Party Alleging Sex Bias Is Not Bound by ‘Election’ to Arbitrate

Thursday, August 20, 2026

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Ninth Circuit:

Party Alleging Sex Bias Is Not Bound by ‘Election’ to Arbitrate

Opinion Says Statute Giving Sexual Harassment Victims Choice to Proceed in Court May Be Invoked by Plaintiff Who Learns of New Claim in Discovery After She Initiated Arbitral Process, Drawing Dissent

By Kimber Cooley, associate editor

DING DING

plaintiff

A divided Ninth U.S. Circuit Court of Appeals held yesterday that a woman may pursue her workplace discrimination claims against a San Francisco-based business in court, despite having earlier initiated, then withdrawn from, arbitration relating to the circumstances surrounding her firing, based on a federal law giving victims of sexual harassment an opt-out from agreements to informally resolve claims.

At issue is whether the plaintiff may “elect” to proceed in court under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) where she alleged that she only learned of the sex-based roots of the discrimination against her during arbitral discovery. The EFAA provides:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute,…no predispute arbitration agreement…shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

Circuit Judge Gabriel P. Sanchez authored yesterday’s majority opinion, joined in by Circuit Judge Eric D. Miller, saying:

“We hold that [the plaintiff] can assert her rights under the EFAA despite having initiated and participated in arbitration for a period of time….Where, as here, a plaintiff discovers a basis to pursue claims covered by the EFAA during arbitration, she may elect to end arbitration and proceed in court.”

Abrupt Change

Dissenting, Circuit Judge Johnnie B. Rawlinson took issue with allowing the plaintiff to “abruptly change[] course” after “extensive litigation activities in the arbitration forum” and remarked:

“[T]he majority’s reading of the statute conflicts with the plain language of the statute, the legislative history, the commonly accepted legal definition of the term ‘election,’ and our precedent addressing waiver in the arbitration context.”

Seeking to assert her claims in court was Ding Ding, who was hired to serve as chief financial officer for the drug-development company, Structure Therapeutics USA Inc., in 2021 to help the entity navigate an upcoming initial public offering. According to the plaintiff, a New York resident, she agreed to work one week per month from Structure’s San Francisco-based headquarters and signed an arbitration agreement with the employer.

She claimed that Chief Executive Officer Raymond Stevens began to “sideline” her almost immediately, directing her to “read and listen for her first year with the company” rather than “perform the primary functions of her position.” According to Ding, a Wharton business school graduate with a doctorate in pharmacology, Stevens also confronted her in early 2022 over complaints from male Wall Street bankers that she was “too aggressive.”

Domestic Violence

Ding claimed that she asked Stevens if she could skip an internal zoom meeting in March 2022 because she had received “visible injuries to her face” and needed to speak with police relating to an alleged domestic-violence incident that occurred the night before but otherwise returned to work as usual.

Two weeks later, after Stevens purportedly repeatedly asked if she wanted to reconsider her role in light of her “transition in life,” she was terminated during a meeting in which the chief executive officer allegedly specifically called out the “domestic situation” as a factor in her firing.

Ding filed an arbitration demand with JAMS in October 2022, asserting claims against Structure for discrimination, retaliation, and harassment based on ethnic bias and her status as a victim of domestic violence. One year later, she filed a notice of withdrawal from arbitration under California Code of Civil Procedure §1281.98, pointing to the company’s asserted late payment of fees.

In March 2024, she filed a complaint against Structure, a related entity, and Stevens in superior court, asserting causes of action under California’s Fair Employment and Housing Act for sex discrimination and a hostile work environment as well as a claim alleging bias based on her status as a domestic violence victim.

After the defendants removed the matter to federal court and moved to compel arbitration, arguing that §1281.98 was preempted by the FAA, District Court Judge Jacqueline Scott Corley of the Northern District of California ruled that Ding was entitled to invoke her rights under the EFAA in February of last year.

Plain Text

Sanchez wrote:

“A plaintiff’s right under the EFAA to pursue her claims in court is not categorically foreclosed by the earlier filing of an arbitration demand with non-sexual harassment claims. The plain text of the EFAA does not limit when a plaintiff may allege a sexual harassment claim or exercise her rights under the EFAA….Nothing in the text indicates that the earlier filing of other claims extinguishes her rights under the statute.”

Noting that Corley had found that Ding was unaware that the harassment at work was based on her sex until discovery processes in arbitration uncovered new evidence, including an email by Stevens, circulated before her hiring, highlighting two male investment bankers as examples of the “ideal phenotype” for the CFO job as well proof that the Board of Directors wanted to emphasize gender diversity in its recruitment efforts, he opined:

“When Dr. Ding initially filed in arbitration,….her arbitration demand was predicated on discrimination and harassment claims based solely on national origin and domestic violence victimhood….Under the facts of this case, 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.”

Lose Ability

He continued:

“Under Defendants’ reading, a plaintiff could lose her ability to have her sexual harassment claim heard in court before she knows she has such a claim. Such an interpretation would deprive individuals who uncover a sexual harassment claim during discovery of the choice the EFAA was enacted to provide.”

The jurist added:

“Our conclusion does not mean that a plaintiff may start in arbitration, bring a sexual harassment claim at any time, under any circumstances, and then pursue her claims in court. A plaintiff may waive her EFAA rights under ordinary waiver principles.”

However, he reasoned that any assertion that Ding had waived her rights under the EFAA was “foreclosed by the district court’s finding” that there was no evidence in the record to indicate that she knew that she had a plausible sexual harassment claim at the time she initiated arbitration proceedings.

Rejecting the defendants’ contention that she failed to state a “sexual harassment” claim within the meaning of the EFAA, he remarked:

“[A] sex-based hostile work environment claim amounts to sexual harassment under California law even when the harassing conduct is not sexual in nature.”

Dissent’s View

Rawlinson wrote that “I remain unpersuaded that Ding’s belated invocation of the EFAA was in conformance with the provisions of the statute,” commenting:

“[F]or over a year Ding engaged in extensive litigation activities in the arbitration forum, including preliminary hearings, discovery, stipulations and discovery disputes….Following this extensive litigation in the arbitration forum, Ding abruptly changed course and notified the arbitration forum that she was withdrawing her claims from arbitration.”

Pointing to the statutory language and history, she argued that “[t]here is absolutely no indication that the individual is entitled to more than one election” and said that her reading is “bolstered by the myriad of cases in the arbitration context holding that a party waives the right to arbitration once it has substantially litigated a case in court.” The judge opined:

“No principled basis exists to reason differently when an individual elects to pursue substantial procedures in an arbitration forum then attempts to forego arbitration midstream and commence litigation in court.”

The case is Ding v. Structure Therapeutics Inc., 25-1532.