9th Circuit Weighs Limits of the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act
The Ninth U.S. Circuit Court of Appeals is considering an employment-related arbitration case involving claims of sexual harassment. The case weighs the statutory interpretation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (codified as 9 U.S.C. §§ 401—02), as applied to pre-EFAA conduct.
The specific issue before the Ninth Circuit on Feb. 4 in Combs v. Netflix, Inc., No. 25-3164, was whether the alleged sexual harassment accrued on or after the EFAA’s enactment. In oral arguments, the parties dissected the meaning of “dispute” and “claim” as applied to the underlying allegations.
Courts nationwide are dealing with the EFAA’s application to the workplace as claims are made under the Biden-era legislation. See, e.g., Catherine Dirksen, “Second Circuit Examines Application of Arbitration Limits in Sexual Assault and Harassment Cases,” CPR Speaks (Feb. 6) (available here).
Statutory Background
The EFAA was enacted in March 2022 as a bipartisan effort to mitigate the potential silencing effect that employer arbitration clauses may have on survivors of sexual assault and harassment. The act makes any “predispute arbitration agreement or predispute joint-action waiver” invalid and unenforceable for any case filed involving sexual assault or sexual harassment dispute.
As enacted, the EFAA applies “with respect to any dispute or claim that arises or accrues on or after” March 3, 2022. As articulated by the California Central District federal court in Combs v. Netflix, No. 2:24-cv-09037-MRA-MAA, 2025 WL 1423344, at *1 (C.D. Cal. April 16, 2025) a claim accrues “when the plaintiff has a complete and present cause of action” (quoting Gabelli v. SEC, 568 U.S. 442, 448—49 (2013)). In the employment context, a claim accrues when the plaintiff is injured due to an adverse employment action.
The EFAA’s applicability is to be determined by a court under federal law. Broadly, the act defines “sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual conduct” as defined in 18 U.S.C. § 2246 “or similar applicable Tribal or State law.”
Since its enactment, the EFAA has been the subject of federal appeal seven times at this writing and has not been interpreted by the Ninth Circuit until Combs v. Netflix. The California federal district courts, however, have considered the issue in at least 31 different cases, most recently in January 2026. See Lewis v. Tesla Inc., Case No. 24-cv-08178-AMO, 2026 WL 16882, at *1 (N.D. Cal. Jan. 2, 2026) (U.S. District Court docket available here).
Procedural History Before the Ninth Circuit
In her July 2024 complaint, originally filed in California state court and subsequently removed to federal court, plaintiff-appellant Jessica Combs alleged sexual harassment, failure to prevent harassment, hostile work environment, and other related claims against her former employer, Netflix, after her December 2021 termination.
Combs’s complaint alleges that the sexual harassment occurred in 2018 at offsite “team building exercises.” In addition to discrete incidents of sexual harassment, Combs also alleged that Netflix generally “promoted quite a flirtatious office environment that was very sexual in nature.”
Combs “complained” to Netflix “regarding the uncomfortable nature of the sexually charged atmosphere she and other female employees were subjected to.” Netflix, however, allegedly did not address the situation. Fearing “retaliatory harassment,” Combs stopped complaining.
Following her termination, Combs filed an employment discrimination complaint against Netflix on March 3, 2022, with the California Department of Fair Employment and Housing. She received a right-to-sue notice on Aug. 3, 2023, and filed suit the following July.
After removing the matter to federal court, Netflix moved to compel arbitration and dismiss the matter based on Combs’s signed employee arbitration agreement. The arbitration agreement stated that employees “agree to let the entire dispute be handled by the American Arbitration Association” with Netflix agreeing to “pay for any administrative or hearing fees,” with the exception that the employee is responsible for the initial filing fee.
In response, Combs did not dispute her assent to the arbitration agreement in her employment contract. Instead, Combs argued that her sexual harassment claims prohibit enforcing the arbitration agreement under the EFAA. Specifically, the EFAA is triggered when the “dispute arose between the parties.” Under this reading, the dispute arose on Aug. 3, 2023, the date that she filed a case with the California state agency.
Relying on the law’s enactment in relation to the conduct, Netflix argued that the claims accrued on or before Dec. 1, 2021, about three months before the EFAA’s enactment.
The California Central U.S. District Court found that the EFAA did not apply, thus compelling arbitration. Because Combs had made several complaints to her employer about the alleged hostile work environment prior to her December 2021 termination, the court ruled that the claims accrued before the enactment of the EFAA.
Plaintiff-Appellant’s Arguments
Before the Ninth Circuit, plaintiff-appellant Combs, through her counsel of record Michael C.P. Clark, an attorney at San Bernadino, Calif.’s Brown Clark Le & Cevallos LLP, argued that the legal issue was when the claim arose because, according to Combs, the claim arose when she filed it with the state Department of Fair Employment and Housing.
Clark argued that “a dispute in cases like this arises once the party against whom the complaint is made, responds.” Such a reading would make it possible for Combs to bring her sexual harassment claim while still respecting the EFAA’s purpose because Netflix did not respond to her internal complaints of sexual harassment.
To Combs, an employer’s silence “cannot inform us of the nature of the dispute” because the employer has not responded or otherwise offered its position. As Clark clarified, the plaintiff is not arguing that a dispute arises only when a plaintiff files suit with a state agency or court. He explained that his client instead was advocating for the position that a dispute arises when both parties are aware of it and the party against whom the complaint is made responds.
Hypothetically, under this reading of dispute, had Combs complained and been met with a rejection of her accusations from Netflix, “some form of a dispute” would have arisen, said Clark.
In response, the Ninth Circuit panel--Senior Circuit Judge Susan P. Graber and Circuit Judges Daniel A. Bress and Anthony D. Johnstone--questioned the broader difference between a “dispute” and a “claim” within the meaning of the EFAA. Perhaps Congress’s usage of “dispute” and “claim” are redundancies, suggested Johnstone, but perhaps “what Congress is trying to do is enhance the protections and keep the courthouse doors open to a larger class of claims.”
A copy of the plaintiff-appellant’s brief is available here.
Defendant-Appellee’s Arguments
The defendant-appellee Netflix, through its counsel of record, Ashley M. Farrell Pickett, a shareholder in Greenberg Traurig’s Los Angeles office, argued that the district court’s ruling should be affirmed because (1) the complaint alleges a conflict, and thus a dispute, that began “years before the EFAA was enacted” and (2) the allegation was neither timely nor plausible. For both reasons, Netflix argued, the EFAA should not apply.
In response to the possibility that a claim and a dispute would overlap, Netflix reiterated Congress’s intent in drafting the statute. Congress intended a clear difference between the “two distinct concepts of when a conflict can come into existence,” argued Pickett.
“A dispute arises when there is real-world conflict. A claim accrues when there’s legal readiness,” according to Pickett. Citing other U.S. Circuit Courts of Appeals cases, a right-to-sue letter or other court or administrative filing can be evidence of a dispute, but it is not the only evidence of a dispute. In other words, if Congress intended the definition of dispute to require an administrative or court filing, it would have specified.
Although the oral arguments were largely academic in nature, dissecting each word of the statute, rather than arbitration itself, the decision could shape a large body of EFAA-related case law throughout the country.
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The Combs v. Netflix oral argument video recording can be viewed directly at this link.
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The author is a CPR Institute Spring 2026 semester intern and is a second-year student at Brooklyn Law School in New York.
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