Arbitration
Ding v. Structure Therapeutics (9th Cir., 2026): Harassment Claim Discovered in Arbitration Can Move to Court
Updated
In Ding v. Structure Therapeutics, Inc., the Ninth Circuit held that a plaintiff who discovers a sexual harassment claim during arbitration may invoke the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) and proceed in court, even though she first filed and litigated other claims in arbitration. The court affirmed the district court’s order denying the employer’s motion to compel arbitration. Judge Rawlinson dissented.
Background
Dr. Ding Ding was recruited as chief financial officer of Structure Therapeutics ahead of the company’s planned initial public offering. Her offer of employment required all employment disputes to be resolved through binding arbitration with JAMS.
According to her complaint, Structure’s chief executive sidelined her, dismissed her contributions, and repeatedly questioned her ability to keep the job after she was injured in a domestic violence incident. She was terminated in March 2022, about ten days after informing him of the incident.
In October 2022, Dr. Ding filed an arbitration demand asserting discrimination, retaliation, and harassment based on national origin and her status as a domestic violence victim. The parties litigated in arbitration for roughly a year—holding hearings, exchanging discovery, and disputing discovery issues.
During that discovery, Dr. Ding uncovered evidence she says revealed that her mistreatment was motivated by her sex, including an email describing an all-male “ideal phenotype” for the role. She withdrew from arbitration and later filed suit in California state court, asserting sex discrimination and a sex-based hostile work environment claim under the Fair Employment and Housing Act (“FEHA”).
Structure removed the case to federal court and moved to compel arbitration. The district court denied the motion, finding that Dr. Ding had properly elected to proceed in court under the EFAA based on plausible sexual harassment allegations, and Structure appealed.
What the Court Held on the EFAA Election
The EFAA amends the Federal Arbitration Act to provide that, “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute,” a predispute arbitration agreement is not enforceable as to a case relating to that dispute. Reviewing the denial de novo and the factual findings for clear error, the court read the text and purpose of the statute together.
The court held that the earlier filing of an arbitration demand with non-sexual-harassment claims does not categorically foreclose a later EFAA election. Because Dr. Ding was not yet a person “alleging conduct constituting a sexual harassment dispute” when she filed in arbitration, she could not have triggered an election then; she elected only once, when she filed her sexual harassment claim in court.
The court also rejected the argument that Dr. Ding waived her rights, noting that waiver requires the intentional relinquishment of a known right. The district court found no record evidence that she knew she had a plausible sexual harassment claim yet chose not to bring it in arbitration—a finding the panel deemed not clearly erroneous.
The EFAA allows a plaintiff to elect to proceed in court upon discovering a sexual harassment claim, even if she initially pursued other claims in arbitration, absent an intentional relinquishment of her rights under ordinary waiver principles.
What the Court Held on the Sexual Harassment Claim
The court next held that Dr. Ding had plausibly pled a sex-based hostile work environment claim under the FEHA, which qualifies as a “sexual harassment dispute” because the EFAA defines that term by reference to applicable federal, tribal, or state law. Under California law, such a claim can amount to sexual harassment even when the conduct is not sexual in nature.
Drawing all inferences in her favor, the court found she alleged severe or pervasive conduct that was objectively and subjectively offensive and plausibly based on her sex. Because the EFAA invalidates an arbitration agreement as to a “case” rather than a single claim, the court held she may bring her entire case in court, and it affirmed.
The Dissent
Judge Rawlinson dissented, reading the statute to permit only one election. In her view, once Dr. Ding chose arbitration and litigated there for over a year, she waived the inconsistent option of proceeding in court, consistent with the ordinary meaning of “election” and the court’s waiver cases.
She also pointed to the legislative history and the statute’s non-retroactivity as reflecting an intent to give survivors a single choice between litigation and arbitration rather than both.
What This Means for You
This decision addresses when an employee may invoke the EFAA to move a case out of arbitration and into court. It holds that a plaintiff who discovers a sexual harassment claim during arbitration may still elect to proceed in court, absent a waiver, and that a sex-based hostile work environment claim under the FEHA qualifies as a sexual harassment dispute under the statute.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.