The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), a 2021 federal law, allows an employee who alleges sexual harassment to keep the case in court even if the employee signed a pre-dispute arbitration agreement. Two recent decisions confirm that an employee can waive that right, but only if the employee knew the right existed and chose not to use it.

Ninth Circuit: No Waiver Where the Claim Surfaced in Discovery

In Ding v. Structure Therapeutics, Inc., NASDAQ, 187 F.4th 1231 (9th Cir. 2026), a former chief financial officer arbitrated discrimination and retaliation claims and then learned in discovery that her mistreatment may have been based on sex. She filed suit with sex-based harassment claims and invoked the EFAA when the employer moved to compel arbitration. The Ninth Circuit found no waiver because nothing in the record showed she knew of the harassment claim earlier.

California Court of Appeal: Waiver Where the Claim Was Strategically Withheld

In Chin v. DoorDash, Inc., 123 Cal. App. 5th 1050 (2026), the result went the other way. The employee sued over his treatment after parental leave, opposed arbitration without mentioning harassment or the EFAA, and lost. He later added a harassment claim based on a supervisor's repeated questions about his leave, conduct already alleged in his original complaint. Because he withheld a known claim for strategic reasons, the court found he waived the EFAA's protections. 

Key Takeaways for Employers

The EFAA's reach is broad. California courts have held that a single harassment claim can remove an employee's entire case from arbitration, which gives plaintiffs a reason to add such claims. Taken together, Ding and Chin show that waiver turns on the factual record of what the employee knew and when. Compelling arbitration may not end the inquiry, since evidence uncovered later can support a new claim.

A related question remains open: how detailed harassment allegations must be to trigger the EFAA. Courts have not settled whether the allegations must be "plausible" or merely “nonfrivolous.” Employers should continue to watch for further guidance on both issues.