Frequently Asked Questions About Sexual Harassment and Arbitration Agreements in California

Can I Sue My Employer for Sexual Harassment If I Signed an Arbitration Agreement?

Potentially.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) may allow a person alleging a qualifying sexual harassment or sexual assault dispute to choose to pursue the dispute in court rather than being forced to arbitrate under a predispute arbitration agreement.

This means that signing an arbitration agreement when you were hired does not necessarily prevent you from taking a workplace sexual harassment claim to court.

Whether the EFAA applies depends on the particular facts and timing of the dispute. Employees should therefore avoid assuming that an arbitration provision automatically determines where their case must be heard.

Does the EFAA Automatically Invalidate My Entire Arbitration Agreement?

Not necessarily.

The EFAA addresses the enforceability of predispute arbitration agreements with respect to qualifying sexual harassment and sexual assault disputes. It does not necessarily mean that every provision of an employee's arbitration agreement becomes invalid for every possible employment claim.

The Act also invalidates predispute joint-action waivers — provisions that would otherwise prevent an employee from pursuing a qualifying sexual harassment or sexual assault dispute as part of a joint, class, or collective action — to the same extent as predispute arbitration agreements.

The effect of the EFAA on particular claims—and determining the scope of the dispute that may proceed in court—can require a case-specific legal analysis. This distinction can become particularly important when an employee has multiple claims arising from the same workplace conduct, such as sexual harassment, discrimination, retaliation, wrongful termination, or failure to prevent harassment.

Can I Leave Arbitration After It Has Already Started?

Potentially.

An especially important issue arises when an employee has already begun arbitration and later discovers facts supporting a sexual harassment claim.

The Ninth Circuit addressed this issue in Ding v. Structure Therapeutics, Inc., decided August 19, 2026. The court rejected the argument that merely beginning arbitration categorically prevents an employee from later invoking the protections of the EFAA.

But the facts matter enormously.

In Ding, the majority emphasized that the employee had not asserted or known the basis for her sex-based harassment claim when she initially chose arbitration. She had originally pursued arbitration on other theories, and evidence supporting a sex-based harassment claim—including evidence about a supervisor's stated preference for male candidates and internal pressure related to gender diversity—emerged later, during discovery in the arbitration itself. The district court found no evidence that she had known about a viable sexual harassment claim and deliberately withheld it when she elected arbitration.

It is also worth noting that the decision was not unanimous. One judge on the panel dissented, reasoning that the EFAA affords an employee only a single election and that choosing arbitration in the first instance forecloses a later election to proceed in court. Because the ruling was closely divided and is very recent, it may be subject to further review, and how courts apply it may continue to develop.

Accordingly, an employee should not assume that participating in arbitration automatically eliminates the possibility of later making an EFAA election. At the same time, Ding should not be interpreted as creating an unrestricted right to abandon arbitration whenever an employee changes litigation strategy.

Whether an employee may invoke the EFAA after arbitration has begun requires careful analysis of what the employee knew, when the employee knew it, what claims had been asserted, and when the sexual harassment dispute arose.

What If I Discover Evidence of Sexual Harassment During Arbitration?

This is precisely what makes the Ninth Circuit's decision in Ding significant.

Employment cases frequently develop through discovery. Emails, text messages, internal communications, deposition testimony, personnel records, or testimony from coworkers may reveal facts the employee did not know when the case began.

If evidence discovered during arbitration reveals a previously unknown basis for a sexual harassment dispute, Ding indicates that prior participation in arbitration does not automatically eliminate the employee's ability to make an EFAA election. Given that the decision was a divided one, however, the outcome in a future case is not guaranteed, and the specific timeline of what the employee knew—and when—will be closely scrutinized.

Whether the EFAA applies in a particular case will depend on the specific facts, including when the dispute arose and what the employee knew when arbitration was initiated.

If you are already in arbitration and have discovered evidence suggesting that conduct you experienced was based on your sex or gender, you should have an employment attorney evaluate the issue promptly.

Does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Apply in California?

Yes.

The EFAA is a federal law, so it can apply to qualifying sexual harassment and sexual assault disputes involving California employees.

California employees may also have additional rights and protections under state employment law, including the California Fair Employment and Housing Act (FEHA), as well as other laws affecting employment arbitration agreements.

The interaction between federal arbitration law, the EFAA, California employment law, and the specific language of an arbitration agreement can be complicated. The existence of an arbitration agreement should therefore be evaluated in the context of the employee's particular claims.

Does Workplace Sexual Harassment Have to Involve Sexual Touching or Sexual Comments?

No.

One common misconception is that workplace sexual harassment must involve propositions, sexual touching, sexually explicit comments, or similar conduct.

Harassment because of sex does not necessarily have to be sexual in nature.

Depending on the circumstances, nonsexual conduct directed at an employee because of the employee's sex can contribute to a sex-based hostile work environment. The critical issue is not simply whether the conduct was explicitly sexual, but whether the alleged harassment occurred because of sex and satisfies the other requirements for an actionable harassment claim.

At the same time, discrimination and harassment are legally distinct concepts.

Not every adverse employment decision allegedly motivated by sex constitutes actionable harassment. For example, decisions involving hiring, termination, compensation, promotion, or other terms and conditions of employment may support a discrimination claim without necessarily constituting harassment.

The distinction matters because whether a claim qualifies as a "sexual harassment dispute" under the EFAA can have significant consequences for the enforceability of a predispute arbitration agreement.

What If I Signed the Arbitration Agreement Before the Harassment Happened?

That is exactly the situation in which the EFAA may become important.

The Act addresses predispute arbitration agreements—agreements entered into before the particular sexual harassment or sexual assault dispute arose.

Accordingly, an employee should not assume:

"I signed an arbitration agreement when I started working here, so I can't sue."

That conclusion may be legally incorrect.

Depending on the timing and circumstances of the dispute, the EFAA may permit the employee to elect to pursue qualifying claims in court.

Can I Still Choose Arbitration?

Yes.

The EFAA provides qualifying claimants with a choice; it does not necessarily prohibit an employee from proceeding in arbitration if the employee prefers that forum.

There may be strategic advantages and disadvantages to both arbitration and litigation.

Court proceedings may provide access to a jury and are generally public. Arbitration is generally private and operates under different procedural rules. The appropriate forum depends on the facts of the case, the arbitration agreement, the potential claims and defendants, available evidence, damages, and the employee's objectives.

That decision should be made strategically rather than based on the assumption that an arbitration agreement leaves the employee with no choice.

What If My Employer Says I "Agreed" Not to Sue?

Do not assume the employer's interpretation of the arbitration agreement is legally correct.

An employer may point to an arbitration provision and tell an employee that all employment disputes must be handled privately through arbitration.

But whether an arbitration agreement is enforceable against a particular sexual harassment dispute is a legal question.

The EFAA may give an employee the ability to elect court for a qualifying sexual harassment or sexual assault dispute. There may also be other issues involving the scope, formation, or enforceability of the arbitration agreement.

An attorney should review the actual agreement and the circumstances of the dispute before an employee accepts the conclusion that arbitration is mandatory.

What If I Was Retaliated Against After Reporting Sexual Harassment?

Retaliation may create additional legal claims.

California and federal law protect employees in numerous circumstances when they report sexual harassment, participate in an investigation, oppose conduct they reasonably believe is unlawful, or otherwise exercise protected workplace rights.

Potential retaliation can include termination, demotion, discipline, undesirable assignments, exclusion from opportunities, reduced hours, negative evaluations, threats, or other materially adverse actions.

When sexual harassment and retaliation claims arise from the same course of conduct, determining how the EFAA affects the claims and the arbitration agreement can require additional analysis.

Should I Sign a Severance Agreement After Reporting Sexual Harassment?

Employees should be particularly careful about signing a severance or settlement agreement after a dispute has arisen.

A severance agreement may contain a release of claims, confidentiality provisions, arbitration language, representations concerning existing disputes, and other provisions affecting significant legal rights.

The EFAA's treatment of predispute arbitration agreements should not be confused with agreements negotiated after a dispute already exists.

If you experienced sexual harassment and your employer offers severance, settlement money, or another agreement in exchange for signing a release, consider having a California employment attorney review the agreement before signing it.

What Should I Do If I Have Experienced Sexual Harassment at Work?

Preserving evidence can be critical.

If it is safe and lawful to do so, preserve potentially relevant emails, text messages, workplace messages, photographs, schedules, performance evaluations, complaints, HR communications, disciplinary documents, and other records.

It can also be helpful to create a chronology while events are fresh in your memory, identify potential witnesses, and document when complaints were made, who received them, and what happened afterward.

If arbitration has already begun, preserve discovery materials that may demonstrate when previously unknown evidence of sex-based harassment was uncovered.

Most importantly, do not delay seeking legal advice. Employment claims are governed by deadlines, and EFAA issues can involve additional questions concerning the timing of the dispute.

Talk to a California Employment Attorney Before Assuming You Are Stuck in Arbitration

If your employer is telling you that an arbitration agreement prevents you from taking a sexual harassment claim to court, do not assume that signing the agreement ends the analysis.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act fundamentally changed the legal landscape for qualifying sexual harassment and sexual assault disputes.

And if you are already in arbitration and discovery has revealed evidence suggesting that workplace harassment was based on your sex or gender, the Ninth Circuit's decision in Ding v. Structure Therapeutics, Inc.—a closely divided, very recent ruling—makes it particularly important to evaluate your options promptly.

At Antonyan Miranda, LLP, our employment attorneys represent California employees in cases involving workplace sexual harassment, discrimination, retaliation, wrongful termination, and related employment claims.

E-mail me at Emilia@antonyanmiranda.com to schedule a confidential consultation and learn whether an arbitration agreement affects your right to pursue your sexual harassment claims in court.

This article is provided for general informational purposes only and does not constitute legal advice. The applicability of the EFAA and other employment laws depends on the facts and timing of each case, and laws and court decisions may change.