Can employers continue to force survivors of workplace sexual misconduct into private arbitration despite the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) in 2022? The EFAA was enacted to ensure that survivors of sexual misconduct could litigate their claims in court. However, in Newton v. LVMH Moët Hennessy, the Second Circuit is considering whether an employee’s retaliation and termination claims, which were brought after the EFAA was enacted, must nevertheless be subject to mandatory arbitration because they stem from misconduct that occurred before the EFAA was passed.
Women Lawyers on Guard Inc. signed an amicus brief to support the plaintiff, Andowah Newton, in her argument that the entirety of her claims fall under the protection of the EFAA even though the harassment began before the EFAA was enacted. The brief explains that the EFAA was passed to provide survivors of sexual abuse access to the courts rather than trapping their claims in confidential arbitration proceedings. It also argues that compelling survivors to arbitrate their claims undermines Congress’s intent, discourages the reporting of sexual misconduct, shields harassers from public accountability, and leaves survivors without appropriate legal recourse. It argues that the sexual harassment was a continuing violation of Ms. Newton’s rights and that the entire claim should therefore be litigated in court.
The Second Circuit heard oral argument on April 27, 2026, and as of July 2026, a decision is still pending.
To read the amicus brief, please click here.
