What Litigants Need to Know About Arbitration of Cases Involving Claims Relating to Sexual Harassment After the Sixth Circuit’s Recent Decision in Bruce v. Adams & Reese LLP
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), 9 U.S.C. §§ 401–02, was enacted to ensure that plaintiffs alleging sexual harassment and sexual assault are not forced into private arbitration. The EFAA limits the enforceability of predispute arbitration agreements when a plaintiff alleges qualifying misconduct relating to sexual harassment.
Until recently, no federal appellate court had interpreted the scope of the EFAA; particularly, whether the statute bars arbitration of only the sexual harassment claim or all claims brought in the same lawsuit. The Sixth Circuit’s decision in Bruce v. Adams & Reese LLP, 168 F.4th 367 (6th Cir. 2026), is the first appellate ruling to address this question, and its holding significantly expands the EFAA’s reach.
In Bruce, the plaintiff filed a lawsuit asserting:
- A sexual‑harassment claim under Title VII; and
- Separate claims alleging violations of the Americans with Disabilities Act (ADA).
The parties in Bruce agreed that the EFAA prevented enforcement of the arbitration agreement as to the sexual‑harassment claim. The dispute centered on whether the ADA claims, unrelated to sexual harassment, remained subject to arbitration. The Sixth Circuit held that when a plaintiff alleges a sexual harassment claim that survives a motion to dismiss on the pleadings, the EFAA renders arbitration agreements unenforceable as to the entire case, not merely the harassment claim.
The Sixth Circuit’s decision in Bruce v. Adams & Reese LLP marks a significant expansion of the EFAA’s arbitration‑precluding effects. For litigants in Michigan, Ohio, Kentucky, and Tennessee, the ruling will likely increase litigation exposure, discovery burdens, and public scrutiny for defendants. These additional costs and considerations should be more seriously evaluated by potential litigants moving forward and should guide attempts at resolving cases before litigation. These costs and considerations also reinforce the need for robust anti-harassment policies and training.
As the legal landscape continues to evolve, litigants should consult experienced counsel to navigate the implications of the EFAA and the Bruce decision moving forward.
