Arbitrate First, Sue Later? The Ninth Circuit Holds EFAA Rights Can Survive Earlier Arbitration

Ding v. Structure Therapeutics, Inc., 187 F.4th 1231 (9th Cir. 2026), is another decision addressing one of the many debates over the proper interpretation and application of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), 9 U.S.C. § 402(a). Through the EFAA, Congress created an exception to the Federal Arbitration Act. Notwithstanding a preexisting agreement to arbitrate, the EFAA allows a plaintiff alleging sexual harassment or assault to “elect” to litigate in court a case that “relates to” the sexual harassment or assault.

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