Temporal Scope of the EFAA Clarified: Disputes Arising or Claims Accruing Post-Enactment Are Non-Arbitrable

Introduction

In Memmer v. United Wholesale Mortgage, LLC, the Sixth Circuit confronted its first opportunity to interpret the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) in the context of an otherwise valid arbitration agreement. Plaintiff-appellant Kassandra Memmer brought a multi-count employment discrimination suit against her former employer, UWM, alleging pregnancy-related discrimination, sexual harassment, and various statutory violations under Title VII, the ADA, the FLSA, Michigan’s Elliott-Larsen Civil Rights Act, and the Persons with Disabilities Civil Rights Act. UWM moved to dismiss and compel arbitration under an e-signed employment agreement. The district court granted that motion, but did not consider whether EFAA — which allows victims of sexual harassment or assault to elect judicial resolution — precluded arbitration. On appeal, the Sixth Circuit held, as a matter of first impression, that EFAA applies to any “claim” that accrues after its March 3, 2022 effective date and to any “dispute” that arises after that date. It reversed and remanded for the district court to determine when the parties’ sexual-harassment dispute arose.

Summary of the Judgment

The majority opinion, delivered by Judge Moore, applied a three-step Federal Arbitration Act analysis:

1. Agreement to arbitrate: The court concluded under Michigan contract law that UWM met its burden of proving a valid, mutual agreement and that Memmer failed to raise a genuine factual dispute over her electronic signature or any defense like duress or unconscionability.
2. Scope of arbitration: The employment agreement expressly covered “any discrimination or other statutory claims,” encompassing all of Memmer’s Title VII, ADA, FLSA, ELCRA and PWDCRA claims.
3. Non-arbitrability under EFAA: The Sixth Circuit interpreted EFAA’s application note (9 U.S.C. § 401 note) to mean that it applies to all claims that “accrue” on or after March 3, 2022 and to all disputes that “arise” on or after that date. Because Memmer filed her EEOC charge and this lawsuit after enactment, and because UWM did not prove as a matter of law when the underlying dispute first arose, the court reversed and remanded for further factual development on the timing question.

A separate dissent by Judge Thapar argued that “dispute” and “claim” refer to the same legal controversy, and that the EFAA’s effective date provision should be read to cover only claims that accrue on or after March 3, 2022. Under that view, all of Memmer’s claims accrued before enactment, so EFAA would not apply and the arbitration agreement would remain enforceable in full.

Analysis

Precedents Cited

The court relied on a well-established FAA framework:

• Fazio v. Lehman Bros. (340 F.3d 386, 392 (6th Cir. 2003)): Three-factor test for compelling arbitration (agreement, scope, non-arbitrability).
• Bazemore v. Papa John’s (74 F.4th 795, 797 (6th Cir. 2023)): Standard of review; proper burdens under Rule 56 for extrinsic evidence of an arbitration agreement.
• Boykin v. Family Dollar Stores (3 F.4th 832, 838 (6th Cir. 2021)): Shifting burdens for proving contract formation and genuine factual disputes over signature.
• Tucker v. UWM, Inc. (No. 24-1595, 2025 WL 1082316 (6th Cir. Apr. 10, 2025)): Applying EFAA to similar UWM arbitration clauses.
• Walker v. Ryan’s Family Steak Houses (400 F.3d 370, 377 (6th Cir. 2005)): Arbitration of FLSA claims.
• Willis v. Dean Witter Reynolds (948 F.2d 305, 309 (6th Cir. 1991)): Assignment of Title VII claims to arbitration.
• Concepcion (563 U.S. 333, 341 (2011)): FAA preemption of state public-policy defenses to arbitration.

For EFAA’s temporal scope, the majority looked to:

• Famuyide v. Chipotle (111 F.4th 895 (8th Cir. 2024)): Dispute “arises” when parties’ controversy becomes clear, not when conduct occurs.
• Cornelius v. CVS Pharmacy (No. 23-2961, 2025 WL 980309 (3d Cir. Apr. 2, 2025)): Similar approach to dispute timing under EFAA.
• Olivieri v. Stifel (112 F.4th 74 (2d Cir. 2024)): Hostile-work-environment claims can re-accrue after enactment, bringing them within EFAA.
• Bopda v. Comcast (No. 23-2148, 2024 WL 399081 (4th Cir. Feb. 2, 2024)): Unpublished, one-paragraph order declining to apply EFAA to pre-enactment claims (not followed).

Legal Reasoning

The heart of the decision is a textual and contextual analysis of 9 U.S.C. § 401 note, which instructs that EFAA “shall apply with respect to any dispute or claim that arises or accrues on or after [the enactment date].” The court invoked the “cardinal principle” that Congress’s use of the disjunctive “or” signals distinct meanings for the paired terms. Drawing on Black’s Law Dictionary and prior Circuit decisions, the majority held:

• “Claim” paired with “accrues” refers to the moment a cause of action becomes enforceable—when a plaintiff has a complete and present right to sue (Corner Post, Green).
• “Dispute” paired with “arises” refers to the development of a controversy between parties, which may predate or postdate the accrual event depending on when the parties actually lock horns (i.e. internal complaint, EEOC charge, demand letter, filing suit).

By giving each term separate work, the court avoided rendering one of them superfluous. It aligned “claim accrual” with familiar accrual-date rules from statutes of limitations and contract deadlines, and “dispute arising” with the less-defined—but plainly broader—moment when the parties’ conflict crystalizes into an adversarial posture.

The dissent would have read “dispute” as synonymous with “claim,” thereby equating “arises or accrues” with a single event. But the majority reasoned that arbitration context, statutory usage elsewhere in the U.S. Code, and neutral principles of grammatical disjunction support independent readings.

Impact

This ruling has three principal consequences for future cases:

1. It clarifies the Sixth Circuit’s view of EFAA’s temporal scope: courts must determine both when a sexual-harassment or assault “claim” accrues and when the underlying “dispute” arises, then compare those dates to the March 3, 2022 enactment date.
2. It places a new fact-intensive task on district courts: establishing the date on which an employee’s dispute with the employer first crystalized. That date may turn on internal complaints, demand letters, EEOC charges, arbitration requests or the filing of suit.
3. It underscores that even valid predispute arbitration clauses can be overridden by EFAA for post-enactment claims or disputes, potentially leading to hybrid proceedings where some claims are arbitrated and others litigated.

Practitioners in the Sixth Circuit will now need to plead and develop evidentiary records on the precise timing of disputes in EFAA cases. Employers seeking to compel arbitration must prove not only the agreement’s validity and scope but also that any sexual-harassment dispute crystallized before March 3, 2022.

Complex Concepts Simplified

“Claim accrual”: The moment a cause of action is complete and enforceable—when all elements exist so that a plaintiff holds a present right to sue. For example, once an employee experiences actionable harassment and has exhausted or is excused from exhaustion of administrative prerequisites, the claim accrues.

“Dispute arising”: The point at which a conflict becomes adversarial. It might coincide with an internal complaint, a written demand for relief, an EEOC or state-level charge, a request for arbitration, or the filing of a lawsuit—whenever the parties clearly disagree over the wrongful conduct.

EFAA in a nutshell: Congress overrode predispute arbitration clauses for sexual harassment and assault controversies if those controversies (claims or disputes) began on or after March 3, 2022. Survivors get to choose court over arbitration, but only if the relevant event is post-enactment.

Conclusion

Memmer v. UWM establishes the Sixth Circuit’s first EFAA precedent: arbitration agreements remain enforceable unless a sexual-harassment or sexual-assault claim accrues or a related dispute arises on or after EFAA’s March 3, 2022 effective date. By splitting the operative language of “arises” and “accrues,” the court preserved the distinct, context-driven meanings of “dispute” (an adversarial controversy) and “claim” (a complete cause of action). This dual test will guide lower courts in deciding whether survivors may elect judicial forums for their harassment or assault matters, adding a new temporal inquiry to the FAA analysis. Future litigants must therefore prove not only a valid arbitration pact but also pre-enactment crystallization of any sexual-harassment dispute to compel arbitration under the FAA.