The panel affirmed the district court’s order denying Structure Therapeutics USA, Inc.’s motion to compel arbitration in an action brought by a former Structure employee, Dr. Ding Ding, under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), which empowers victims of workplace sexual harassment and sexual assault to invalidate predispute arbitration agreements and elect to pursue their claims in federal court.

After Dr. Ding was terminated from her position as Chief Financial Officer with Structure, she filed a demand for arbitration, asserting claims of discrimination and harassment based on national origin and her status as a domestic violence victim. During discovery, Dr. Ding uncovered evidence that her workplace mistreatment was motivated because of her sex. She then withdrew from arbitration and elected to pursue claims in civil court under the EFAA.

The panel held that Dr. Ding could assert her rights under the EFAA. Both the text of the statute and its underlying purpose make clear that Congress intended to afford victims of workplace sexual assault and sexual harassment a genuine choice whether to pursue their claims in a court of law, notwithstanding a preexisting agreement to arbitrate. Where a plaintiff discovers a basis to pursue claims covered by the EFAA during arbitration, she may elect to end arbitration and proceed in court. As the district court found, Dr. Ding did not become aware that her workplace mistreatment was motivated because of her sex until she obtained discoveryonce arbitration proceedings had commenced.

Consequently, she could not have triggered an “election” under the EFAA by filing an arbitration demand with non-sexual harassment claims. Dr. Ding made an election only one time—when she chose to pursue the newly discovered sexual harassment claim by filing her claims in federal Court.

The panel rejected Defendants’ argument that Dr. Ding waived her right to proceed in court by filing an arbitration demand even though she was aware of the facts underlying her sexual harassment claim. This argument was foreclosed by the district court’s finding that there was no record evidence that Dr. Ding knew she had a plausible sexual harassment claim but intentionally chose not to bring the claim when she initiated arbitration.

The panel further held that Dr. Ding plausibly pled a sex-based hostile work environment claim under California’s Fair Employment and Housing Act and therefore under the EFAA, which defines “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4).

Judge Rawlinson dissented from the majority’s holding that an employee may proceed with an action under EFAA after first electing to proceed with arbitration and engaging in significant litigation in the arbitration forum. She wrote that the majority’s reading of the statute conflicted with the plain language of the statute, the legislative history, the commonly accepted legal definition of the term “election,” and the court’s precedent addressing waiver in the arbitration context.

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/08/19/25-1532.pdf