Mandatory Arbitration Takes Backseat to Sexual Harassment and Assault Claims

Many employers require employees to agree in writing that any dispute will be resolved out of court by arbitration. However, The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act allows employees alleging sexual harassment or assault to elect to proceed in court notwithstanding a signed arbitration agreement.

Recent authority confirms that the statute is being applied broadly—often eliminating arbitration for entire lawsuits, not just harassment claims. In Casey v. Superior Court, the court held that where a complaint includes a qualifying harassment claim, the arbitration agreement is unenforceable as to all claims in the action, and employers cannot contract around that result.

This reflects a clear litigation trend heading into 2026: plaintiffs are using harassment allegations as a gateway to avoid arbitration altogether, and courts are largely permitting it.