By: and Dan M. Forman
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Four years after the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) was enacted, caselaw is forming to help employers better understand how it impacts arbitration agreements. In August, CDF informed you of the Ninth Circuit’s decision in Ding v. Structure Therapeutics, Inc., 187 F.4th 1231 (9th Cir. 2026) that allowed a plaintiff who first pursued arbitration of an employment dispute to invoke EFAA to withdraw from arbitration after she uncovered evidence of sexual based mistreatment and now, Chin v. DoorDash, Inc. B348844, a California Court of Appeal held that a former DoorDash employee waived his right to block arbitration under EFAA by failing to timely assert sexual harassment.
Chin v. Doordash
Chin sued DoorDash asserting claims related to parental leave, retaliation, and termination. When DoorDash sought to compel arbitration, Chin challenged the enforceability of the arbitration agreement on other grounds and did not tell the court that he intended to amend his complaint to add a sex based harassment claim or that he believed the EFAA could exempt such a claim from arbitration. The trial court ultimately ordered the case to arbitration and stayed the litigation.
After the arbitration began, Chin amended his claims to add a sexual harassment claim under the California Fair Employment and Housing Act (FEHA), based on conduct that he had known when the case was filed. He then argued that EFAA entitled him to avoid arbitration and return to court.
Nearly a year after the court compelled arbitration, Chin filed a second lawsuit against DoorDash based on the sex based harassment claim that he had raised during the arbitration. He then moved to consolidate the new lawsuit and to invalidate the arbitration agreement under the EFAA. DoorDash moved to compel arbitration of the second lawsuit arguing that the new harassment claim did not trigger the EFAA because Chin had already submitted the claim to arbitration and had chosen not to timely invoke the EFAA. The trial court granted Chin’s motions and denied DoorDash’s motion to compel arbitration.
The Court of Appeal reversed, explaining that the EFAA does not automatically void an otherwise enforceable arbitration agreement. The Coury held that the EFAA’s protection must be elected or invoked by the party seeking to avoid arbitration, and the EFAA may be waived under ordinary principles of waiver. According to the Court, Chin had known about the alleged harassment when the initial arbitration dispute was before the trial court but chose not to raise the claim or invoke the EFAA. His decision was a strategic choice rather than the result of newly discovered facts or conduct. The Court cautioned that allowing litigants to delay invoking the EFAA until after an arbitration dispute has developed could permit parties to strategically withhold harassment claims and later invoke the EFAA to change the forum. On that basis, the Court concluded that Chin had waived his ability to rely on the EFAA and ordered the matter back to arbitration.
How Do Ding and Chin Line Up?
Put the two decisions side by side and the picture snaps into focus. Same statute, same waiver framework, opposite outcomes — driven entirely by what the plaintiff knew and when. Ding supplies the rule (waiver requires a known right and reaches litigants who sit on claims they understand); Chin supplies the cautionary tale (a plaintiff who knew the facts, said nothing, and tried to invoke the EFAA a year later gets shown the arbitration door). The Ninth Circuit and a California Court of Appeal appear to be reading from the same script — a development roughly as common as a quiet week in employment law.
Takeaways for Employers
- Evaluate EFAA issues at the onset. When an employee files a complaint, employers and counsel should promptly assess whether the allegations include sexual harassment or sexual assault that might covered by the EFAA.
- Build a clear record. Carefully document when claims are raised, the facts alleged, and the employee’s arguments regarding arbitration. A clear procedural record can be critical if the employee later changes course or asserts new legal theories.
- Do not assume harassment claims end arbitration. While the EFAA provides an exception to arbitration, Chin demonstrates that when and how an employee invokes the statute can matter.
Bottom Line
The intersection of the EFAA, arbitration agreements, and federal and state law can be complex, and procedural missteps may have significant consequences. If you have questions about how the EFAA, Ding or Chin v. DoorDash may apply to your circumstances, contact Daisy Chen or Dan M. Forman at CDF Labor Law LLP.
