Key Points

  • A plaintiff who strategically withholds a known sexual harassment claim while opposing a motion to compel arbitration waives the EFAA's protections.
  • The EFAA's election right is subject to traditional waiver doctrine and can be abandoned through deliberate litigation conduct.
  • A dissenting justice characterized the plaintiff's conduct as a blunder rather than intentional waiver and suggested sanctions against counsel would be the appropriate remedy.
  • The case was remanded with instructions to compel arbitration of all claims.

A California appeals court ruled Monday that a DoorDash employee who strategically withheld a sexual harassment claim while fighting a motion to compel arbitration waived his right to invoke the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 and must now arbitrate all of his claims against the company.

The Second District Court of Appeal, in a 2-1 decision written by Justice Scherb, reversed trial court orders that had invalidated DoorDash's arbitration agreement, denied its motion to compel, and consolidated two lawsuits filed by Andrew Chin. The court directed the trial judge on remand to grant DoorDash's motion compelling arbitration.

The court held that a plaintiff who knows of a sexual harassment claim but deliberately holds it back during arbitration motion practice cannot later invoke the federal statute to escape the arbitration he was ordered into.

Chin, hired by DoorDash in 2020, took nine weeks of parental leave in early 2023. He alleged the company retaliated against him for taking the leave, denied him the same or comparable position upon return, and terminated him at year's end. A superior, he claimed, repeatedly asked when he would take his remaining leave.

Chin sued in Los Angeles Superior Court in February 2024, asserting claims under the California Family Rights Act, whistleblower retaliation, wrongful termination, and unfair competition. He did not include a claim for sex-based harassment. When DoorDash moved to compel arbitration in March 2024, Chin opposed the motion on three grounds — all challenging whether a valid agreement existed — without mentioning the EFAA or any harassment claim.

Only after the trial court issued a tentative ruling compelling arbitration did Chin, at a May 2024 hearing, float the idea of seeking leave to amend to add a sexual harassment claim "to avoid arbitration under federal law." The court adopted its tentative ruling and declined to permit amendment "at this time."

In a subsequent writ petition to the Court of Appeal, Chin acknowledged that "[f]or strategic purposes, [he] did not include a claim for sexual harassment under FEHA in his initial [c]omplaint." At oral argument in the appeal, Chin conceded it was at least a fair inference that the strategy was to try to invalidate the arbitration agreement entirely before relying on the EFAA.

Months later, after his writ was denied, Chin amended his arbitration demand to add a sex-based harassment claim. He then asked the arbitrator to send the case back to court under the EFAA. In April 2025 — nearly a year after the order compelling arbitration — Chin filed a second lawsuit in superior court, reasserting the harassment claim and seeking a declaration that the arbitration agreement was invalid as to all claims in both suits.

The trial court granted Chin's motions over DoorDash's objection, noting it was "not happy with the way this has gone" but believed the law compelled it to rule for Chin.

Justice Scherb, writing for the majority with Justice Viramontes concurring, disagreed. The court held that the EFAA's protections must be "elect[ed]" and that the statutory language "does not disturb the default rule that litigants can waive statutory rights." Quoting the Ninth Circuit's recent decision in Ding v. Structure Therapeutics, Inc., the court noted that "[a] plaintiff may waive her EFAA rights under ordinary waiver principles."

The majority found waiver by clear and convincing evidence. "Chin strategically withheld a known sex-based harassment claim arising from the same conduct pleaded in his complaint," Justice Scherb wrote. "He also, despite vigorously opposing arbitration, let the court compel arbitration without timely asserting his known, related claim by proper opposition or other appropriate mechanism."

The court warned against allowing litigants to game the system. "It would be problematic if litigants, without restrictions, could strategically delay invocation of the EFAA by strategically delaying their presentation of harassment claims," the majority wrote, rejecting Chin's argument that the EFAA grants a right "to forum hop at whim."

Acting Presiding Justice Wiley dissented, arguing that Chin's conduct was "not waiver" but rather "a blunder." He invoked a chess metaphor: "You might think for a while and then move your queen. To your dismay, your opponent's next move is to take your queen with a bishop you had not considered. You blundered. You thought you were playing strategically, but you miscalculated. You certainly did not purposely relinquish your queen."

Justice Wiley acknowledged the delay and needless litigation expense was "lamentable" and said he "would be sympathetic to a trial court that considered sanctioning plaintiffs' counsel by making that counsel reimburse the other side's attorney fees wasted on the pointlessly circuitous process." But he maintained that "Chin's miscalculation was not enough" to constitute waiver of the EFAA.

Raymond A. Cardozo of Reed Smith represented DoorDash on appeal. Darren J. Campbell of Aitken Campbell Heikaus Weaver represented Chin.

The case now returns to the trial court with instructions to grant DoorDash's motion to compel arbitration.