Sexual Harassment and Forced Arbitration in California: Your Right to Go to Court Under the EFAA
By Aidin Ghavimi, Managing Attorney ·
The federal EFAA lets workers bring sexual harassment cases in court despite an arbitration agreement. Learn what the Ninth Circuit's 2026 Ding decision means for California employees.
Employment Law
5 min read
An arbitration agreement signed at hiring does not always mean a sexual harassment case has to be decided in private. Since 2022, a federal law has given workers who allege sexual harassment or sexual assault the right to choose court instead. In August 2026, the Ninth Circuit Court of Appeals, whose decisions bind federal courts in California, issued an important ruling on how far that right goes.
Facing harassment at work? Our Los Angeles sexual harassment lawyers can explain your options in a free, confidential consultation.
What Is the EFAA?
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) took effect on March 3, 2022. It allows a person who alleges a sexual harassment dispute or a sexual assault dispute to elect not to be bound by a pre-dispute arbitration agreement or class-action waiver. The choice belongs to the employee, not the employer. The law applies to disputes that arise or claims that accrue on or after its effective date.
For California workers, that matters because sexual harassment claims are often brought together with related claims, such as gender discrimination, retaliation, or wrongful termination. Several federal appeals courts have now held that when a case includes a viable sexual harassment claim, the EFAA can keep the whole case in court, not just the harassment claim.
Ding v. Structure Therapeutics: Leaving Arbitration After Discovering a Harassment Claim
In Ding v. Structure Therapeutics, Inc. (9th Cir., Aug. 19, 2026), a former executive started arbitration over national origin discrimination and claims related to her status as a domestic violence victim. During discovery in the arbitration, she obtained evidence that she believed showed her mistreatment was motivated by her sex. She withdrew from arbitration, filed a lawsuit alleging sex discrimination and a sex-based hostile work environment, and invoked the EFAA. The company moved to compel arbitration, and the district court denied the motion.
The Ninth Circuit affirmed on three key points:
- Discovering a harassment claim mid-arbitration does not end the right to choose court. A plaintiff who learns of the basis for a covered sexual harassment claim during arbitration may elect to stop arbitrating and proceed in court.
- No waiver without knowledge. The company argued she gave up her EFAA rights by starting arbitration. The court relied on the finding that there was no evidence she knew she had a plausible sexual harassment claim when she filed for arbitration.
- Harassment does not have to be sexual in nature. A hostile work environment claim based on sex under California's Fair Employment and Housing Act (FEHA) can be a "sexual harassment dispute" under the EFAA even when the alleged conduct was not sexual, for example demeaning treatment directed at someone because she is a woman.
One judge dissented, reasoning that the employee's choice to start and actively participate in arbitration should have been final.
Why the Ding Decision Matters for California Employees
California's FEHA defines harassment because of sex broadly. It includes sexual advances and sexual comments, but it also covers gender-based hostility, such as insults, exclusion, or abuse aimed at someone because of their sex, gender, gender identity, or sexual orientation. The Ninth Circuit's reading of the EFAA means many of those claims can qualify for court even if the employee signed an arbitration agreement.
The decision also recognizes a practical reality: employees often do not understand the full picture of why they were mistreated until they see internal emails, witness statements, or personnel records produced in discovery.
Timing Still Matters
The EFAA is not a get-out-of-arbitration card that can be played at any time. Courts are paying close attention to when the employee knew about the harassment. In Mitchell v. Lilac Solutions (Cal. Ct. App., Aug. 20, 2026), the employer argued that a pending sexual harassment claim excused its delay in seeking arbitration; the court rejected that argument and found the employer had waived arbitration. And in October 2026, a California Court of Appeal in Chin v. DoorDash reportedly held that an employee who already knew the facts of his harassment claim, but did not raise it until after arbitration had been ordered, had waived the EFAA's protection.
The lesson for employees: if you experienced sexual harassment or sex-based hostility at work, tell your lawyer early, even if it is not the main reason you are seeking help.
Steps to Protect Your Right to Court
- Do not assume your arbitration agreement controls. If your case involves sexual harassment or sexual assault, the EFAA may let you choose court.
- Describe everything that happened. Comments about your gender, being treated worse than male coworkers, or unwanted conduct of any kind may support a harassment claim.
- Raise the EFAA promptly. Delay after you know the facts may be treated as a waiver.
- Preserve evidence. Save messages, emails, schedules, and the names of witnesses. Learn more about types of sexual harassment at work and how to prove a hostile work environment.
- Know your filing deadline. Most FEHA claims must be filed with the California Civil Rights Department within three years of the last act of harassment or discrimination.
The law in this area is still developing, and courts may reach different results on similar facts. This article is general information, not legal advice about your situation.
Speak With a California Sexual Harassment Lawyer
If you were harassed at work and your employer says your case must go to arbitration, Starpoint Law can review your situation and explain whether the EFAA may apply. Call us or contact us online for a free, confidential consultation.
Talk to a California Employment Lawyer
If this issue affects your job, Starpoint Law can review your situation in a free consultation. Learn more about how we help with:
Employment Law
Contact Us
You Don’t Have to Figure This Out Alone.
Whether you were injured or mistreated at work, we’ll explain your options clearly — and guide you through every step. No fees up front. No pressure. Just answers.
©2026 Starpoint Law. All Rights Reserved