David Horton
94 Geo. Wash. L. Rev. 900
The Federal Arbitration Act’s (“FAA”) impact on workplaces is immeasurable. Congress passed the FAA a century ago to help merchants resolve disputes. Yet in the 2000s, the Supreme Court ignored its legislative history and exploited its skeletal text to extend it into employment settings. Now, approximately sixty million nonunionized workers must pursue claims against their employers in a private, often confidential, process that typically prohibits class actions and permits arbitrators to decide whether a case must be arbitrated. But in March 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”). This measure permits sexual misconduct victims to opt out of forced arbitration. Although the EFAA’s passage received widespread attention, nobody has examined how it has functioned on the ground.
This Article reviews every electronically accessible EFAA case decided between March 2022 and August 2025 and reaches three conclusions. First, the statute’s impact is unsettled. Courts disagree about its temporal scope and pleading standards, whether “sexual harassment” includes nonsexualized wrongdoing like gender-based discrimination, and its effect on claims not involving sexual impropriety. Second, this discord exists because the EFAA’s language, like the FAA’s, sweeps beyond some lawmakers’ intentions. Courts reading the EFAA broadly take it at face value, and judges construing it narrowly rely on context and legislative history. Third, given textualism’s primacy, expansive EFAA interpretations stand on firmer footing than limited readings. Yet with nine textualist Supreme Court Justices, this purposivism is unlikely to prevail, and the EFAA will deeply impact employment law.
