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On September 21, 2026, the Second Circuit handed down its opinion in Newton v. LVMH Moët Hennessy Louis Vuitton Inc., a significant decision addressing both the scope of protected activity under Title VII’s anti-retaliation provision and the applicability of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) to claims accruing before the statute’s enactment.

Background

LVMH hired Andowah Newton, a Black and Afro-Latina attorney, as in-house litigation counsel in 2015. At the time of her hire, Newton signed an arbitration agreement.

Shortly after joining LVMH, Newton allegedly experienced a campaign of sexual harassment by LVMH’s Director of Property and Facility Operations, Lloyd Doran. According to Newton, between 2015 and 2018, Doran exhibited an ongoing pattern of inappropriate behavior towards her, including inappropriate comments regarding her appearance as well as invasions of her personal space. Newton reported Doran’s unwelcome behavior to LVMH’s employment counsel, who opened an informal internal investigation.

Newton was subsequently interviewed by the Senior Director of Talent Development regarding the allegations; however, according to Newton, the interviewer was dismissive of her claims, chalking her experiences up as misunderstandings and closing the matter shortly thereafter. Troubled by LVMH’s handling of the internal investigation, Newton filed a formal complaint with LVMH human resources, prompting a meeting with her supervisor, the Company’s General Counsel, Louise Firestone, in which Newton was allegedly chastised for not putting up with Doran’s conduct. Nonetheless, LVMH hired an external investigator to investigate Newton’s claims, ultimately finding no violation of company policy.

Following her second complaint, Newton alleged that Firestone began a campaign of retaliation. Specifically, Newton asserted that Firestone curtailed her influence at LVMH by exercising greater control over her assigned cases and excluding her from a high-profile litigation matter. Newton also alleged that Firestone gave her a negative oral performance review in 2019 despite positive reviews in prior years.

According to Newton, the retaliation continued through the COVID-19 pandemic. In September 2020, LVMH notified employees they would be required to return to the office two days per week. Believing she was at a high risk of complications from COVID-19 infection, Newton resisted the back to office mandate, insisting she needed to work remotely due to her anxiety and depression. In April 2021, after a series of back-and-forth discussions, LVMH denied Newton’s request to work remotely and passed her over for a promotion, prompting her to take disability leave for approximately three months.

A few months after her return from disability leave, in November 2021, Newton again requested to work remotely, citing a diagnosis of Post-Traumatic Stress Disorder. LVMH responded with the same requests for documentation. Around the same time, Newton testified before Congress about the alleged sexual harassment she experienced at LVMH. Following her testimony, the retaliation allegedly intensified by way of LVMH’s unwillingness to approve her remote work request. Newton also alleged that targeted retaliation took place between April and June of 2022, just prior to Firestone’s departure from LVMH. Firestone’s alleged retaliatory actions included: attempts to exclude Newton from a legal group retreat, failing to introduce her to an intern, repeatedly berating her for underperformance, giving her a tedious task while on vacation, and excluding her from Firestone’s farewell dinner.

Following Firestone’s departure, in July 2022, Rodney Pratt became Newton’s supervisor. Pratt requested a meeting with Newton to discuss her claims against LVMH. However, Newton declined the meeting. Thereafter, another campaign of retaliation allegedly ensued. Among a variety of slights, Pratt allegedly required Newton to receive preapproval before speaking engagements, was rude and critical of her work, and excluded her from professional social engagements. On December 1, 2022, LVMH fired Newton in a manner, Newton claimed, designed to publicly humiliate her.

Procedural Posture

In April 2019, while still employed by LVMH, Newton brought claims against LVMH for sexual harassment and retaliation in New York state court. LVMH moved to compel arbitration. The trial court denied the motion but the Appellate Division, First Department reversed and compelled arbitration pursuant to the parties’ December 2014 arbitration agreement.

Newton thereafter initiated arbitration proceedings in June 2021 against LVMH and several individual respondents, alleging sexual harassment, retaliation, aider-and-abettor liability, and Equal Pay Act violations. She also commenced a separate arbitration challenging the enforceability of the arbitration agreement, which was consolidated with the first proceeding and dismissed after the arbitrator determined her claims were arbitrable.

Newton also commenced a federal action in December 2023, asserting retaliation claims under Title VII, the NYSHRL, and the NYCHRL, while simultaneously seeking to enjoin the ongoing arbitration and later amend her complaint to add claims pending in arbitration. The district court granted defendants’ motion to dismiss, denied Newton’s requests to compel arbitration, enjoin the arbitration proceedings, and amend her complaint, and entered judgment in defendants’ favor. The court subsequently denied Newton’s Rule 59(e) and Rule 60(b) motion for reconsideration, after which Newton timely appealed both the judgment and the denial of post-judgment relief.

Holding

Retaliation Claims

On appeal, the Second Circuit first reviewed the district court’s dismissal of Newton’s retaliation claims. Among other alleged protected activities, Newton argued she engaged in protected activity by refusing to meet with Pratt to discuss settlement of her claims against LVMH.

The Court concluded that Newton’s claimed refusal to meet with Pratt to discuss settlement plausibly constituted protected activity under either Title VII, the NYSHRL, or the NYCHRL. According to the Court, the relevant inquiry “is whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices in violation of Title VII.” The Court reasoned that “[i]f initiating a claim constitutes an assertion that the plaintiff was wronged, refusing to end a pursuit of that same claim with a settlement can—depending on the context—constitute a continuation of the same assertion.”

Examining the context of Newton’s refusal to meet with Pratt, the Court found it was reasonable to conclude Newton’s refusal constituted continued opposition to LVMH’s alleged unlawful employment practices, noting that Newton had “vigorously, continuously, and publicly” pursued discrimination claims against LVMH for over three years prior to the alleged refusal. In siding with Newton, the Second Circuit rejected LVMH’s argument that the refusal was not a protected activity because Newton failed to allege that she explicitly told Pratt she was declining the meeting to oppose discriminatory conduct, reasoning that while the way Newton communicated her refusal was unclear, such an explicit statement was unnecessary under Supreme Court precedent, which recognizes that even implicit communications can constitute protected activity.

In a footnote to the holding, the Court cautioned that the opinion “should not be read to establish a per se rule that refusing to settle a pending claim always constitutes a form of opposition to unlawful employment practices,” but rather the finding “depends on the full context of the refusal.”

Motion to Amend

Second, the Court affirmed the denial of Newton’s cross-motion to amend her complaint which sought to consolidate her pending arbitration claims with her federal retaliation claims by adding new defendants and new claims: retaliatory hostile work environment, aiding and abetting liability, and equal pay claims. Although the parties agreed the new claims were facially subject to the arbitration agreement, Newton argued that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which applies only to claims that arise or accrue on or after March 3, 2022, voided the arbitration agreement.

The Court found that Newton’s hostile work environment claims were materially identical to the claims in Newton’s June 2021 arbitration demand and therefore had accrued by then, rejecting Newton’s argument that the claims “reaccrued” after March 3, 2022 under the continuing-violation doctrine. In the Court’s view, the alleged pre- and post-EFAA conduct did not constitute the same course of discriminatory conduct because both the principal alleged perpetrators and the nature of the conduct changed. The pre-EFAA allegations centered on conduct by Doran and Firestone, while the post-EFAA allegations involved Pratt and focused primarily on Newton’s termination, a discrete act different in kind from the earlier alleged hostile environment.

The Court reached the same result as to Newton’s proposed unequal-pay claims. Those claims accrued with each allegedly discriminatory paycheck, and the proposed amended complaint contained no allegations concerning unequal pay after the EFAA’s effective date. Instead, the pay allegations were limited to the period from 2015 through 2020. Because discriminatory-pay claims involve discrete wrongs rather than a single continuing course of conduct, the continuing-violation doctrine could not bring those claims within the EFAA. The claims therefore remained subject to arbitration, rendering the proposed amendment futile.

Finally, the Court rejected Newton’s alternative argument that the EFAA applied to the entire federal “case” or to a post-EFAA “dispute.” The proposed claims never became part of the federal case because a proposed amended complaint has no legal effect unless leave to amend is granted. Moreover, even assuming a “dispute” arises when the parties become adverse, Newton and LVMH became adverse no later than April 2019, when Newton filed her initial state-court discrimination action. Accordingly, neither the words “case” nor “dispute” supplied a basis for applying the EFAA retroactively.

Takeaway

Newton signals the Second Circuit’s expansive view of what constitutes a protected activity in the Title VII retaliation context. Although the Second Circuit found Newton’s refusal to discuss settlement could constitute protected activity, the Court emphasized that its holding does not establish a per se rule. Rather, whether such a refusal qualifies as protected activity depends on the specific factual context and whether the employer could reasonably interpret the refusal as continued opposition to alleged unlawful employment practices. At the same time, the ruling reinforces the temporal limitations to the EFAA, as well as its limited retroactive reach.

In practical terms, employers should be cautious about initiating adverse action against a discrimination claimant following informal attempts to settle discrimination claims where such discussions could reasonably be interpreted as relating to an employee’s ongoing opposition to alleged discriminatory conduct. Furthermore, Newton is a useful reminder that courts closely scrutinize efforts to characterize post-EFAA events as part of a continuing violation. As the Court determined in Newton, changes in decisionmakers, alleged conduct, or the nature of the claims may defeat attempts to bring pre-EFAA claims within the statute’s reach.