Harassment Claim Based on Comments About Being “Gay” Cannot Be Forced into Arbitration in California.

In 2021, Congress passed the Ending Forced Arbitration Act (“EFAA”), which prevents employers from requiring employees to arbitrate a “dispute relating to conduct that is alleged to constitute sexual harassment under … state law.”  See U.S.C. § 401. 

In a major new decision, a California Court of Appeal held that comments to an employee such as “you shouldn’t be gay; it’s not okay; it’s sinning” were covered by the EFAA, and therefore could not be forced into arbitration.  The Court reasoned that under California’s Fair Employment and Housing Act (“FEHA”), harassment based on sexual orientation is a form of sexual harassment. 

In dicta, the Court pointed out that harassment based on “gender, pregnancy, childbirth, and medical conditions relating to pregnancy and childbirth” is also “sexual harassment” under FEHA.  Along with other recent decisions holding that an entire case is exempt from arbitration when it contains any claim falling within the EFAA, this case confirms the far-ranging impact of the EFAA in preserving access to court for California employees alleging harassment related to sex.    
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The case is Decloedt v. Radnet Management, published on July 7, 2026, and is available here.

Posted by Jacqueline Crispino