Usually, yes. Each published California Court of Appeal opinion to decide the question has held that once an employee properly invokes the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), the arbitration agreement can’t be enforced against any claim in the lawsuit. But the employee has to elect court, the harassment allegations have to qualify, and an October 2026 opinion found waiver where a known harassment claim was held back until after arbitration was ordered. Those limits are where an employer’s defenses live.
What does the EFAA say, and when does it apply?
Congress added the EFAA to the Federal Arbitration Act in March 2022. Its core is 9 U.S.C. § 402(a): at the election of the person alleging sexual harassment or sexual assault, “no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”
Three other pieces of the statute do most of the work in litigation:
The definition. Section 401(4) defines a sexual harassment dispute as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” For a California employee, that pulls in the Fair Employment and Housing Act (FEHA), the state’s main anti-discrimination and harassment statute.
The decision-maker. Under section 402(b), whether the EFAA applies to an arbitration agreement, and whether that agreement is enforceable, “shall be determined by a court, rather than an arbitrator,” even if the agreement delegates those questions to the arbitrator.
The start date. The enacting law, printed as a note to section 401, applies the EFAA to “any dispute or claim that arises or accrues on or after the date of enactment of this Act,” which was March 3, 2022.
One more definition matters for settlement. The statute reaches only a “predispute” agreement, which section 401(1) defines as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” An agreement to arbitrate signed after a dispute exists is outside that definition.
Does one harassment claim take the whole lawsuit out of arbitration?
In California’s published appellate decisions, yes. The statute says “case,” not “claim,” and the courts have read that word to cover every cause of action in the lawsuit.
The first was Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, a published Second District opinion involving a hotel server who pleaded sexual harassment alongside wage and hour claims. The court held that “the statute applies to the entire case, not merely to the sexual assault or sexual harassment claims alleged as a part of the case.” It found the case related to the harassment dispute because “all of the causes of action are asserted by the same plaintiff, against the same defendants, and arise out of plaintiff’s employment by the hotel.”
A week later, in Liu v. Miniso Depot CA, Inc. (2024) 105 Cal.App.5th 791, another division agreed. The employer there conceded that the harassment claims stayed in court and asked to send everything else, including the wage and retaliation claims, to arbitration. The court refused: “when a plaintiff’s lawsuit contains at least one claim that fits within the scope of the act, the arbitration agreement is unenforceable as to all claims asserted in the lawsuit.”
The First District followed in Casey v. Superior Court (2025) 108 Cal.App.5th 575 and Quilala v. Securitas Security Services USA, Inc. (2025) 117 Cal.App.5th 75. Both are published. The Supreme Court of California denied review in Liu and in Casey. The Ninth Circuit reached the same result in August 2026 in Ding v. Structure Therapeutics, Inc., a published opinion, holding that because the EFAA works on a “case,” the former executive there could bring “her entire case in court.”
I’d be direct with any client on this point. A motion that asks to arbitrate everything except the harassment claim, whether by conceding that claim or arguing in the alternative, has lost in every published California opinion discussed above, and I wouldn’t spend a client’s money on it in state court without a new argument.
Does harassment have to be sexual to be a “sexual harassment dispute”?
No. Under FEHA, harassment because of sex covers gender-based hostility, and the courts have carried that into the EFAA.
Quilala involved a security officer who alleged that supervisors questioned and mocked his perceived sexual orientation and cut his hours. The court held that the trial court “correctly determined that Quilala’s allegations stated a plausible claim of sexual harassment under FEHA, bringing the dispute within the scope of the EFAA.”
Ding went further. The plaintiff, a former chief financial officer, alleged she was sidelined, criticized as “too aggressive,” questioned about her ability to stay in the job after a domestic violence incident, and fired. None of it was sexual. The Ninth Circuit held 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.”
The open question is how strong the allegations must be before the EFAA applies. The court in Liu said its appeal did “not require us to opine on what threshold, if any, a plaintiff’s sexual harassment related claims must meet before the EFAA becomes applicable.” In Ding, the parties agreed that a plaintiff must plausibly plead the claim, so the Ninth Circuit said “we assume without deciding that the EFAA imposes that requirement.” Employers have argued the allegations fall short in several of these cases. Quilala measured the complaint against FEHA’s severe-or-pervasive standard and found it sufficient. For an employer, the takeaway is that a weak harassment count is a target, but the employer has to show it fails under California’s harassment standards, which aren’t easy to meet at the pleading stage.
| Question | What the courts have said | Authority |
|---|---|---|
| Does one qualifying claim cover the other claims? | Yes, the whole case stays in court | Doe, Liu, Casey, and Quilala (published), and Ding (9th Cir.) |
| Must the conduct be sexual in nature? | No, sex-based hostility under FEHA qualifies | Ding; Quilala (sexual orientation) |
| Can a California choice-of-law clause avoid the EFAA? | No | Casey |
| Does the employee have to cite the EFAA by name? | No, opposing the motion in court can be an election | Quilala |
| Can the employee waive the EFAA? | Yes, under ordinary waiver rules | Chin; Ding (Chin distinguished Quilala, which declined to apply waiver where the plaintiff never chose arbitration) |
| What pleading threshold applies? | Not settled in a published California opinion | Liu fn. 2 and Ding (assumed plausibility), plus Quilala (applied FEHA standards without deciding the threshold) |
Can an employment contract avoid the EFAA with a California choice-of-law clause?
No. In Casey, the trial court compelled arbitration because the agreement said California law governed, and the EFAA is federal. The Court of Appeal granted writ relief, holding “that the EFAA preempts attempts under state law to compel arbitration of cases relating to a sexual harassment dispute, and parties cannot contract around the law by way of a choice-of-law provision,” as stated in the published opinion. Drafting around the statute through choice of law doesn’t work.
When does an employee lose the right to elect court?
Here’s where the 2026 decisions give employers something to work with. The EFAA operates “at the election of” the employee under section 402(a), and an election can be waived.
In Chin v. DoorDash, Inc. (Oct. 5, 2026, B348844), certified for publication, the plaintiff sued over parental-leave retaliation and opposed arbitration in writing only on contract-formation grounds. At the hearing he mentioned possibly adding a harassment claim but didn’t cite the EFAA. According to the opinion, he was compelled to arbitration, told the Court of Appeal in a writ petition that he had left out a sexual harassment claim “[f]or strategic purposes,” then added a sex-based harassment claim in arbitration and filed a second suit to invoke the EFAA. The trial court let him out of arbitration. The Second District reversed, holding that a plaintiff who strategically withholds a known claim and lets the court compel arbitration “has relinquished the benefits of the EFAA as to both the pleaded and withheld claims.” The court stated that “The EFAA does not automatically void arbitration agreements.” It directed the trial court to grant DoorDash’s motion to compel.
The ruling has limits. It was a 2-1 decision, and the dissent said “Lamentable though it was, Chin’s course of action was not waiver.” The majority also found waiver by clear and convincing evidence on unusual facts: the harassing conduct was already pleaded in the first complaint, and the plaintiff said why he held it back.
Ding shows the other side. The plaintiff there started in arbitration on national-origin and domestic-violence claims, learned in discovery facts suggesting sex-based motives, and then elected court. The Ninth Circuit allowed it, but said “a court may find waiver where a plaintiff is aware of the facts giving rise to a sexual harassment claim and either unduly delays in bringing such a claim through intentional acts or decides to pursue that claim in arbitration rather than court.” One judge dissented.
Waiver is a real defense now, but it’s a fact defense. The record the employer builds before and during the motion to compel decides whether it’s available.
Does the EFAA reach harassment that started before March 2022?
Sometimes. The EFAA applies to disputes that arise, or claims that accrue, on or after March 3, 2022. In Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, a published opinion, the employer argued the dispute predated both the arbitration agreement and the statute because the alleged assaults did. The court disagreed: “a dispute does not arise merely from the fact of injury. For a dispute to arise, a party must first assert a right, claim, or demand.” There, that first happened when the employee filed a charge with the state civil rights agency in May 2022.
Doe added that harassment alleged both before and after the effective date can bring the claim within the statute when it is part of a continuing pattern. For older conduct, the date of the employee’s first complaint, demand, or agency filing is worth pinning down early.
What should an employer check before moving to compel arbitration?
Most EFAA fights are won or lost in the weeks before the motion is filed. When a lawsuit or demand arrives:
- Preserve the personnel file, payroll and timekeeping data, the employee’s emails and texts, any internal complaint and investigation file, and every version of the arbitration agreement and handbook the employee received.
- Calendar the response deadline on the summons, find the signed arbitration agreement and its choice-of-law and delegation terms, and notify any employment practices liability (EPLI) carrier under the policy’s notice terms.
- Identify the managers and coworkers named in the allegations, and make sure nobody takes further action against the employee that could look like retaliation.
- Read the complaint, the demand letter, and any agency charge for allegations that could support a sex-based harassment claim, even if no harassment cause of action is pleaded yet, and note when each complaint or demand was first made.
- Talk to a lawyer before filing a motion to compel, responding to the employee’s lawyer, or offering anything to settle.
The firm’s page on employer defense in California employment cases describes how it defends harassment and discrimination allegations.
My view on step 4: assume the employee’s lawyer has read Doe and Liu. If the facts would support a sex-based harassment claim, expect the plaintiff to try to add one. In Doe, the court let the plaintiff amend her complaint (adding other claims) while the motion to compel was pending and rejected the argument that the motion cut off her right to amend. A motion built on the hope that nobody notices tends to cost more than it saves. The motion that works is one built on a clean record: the harassment theory fails under FEHA, the conduct predates the statute, or the employee has already chosen arbitration with the facts in hand.
EFAA questions from California employers
Can the employee amend the complaint after we file a motion to compel?
In Doe, yes. The harassment claim was in the original complaint, and the plaintiff added other claims in an amended complaint filed with her opposition. The Court of Appeal rejected the hotel’s argument that the motion to compel was “the functional equivalent of an [a]nswer.” No published California opinion has yet decided whether a harassment claim added for the first time after the motion triggers the EFAA. Chin found waiver where the plaintiff held back a known claim until after arbitration was ordered.
Can we still arbitrate a harassment case if the employee agrees?
Yes. Section 402(a) makes a predispute agreement unenforceable “at the election of” the employee, so an employee can choose arbitration. A new agreement to arbitrate signed after the dispute has arisen isn’t a “predispute arbitration agreement” under section 401(1). Any post-dispute agreement should be negotiated with counsel on both sides and put in writing.
Does the EFAA apply in state court or only federal court?
Both. Section 402(a) covers a case “filed under Federal, Tribal, or State law,” and every California decision discussed above was a state-court case. Most involved FEHA claims combined with Labor Code and other employment claims. The Ninth Circuit’s Ding decision binds federal courts in California and elsewhere in the Ninth Circuit.
Is Chin v. DoorDash final?
It may not be yet. Under California Rules of Court, rule 8.264, a Court of Appeal decision is generally final in that court 30 days after filing, and rule 8.500(e) allows a petition for review within 10 days after that.
If a harassment claim is standing between your company and arbitration
If a former employee’s lawsuit pairs a sex-based harassment claim with wage, leave, or retaliation claims, the timing of each complaint and the facts actually pleaded usually decide which forum hears the case. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving workplace harassment. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is 9 U.S.C. § 401 (with the effective-date note) and 9 U.S.C. § 402. The California opinions, all certified for publication, are Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, Liu v. Miniso Depot CA, Inc. (2024) 105 Cal.App.5th 791, Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, Casey v. Superior Court (2025) 108 Cal.App.5th 575, Quilala v. Securitas Security Services USA, Inc. (2025) 117 Cal.App.5th 75, and Chin v. DoorDash, Inc. (Oct. 5, 2026, B348844). The Ninth Circuit opinion is Ding v. Structure Therapeutics, Inc. (9th Cir. Aug. 19, 2026, No. 25-1532). The finality and review rules are rule 8.264 and rule 8.500.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.