When Kassandra Memmer went to work for United Wholesale Mortgage (“UWM”) in 2019, she had no idea what was ahead. While employed as a mortgage underwriter, and according to her employment discrimination lawsuit, Memmer faced sexual harassment from a coworker, gender discrimination when UWM refused to allow her to work remotely during her pregnancy amid the COVID-19 pandemic, and overall retaliation and hostility. After enduring months of mistreatment, she finally resigned in July 2021. Later, she filed a lawsuit alleging sexual harassment, pregnancy discrimination, retaliation, disability discrimination – failure to accommodate under Americans with Disabilities Act (“ADA”), and unpaid overtime under the Fair Labor Standards Act (“FLSA”).
UWM’s response was swift. They pointed to an electronic employment agreement Memmer had signed before starting her job, which included a forced arbitration clause. This clause required employees to give up their right to bring employment discrimination or harassment claims in a public court. The district court sided with UWM, forcing Memmer’s claims into private arbitration — a secretive process that often benefits employers.
What Does The Ending Forced Arbitration Act Mean For Employees Who Face Harassment Or Assault?
Many employees worry that once they sign an arbitration agreement, they have no options. But thanks to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), employees who face sexual harassment or sexual assault at work now have a choice. Under the EFAA, any case relating to sexual harassment or sexual assault can be brought to court, even if the employee signed an arbitration agreement. The employer cannot force the employee into arbitration — the employee has the option to choose court instead.
The EFAA dramatically changed the landscape for employees who experienced sexual harassment or assault at work. If an employee’s dispute with their employer arose on or after March 3, 2022, the employee cannot be forced into arbitration for those claims. Instead, the employee can choose to have their case heard in a public courtroom, allowing for greater transparency and accountability.
Memmer’s fight is about more than just one workplace — it shows how critical the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is for employees nationwide. Before this law, companies could hide behind forced arbitration clauses, preventing survivors of harassment from exposing misconduct publicly. Arbitration was stacked against employees, lacking transparency, accountability, and fairness. This issue is personal for me. I had the honor of presenting witness testimony before the House Judiciary Committee to advocate for the passage of the EFAA. I was also privileged to be invited to the White House to watch President Biden sign the EFAA into law. This wasn’t just another piece of legislation — it was a groundbreaking moment to shift power back to employees like Memmer and countless others. Our firm’s deep involvement in these issues is why we fight so fiercely for employee rights today.
Best Employee’s Rights Lawyer Blogs on Point:
- More On The Evils Of Forced Arbitration
- Forced Arbitration Sucks, Here’s Why
- Step 3: President Biden Signs The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Into Law
When Did The Ending Forced Arbitration Act (EFAA) Become Effective?
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) became effective on March 3, 2022.
In the district court, United Wholesale Mortgage moved to compel arbitration, arguing that Memmer had electronically signed an employment agreement requiring arbitration of any disputes. Memmer responded that she did not recall signing an arbitration agreement and did not understand the significance of the documents she electronically signed. The district court rejected these arguments, relying on Michigan law, which presumes that individuals who sign contracts have read and understood what they sign.
Critically, the district court did not address the EFAA at all — even though Memmer’s claims included allegations of sexual harassment and even though her EEOC charge and lawsuit were filed after the EFAA became law. Instead, the court treated the arbitration agreement as fully enforceable without considering whether the EFAA gave Memmer the right to choose court over arbitration. This omission was crucial.
Under Title VII and related employment statutes, a claim typically “accrues” when the discriminatory or retaliatory conduct occurs — not when an employee files a complaint about it. By contrast, a “dispute” can “arise” later when the employee challenges the harassment, such as by filing an internal complaint, an EEOC charge, or a lawsuit, and the employer denies wrongdoing. This distinction matters because the EFAA protects employees if either their claim accrued or their dispute arose after March 3, 2022.
The difference between when a claim accrues and when a dispute arises is critically important. If a claim accrued before March 3, 2022, the EFAA might not apply based on the claim alone. However, if the dispute — the actual adversity between the employee and employer — arose after March 3, 2022, then the employee is still protected by the EFAA and can elect to proceed in court.
Memmer appealed to the Sixth Circuit, arguing that the district court failed to properly apply the EFAA. The Sixth Circuit agreed. The Court emphasized that courts must carefully consider whether a “dispute” or “claim” arose or accrued after March 3, 2022, to determine if the EFAA applies.
The Sixth Circuit reversed and remanded the case, instructing the district court to apply the correct legal standard under the EFAA. The Court explained that: ”Employees who allege sexual harassment have the right to elect a public court forum, even if they previously signed an arbitration agreement.”
This outcome reinforces that employees subjected to sexual harassment or assault cannot be forced into arbitration if they act after March 3, 2022. Timing matters — and having lawyers who deeply understand employee protections under new laws can change the trajectory of a case.
Best Sexual Harassment Attorney Blogs on Point:
- How Are Work Arbitration Agreements Enforced?
- Employers Will Try Everything To Get Into Arbitration
- Some Delivery Drivers Are Exempt From Arbitration … But Which Ones?
What Should You Do If You Were Sexually Harassed Or Discriminated Against But Signed An Arbitration Agreement?
If you faced harassment or discrimination at work and signed an arbitration agreement, you may still have a path to bring your case to court. If the dispute with your employer arose after March 3, 2022 — for example, if you filed a complaint with HR, an EEOC charge, or a lawsuit after that date — you could choose to avoid forced arbitration and have your claims heard in a public courtroom. Timing matters, so it is critical to act quickly, gather your evidence, and consult a lawyer experienced in employee rights under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA).
The legal landscape around arbitration and employment rights is complex and constantly evolving. That’s why it is essential to hire a law firm that focuses exclusively on representing employees — never employers. At Spitz, The Employee’s Law Firm, we have fought tirelessly for employee rights, including standing at the forefront of legislative battles like the Ending Forced Arbitration Act. When you work with us, you’re working with a firm that helped shape the very laws protecting you today.
We offer free consultations, and you pay no fees unless we win. If you believe your rights were violated at work, or you are unsure if an arbitration agreement affects your ability to sue, contact Spitz today. Choose a firm that knows the law — and knows how to fight for you.
Employment Law Disclaimer
This employee rights blog is for general informational purposes only and should not be taken as legal advice. Every workplace situation is unique. For advice on your specific facts, contact a qualified employment law attorney. Topics in this post include sexual harassment at work, forced arbitration of sexual harassment claims, employee rights under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), choosing between arbitration and court after harassment, and understanding employee protections for sexual harassment disputes. This blog is a legal advertisement by Spitz, The Employee’s Law Firm.