9th Circuit allows withdrawal of arbitration on discovery of sex claim

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) prevents enforcement of arbitration agreements in cases alleging conduct constituting a sexual harassment dispute. But what if an employee agrees to arbitrate the issues surrounding her termination, and after a year of arbitration discovers a sexual harassment claim? Can she withdraw from arbitration and file a lawsuit, or does initiating arbitration over the termination waive any right to a civil jury trial over that termination? 

Discovering sexism in the arbitral forum 

Dr. Ding Ding is a Wharton graduate and pharmacology Ph.D. with over 20 years of experience in biopharmaceutical equity research and investment banking at multiple leading global investment banks in Asia and the United States. At the time Ding was being recruited to serve as the chief financial officer (CFO) for Structure Therapeutics, Inc.—a clinical drug development company—she was employed by Credit Suisse as the head of its Asia-Pacific healthcare investment banking and capital markets divisions. Although Structure’s board explicitly sought gender diversity, its CEO, Dr. Raymond Stevens, had previously emailed staff outlining an “ideal phenotype” for the position using two men as examples. Ding was ultimately offered an employment agreement that required the resolution of all employment disputes “by final, binding and confidential arbitration” with JAMS (formerly known as Judicial Arbitration and Mediation Services).