A recent Ninth Circuit argument in Ding v. Structure Therapeutics Inc. highlights unresolved questions surrounding the scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”). Ding v. Structure Therapeutics, Inc., No. 25-1532 (9th Cir.); Pub. L. No. 117-90, 136 Stat. 26 (2022). After more than a year of arbitrating, Plaintiff sought to exit arbitration based on a newly framed sexual-harassment theory—even though her earlier filings did not clearly allege conduct that would meet the “severe or pervasive” standard traditionally associated with hostile-work-environment claims. Judge Sanchez pressed defense counsel on Plaintiff’s assertion that she only recognized a potential sexual-harassment theory through arbitration discovery, asking why a claimant could not discover such facts mid-arbitration and then elect to proceed in court. Defense counsel responded that the EFAA contains no mechanism for a second forum election after arbitration has commenced, warning that such an interpretation would encourage plaintiffs to withhold harassment theories, test arbitration, and then shift to court using evidence developed in the arbitration.

The dispute also has implications for California state courts, where plaintiffs increasingly seek to invoke the EFAA to avoid arbitration. Because the EFAA amends the Federal Arbitration Act—which applies in both federal and state courts—plaintiffs may argue that qualifying sexual-harassment claims can proceed in California state court rather than arbitration. Defendants, however, can challenge such attempts by disputing whether the plaintiff has actually alleged conduct constituting sexual harassment (particularly under California’s “severe or pervasive” standard), or whether the claim is being recharacterized mid-arbitration to escape an otherwise enforceable arbitration agreement. The outcome in Ding will likely shape how both federal and state courts evaluate late-asserted harassment theories and whether plaintiffs may use the EFAA to shift forums after arbitration is already underway.

Cresencia M. Meno is an associate in Tressler’s Labor and Employment Practice Group in our Orange County, California office. She concentrates her practice on complex civil litigation and employment matters. Prior to joining Tressler, Cresencia defended insurance carriers, third-party administrators, and self-insured employers in all areas of California state workers’ compensation defense. Click here to read Cresencia’s full attorney bio.