Plausible or Nonfrivolous? Addressing Pleading Standards Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
Introduction
In 2021, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which amended the Federal Arbitration Act (FAA) to void predispute arbitration clauses in cases involving sexual misconduct allegations. A predispute arbitration clause is a contractual provision agreed to in advance of any dispute or claim that “requires a party to arbitrate any claims within the scope of the arbitration provision instead of seeking relief in court.” Enacted in 2022, the EFAA mandates:
At the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute . . . , no predispute arbitration agreement . . . 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.
Through the EFAA, Congress explicitly overrode the FAA’s general mandate to enforce arbitration agreements. The EFAA’s core purpose is to remove the barrier of forced arbitration, which often conceals workplace sexual misconduct from the general public due to confidentiality requirements in arbitration proceedings. By allowing victims to bring their claims to court, the EFAA aims to increase accountability for perpetrators and promote greater transparency in the handling of sexual harassment and assault cases.
Notably, the EFAA assigns courts, rather than an arbitrator, the responsibility for determining the sufficiency of a plaintiff’s allegations. This has led to disagreements between federal district courts over the appropriate pleading standard when determining whether the EFAA applies. While most courts have required that the sexual misconduct claim alleged in the plaintiff’s complaint meet the plausibility standard shaped by the Supreme Court’s decisions in Ashcroft v. Iqbal (U.S. 2009) and Bell Atlantic Corp. v. Twombly(U.S. 2007), which mandate that the plaintiff allege “enough facts to state a claim to relief that is plausible on its face,” a growing number of courts have adopted a less stringent standard requiring only that plaintiffs plead nonfrivolous claims relating to sexual assault or sexual harassment. The split over the EFAA’s pleading standard, which persists both within single districts and across circuits, is highly consequential for litigants and employers alike and has yet to be resolved by the higher courts.
This Essay begins by summarizing the EFAA and the jurisdictional split over the appropriate pleading standard. It then argues that courts should adopt the “nonfrivolous” pleading standard because it better ensures access to justice for victims of sexual misconduct. The nonfrivolous standard offers courts a way to realize Congress’s legislative purpose in enacting the EFAA and to resist the procedural trends diminishing the civil plaintiff’s place in the legal landscape.
I. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
Introduced in Congress in 2017, the EFAA arose out of the momentum of the #MeToo movement, which highlighted concerns that forced arbitration of sexual misconduct claims in a private forum allows offenders and employers to evade public accountability by “keep[ing] proceedings secret, findings sealed, and victims silent.” Advocates warned that “real change [could not] occur if corporations and the wrongdoers they protect face no public accountability.” Moreover, the secrecy characterizing forced arbitration prevented survivors from learning whether others have experienced similar misconduct, leading to a “‘chilling first-mover problem’ that further perpetuated the underreporting of gender-based workplace violence and harassment.”
While the initial iteration of the EFAA was defeated by pro-arbitration lobbyists, it was reintroduced in Congress in 2021 and gathered significant bipartisan support, passing the House by vote of 335–97 and the Senate by a voice vote. On March 3, 2022, President Joe Biden signed the EFAA into law, deeming it a “historic reform” that would prevent forced arbitration from continuing to “shield[ ] perpetrators, silence[ ] survivors, and enable[ ] employers to sweep episodes of sexual assault and harassment under the rug” due to a lack of public accountability to pressure systemic change. Scholars recognize that “corporations, just like natural persons, have reputational interests, and so are amenable to being shamed” for breach of social norms. Following the EFAA’s passage, employers are no longer automatically shielded from public shaming and embarrassment and therefore are more likely to address the problem of sexual misconduct in their workplaces.
The EFAA altered the FAA in two critical ways. First, it created a new chapter of the FAA to govern arbitration of sexual assault and sexual harassment disputes. Section 402 declares that “no predispute arbitration agreement . . . 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.” Furthermore, § 401 defines a “sexual assault dispute” as one “involving a nonconsensual sexual act or sexual contact,” as defined in 18 U.S.C. § 2246 “or similar applicable Tribal or State law,” while a “sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” Second, it amended § 2 of the FAA, which makes arbitration agreements in contracts that involve interstate commerce “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” by adding the EFAA to § 2’s exceptions.
II. EFAA Pleading Standard: “Plausible” vs. “Nonfrivolous”
Since the passage of the EFAA, courts have grappled with various disputes over the Act’s applicability, including over the appropriate pleading standard to invoke the EFAA’s arbitration preclusion in sexual harassment cases.1 While most courts have applied the plausibility standard set forth in Twombly and Iqbal, a growing minority have required a plaintiff to plead only a “nonfrivolous” sexual harassment claim.
Two cases from the Southern District of New York best illustrate the ongoing split. In Yost v. Everyrealm, Inc. (S.D.N.Y. 2023), the court, as a matter of first impression, addressed the question of whether an implausibly pled sexual harassment claim allows the plaintiff to avoid arbitration under the EFAA. Ultimately, the Yost Court construed the EFAA “to implicitly incorporate the [Twombly/Iqbal] plausibility standard,” which requires the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” The court reasoned that (1) because Rule 12(b)(6) and the plausibility standard were well-known to Congress, it is fair to infer Congress intended only plausible sexual harassment allegations to survive; (2) limiting the EFAA to plausible claims vindicates the EFAA’s purpose by ensuring harassment claims can proceed in court until their durable dismissal, without dragging otherwise arbitrable claims along; (3) reading the statute otherwise would destabilize the FAA by tacitly nullifying arbitration agreements after plaintiffs have already failed to state a viable harassment claim; and (4) courts in other statutory contexts have consistently construed the word “allege” to mean “plausibly allege” under Rule 12(b)(6).
The plausibility standard was uniformly invoked by courts in the Southern District of New York until Diaz-Roa v. Hermes Law (S.D.N.Y. 2024), in which the nonfrivolous standard was applied. The Diaz-Roa Court departed from Yost to conclude that “a plaintiff need only plead nonfrivolous claims relating to sexual assault or to conduct alleged to constitute sexual harassment,” leaving the sufficiency of such claims “to be reserved for proper merits adjudication, be it a motion to dismiss, motion for judgment on the pleadings, motion for summary judgment, or trial.” In other words, the nonfrivolous standard requires a plaintiff’s allegations to be at least substantial enough to satisfy the standard from the Supreme Court’s decision in Bell v. Hood(U.S. 1946), which held that “a suit may sometimes be dismissed for want of jurisdiction where the alleged claim . . . is wholly insubstantial and frivolous.” The Diaz-Roa Court based its interpretation of the EFAA’s pleading standard on “(1) the text of the statute;” “(2) the statutory scheme;” (3) congressional intent; and (4) existing statutory safeguards against “abusive litigation tactics.”
District courts across the country are increasingly applying the nonfrivolous standard in EFAA cases. A court in the Northern District of Illinois recently adopted the Diaz-Roa reasoning, noting that “to read the EFAA as requiring plausibility in order to survive a motion to compel would deny plaintiffs whose first pleadings were technically flawed the opportunity to amend, sending claims to arbitration that would have been clearly within the EFAA’s scope if the plaintiff had submitted a better initial complaint.” Similarly, courts in the Central District of California and the District of Oregon have acknowledged “the dubiousness of adjudicating the plausibility of a sexual harassment claim upon a motion to compel arbitration,” emphasizing that such motions are “designed to test adjudicative capacity, not the merits or proper pleading of claims.”
III. Making the Case for the Nonfrivolous Standard
Given the continuing divide over the EFAA’s pleading standard, the question is now ripe for federal appellate court guidance, and this Essay is among the first to propose a solution to the ongoing split. In a forthcoming article, David Horton takes a textualist approach to determining the EFAA’s pleading standard, arguing that courts should adopt the plausibility requirement for allegations of sexual harassment because it has “an anchor” in the EFAA’s text and serves as a more relevant “gatekeeper” than the nonfrivolous standard. This Note advocates an alternative approach, contending that courts should instead favor the nonfrivolous standard because it better ensures access to justice for victims of sexual harassment and sexual assault.
The plausibility standard creates an unrealistically high bar for plaintiffs that will prematurely force claims into arbitration without the benefit of any discovery or meaningful fact-finding. This directly contravenes the intended purpose of EFAA—“to restore access to justice for millions of victims of sexual assault or harassment who are currently locked out of the court system and are forced to settle their disputes against companies in a private system of arbitration.” Despite the reality of a textualist majority on the Supreme Court, the “purpose-driven approach . . . is more consistent with [the] democratic values” of electoral accountability, government functionality, representation, and institutional legitimacy, and should therefore be championed when interpreting EFAA’s pleading standard to fulfill Congress’s express goal of expanding—not narrowing—court access for survivors of sexual violence.
“Access to justice” is an expansive concept that has been defined and operationalized in various ways. Generally, discussions of access to justice tend to champion “the allocation of greater procedural resources and opportunities to [ ] disadvantaged individuals,” while discouraging “legislation, court rules and judicial decisions that make it more difficult for such individuals to pursue their legal claims.” Equality of litigants’ resources, understood as “what one brings to court, but also of what court rules and procedures allow one to do in court,” can be undermined “when courts interpret or apply procedural rules in ways that restrict some parties’ access to procedural opportunities.”
Some scholars lament that access to justice has been threatened in recent years by the “erosion of notice pleading in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage.” In the notice pleading system, all that was needed was “a short and plain statement of the claim showing that the plaintiff is entitled to relief,” while today’s plausibility standard imposes a higher burden requiring plaintiffs plead sufficient facts that make a claim “plausible” rather than “possible.” Therefore, the Supreme Court’s decisions in Twombly and Iqbal reflect an increasingly “restrictive ethos” of civil procedure that frustrates access and merits-based or accurate resolutions of civil disputes. The elimination of the “procedural gold standard” of notice pleading “appears to have resulted in . . . dismissals decided on the basis of a single document—the complaint—with no discovery, no summary judgment, no trial, and no jury,” and has made it so that “access to the courts has been priced beyond the reach of the vast majority of Americans.”
Given the stated purpose of the EFAA—to “restore access to justice” for survivors of sexual assault and harassment—instituting a plausibility-pleading system for plaintiffs would directly contravene Congress’s explicit legislative intent. This heightened standard risks perpetuating what Professor Brooke Coleman describes as the “vanishing plaintiff” phenomenon. The “vanishing plaintiff” is a litigant—often economically disadvantaged, marginalized, or facing power imbalances—whose access to court has been quietly eroded by restrictive procedural barriers, like plausibility pleading. Within this procedural landscape, the survivors whom the EFAA was enacted to protect are precisely the kinds of plaintiffs most vulnerable to vanishing—employees confronting powerful institutional defendants and systemic power imbalances, often with unequal resources that limit their access to courts from the outset. In fact, data shows that dismissals of employment discrimination and civil rights cases have risen significantly in the wake of Twombly and Iqbal, and federal courts have routinely used the plausibility standard to dismiss what otherwise appear to be viable sexual harassment allegations in the workplace. Courts determining the EFAA’s pleading standard are “at the tension point of deciding whether the loss of some meritorious claims is a worthy sacrifice,” and should ultimately “consider whose meritorious claims these are.” By adopting the nonfrivolous standard, courts would not only align with Congress’s intent to restore access to justice but also resist the broader procedural trend that has rendered the civil plaintiff an increasingly endangered party in our legal system.
Conclusion
A jurisdictional split is clearly in place over the appropriate pleading standard when determining whether the EFAA applies and, thus, whether arbitration can be compelled by an employer. When higher courts weigh in on this issue, they should adopt the nonfrivolous pleading standard in order to both effectuate Congress’s intent to restore survivors’ access to justice and resist the procedural trend that has rendered the civil plaintiff increasingly disempowered. The judiciary should take the opportunity to reaffirm that the courthouse doors remain open to those Congress sought to protect with the passage of the EFAA.
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Olivia Kramer is a J.D. Candidate at The University of Chicago Law School, Class of 2027.
- Sexual assault claims have not yet been addressed by this split.