Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—D.D.C.: EFAA scope determined on arbitration question of first impression in D.C. Circuit, (Sep 22, 2025)

By Justin Marcus Smith, J.D.

Statutory preclusion of forced arbitration of sexual assault or harassment claims did not turn on whether the claims were “inexorably intertwined” or rose or fell together, but whether the claims related to sexual harassment.

Denying motions to dismiss and a motion to compel arbitration brought by a law firm and two law firm partners defending accusations of sexual harassment brought by another partner of the firm, a federal court in the District of Columbia found that the employee who brought the complaint plausibly alleged sexual harassment in violation of the D.C. Human Rights Act (DCHRA). As to the employer’s contention that the employee was required to arbitrate her Title VII retaliation, DCHRA, and D.C. tort claims, the court, in a matter of first impression, found that the employee had asserted a Title VII claim relating to sexual harassment under the EFAA, and any predispute agreement to arbitrate was unenforceable under the EFAA as each remaining claim related to the sexual harassment dispute (Rix v. Polsinelli PC, No. 23-03062 (AHA) (D.D.C. Sept. 18, 2025)).

Sexual harassment. A former law firm partner sued her law firm and two of its partners asserting sexual harassment, hostile work environment, and related claims. The complaint described numerous specific alleged incidents of sexual harassment at work and at professional events in the District of Columbia, where the employee worked, and in New York, where the law firm partners worked.

According to the employee, the incidents included allegations of unconsented physical contact. She said the partners had impeded her ability to generate business and succeed by conditioning deal collaboration on accession to demands for a personal sexual relationship. She asserted that this led to her first negative performance review, conducted by other partners who regularly worked with the two law firm partners. She said the firm fired her two days after she reported the partners’ alleged misconduct, and that the firm then withheld compensation from her.

Claims. In her lawsuit, the employee alleged seven counts: (i) sexual harassment in violation of the DCHRA against all defendants; (ii) retaliation in violation of the DCHRA against the law firm; (iii) aiding and abetting violations of the DCHRA against the two partners; (iv) hostile work environment in violation of Title VII against the firm; (v) retaliation in violation of Title VII against the firm; (vi) intentional or reckless infliction of emotional distress against all defendants; and (vii) negligent infliction of emotional distress against the firm. She dropped a breach of contract count against the firm.

Controlling law. As an initial matter, the court held that D.C. law controlled the case. The defendants argued the employee should have brought her DCHRA and D.C. common law claims under Missouri law, pursuant to the firm’s employment agreement, or, alternatively, under choice-of-law analysis. The court analyzed that neither a choice-of-law provision nor its analysis supported the application of Missouri law over D.C. law.

The employment agreement would have made Missouri law applicable to questions of construction or interpretation of the employment agreement. However, the partner had voluntarily withdrawn her contract claim, and her remaining claims did not have to do with the employment agreement. The defendants had disclaimed reliance on the forum-selection clause to challenge D.C. as the proper venue. As for choice-of-law in D.C., nothing in the employment agreement required the application of Missouri law to the D.C. anti-discrimination and tort law claims, and the law firm parties did not meaningfully contest this.

Nothing suggested Missouri was the center of anything other than the place of incorporation. The court accordingly rejected the law firm parties’ argument that Missouri law applied to the partner’s state law claims.

DCHRA claim. Next, the court found that the complaint plausibly alleged a DCHRA sexual harassment claim against all of the defendants. Only one of them, one of the partners, contested whether the employee stated a claim. The court found the employee had plausibly alleged the partner had made, among other things, at least nine separate requests for dinner and drinks; several blatant sexual overtures; and kissed her without consent. The employee also alleged both partners made or attempted to make sexual interaction a condition of the collaborative deal the employee needed to succeed at the firm.

Beyond discomfort, the alleged conduct caused emotional distress. The partner in question allegedly held informal power over the employee and created a work environment that was intimidating, hostile, or offensive. The court found this enough to state a DCHRA sexual harassment claim.

Aiding, abetting. As to the partners’ argument that they could not be simultaneously liable for violating the DCHRA and liable for aiding and abetting DCHRA violations, the court explained that the D.C. Court of Appeals has recognized that if a law firm unlawfully discriminates, then the partners who carry out the allegedly discriminatory acts aid and abet the employer’s discrimination. Accordingly, the court concluded the employee sufficiently alleged the partners, as partners aided and abetted the law firm in violating the DCHRA through their own conduct.

IIED. Turning to the employee’s claim for intentional infliction of emotional distress, the court concluded she had plausibly alleged the required elements for an IIED claim under D.C. common law. The court noted the D.C. Court of Appeals has advised that evidence of racial or sexual harassment creating a hostile work environment may give rise to a prima facie case of IIED. The compounding of repeated instances of harassment may lead to sufficiently extreme outrageousness to warrant liability.

Here, the court found the employee alleged extreme and outrageous conduct. The partners were influential shareholders in a practice pertinent to the employee. They were gatekeepers to her success, and they allegedly harassed her repeatedly over multiple years. The alleged details, which included potentially multiple instances of unconsented physical contact of a sexual nature. The repetition of conduct the court already identified in the complaint supported the conclusion the partner stated a claim for IIED.

The court also found the complaint satisfied other IIED elements of intentional or reckless conduct and severe emotional harm. The latter included harm or distress directly tied to incidents the employee alleged with specificity. The complaint accordingly stated a claim for IIED.

Firm’s negligence. In addition, the court also held the complaint stated a claim against the law firm for negligent infliction of emotional distress. The court found the law firm only perfunctorily asserted that the employee had failed to plead this claim without a cite to legal authority or analysis, and the argument was “far too undeveloped” to be a basis for dismissal. Beyond the IIED allegations the court had already identified in the complaint, the employee specifically alleged the law firm failed to address the situation or resolve her complaints of harassment. The court held these allegations stated a claim for NIED.

No arbitration. A question about the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) appeared to be a matter of first impression before the court. The defendants conceded that, pursuant to the EFAA, the arbitration agreement could not apply to the partner’s Title VII hostile work environment claim because it was premised on sexual harassment. However, they argued that the Title VII retaliation, DCHRA, and D.C. tort claims all required arbitration. The employee countered that the EFAA also barred arbitration of those claims.

The court reviewed and extensively cited how courts in other jurisdictions have generally read the EFAA to mean what it says: when a plaintiff alleges conduct related to a sexual assault or sexual harassment dispute, any pre-dispute arbitration clause will be unenforceable as to the entire case.

Here, the court was satisfied that the EFAA text clearly resolved the question. The defendants conceded the employee raised a Title VII claim related to sexual harassment. Thus, the EFAA made the arbitration clause unenforceable.

Inexorably intertwined. Finally, The law firm and one of the partner defendants insisted the EFAA did not block arbitration of the Title VII retaliation claim because it did not rise or fall on the hostile work environment claim and was therefore not inexorably intertwined with the sexual harassment claims. That was true as far as it went, observed the court, but the test for EFAA applicability was not whether claims were “inexorably intertwined” or “rise or fall” together, but whether the claim related to sexual harassment. On that test, the EFAA plainly covered the retaliation claim.

The case is No. 23-03062 (AHA).

Judge: Ali, A.

Attorneys: James Warren Hundley (Briglia & Hundley) for Julia I. Rix. Laura De Santos (Gordon Rees Scully Mansukhani) for Polsinelli PC and Gabriel Y. Dabiri. Bernard G. Dennis, III (Jackson Lewis) for Dov H. Scherzer.

Companies: Polsinelli PC

Cases: SexualHarassment Discrimination Arbitration CoverageLiability Discharge Retaliation StateLawClaims TortClaims DistrictofColumbiaNews