EFAA Updates from the 9th, 6th & 2nd Circuits: An Arbitration Restriction’s Judicial Refinement

In the four years since the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, courts are still finding their footing on how to approach it. 

Issues such as when a case is covered by the EFAA in consideration of the statute's timing language, what standard complaints should be held to, and whether claims related to sexual harassment in the same case fall within the act’s scope are on dockets nationwide.

The EFAA, enacted by Congress on March 3, 2022, seeks to protect sexual assault and harassment claims from being forced to arbitration by making any “predispute arbitration agreement or predispute joint-action waiver” invalid.

CPR Speaks has covered several important appeal cases.  Here is the latest on those cases:

• In Combs v. Netflix Inc., No. 25-3164, the Ninth U.S. Circuit Court of Appeals addressed when an EFAA dispute arises in consideration of the act’s 2022 installation, and concluded that the dispute predated the statute.
• In Bruce v. Adams & Reese LLP, No. 25-5210, the Sixth Circuit’s reading of Congress’s choice of the word “case” rather than “claim” now appears likely to stand after the deadline for U.S. Supreme Court review expired.
• Puris v. TikTok, Inc., No. 25-322, remains pending before the Second Circuit, with a decision expected this summer. This case could provide guidance on what qualifies as “sexual harassment” and how closely other claims in the case must relate to the sexual harassment claim.

Combs v. Netflix

In Combs, the Ninth Circuit has clarified when an EFAA dispute arises.

On July 8, a unanimous Ninth Circuit panel affirmed the district court’s order compelling arbitration in Combs, holding that the EFAA did not apply because the dispute arose before the statute took effect.

Combs alleged that she experienced a hostile work environment and specific instances of sexual harassment between 2017 and 2021 during her employment with Netflix, and that she was terminated in response to her complaints in December 2021.

The EFAA’s timing provision states that the act only applies to cases that “arise or accrue” on or after March 3, 2022. Combs argued, however, that the claim arose when she filed the complaint with the California Department of Fair Employment and Housing in August 2023.

For additional background on the issues presented and the parties’ arguments, see Catherine Dirksen, “9th Circuit Weighs Limits of the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act,” CPR Speaks (Feb. 19) (available here).

Writing for the panel, Circuit Judge Daniel Bress explained that an EFAA “dispute” arises when an employee registers a disagreement with their employer and the employer opposes the position, not when the employee later files a complaint. Since Netflix’s response to Combs resulted in her termination, which occurred in December 2021, the EFAA did not apply and the claims must proceed in arbitration.

The decision follows the Third Circuit’s approach to the issue of the EFAA’s timing provision in Cornelius v. CVS Pharmacy, 133 F.4th 240 (3d Cir. 2025), which was cited by Judge Bress, where repeated internal complaints met with employer inaction were enough to show that a dispute had already arisen before the EFAA’s effective date.

Bruce v. Adams & Reese

On Feb. 25, the Sixth Circuit ruled in Bruce v. Adams & Reese that employers cannot compel arbitration if the plaintiff has brought multiple claims with at least one sexual harassment claim.

Plaintiff Bruce alleged that her former employer had failed to accommodate her disability under the ADA, but also brought Title VII sexual harassment and retaliation claims in her suit. New Orleans-based Adams & Reese, where the accused law firm partner switched after the alleged conduct, moved to dismiss the Title VII claims and to compel arbitration of the ADA claim.

The lower court denied both motions, finding the harassment allegations were plausibly pled and holding that the EFAA barred arbitration of the entire case when it included a sexual harassment claim. The Sixth Circuit affirmed, noting that Congress used the word "case" rather than "claim" in drafting the EFAA, and that this word choice showed an intention to prevent all claims in a case involving sexual harassment from compelled arbitration.

The Sixth Circuit panel did not specify the pleading standard for the sexual harassment complaint, instead stating that, regardless, Bruce's complaint "passes the higher bar." Adams & Reese sought a petition for en banc rehearing before the full circuit court, arguing that this changes the pleading standard necessary for a Title VII complaint to compel arbitration under the EFAA. The petition was denied on April 9, triggering the 90-day period to seek U.S. Supreme Court review.

That deadline closed on July 8, and no petition currently appears on the Supreme Court's docket. With no petition on the docket, the Sixth Circuit's decision is likely to remain the final word on the EFAA’s entire-case arbitration issue.

For additional background on Adams & Reese’s unsuccessful petition for rehearing en banc, see Catherine Dirksen, “EFAA: Employer’s Petition for Rehearing En Banc Denied,” CPR Speaks (April 20, 2026) (available here).

Puris v. TikTok

Puris v. TikTok Inc. remains under consideration before the Second Circuit, which has not yet issued a decision more than six months after the Jan. 23 oral arguments. For additional background, see Catherine Dirksen, “Second Circuit Examines Application of Arbitration Limits in Sexual Assault and Harassment Cases,” CPR Speaks (Feb. 6, 2026) (available here).

Plaintiff Puris alleged that she was subject to regular gender and age-based discrimination throughout her time employed by TikTok, and “overt sexual harassment” while at an industry event sponsored by a third-party agency. After reporting the behavior to the social networking site’s global human resources group and receiving no follow-up for several weeks, Puris alleged that she was fired in retaliation shortly afterward.

TikTok argued that, since the alleged harasser was a third-party agency director, TikTok could not be held responsible for the conduct. In addition, TikTok argued that the alleged sexual harassment did not underlie the retaliatory argument and that the gender discrimination claim is not in itself a sexual harassment claim.

The appeal presents two significant questions surrounding the interpretation of the EFAA. First, do the retaliation claims “relate to” the sexual harassment dispute closely enough to remain in court under the statute’s entire-case provision? Second, does “sexual harassment” include sex-based hostility without overtly sexual conduct? Both questions remain open for now.

What to Watch

The courts are still developing their approach to EFAA issues. Combs provides additional guidance on the timing concerns for disputes that predate the EFAA’s effective date, while Bruce reinforces the “entire case” approach to cases in which only some claims are sexual harassment claims. Puris will be an important case to watch going forward, as the Second Circuit could address how closely related a claim is needed to be protected by the entire-case provision, and the nature of the harassment that can qualify as sexual harassment for EFAA purposes.

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The author, a 2026 CPR Summer Intern, is in her second year at the Northeastern University School of Law in Boston.

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