2d Circuit interprets the Ending Forced Arbitration Act (Newton v. LVMH Part III)

The Court of Appeals has issued an important ruling on the scope of the Ending Forced Arbitration Act (EFAA), holding that a high-profile sexual harassment plaintiff cannot avoid arbitration on her sexual harassment and retaliation claims even if some of the hostile conduct took place after the EFAA took effect in March 2022.

The case is Newton v. LVMH, issued on September 21. Plaintiff -- whose testimony before Congress helped lead to the EFAA's enactment -- asserts that she endured sexual harassment prior to March 2022, and that following enactment of the EFAA, the sex discrimination and retaliation continued through her termination in December 2022. Under the EFAA, plaintiff can avoid arbitration on all her claims, including those that accrued prior to March 2022, if they are part of a continuing violation, an equitable principle that allows you to sue over actions that would be otherwise time-barred. 

"However, to trigger the doctrine, the timely and untimely acts must be 'sufficiently related' such that they constitute part of the same 'unlawful employment practice.'” The Court of Appeals (Bianco, Menashi and Brindisi [D.J.]) cites McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75, 77 (2d Cir. 2010), for this proposition. Until now, McGullam was the leading case on this issue. The Court adds:

To determine whether the requisite relationship between timely and untimely acts has been shown, we consider a variety of factors, including “the commonality of the environment in which the incidents took place (and whether a change in environment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the incidents.” 

The continuing violation doctrine does not apply here because the pre- and post-EFAA acts of retaliation "are not sufficiently related such that they are 'part of the same course of discriminatory conduct," as "the 'who' and the 'how' of the alleged harassment and retaliation differed between the two relevant time periods." 

Prior to the EFAA's enactment, plaintiff primarily suffered discrimination from colleagues Doran (sexual harassment) and Firestone (who perpetrated the retaliation). The post EFAA retaliation was perpetrated by her supervisor, Pratt. Moreover, pre-EFAA, the Title VII violations involved pure sexual harassment. The post-EFAA violations involved retaliation that differed materially from the pre-EFAA retaliation. Pre-EFAA, plaintiff alleged, the company undertook a sham investigation into her sexual harassment complaint, giving her bad performance reviews, and other acts of workplace hostility. Post-EFAA, she alleges that LVMH engaged in a different pattern of retaliation, including requiring her to get pre-approval before she spoke publicly at panels or conferences, micromanaging her work matters, ignoring her and terminating her employment. There is not enough overlap between -pre- and post-EFAA allegations of retaliation to trigger the continuing violations rule.