It is vitally important that courts understand how the term sexual harassment in EFASASHA intersects with Title VII jurisprudence defining that term.
Professor Sandra Sperino
University of Missouri School of Law
Inspired by the #MeToo movement, Congress recently enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA). EFASASHA amended the Federal Arbitration Act (FAA) to prevent courts from forcing victims of sexual harassment and assault to private arbitration. The move prompted Professor Sandra Sperino to write Escaping Arbitration and Class Action Waivers for Harassment Because of Pregnancy, Sexual Orientation, or Gender Identity, an essay arguing that EFASASHA is far broader than its title suggests.
Professor Sperino offers courts a frame for interpreting this new exception to the FAA. EFASASHA allows a person alleging “conduct constituting a sexual harassment dispute or a sexual assault dispute” to proceed in court even if the claim otherwise would be subject to a predispute arbitration agreement. It also allows class-based disputes regardless of whether the parties’ agreement purported to waive class-actions, opening an important pathway for relief. Thus, whether a claim is considered a “sexual harassment” claim under EFASASHA could well determine the victim’s likelihood of success.
Professor Sperino urges courts to consider federal antidiscrimination jurisprudence and Title VII’s amendment history in interpreting the term. Sexual harassment, according to Professor Sperino, should be understood as coextensive with all forms of harassment based on “sex.” That includes all claims involving sexualized and sex-based harassment, harassment based on pregnancy, and sexual orientation and gender identity harassment. Such an interpretation, Professor Sperino argues, best effectuates the underlying goals of both EFASASHA and Title VII, recognizing that sexualized discrimination is intertwined with sex discrimination.