Federal Appeals Courts Continue to Limit Forced Arbitration

In August 2026, the Ninth Circuit issued a highly anticipated opinion interpreting the federal Ending Forced Arbitration Act, or EFAA. The case, Ding v. Structure Therapeutics, Inc., No. 25-1532, 2026 WL 2420555, — F.4th —-, (9th Cir. Aug. 19, 2026), is an important step towards enabling the victims of sexual assault and harassment in the workplace to fully benefit from the promise of the EFAA.

The EFAA was passed with bipartisan support in 2022. It invalidates any arbitration agreement where a plaintiff alleges sexual harassment or assault, at the plaintiff’s election, allowing them to bring their claims in court. This is important because arbitrations are confidential, while court cases are public. The passage of the EFAA means that companies can no longer shield abusive workplaces or sexist culture behind the shroud of arbitration, out of the public eye, which has historically been a common practice.

This case involves Dr. Ding Ding, who was recruited to be the CFO of Structure Therapeutics, a pharmaceutical company. She signed an arbitration agreement when she began working for the company. When she was fired, she initially filed a case in arbitration. However, during the arbitration proceedings, she discovered that the company’s CEO had sought a man for the role she had once held, that the Board had overruled him and sought a woman instead, and that he relied on male bankers’ complaints in terminating her.

The Ninth Circuit found that Dr. Ding had not foregone her right to invalidate her arbitration agreement when she filed in arbitration first. Here, she based her case on facts that she had uncovered after her initial filing, so she could take advantage of the protections of the EFAA. This is an unusual set of facts and, while the court came to the right conclusion, this finding is unlikely to have particularly broad application.

However, more importantly, the Ninth Circuit also found that Dr. Ding had made out a sexual harassment claim for the purpose of the EFAA. The EFAA defines sexual harassment as any claim constituting sexual harassment under the law. Some companies have argued that, where sexual harassment is defined more broadly than lewd and lascivious words or actions in the workplace, or predicating a junior employee’s job advancement on their willingness to submit to sexual demands, the EFAA only invalidates arbitration agreements in cases of “sexually charged” behavior. The Ding found that “a sex-based hostile work environment claim amounts to sexual harassment under California law even when the harassing conduct is not sexual in nature.”

In other words, sexual harassment under the EFAA is not exclusively lewd and lascivious words or actions in the workplace, at least according to the Ninth Circuit. Rather, it is also harassment based on sex. Bullying and other patterns of abuse that one can experience because of their gender, which may not constitute sexual advances or intrusions, can invalidate an arbitration agreement in California. This question—what sorts of claims can be used to invoke the EFAA?—has been litigated nationally. Indeed, in an argument before the Secon Circuit, another federal circuit court judge also recently expressed the opinion that a reading of the EFAA that embraced a definition of a “sexual harassment dispute” as requiring sexually charged actions would be “an extraordinary understanding of the statute.”

The Ninth Circuit reached the correct conclusion as to the reach of the EFAA. The EFAA impacts workers with arbitration agreements everywhere, and those in California have received a valuable protection. The Ding opinion is vital for protecting workers. Perhaps 60 million workers were bound by arbitration clauses in 2017, and 80% of Fortune 100 companies force employees to sign them. As more courts come to the conclusion that the EFAA applies widely, the statute comes closer and closer to realizing its promise of bringing cultures of silence around sexually abusive workplaces to an end and amplifying the voices and experiences of survivors.