9th Circ: EFAA Claim Found in Discovery Can Move Entire Case to Court
An employee who begins arbitration can later move the entire dispute to court after discovering facts that support a sexual harassment claim covered by the Ending Forced Arbitration Act, the Ninth Circuit has held.
The US Court of Appeals for the Ninth Circuit held that an employee who initially pursues claims in arbitration can later elect to proceed in court after discovery reveals facts supporting a claim covered by the Ending Forced Arbitration Act (EFAA). In Ding v. Structure Therapeutics, the plaintiff began arbitrating discrimination claims but later sued in court after uncovering evidence she argued supported a sex-based hostile work environment claim.
This decision is important for employers because it confirms that an employee's initial forum choice is not necessarily final. A claimant can switch from arbitration to court mid-dispute if an EFAA-covered claim plausibly emerges, and that claim brings the entire case—including otherwise arbitrable claims—with it. The court also rejected a narrow definition of sexual harassment, finding non-overtly sexual but gender-based conduct sufficient to trigger the EFAA. The ruling rejected the argument that participating in arbitration for a year constituted a waiver, reasoning that a party cannot waive a right they do not yet know they possess. Employers in the Ninth Circuit should now evaluate all disputes for latent EFAA risk and track when a claimant knew of facts supporting a covered claim.