9th Cir. Holds EFAA Election Isn't a One-Shot Deal, Letting CFO's Claims Avoid Arbitration
The Ninth U.S. Circuit Court of Appeals has held that a plaintiff who first files an arbitration demand can still withdraw and invoke the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, or EFAA, if she later uncovers evidence that her workplace mistreatment was motivated because of her sex—in effect, revealing a sexual harassment claim she didn't know she had.
The panel rejected an employer's argument that filing for arbitration first uses up a plaintiff's one “election” under the statute.
The 2-1 decision in Ding v. Structure Therapeutics Inc., No. 25-1532 (9th Cir. Aug. 19, 2026), affirmed a Northern District of California order denying Structure Therapeutics USA Inc.'s motion to compel arbitration of discrimination claims brought by its former chief financial officer, Dr. Ding Ding.
The decision follows the Ninth Circuit's opinion in Combs v. Netflix Inc., 180 F.4th 1201 (9th Cir. July 8, 2026), which addressed the statute's effective-date provision rather than the “election” question at issue here. It held that the EFAA did not apply because the dispute arose before the statute took effect. Combs was addressed on CPR Speaks. For background, see Catherine Dirksen, “9th Circuit Weighs Limits of the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act,” CPR Speaks (Feb. 19) (available here), and, for a discussion of the Combs decision, see Caroline Hillier, “EFAA Updates from the 9th, 6th & 2nd Circuits: An Arbitration Restriction’s Judicial Refinement,” CPR Speaks (July 27) (available here).
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According to the Ding opinion, Structure, a clinical drug development company, recruited plaintiff Ding, a Wharton-trained pharmacologist with two decades of biopharmaceutical investment banking experience, as CFO in late 2021 to help take the company through an initial public offering. Her offer letter required arbitration of employment disputes with JAMS Inc.
According to her complaint, Structure's CEO, Raymond Stevens, began sidelining Ding almost immediately, stripping her of core CFO duties and relaying Wall Street bankers' complaints that she was “too aggressive.” After Ding was injured in a March 2022 domestic violence incident, Stevens allegedly minimized her injuries and repeatedly questioned whether she should continue as CFO. Ten days later, according to the complaint, he recommended her termination to the board; she was fired days after that, with her domestic situation cited as a factor.
Ding filed an arbitration demand with JAMS in October 2022, alleging discrimination and harassment based on national origin and her domestic-violence-victim status. Over the following year the parties conducted discovery and litigated disputes before the arbitrator.
In October 2023, Dr. Ding withdrew from arbitration under a California statute addressing an employer's late payment of arbitration fees. During and after arbitration, she obtained discovery, including an email in which Stevens described his “ideal phenotype” for the CFO job using two men as examples, and evidence that the board had pushed for gender diversity in the hire and that Stevens relied on male bankers' complaints in terminating her. She contended that this discovery revealed her mistreatment was motivated by her sex.
Ding then filed suit in California state court, adding a sex-based hostile work environment claim under the state's Fair Employment and Housing Act, or FEHA, and invoking the EFAA to avoid arbitration. Structure, a decade-old biopharmaceutical medicine research and development firm in South San Francisco, Calif., removed the case and moved to compel arbitration; the district court denied the motion, and Structure appealed.
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Writing for the panel, Circuit Judge Gabriel P. Sanchez rejected Structure's argument that a plaintiff gets only one EFAA “election” and that Ding used hers up by filing for arbitration first. The panel reasoned that Ding wasn't yet a “person alleging conduct constituting a sexual harassment dispute” under 9 U.S.C. § 402(a) when she filed her original arbitration demand, since that demand was based solely on national-origin and domestic-violence victimhood claims.
Because the district court found she didn't learn her mistreatment was sex-based until discovery in arbitration, she “could not have triggered an ‘election’ under the EFAA by filing an arbitration demand with non-sexual harassment claims,” Sanchez wrote, and made her only EFAA election when she elected to pursue the newly discovered sexual-harassment claim in court.
The panel found this reading consistent with the EFAA's purpose of giving harassment victims “a real choice” between court and arbitration, quoting congressional statements from the statute's 2022 House debate. It also rejected Structure's argument that the EFAA doesn't authorize withdrawing from an already-initiated arbitration, noting the Supreme Court's clarification in Morgan v. Sundance Inc., 596 U.S. 411 (2022), that the FAA's policy favors treating arbitration contracts like any other contract rather than affirmatively promoting arbitration.
“The EFAA is a discrete amendment to the FAA that exempts sexual harassment and sexual assault cases from predispute arbitration agreements,” the panel opinion states, adding,“Enforcement of the EFAA is consistent with federal policy.”
The court was careful to cabin its holding: a plaintiff who knows she has a plausible sexual harassment claim and unduly delays before raising it, or who elects to pursue it in arbitration rather than court, can still waive her EFAA rights under ordinary waiver principles. But the panel found no clear error in the district court's finding that Ding didn't know she had a viable sex-based claim when she filed for arbitration.
On the merits, the panel held that Ding plausibly alleged a sex-based hostile work environment claim under the FEHA. The panel concluded that claim qualifies as a “sexual harassment dispute” under the EFAA because the statute covers disputes involving conduct alleged to violate applicable federal, tribal, or state law, 9 U.S.C. § 401(4), even though the alleged conduct was not overtly sexual in nature.
Citing California Supreme Court authority stating that sexual harassment “does not necessarily involve sexual conduct,” the panel found the alleged pattern of sidelining, gendered criticism, and termination sufficient at the pleading stage.
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Circuit Judge Johnnie B. Rawlinson dissented, arguing that the meaning of “election” permits only one choice, and that Ding made hers when she initially chose arbitration and litigated there for over a year. Invoking the Ninth Circuit's election-of-remedies precedent in Teutscher v. Woodson, 835 F.3d 936 (9th Cir. 2016), and the line of circuit cases finding arbitration waived once a party substantially litigates in court, Rawlinson argued the majority's rule creates an asymmetry: a party can lose the right to arbitrate by litigating in court, but under the majority's reasoning a party who substantially litigates in arbitration doesn't lose the right to go to court. “Once Ding elected to proceed with arbitration, she waived the inconsistent option of proceeding in federal court,” she wrote in her dissent.
Rawlinson also pointed to the EFAA's non-retroactivity provision and Congressional statements referring to a “choice between litigation and arbitration” as evidence Congress contemplated only a single, binary election.
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Ding is part of a lengthening string of circuit court cases wrestling with the EFAA's scope and mechanics since its 2022 enactment, a number of which have been tracked on this site. In addition to Combs, the Second Circuit is weighing Puris v. TikTok Inc., No. 25-322. That case raises a related question to the one addressed in Ding: whether allegations of gender-based mistreatment absent overtly sexual conduct can constitute a “sexual harassment dispute” under the EFAA. That case was argued Jan. 23 and remains pending. See Catherine Dirksen, “Second Circuit Examines Application of Arbitration Limits in Sexual Assault and Harassment Cases,” CPR Speaks (Feb. 6) (available here).
Ding's “election” holding also opens a new front: whether a plaintiff who initiates arbitration can later invoke the EFAA once she uncovers a qualifying claim during discovery. That issue was not presented in Combs and does not appear to be presented in Puris. With Circuit Judge Rawlinson's dissent squarely challenging the majority's approach and citing conflicting waiver principles from within the circuit's own case law, the question may not be settled even within the Ninth Circuit. At this writing, there has been no filing requesting an en banc rehearing nor a petition for certiorari in the U.S. Supreme Court.
The Ding opinion can be found on the Ninth Circuit's website, here.
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The author, a third-year law student at the Northeastern University School of Law in Boston, is a CPR Institute fall intern.
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