On July 9, 2026, a division of the Colorado Court of Appeals issued its opinion in Dreifus v. Glenarm Dining Services, Inc., 2026 COA 59, holding that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), 9 U.S.C. §§ 401–402, applies to an entire “case” rather than to discrete claims, and that retaliation claims arising from the filing of a sexual harassment lawsuit are “related to” the underlying sexual harassment dispute within the meaning of the statute and, therefore, not arbitrable.
The division also held that an employer seeking to compel arbitration under Colorado Rule of Civil Procedure 12(b)(1) must identify specific disputed facts and request an evidentiary hearing—arguments of counsel alone do not create a factual dispute.
Background
Plaintiff signed a broad arbitration agreement as a condition of her employment. After allegedly receiving harassing social media messages from one of her supervisors, she sued her employer, asserting claims under the Colorado Anti-Discrimination Act for sexual harassment, sex discrimination, and retaliation as well as several common-law tort claims.
Her employer did not seek to compel arbitration of the original complaint, conceding those claims involved sexual harassment allegations excused from arbitration under the EFAA. The EFAA provides,
at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute . . . no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
Mid-suit, Plaintiff amended her complaint to add allegations that, after she filed the original complaint, she was placed on administrative leave and terminated in retaliation for filing the sexual harassment lawsuit and for participating as a witness in an unrelated wage-theft investigation. The amended complaint did not add any new claims or alter the original claims.
The employer moved under C.R.C.P. 12(b)(1) to dismiss those claims and compel arbitration of those claims. The employer argued the new allegations were not sufficiently “related to” the sexual harassment claim and therefore fell outside the EFAA’s protections. The district court denied the motion, concluding the EFAA applied to the entire case. The employer filed this interlocutory appeal.
The Division’s Analysis
- The EFAA Applies to the Entire “Case,” Where Some, But Not All, of the Allegations Underlying the Claims Involve Sexual Harassment.
The primary issue on appeal was whether the EFAA applies to a case where some, but not all, of a plaintiff’s allegations underlying the claims involve sexual harassment. The division determined, yes, “the EFAA applies to an entire case, rather than to individual claims, provided the claims are ‘relate[d] to’ allegations of sexual harassment.”
The division found the reasoning of Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535 (S.D.N.Y. 2023), and Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74 (2d Cir. 2024), persuasive. Johnson held that the EFAA’s reference to “a case” in 9 U.S.C. § 402(a) “captures the legal proceeding as an undivided whole” and “does not differentiate among causes of action within it.” The division agreed, holding that under the EFAA, “a case” “encompasses all of the claims brought in a single action rather than individual allegations or claims.”
Plaintiff’s post-filing termination allegations were “related to” her sexual harassment claims because she alleged her termination was based, at least in part, on having filed the sexual harassment lawsuit.
The division distinguished these facts from a different case where a wage-and-hour claim resting on an “entirely independent basis” was held outside the EFAA’s scope because it had “nothing to do with the alleged sexual harassment.” Here, Plaintiff expressly alleged her termination was based in part on filing the sexual harassment lawsuit, linking those claims to the underlying harassment dispute.
2. Acknowledged but Undefined “Outer Limit” of Relatedness
The division acknowledged that there may be some “outer limit” at which a claim becomes so attenuated from the sexual harassment allegations that it falls outside the EFAA’s “related to” requirement. However, the division concluded that boundary “was not approached—much less crossed” on these facts and therefore declined to define it.
3. Rule 12(b)(1) Procedural Standard
The employer argued the district court erred by applying the Rule 12(b)(5) “failure to state a claim” standard (accepting allegations as true and viewing them in the light most favorable to the plaintiff) rather than the Rule 12(b)(1) subject-matter-jurisdiction standard, and that disputed facts regarding the arbitrability of plaintiff’s claims required an evidentiary hearing. The division found no reversible error: the employer never requested an evidentiary hearing below, never identified specific disputed facts through affidavits, deposition testimony, or other evidence, and attached only the arbitration agreement and the plaintiff’s sworn discrimination charge, which supported the plaintiff’s position.
Because no genuinely disputed jurisdictional facts existed, the district court was entitled to accept the complaint’s well-pleaded facts as true and rule without a hearing. The division held that arguments of counsel alone do not create a factual dispute.
Practical Implications
This ruling is the first published appellate opinion in Colorado to interpret the scope of the EFAA. Under the division’s holding, the EFAA applies to “a case” “relates to . . . the sexual harassment dispute.” 9 U.S.C. § 402(a). And a claim of retaliation that is based at least in part on the assertion of a claim of sexual harassment is “relate[d] to” a sexual harassment dispute sufficient for the EFAA to apply, even if the claim is also based on other allegations that do not involve sexual harassment. Therefore, an otherwise valid arbitration clause is not enforceable against a claim based on multiple factual allegations if one of the allegations relates to sexual harassment.
Retaliation and termination claims arising after a sexual harassment lawsuit is filed are particularly likely to be treated as “related to” the underlying dispute and therefore also exempt from arbitration, even if the retaliation is also nominally tied to a separate investigation (here, a wage-theft investigation).
There may be an outer limit where an unrelated claim is genuinely independent of the sexual harassment allegations (e.g., where a wage-and-hour claim arising from an entirely separate factual basis was sent to arbitration), but Colorado courts have not yet defined precisely where the line falls. Parties seeking to enforce an arbitration provision should expect a fact-intensive, case-by-case inquiry into “relatedness” going forward.
In the employment context, employers should consult with their lawyers about the potential benefits and drawbacks of requiring employees to sign arbitration agreements and whether the employers’ goals can be achieved through alternate approaches.
The division of the Court of Appeals affirmed the district court’s order denying the motion to dismiss and compel arbitration.
The opinion was authored by Judge Schutz, with Judges Lipinsky and Yun concurring.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.