Summary
A California Court of Appeal ruled that an employee who strategically withheld a known sexual harassment claim, let the court compel arbitration, and only then tried to invoke the federal statute that lets harassment plaintiffs escape arbitration, forfeited that statute’s protection for every claim. For employers with a valid employment arbitration agreement, the decision is a meaningful line of defense.
If your company relies on an employment arbitration agreement, you already know California keeps handing employees new ways out of one. One of the newest is a 2021 federal law that lets a worker alleging sexual harassment void the agreement and head to court. That law is real, and it has teeth. But a California Court of Appeal just drew a hard line around when an employee can use it, and the line favors the employer who drafted a valid agreement and insisted on it from the start.
The case is Chin v. DoorDash, Inc. (Cal. Ct. App., 2d Dist., Oct. 5, 2026), and the maneuver it shut down is one plaintiffs’ lawyers have been testing since the statute passed. An employee can’t quietly sit on a known harassment claim, let the court send the whole case to arbitration, and then spring the statute months later to drag everything back into court. Do that, and you give up the statute’s protection for every claim, including the harassment claim you were holding in reserve.
The Statute at the Center of This
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a 2021 federal law usually shortened to the EFAA, lets an employee alleging sexual assault or harassment invalidate a predispute arbitration agreement and litigate in court instead. Here’s the catch that decided this appeal. The protection isn’t automatic. The statute says it applies “at the election of” the person alleging harassment, which means the employee has to actually choose it, and choose it at the right moment.
How Chin Played It
Andrew Chin joined DoorDash in 2020. He took nine weeks of parental bonding leave in early 2023 and says the company punished him for it, denying him a comparable role when he returned, interfering with more leave, and firing him at the end of the year. In February 2024 he sued in Los Angeles Superior Court for violations of California’s family-leave law, whistleblower retaliation, wrongful termination, and unfair competition. He didn’t plead sexual harassment, even though the one piece of harassing conduct he’d later lean on, a supervisor repeatedly pressing him about when he’d take the rest of his leave, was already sitting in that first complaint.
DoorDash moved to compel arbitration, meaning it asked the court to enforce the agreement and push the dispute out of court. Chin fought the motion, but only by arguing no valid agreement existed. He never mentioned harassment. He never mentioned the EFAA. The court enforced the agreement and sent the whole case to arbitration.
Then Chin changed tack. In arbitration, he amended his demand to add a sexual harassment claim under California’s Fair Employment and Housing Act, the state anti-discrimination statute known as FEHA, built on that same supervisor’s conduct. He asked the arbitrator to route everything back to court under the EFAA. When that stalled, he filed a second lawsuit in April 2025, nearly a year after the arbitration order, seeking a declaration that the agreement was void as to both cases. He later told the trial court, in his own words, that he’d withheld the harassment claim “for strategic purposes” and added it later “specifically to avoid arbitration.”
The trial court sided with Chin, though it plainly didn’t want to. The judge said he was “not happy with the way this has gone” and disliked his own ruling, but believed the law tied his hands. He invalidated the agreement, consolidated the two suits, and denied DoorDash’s renewed motion to compel. DoorDash appealed.
Why the Arbitration Agreement Held Up
Division Eight of the Second District reversed, and the reasoning is where the decision earns its weight. The court held that Chin had waived the EFAA, waiver meaning the intentional giving up of a known right, through the way he litigated the first suit. He knew the harassing conduct from the start, because he’d already pleaded it. He chose not to raise a harassment claim or the statute when he opposed arbitration. He let the court compel arbitration on the merits of the agreement, and then tried to unwind that order a year later. The court called it what it was, a strategic withholding, and ruled that a litigant can’t sandbag the court this way and still claim the statute’s benefit.
The opinion’s sharpest line captures the logic. Raising the harassment claim and the EFAA after the arbitration order did not, the court wrote, hit “the proverbial ‘reset button’” on the choices Chin had already made. The protection has to be elected when the employer first moves to force the case out of court, not saved as a trump card for later.
The court was careful about its limits. It distinguished a recent Ninth Circuit decision where the employee genuinely didn’t know she had a harassment claim until arbitral discovery uncovered it, and then invoked the statute right away. That employee kept her protection. Chin’s problem wasn’t ignorance. It was strategy.
The decision wasn’t unanimous. The dissenting justice saw Chin’s conduct as a blunder rather than calculated waiver, likening it to losing your queen in chess to a move you never saw coming, and warned against reading waiver too aggressively into a statute meant to protect harassment plaintiffs. That split tells you this issue isn’t fully settled, and the reach of the waiver reasoning will get tested again.
What This Means for Employers
Start with the good news. A valid, well-drafted arbitration agreement is more durable than the recent run of California cases might suggest. The EFAA is a genuine exception to arbitration, yet it’s one the employee has to invoke correctly and on time. When a plaintiff holds a harassment claim in reserve to manufacture a later escape hatch, you now have a published California decision saying that move forfeits the protection.
Don’t overread it, though. This is a timing-and-conduct ruling, not a license to ignore the EFAA. An employee who raises harassment and elects the statute at the first opportunity, when you move to compel, sits squarely within its protection, and nothing here changes that. The win came from the plaintiff’s own delay, not from any weakness in the statute. Your agreement still has to be enforceable on its own terms, the kind of enforceability that an earlier wave of California decisions keeps tightening.
If you represent employees, the lesson is the mirror image. The EFAA rewards the lawyer who uses it promptly. Plead the harassment claim when the facts support it, and elect the statute the moment the employer tries to compel arbitration. Treat it as a card to play later and you can lose it.
The Bottom Line
Chin answers a question the last wave of arbitration decisions left open. We knew the EFAA could free an employee from an arbitration agreement. What we didn’t know was how California courts would handle an employee who alleges harassment alongside other claims and plays the timing for advantage. Now there’s a first answer, and it favors the employer who built a valid agreement and insisted on it over the plaintiff who tried to game the sequence. If you’re reviewing your agreements, or facing a motion that turns on the EFAA, the timing of every move matters more than it did a month ago.
Horst Legal Counsel works with both employers and employees on arbitration enforceability and employment disputes. If you’re weighing how Chin affects a pending motion or a set of agreements, we’re glad to talk it through. Contact us here.