The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) allows a person alleging conduct constituting sexual harassment to proceed in court despite any otherwise valid and enforceable arbitration agreement. Decloedt v. Radnet Management, Inc. confirms that harassment based on an employee’s sexual orientation can qualify as sexual harassment under the Fair Employment and Housing Act (FEHA), and that a sufficiently pleaded claim of that kind triggers the EFAA’s exemption to the Federal Arbitration Act (FAA) which generally enforces arbitration agreements, removing the entire case from arbitration, including any non-harassment causes of action.

Trevor Decloedt worked for Radnet Management and related entities and sued these defendants for eleven causes of action, including claims for hostile work environment and sexual harassment by a coworker because of Decloedt’s homosexuality. According to the complaint, the coworker told Decloedt his sexual orientation was sinful, frequently expressed anger toward him including a comment that she was angry enough to kill him, and on more than one occasion pulled his hair, once with enough force that he fled to the restroom. Decloedt alleged that he reported the conduct to his supervisor and to human resources, who took no action, and he was later terminated. Radnet moved to compel arbitration under an agreement Decloedt had signed, and the trial court denied the motion, finding the EFAA’s exemption to the FAA applied because Decloedt had adequately pleaded a FEHA sexual harassment claim.

The Court of Appeal affirmed and answered two questions employers should note. First, the court held that harassment because of sexual orientation qualifies as sexual harassment under FEHA, and not merely harassment based on a separate protected characteristic as defendants had argued. Relying on the United States Supreme Court’s reasoning in Bostock v. Clayton County that discrimination against an employee for being gay is necessarily discrimination based on sex, the court reasoned that the same logic extends to harassment: harassing an employee because of his homosexuality is harassing him because of his sex. The court rejected the defendants’ argument that FEHA’s separate listing of sexual orientation as its own protected category, distinct from the statute’s definition of harassment because of sex, meant the Legislature intended to treat the two as mutually exclusive. The court read the statutory list as illustrative rather than exhaustive and found support in Quilala v. Securitas Security Services USA, Inc., a 2025 decision reaching the same conclusion on similar facts.

Second, the court held Decloedt’s allegations were sufficient, at the pleading stage, to allege severe or pervasive harassment, even applying the federal Rule 12(b)(6) plausibility standard defendants argued should govern. The court read the complaint’s references to continual anti-gay comments, repeated hair-pulling, and a death threat together, rather than parsing them into isolated incidents, and found it reasonable to infer the coworker’s alleged anger and physical aggression toward Decloedt were connected to her stated disapproval of his sexual orientation even though she did not voice that disapproval in the same breath as every angry outburst. The court emphasized that a plaintiff need not use precise language about frequency for allegations of continual harassment to be credited at the pleading stage. The Court of Appeal therefore affirmed the trial court’s decision and the case will now be allowed to continue.

Employers should now be aware the EFAA exemption to the FAA is not limited to claims involving sexualized conduct, propositions, or unwanted touching of a sexual nature. An employee who adequately pleads harassment because of sexual orientation, gender identity, or gender expression can invoke the exemption just as readily as an employee alleging traditional sexual harassment, and once any single claim in the complaint qualifies, the whole case is removed from arbitration under existing Ninth Circuit and California authority. When a complaint alleges harassment on the basis of sexual orientation, gender identity or gender expression, employers should assume courts will read the allegations generously in the plaintiff’s favor at the pleading stage, and should not expect an argument that the conduct was not overtly sexual to succeed.

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