When Discovery Changes the Forum: The 9th Circuit's EFAA Ruling in Ding v. Structure Therapeutics

A version of this analysis by Nima Javaherian was published in the Daily Journal on September 10, 2026. The Daily Journal piece is available here.

Most arbitration fights happen at the start of a case. The employer produces the agreement, the employee challenges it, and a judge decides where the case will be heard. The 9th U.S. Circuit Court of Appeals has now addressed a harder version of that question: what happens when the harassment evidence does not surface until the arbitration is already a year old.

In Ding v. Structure Therapeutics, Inc., No. 25-1532, decided August 19, 2026, the court held that an employee who starts arbitration on other claims does not forfeit the right to move a later-discovered sexual harassment case into court. It is the court's fullest treatment of the timing question under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, known as the EFAA, and it drew a dissent.

How the case got there

Dr. Ding became chief financial officer of Structure Therapeutics USA, Inc. in December 2021. She was terminated on March 22, 2022, two weeks after telling the chief executive she had been injured in a domestic violence incident. He recommended her termination to the board ten days after the incident and, according to the complaint, gave no performance reason while citing her domestic situation as a factor.

Her offer letter required binding arbitration. In October 2022 she filed a JAMS demand asserting discrimination, retaliation, and harassment based on national origin and her status as a domestic violence victim. Over roughly a year the parties held preliminary hearings, began discovery, stipulated to a protective order, and litigated discovery disputes.

Then discovery produced material she had not seen. An email in which the chief executive described his "ideal phenotype" for the role and offered two men as examples. Evidence that the board wanted gender diversity in the hire to appeal to investors. Testimony that male bankers' complaints that she "lecture[d] them" factored into the termination. She withdrew from arbitration and sued in state court under California's Fair Employment and Housing Act. Structure removed the case and moved to compel arbitration. The district court denied the motion.

Why the majority affirmed

Writing for the majority, Judge Gabriel Sanchez began with the statutory text. The EFAA permits invalidation of a predispute arbitration agreement "at the election of the person alleging conduct constituting a sexual harassment dispute." 9 U.S.C. § 402(a). Because Ding was not alleging such conduct when she filed her JAMS demand, that filing could not have triggered the statutory election. On the majority's reading she made the election when she filed in court.

The employer's reading would produce a worker who loses access to court before she knows she has a claim. The court also rejected the argument that a federal policy favoring arbitration compels a narrower reading, citing Morgan v. Sundance, Inc., 596 U.S. 411 (2022), for the proposition that the Federal Arbitration Act treats arbitration contracts like other contracts rather than favoring them.

The limit the majority kept

EFAA rights remain subject to ordinary waiver, meaning the intentional relinquishment of a known right. An employee who knows the facts supporting a sexual harassment claim and then either delays through intentional acts or chooses to pursue that claim in arbitration can give up the court option.

That limit turned this appeal on a fact rather than a rule. The district court found no record evidence that Ding knew she had a plausible sexual harassment claim and elected not to bring it, and the 9th Circuit reviewed that finding deferentially. Knowledge and timing, not the text of the agreement, decided the forum.

A second holding California workers should notice

The EFAA defines a sexual harassment dispute by reference to "applicable Federal, Tribal, or State law." 9 U.S.C. § 401(4). The court held that a sex-based hostile work environment claim under the FEHA qualifies even when the conduct is not sexual in nature, relying on Lyle v. Warner Bros. Television Productions, 38 Cal.4th 264 (2006), and Roby v. McKesson Corp., 47 Cal.4th 686 (2009).

Because the statute invalidates the agreement as to a "case" rather than a claim, one qualifying claim carries the entire action into court. That mechanic will be familiar to anyone who followed the reasoning in our discussion of Decloedt v. Radnet.

The dissent

Judge Johnnie Rawlinson read the statute to supply one election, which Ding made when she chose arbitration. She emphasized that Ding withdrew for a reason unrelated to the EFAA, the employer's late payment of arbitration fees. She drew on the court's election-of-remedies cases, including Teutscher v. Woodson, 835 F.3d 936 (2016), and on the mirror-image line holding that a party waives arbitration by substantially litigating in court, such as Hill v. Xerox Business Services, LLC, 59 F.4th 457 (2023). Reading the same legislative history the majority relied on, she found confirmation of a single choice, noting that supporters described "a real choice" between court and arbitration, and that Congress declined to make the act retroactive.

What this means in practice

An executed arbitration agreement no longer settles the forum, and neither does an arbitration well underway. Structure spent a year in arbitration and still faces a court action.

For employees already in arbitration, three things follow:

1. A document produced in arbitration can change where your case belongs, so read what the employer produces with the harassment question in mind.
2. Delay after you learn the facts is the conduct the majority identified as waiver, which makes prompt action after a discovery surprise important.
3. A sex-based claim under the FEHA can qualify even when nothing about the conduct was sexual, which means comments about who fits a role can matter as much as anything overtly sexual.

Whether any of this applies depends on what you knew, when you knew it, and what the record shows about both. If your employer is relying on an arbitration agreement to keep a harassment, discrimination, retaliation, or wrongful termination case out of court, Java & Jebreil can review the agreement, the claims, and the procedural posture so you understand what arguments may be available. See also our discussions of overbroad arbitration agreements in Phan v. Knight and our discrimination and harassment practice.

Sources

• Nima Javaherian, “When discovery changes the forum: The 9th Circuit’s EFAA ruling and what follows,” Daily Journal, September 10, 2026
• Ding v. Structure Therapeutics, Inc., No. 25-1532 (9th Cir. Aug. 19, 2026) – United States Court of Appeals for the Ninth Circuit, published opinions
• 9 U.S.C. section 401 – Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act definitions
• 9 U.S.C. section 402 – election to invalidate a predispute arbitration agreement
• California Government Code section 12940 – Fair Employment and Housing Act unlawful practices