Dr. Ding Ding, a Wharton graduate with a pharmacology Ph.D. and over twenty years in biopharmaceutical investment banking, was recruited in 2021 to serve as Chief Financial Officer of Structure Therapeutics, Inc., a clinical drug development company preparing for an initial public offering. Before recruiting her, Structure’s CEO, Dr. Raymond Stevens, had circulated an email describing his “ideal phenotype” for the CFO role using two men as example candidates, though the company’s board pushed for gender diversity in the search. Dr. Ding’s offer of employment required arbitration of all employment disputes with JAMS.

According to her complaint, Dr. Stevens began sidelining Dr. Ding almost immediately after she started, limiting her duties and dismissing her contributions, and in January 2022 relayed unsubstantiated complaints from Wall Street bankers that she was “too aggressive.” On March 7, 2022, Dr. Ding was injured in a domestic violence incident; when she returned to work with visible facial injuries, Dr. Stevens commented that he could “hardly see anything” and repeatedly questioned whether she wanted to reconsider her role given her “transition in life,” while also blocking her from an upcoming executive meeting. Ten days after the incident, Stevens recommended her termination to the board, and Structure terminated her on March 22, 2022, without citing any performance issue; Stevens later testified he relied in part on male bankers’ complaints that she “lectured” them.

Dr. Ding filed an arbitration demand with JAMS in October 2022, asserting discrimination and harassment claims based on national origin and her status as a domestic violence victim. Over the following year, the parties litigated preliminary hearings, discovery, and a discovery dispute, and the arbitrator ruled on choice-of-law issues. During that discovery, Dr. Ding first obtained evidence she says revealed her mistreatment was actually motivated by her sex, including Stevens’s “phenotype” email, the board’s gender-diversity goal, and Stevens’s reliance on male bankers’ complaints. In October 2023, Dr. Ding withdrew from arbitration under a California procedural rule addressing Structure’s late payment of arbitration fees, and JAMS closed its file. She then sued Structure and Stevens in California state court, adding sex discrimination and sex-based hostile work environment claims under California’s Fair Employment and Housing Act (FEHA), along with a claim based on her domestic-violence-victim status.

Structure removed the case to federal court and moved to compel arbitration, arguing the California rule on late arbitration-fee payment was preempted by the Federal Arbitration Act (FAA) and the New York Convention. Dr. Ding countered that regardless of preemption, the arbitration agreement was invalid under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which lets a person alleging conduct constituting a sexual harassment or sexual assault dispute elect to invalidate a predispute arbitration agreement and proceed in court. The United States District Court for the Northern District of California agreed that the state procedural rule was preempted, but held Dr. Ding had properly elected to proceed under the EFAA based on a plausible sexual harassment allegation, and, after permitting her to add New York law claims, denied Structure’s motion to compel arbitration on that ground.

In the published case of Ding v. Structure Therapeutics, Inc., No. 25-1532 (9th Cir., August 2026) — the Ninth Circuit affirmed the district court’s order denying Structure’s motion to compel arbitration.

Writing for the majority, Judge Sanchez rejected Structure’s argument that a plaintiff is categorically barred from making an EFAA election after first filing non-sexual-harassment claims in arbitration. Reviewing the statute’s text, 9 U.S.C. § 402(a), the panel found nothing limiting when a plaintiff may allege a sexual harassment claim or make her election, and held that because Dr. Ding was not yet “alleging conduct constituting a sexual harassment dispute” when she filed her original arbitration demand, she could not have triggered an EFAA election at that time; she made her one election only when she filed in federal court after discovering the sex-based nature of her treatment. The panel found this reading reinforced by the EFAA’s legislative purpose of giving harassment victims “a real choice” whether to arbitrate, and distinguished the ordinary rule, drawn from Morgan v. Sundance, Inc. (2022) 596 U.S. 411, that federal arbitration policy favors treating arbitration contracts like other contracts rather than fostering arbitration generally.

The panel also rejected Structure’s argument that Dr. Ding waived her EFAA rights by filing in arbitration despite already knowing the facts underlying a sexual harassment claim. Applying ordinary waiver principles — the intentional relinquishment of a known right — the panel held this argument was foreclosed by the district court’s factual finding, reviewed for clear error, that no record evidence showed Dr. Ding knew she had a plausible sexual harassment claim but chose not to bring it when she initiated arbitration.

Turning to the merits, the panel held Dr. Ding plausibly pled a sex-based hostile work environment claim under the FEHA, which in turn qualifies as a “sexual harassment dispute” under the EFAA’s definition. Applying the FEHA standard from Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264 and Hughes v. Pair (2009) 46 Cal.4th 1035, the panel found Dr. Ding alleged severe or pervasive harassment (Stevens’s preference for a male CFO, his adoption of gendered “too aggressive” criticisms, his dismissive comments about her domestic violence injuries, and her termination without any performance-related justification), that the alleged conduct created an objectively and subjectively offensive environment comparable to that in Roby v. McKesson Corp. (2009) 47 Cal.4th 686, and that the conduct was plausibly based on her sex. Because the EFAA invalidates the arbitration agreement as to an entire “case” relating to a sexual harassment dispute rather than claim-by-claim, the panel held Dr. Ding was entitled to bring her whole case, including her national-origin and domestic-violence-based claims, in court.

Judge Rawlinson dissented, arguing the majority’s rule conflicts with the statute’s plain text, its legislative history, and the ordinary legal meaning of “election.” In her view, an employee gets only one election under the EFAA, and Dr. Ding made hers when she filed and substantially litigated her claims in arbitration for over a year, including discovery, stipulations, and discovery disputes, before withdrawing. She would have applied the Ninth Circuit’s arbitration-waiver precedents, including Holley-Gallegly v. TA Operating, LLC (2023) 74 F.4th 997, and pointed to the EFAA’s lack of retroactivity as evidence Congress meant to avoid disrupting ongoing arbitrations, concluding that Dr. Ding’s belated invocation of the statute after extensive arbitration proceedings was not the kind of election the EFAA authorizes.