Tactical Delay Waives Ban on Arbitrating Harassment Claims

Tuesday, October 6, 2026

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Court of Appeal:

Tactical Delay Waives Ban on Arbitrating Harassment Claims

Opinion Says Plaintiff Lost Right to Assert Protections of Federal Law Designed to Allow Employees to Litigate Sex-Based Misconduct in Court by Strategically Withholding Covered Claim Until After Arbitration Ordered

By Kimber Cooley, associate editor

A divided Div. Eight of this district’s Court of Appeal held yesterday that a plaintiff has waived his right to invalidate an arbitration agreement, under a law allowing workers to litigate sexual-harassment claims in court regardless of the terms of their employment contracts, where he “strategically” withheld a covered cause of action until after the case was ordered to an arbitral forum.

Justice Matthew Scherb authored the opinion for the court, joined in by Justice Victor Viramontes, saying:

“The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA; 9 U.S.C. §§ 401–402) permits a plaintiff to invalidate an arbitration agreement, and to proceed in court, if asserting claims of sexual assault or harassment. However, when a plaintiff, as here, brings suit in court, strategically withholds a known sexual harassment claim arising from the same events pleaded in that suit, and leads the court to compel arbitration without timely asserting that claim or the EFAA by proper opposition or other appropriate mechanism, that plaintiff has relinquished the benefits of the EFAA as to both the pleaded and withheld claims.”

Acting Presiding Justice John Shepard Wiley Jr. dissented, taking issue with the court’s conclusion that the plaintiff had knowingly waived his rights under the statutory scheme, saying that the conduct looked more “like a blunder” than a tactical decision. He wrote:

“In chess, you might think for a while and then move your queen. To your dismay, your opponent’s next move is to take your queen with a bishop you had not considered. You blundered. You thought you were playing strategically, but you miscalculated. You certainly did not purposely relinquish your queen.”

Adverse Actions

The question arose after Andrew Chin filed a complaint against his former employer, DoorDash Inc., in February 2024, based on allegations that the food-delivery giant took adverse employment actions against him after he exercised his right under California law to take nine weeks of paternity leave in early 2023.

Chin, who had worked for the company since 2020, asserted claims under Government Code §12945.1, which specifies that long-term employees are entitled to up to 12 weeks of family leave for events including the birth or adoption of a child, as well as causes of action for wrongful termination and unfair competition.

He claimed that he was not returned to a comparable position at the end of his time off, and a superior had “repeatedly” asked him when he would be taking his remaining parental leave. In March 2024, DoorDash moved to compel arbitration based on a clause in his employment paperwork, and Chin opposed based solely on the assertion that the provision did not amount to a valid agreement.

After Los Angeles Superior Court Judge Jon R. Takasugi tentatively ruled for the defendant in May 2024, Chin expressed an intention to request leave to amend his complaint “to add a sexual harassment claim in order to avoid arbitration under federal law.” Takasugi adopted the tentative ruling and declined to allow any further amendment.

Amended Demand

Div. Eight denied a petition for a writ of mandate in August, and Chin filed an arbitration demand, raising the identical causes of action as asserted in his complaint. That December, he amended the filing to include a claim for harassment, claiming that the defendant “actively discouraged” male employees from taking leave and citing the allegation that his supervisor “hounded” him about when he would take additional time off.

He then asked to send the proceedings back to court based on the EFAA, and the arbitrator stayed the matter to allow time to file a petition in the superior court seeking resolution on the applicability of the statute. Chin instead opted to file a second lawsuit against the defendant in April 2025, asserting the sex-based harassment claim, moved to consolidate the two matters, and requested that the court invalidate the arbitration agreement as to all causes of action.

Takasugi noted that he was “not happy with the way this has gone” but granted Chin’s motions to consolidate and to invalidate the agreement to arbitrate as to all causes of action in both complaints. He further denied DoorDash’s motion to compel arbitration of the later-filed lawsuit, citing the EFAA.

Agreed to Arbitrate

Scherb wrote:

“On appeal, there is no dispute that Chin and DoorDash agreed to arbitrate, that the Federal Arbitration Act governs their agreement, or that, barring the EFAA, all of Chin’s claims in both suits would fall under that agreement. The question is the EFAA’s impact.”

He pointed out that the EFAA’s protections must be elected and opined that “[t]he congressional language, then, does not disturb the default rule that litigants can waive statutory rights” by voluntary relinquishment or abandonment. Saying that “[s]andbagging the court and litigation opponents by withholding known objections causes disorder and waste,” he opined:

“Chin withheld his sex-based harassment cause of action during the court proceedings in 2024 not because it was unknown, but for self-described ‘strategic purposes.’ Indeed, a comparison of the 2024 and 2025 court complaints demonstrates the sole specified harassing conduct, a superior’s repeated entreaties to take leave, was alleged in both the old and new pleadings.”

Waived Rights

He continued:

“Chin contends he could not have waived his EFAA rights prior to the arbitration’s start because he had, in fact, not yet proffered a sexual harassment cause of action in any forum….It would be problematic if litigants, without restrictions, could strategically delay invocation of the EFAA by strategically delaying their presentation of harassment claims such as those Chin has injected here. We reject Chin’s argument that the ‘EFAA explicitly grants a victim of sexual harassment the right to forum shop’ to the extent he asserts a right to forum hop at whim.”

The jurist declared:

“We reverse the trial court’s orders granting Chin’s motion to invalidate the arbitration agreement, denying DoorDash’s motion to compel arbitration, and granting Chin’s motion to consolidate. Under the circumstances, we direct the trial court on remand to grant DoorDash’s motion compelling arbitration.”

Wiley’s View

Wiley acknowledged that the EFAA “signals the first time Congress has attended to the many critics of arbitration” and that “we are still trying to determine” the limits of the relatively new law. Addressing the plaintiff’s allegations, he said:

“Andrew Chin alleged sexual harassment. As a new father, Chin said he suffered workplace harassment for trying fully to exercise his rights to parenting leave. If true, this was harassment based on biases about gender roles: this impermissible view is that raising children is woman’s work, and that men are the breadwinners who should leave home to support the woman and her maternal duties. A parenting couple is free to opt for this division of labor. An employer is not free to insist on it.”

He recognized that the “delay and needless litigation expense was lamentable” and that he would be “sympathetic to a trial court that considered sanctioning plaintiffs’ counsel,” Darren J. Campbell and Chris M. Heikaus Weaver of the Irvine-based Aitken Campbell Heikaus Weaver LLP, but argued:

“Lamentable though it was, Chin’s course of action was not waiver. Waiver, classically, is purposely relinquishing a known right. Chin never purposely relinquished a jury trial. Chin’s whole goal was to get out of arbitration and to litigate in court. That purpose is the opposite of waiver.”

The jurist added:

“It disserves this important statute, in my humble opinion, to find waiver where the plaintiff is trying to allege sexual harassment and to escape arbitration. In my view, Chin’s miscalculation was not enough.”

The case is Chin v. DoorDash Inc., B348844.

Campbell and Heikaus Weaver acted for the plaintiff on appeal. Raymond A. Cardozo and Kathryn M. Bayes of the San Francisco office of Reed Smith LLP, together with Danielle Ruth Goodman of the Los Angeles location of Ogletree, Deakins, Nash, Smoak & Stewart PC, represented the defendant.