685 F.Supp.3d 173
S.D.N.Y.2023Background
- Delo, a professional costumer who was visibly pregnant at hiring, was passed over for a Wardrobe Supervisor role after an interviewer (Tomlinson) asked, “What will she do with the baby?” She was later hired and worked full-time for the Paul Taylor Dance Company.
- During employment Tomlinson criticized Delo for bringing her newborn on a performance trip, treated her coldly (including a prolonged “silent treatment”), and implemented an April 8, 2022 Workplace Policy restricting family visits and company travel with children.
- Delo lacked a private lactation space and alleges an incident where Tomlinson reached across her while she was pumping to use her desk phone.
- Delo alleges broader gendered treatment at the Company (e.g., male employees permitted modifications for age while pregnant women were not) and was terminated in July 2022 after a season in which she regularly worked overtime and had received praise for her work.
- Defendants moved to compel arbitration based on an onboarding arbitration agreement; Delo invoked the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), arguing it renders the agreement unenforceable here.
- The Court denied the motion to compel arbitration, concluding Delo plausibly alleged sexual harassment under the NYCHRL, the EFAA covers the entire case, and at least one contributing act occurred after the EFAA’s March 3, 2022 effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EFAA bars enforcement of the pre-dispute arbitration agreement | EFAA applies because the complaint plausibly alleges a "sexual harassment dispute" and at least one contributing act occurred after March 3, 2022 | Arbitration should be enforced; plaintiff did not plead sexual harassment and alleged misconduct mostly pre-dates EFAA | Court: EFAA applies; arbitration unenforceable because plaintiff plausibly alleged sexual harassment and timely contributing acts occurred after enactment |
| Whether plaintiff’s allegations plausibly state sexual harassment | Delo says her facts (pregnancy-related comments, disparate treatment, lactation incident, policy singling out children) state a NYCHRL hostile work environment/sex-based treatment | Defendants say claims are labeled discrimination/retaliation, not sexual harassment, and facts don’t meet sexual harassment standards | Court: Under NYCHRL’s lenient standard, allegations suffice to plausibly plead unwanted gender-based conduct/hostile work environment |
| Whether the EFAA prevents arbitration of only sexual-harassment claims or the whole case | Delo argues the statute invalidates predispute arbitration with respect to the entire case that relates to a sexual harassment dispute | Defendants implicitly argue at least arbitration should cover non-harassment claims | Court: EFAA invalidates predispute arbitration “with respect to a case” — it applies to the entire case, not just specific claims |
| Whether plaintiff’s claim accrued after March 3, 2022 (so EFAA applies) | Delo contends the hostile-environment claim is continuing and at least one contributing act (silent treatment, April 8 policy, termination) falls after March 3, 2022 | Defendants contend relevant acts occurred before March 3, 2022 and post‑enactment acts are trivial or unrelated | Court: Hostile-environment claim is cumulative; post‑March 3 acts are sufficiently related and not trivial, so claim accrued after EFAA enactment (motion to compel denied) |
Key Cases Cited
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (FAA favors enforcement of arbitration agreements)
- Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (federal policy favoring arbitration)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (hostile work environment recognized as sexual harassment theory)
- Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (hostile work environment claims are based on cumulative acts; continuing-violation doctrine)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (NYCHRL standard: treated less well because of gender)
- McGullam v. Cedar Graphics, Inc., 609 F.3d 70 (2d Cir. 2010) (component acts of hostile environment need not be independently actionable to be timely)
- Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) (recognizing quid pro quo and hostile-environment theories under sexual harassment jurisprudence)