Raise It Early: Delay Can Waive the Right to Keep a Sexual Harassment Case in Court

Direct answer. If you want a California sexual harassment case heard in court instead of arbitration, raise the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act while you still can. In Chin v. DoorDash, Inc., the Court of Appeal held that withholding a known harassment claim, and waiting until after the court ordered arbitration, waived that right.

Key takeaways

• The federal statute can let a person alleging sexual harassment reject a predispute arbitration agreement and stay in court.
• Ordinary waiver rules apply. The right can be given up by litigation conduct.
• Chin alleged he left the harassment claim out on purpose, opposed arbitration without mentioning the statute, and invoked it only after arbitration was ordered.
• The Court of Appeal reversed and directed the trial court to compel arbitration. It did not decide whether the harassment claim was legally sufficient.
• One justice dissented and would have called the delay a mistake, not a waiver. The majority opinion controls.

What Chin did, and when

DoorDash hired Andrew Chin in 2020. He took nine weeks of parental bonding leave in early 2023. He alleged that after he returned, DoorDash retaliated, refused him a comparable job, interfered with more leave, and fired him at the end of 2023. In February 2024 he sued in Los Angeles Superior Court, case No. 24STCV03751, for family-leave violations, whistleblower retaliation, wrongful termination in violation of public policy, and unfair competition. He did not plead sexual harassment.

DoorDash moved to compel arbitration in March 2024 under an agreement Chin signed when he accepted the job. In May 2024 his written opposition argued only that no valid agreement existed. He did not mention a harassment claim or the federal statute. At the May 28 hearing, after a tentative ruling compelling arbitration, he said that if the court ordered arbitration he would request leave to amend and add a sexual harassment claim to avoid arbitration under federal law. He did not name the statute. The court ordered arbitration of the whole case and said it would not allow the amendment at that time.

Chin petitioned the Court of Appeal for a writ. In that petition he said that, for strategic purposes, he had not included a FEHA sexual harassment claim in the original complaint. He later conceded it was at least a fair inference that the strategy was to try to defeat the arbitration agreement entirely before relying on the federal statute.

In August 2024 he filed an arbitration demand with the same claims. In December 2024 he amended it to add sex-based harassment under FEHA. He alleged DoorDash encouraged women to take parental leave and discouraged men, through intimidation, ridicule, and insults, and that a superior repeatedly pressed him about when he would take the rest of his leave. He asked the arbitrator to send the case back to court. The arbitrator gave him 10 days to go to superior court. He missed that deadline. In April 2025, nearly a year after the arbitration order, he filed a second lawsuit, case No. 25STCV09762, pleaded the harassment claim, and asked the court to invalidate the arbitration agreement for both cases.

The trial court consolidated the cases, invalidated the arbitration agreement as to every claim, and denied DoorDash's motion to compel. The judge said he did not like the ruling but thought the law required it. DoorDash appealed.

What the court held

On October 5, 2026, the Second District Court of Appeal, Division Eight, reversed in a published opinion, Chin v. DoorDash, Inc., B348844. Read the official opinion. Justice Scherb wrote the majority, joined by Justice Viramontes. Acting Presiding Justice Wiley dissented.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. section 402, lets a person alleging a sexual harassment dispute elect not to arbitrate under a predispute agreement. The majority held that ordinary waiver principles apply, and that this conduct was waiver by clear and convincing evidence. Chin brought a court case, strategically withheld a known harassment claim arising from the same events, and led the court to compel arbitration without timely asserting the claim or the statute. That conduct relinquished the statute's benefit for both the claims he pleaded and the claim he held back.

The majority rejected the idea that he could not waive the right before he pleaded harassment. The original complaint already described the superior's repeated questions about leave, and Chin told the appellate court the omission was strategic. Adding the claim after the arbitration order did not reset the clock. The court also rejected the argument that the statute gives a plaintiff an unlimited right to choose a forum whenever it is convenient. Because it found waiver, it did not decide whether the harassment allegations were enough to unlock the statute.

The dissent agreed the delay was lamentable and said a trial court could consider a fee sanction for the detour. Justice Wiley would not have found waiver. He described waiver as a purposeful relinquishment of a known right, and he thought Chin's goal was always to stay in court. A miscalculation, he wrote, is not a waiver. He would have affirmed.

The majority directed the trial court to grant DoorDash's motion to compel arbitration, reversed the order invalidating the agreement, and reversed the consolidation order because it depended on the statute applying. DoorDash was awarded its costs on appeal.

What this means for you

The statute is explained in our guide to sexual harassment claims and forced arbitration. Chin is the timing case. The practical point is to raise it early.

1. Plead the harassment facts in the complaint if you know them. Chin's original complaint already described conduct he later called harassment. Holding the legal claim back was treated as a choice.
2. Put the statute in the opposition to a motion to compel arbitration. Do not wait for the hearing, and do not wait until the judge has ordered arbitration.
3. Name the statute. A request to amend "to avoid arbitration under federal law," without identifying the Act, was not enough on these facts.
4. Do not use the claim as a backup plan after a first try to void the entire agreement. The majority treated that sequence as waiver.
5. Harassment and retaliation are related, not identical. Parental-leave retaliation and whistleblower retaliation can travel with a sexual harassment claim. Which claim you plead changes the arbitration analysis.
6. Other arbitration limits still exist. See when an employer cannot force arbitration and when a hiring agreement violates Labor Code 432.6.

Deadlines for harassment and retaliation claims are on the deadline checker. This case is also in the October 2026 roundup.

Frequently asked questions

What did Chin v. DoorDash hold?

The worker waived the federal right to avoid arbitration by withholding a known harassment claim until after the court ordered arbitration.

When should I raise the EFAA?

As soon as you know the facts. Raise it in the complaint or in your opposition, before the court orders arbitration.

Did every justice agree?

No. Justice Wiley dissented and called the delay a mistake. The majority's waiver holding is the decision.

Does the statute cover only sexual conduct?

Not always. Our EFAA guide explains sex-based claims. Chin is about timing, not that definition.

Was Starpoint Law involved in Chin?

No. We did not represent anyone in the case. This article is not legal advice.

The information on this website is not legal advice. Prior results do not guarantee a similar outcome.

Talk with Starpoint Law. Call 310-424-9971 or request a free consultation. Starpoint Law represents California employees from offices in Century City and Sherman Oaks. If we don't win, you owe Starpoint Law nothing: no attorney fee and no case costs.