A divided California Court of Appeal has held, in an opinion certified for publication, that an employee can waive the right to avoid arbitration under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), 9 U.S.C. §§ 401–402. The majority found waiver where the employee knew of a sex-based harassment claim, held it back for tactical reasons while opposing arbitration on other grounds, and raised it only after the trial court had sent the case to arbitration. One justice dissented.

In this case DoorDash hired Andrew Chin in 2020. He took nine weeks of parental bonding leave in early 2023 and alleges that the company then retaliated against him: it denied him the same or a comparable position on his return, interfered with three further weeks of leave, and terminated him at the end of 2023. He also alleged that a superior repeatedly asked when he would take the rest of his leave. In February 2024 he sued in Los Angeles County Superior Court for violation of the California Family Rights Act, whistleblower retaliation, wrongful termination and unfair competition. The complaint contained no harassment claim.

DoorDash moved to compel arbitration under an agreement covering any dispute arising from Chin’s employment. Chin’s written opposition argued only that no valid agreement existed. It did not mention sexual harassment, an amended complaint, or the EFAA. At the May 28, 2024 hearing, after a tentative ruling against him, his counsel said that if arbitration were ordered Chin would ask for leave to add a sexual harassment claim to avoid arbitration under federal law. The court ordered the whole action to arbitration, stayed the suit, and declined to allow an amendment at that time. Chin’s writ petition was denied. In it he stated that he had left the harassment claim out of his complaint “for strategic purposes.”

Chin filed an arbitration demand in August 2024 and amended it in December 2024 to add a sex-based harassment claim under the Fair Employment and Housing Act (FEHA). He alleged that DoorDash encouraged women to take full parental leave while discouraging men through intimidation, ridicule and insults. The only specific incident alleged was the superior’s repeated questioning already described in the 2024 complaint. He then asked the arbitrator to return the matter to court under the EFAA, missed a ten-day window the arbitrator gave him to petition the superior court, and in April 2025 filed a second lawsuit pleading the harassment claim and seeking a declaration that the arbitration agreement was invalid as to both suits.

Three motions were heard in July 2025: Chin’s motion to consolidate the two suits, his motion to invalidate the arbitration agreement under the EFAA, and DoorDash’s motion to compel arbitration of the second suit. Judge Jon R. Takasugi said he was “not happy with the way this has gone” but believed the law required a ruling for Chin. He found that Chin had plausibly pleaded a sex-based harassment claim and had not waived the EFAA by asserting that claim in arbitration. He granted both of Chin’s motions, denied DoorDash’s, and so undid the earlier order compelling arbitration. The court did not address DoorDash’s argument that Chin’s conduct before that earlier order amounted to waiver. DoorDash appealed.

In the published case of Chin v. DoorDash, Inc., No. B348844 (October 2026), the Second Appellate District, Division Eight, reversed all three orders and remanded with instructions to grant DoorDash’s motion to compel arbitration. Justice Scherb wrote the majority opinion, joined by Justice Viramontes. Acting Presiding Justice Wiley dissented and would have affirmed. DoorDash was awarded its costs on appeal.

The majority started from the statutory text. The EFAA does not void arbitration agreements automatically. It applies at the election of the person alleging harassment, and nothing in it displaces the ordinary rule that statutory rights can be waived. Chin did not argue otherwise. Reviewing an undisputed record de novo, the court assumed that waiver had to be shown by clear and convincing evidence.

Waiver is the intentional relinquishment of a known right, and the majority explained that it can be implied from deliberate, tactical litigation conduct as well as from express words. It relied on California authority that grounds for resisting arbitration must be raised in court before the arbitration goes forward, citing Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 and Cummings v. Future Nissan (2005) 128 Cal.App.4th 321. A party who knows of such a ground and keeps it in reserve loses it.

Applying those principles, the majority found waiver on four points. Chin knew of the harassment claim in 2024, since the one specific incident he later relied on was already in his first complaint. He withheld it by his own account for strategic reasons, and conceded at oral argument that the fair inference was a plan to defeat the agreement entirely before turning to the EFAA. He opposed arbitration vigorously without invoking the statute, and his reference to “federal law” at the hearing came too late and explained nothing. He then waited almost a year to file the second suit. The majority also noted the cost of sending the parties back and forth between court and arbitration.

The majority treated the Ninth Circuit’s recent decision in Ding v. Structure Therapeutics, Inc. (9th Cir., Aug. 19, 2026, No. 25-1532) as supporting its result. Ding confirmed that EFAA rights may be waived under ordinary principles, but found no waiver where the plaintiff discovered her harassment claim during arbitration and invoked the statute as soon as she faced a motion to compel. The majority distinguished Quilala v. Securitas Security Services USA, Inc. (2025) 117 Cal.App.5th 75, where the complaint already pleaded harassment and the trial court raised the EFAA itself.

Chin’s remaining arguments were rejected. He could not avoid waiver by pointing out that no harassment claim had been pleaded before arbitration began, because withholding the claim was the deliberate choice that produced the waiver. His contention that trial counsel believed an amendment was barred once the motion to compel was filed had no support in the record. The court also declined to read the EFAA as a right to move between forums at will. Because the EFAA applies to an entire case, the waiver reached both the claims Chin pleaded and the one he withheld. The majority did not decide whether his allegations stated a harassment claim sufficient to trigger the statute.

In dissent, Justice Wiley agreed that the delay and expense were regrettable and said he would be sympathetic to sanctions requiring plaintiff’s counsel to reimburse the fees wasted. But he concluded that Chin never purposely gave up a court forum, since escaping arbitration was his aim throughout. In his words, “It looks more like a blunder,” and a miscalculation is not a waiver.

Waiver of Right to Avoid Arbitration in Sexual Harassment Claims