would normally be arbitrable. The court held that because Congress chose the word “case” rather than “claim” in the EFAA, the entire lawsuit was exempt from arbitration once a viable sexual harassment claim was alleged. The California Supreme Court denied the employer’s petition for review in December 2024, and the U.S. Supreme Court declined to take up the issue in October 2025 — leaving the Liu rule firmly in place.

Two months earlier, in Doe v. Second Street Corp., the same appellate court reached a similar conclusion involving wage-and-hour claims joined with sexual harassment allegations. And in Quilala v. Securitas Security Services USA, Inc., decided in 2025, the court applied the same rule to a worker who alleged sexual orientation harassment, confirming that “non-harassment” claims cannot be carved out and shipped to arbitration.

The practical consequence is significant. A California worker who experienced sexual harassment can litigate the entire employment dispute — including unpaid wages, overtime violations, retaliation, wrongful termination, and discrimination claims — in front of a jury, even if the underlying arbitration agreement is otherwise valid.

Can My Employer Use a California Choice-of-Law Clause to Get Around the EFAA?

No. The California Court of Appeal addressed this question directly in Casey v. Superior Court, 108 Cal. App. 5th 575 (2025). The employer in Casey argued that because the arbitration agreement contained a California choice-of-law provision, only state arbitration law applied and the federal EFAA was irrelevant. The court rejected that argument and held that the EFAA preempts contrary state-law provisions, including choice-of-law clauses designed to invoke California arbitration statutes.

The ruling closed a loophole that some employers had been testing. Workers in cases such as those filed in Los Angeles, Long Beach, Riverside, San Bernardino, Fontana, Bakersfield, Fresno, Stockton, Sacramento, San Jose, and Oakland cannot have their sexual harassment claims rerouted into arbitration through clever contract drafting. Federal law controls, and federal law lets the worker choose court.

When Does a Sexual Harassment “Dispute” Arise for EFAA Purposes?

The EFAA applies to disputes or claims that arise or accrue on or after March 3, 2022. California courts have construed this generously in favor of workers. In Kader v. Southern California Medical Center, Inc., 99 Cal. App. 5th 214 (2024), the California Court of Appeal held that a “dispute” arises only when the worker asserts a right or demand and the employer takes an adversarial position — not on the date the harassment occurred. A worker who was harassed in 2021 but did not file an agency charge or lawsuit until after March 3, 2022, is still protected.

For ongoing harassment, the analysis is even more favorable. In Doe v. Second Street Corp., the court applied the continuing-violation doctrine and ruled that as long as the harassment continued past March 3, 2022, the entire course of conduct fell within the EFAA — even harassment that began years earlier. Workers who endured persistent hostile work environments do not lose EFAA protection simply because the misconduct began before the statute took effect.

What Sexual Harassment Conduct Is Covered Under the Law?

Sexual harassment under the EFAA includes conduct that violates federal, state, or tribal law prohibiting sexual harassment. In California, that means conduct that violates the Fair Employment and Housing Act, Government Code § 12940(j), which prohibits harassment because of sex, gender, gender identity, gender expression, sexual orientation, and pregnancy.

The covered conduct includes both quid pro quo harassment — where job benefits are conditioned on sexual conduct — and hostile work environment harassment, where unwelcome conduct based on sex is severe or pervasive enough to alter working conditions. Verbal conduct, physical conduct, sexually suggestive comments, unwanted touching, displays of sexually explicit material, and gender-based ridicule can all support an EFAA claim if they meet the FEHA threshold. Quilala v. Securitas confirmed that sexual-orientation-based harassment qualifies, even when the conduct is framed as mockery rather than overt sexual advances.

A worker does not need to win the harassment claim to invoke the EFAA. Most California courts require only that the sexual harassment allegations be pled plausibly enough to survive a motion to dismiss. A plausible claim is enough to lock the case into court.

What Should California Workers Do If They Experienced Workplace Sexual Harassment?

The right next step depends on the specific facts, but several actions consistently strengthen a worker’s position:

Preserve evidence. Save text messages, emails, voicemails, photographs, witness contact information, and any written complaints to human resources. Workers who later need to prove a sexual harassment claim in court rely heavily on contemporaneous documentation. Anything stored only on a work device should be backed up to a personal device or printed before separation from employment.

File a charge with the California Civil Rights Department. Before filing a FEHA-based sexual harassment lawsuit, a worker generally must first file an administrative complaint with the California Civil Rights Department (CRD) and obtain a right-to-sue notice. The deadline to file is generally three years from the last act of harassment under FEHA. Kader highlights why this filing date matters — it can be the moment when the EFAA-covered “dispute” formally arises.

Do not sign anything new without legal review. Employers sometimes present severance agreements that contain new arbitration clauses, confidentiality provisions, or release language. Once the EFAA is in play, a worker has substantial leverage. That leverage is forfeited the moment a worker signs a poorly understood agreement.

Consult an attorney before responding to a motion to compel arbitration. If the employer files a motion to compel arbitration in a sexual harassment case, the worker has a narrow window to invoke EFAA and respond. A misstep at this stage can cost a worker the right to a jury trial.

Why the Right to Litigate Sexual Harassment Cases in Court Matters

Court litigation gives California workers protections that arbitration does not, and proceedings are public, which removes the secrecy that allowed serial harassers to be quietly recycled through workplaces for decades. Court rules permit broad discovery, including depositions of executives and access to internal records. Juries decide damages, and California juries have historically been more willing to award substantial verdicts in workplace harassment cases than private arbitrators.

Workers also retain meaningful appellate rights in court. Arbitration awards are reviewed under an extraordinarily deferential standard, and most arbitrators’ errors cannot be corrected on appeal. A jury verdict, by contrast, is subject to ordinary appellate review.

The Nourmand Law Firm, APC has handled discrimination and harassment cases throughout California for more than two decades and understands how to invoke the EFAA early and effectively to keep a worker’s case in court.

Frequently Asked Questions About Sexual Harassment Arbitration in California

Speak With a California Sexual Harassment Attorney Today

The Nourmand Law Firm, APC has represented California workers exclusively for more than 20 years, recovering millions of dollars on behalf of employees who were subjected to sexual harassment, discrimination, and other unlawful workplace conduct. The firm has obtained substantial results for hospital workers, hotel employees, security guards, warehouse workers, and other Californians across Los Angeles County, the Inland Empire, the Central Valley, and the Bay Area. Se Habla Español.

Call 800-700-WAGE or contact The Nourmand Law Firm online to schedule a free, confidential consultation. There is no fee unless the firm recovers compensation on your behalf.