Second Circuit Examines Application of Arbitration Limits in Sexual Assault and Harassment Cases

The Second U.S. Circuit Court of Appeals is considering a workplace sexual harassment case that likely will shape the interpretation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (codified as 9 U.S.C. §§ 401-402) and employer arbitration clauses.

The specific issue before the Second Circuit in the Jan. 23 arguments in Puris v. TikTok, Inc., No. 25-322, was whether the conduct alleged constituted sexual harassment, thereby triggering EFAA protections and shielding the plaintiff from mandatory arbitration required by her contract. The oral argument was less arbitration and more definitions of workplace conduct, but could have big implications for the ADR process.

Statutory Background

The EFAA was enacted in a bipartisan effort to prevent “employers [from] sweep[ing] episodes of sexual assault and harassment under the rug,” according to former President Joseph Biden when signing the act into law in March 2022. The act makes any “predispute arbitration agreement or predispute joint-action waiver” invalid and unenforceable for any case filed involving a sexual assault or sexual harassment dispute.

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 contact” 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 appeals seven times and has been interpreted by the Second Circuit once. In Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74 (2d. Cir. 2024), the Second Circuit held that the EFAA applied to the dispute in question, rendering the arbitration agreement invalid and unenforceable.

Specifically, the issue in Olivieri was not whether the underlying conduct was sexual assault or harassment within EFAA’s definition. The Second Circuit recognized that the conduct alleged, if true, would constitute sexual assault or harassment as defined in the act. The analysis, however, turned on whether the conduct accrued “on or after” EFAA’s effective date because the EFAA was enacted after the suit was filed. 

Although Olivieri addresses the EFAA’s applicability regarding accrual of claims only, it provides a sense of the Second Circuit’s interpretation of the act’s underlying policy. The court refrains from imputing its judgment to Congressional will, stating, “if Congress wanted the EFAA to apply only to claims that ‘first’ accrue after its enactment, it could have said so.” As the court highlights, if Congress had included a specific effective date tied to first accrual of a claim, the conclusion in Olivieri may have been different.

Procedural History Before the Second Circuit

In her May 2024 amended complaint, the plaintiff-appellee, Katie Ellen Puris, alleged that her former employer subjected her to regular gender and age-based discrimination during work and “overt sexual harassment” while at an industry event dinner sponsored by a third-party advertising agency.

According to the complaint, while at the dinner in France, the agency’s managing director became intoxicated and “repeatedly” touched her while suggesting post-dinner activity. This behavior made Puris visibly uncomfortable and prompted another TikTok employee to help lead her away from the agency’s managing director.

Puris reported the behavior to both the head of global human resources and her direct supervisor. She was assured that the “incident would be addressed.” Later in the France trip, Puris was scheduled to attend a panel discussion and was warned that the agency’s managing director would be in attendance too. This warning prompted her to skip the event.

After returning from the France trip, Puris did not receive a follow up message regarding the incident from TikTok’s ethics or human resources team. Several weeks later, she received a response from the ethics team, notifying her that the agency’s managing director would not participate in future TikTok business.

Shortly thereafter, Puris was fired for “performance reasons” after expressing concerns about the treatment of women at TikTok and the sexual harassment faced on her France trip.

Before the Southern District of New York, the defendants filed a Rule 12(b)(6) motion to dismiss for failure to state a claim, arguing that EFAA did not apply because Puris did not plausibly plead a retaliation claim. Alternatively, even if EFAA applied to some of Puris’s claims, the remaining claims must be arbitrated because of the distinction between a “case” and a “claim.” The defendants also filed a renewed motion to compel arbitration.

The New York Southern U.S. District Court found that the “core of the plaintiff’s complaint” was an allegation of age and sex discrimination resulting in her September 2022 termination. This sufficiently stated a hostile work environment claim under both federal and New York state law. The defendants’ motion to compel arbitration was thus denied. See Puris v. TikTok Inc., 2025 WL 343905, 24cv944 (DLC), at *1 (S.D.N.Y. Nov. 13, 2024) (U.S. District Court docket available here).

Defendant-Appellant’s Arguments

Before the Second Circuit last month, the defendant-appellants, TikTok, through its counsel of record, New York-based Jones Day partner Traci Lovitt, argued that the alleged sexual harassment came from a non-employee while outside of the physical workplace, and that “his conduct cannot be imputed to the defendants.” Therefore, Lovitt argued, the EFAA would not apply.

In the defendant’s view, the complaint did not allege that TikTok had reason to know about the alleged sexual harassment or that it had control over the environment, as required by most sexual harassment-related statutes.

TikTok acknowledged the broad policy implications Congress faced when drafting EFAA: strong federal policy in support of arbitration and “a longstanding rule of law that [parties] honor contracts as written,” Lovitt argued.

In addressing Olivieri, TikTok argued that its position was distinct because the central issue on appeal concerned accrual of violations, not the definition of sexual harassment within the statute. The sexual misconduct in Olivieri was blatant to the court, with the only issue remaining being accrual. TikTok argued that the underlying sexual harassment, triggering a retaliatory action, was not present in this case.

According to TikTok, allegations of gender discrimination are “not enough to get you into EFFA.” “Retaliation, in and of itself, can’t suffice as the sexual harassment.  . . . Just retaliation without the underlying sexual harassment doesn’t fulfill the textual requirement,” argued Lovitt.

Plaintiff-Appellee’s Arguments

Rebutting the contention that TikTok had no knowledge of the harassment, the plaintiff-appellee argued that a supervisor was present at the time of the France dinner.

“As a matter of pure definition,” according to Puris, through counsel of record Michael Willemin, a partner in New York’s Wigdor, “sexual harassment . . . is not limited to sexually charged behavior.” By this definition, the plaintiff’s allegations would be covered by EFAA, even if they were mere instances of gender discrimination.

Regarding Olivieri, Willemin argued, retaliation was the triggering moment for EFAA application.

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The Second Circuit’s eventual holding will shape future interpretations of Olivieri and the applicability of the Act in general.

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The Puris v. TikTok oral argument recording can be downloaded 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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