A divided 9th Circuit Court of Appeal published an important decision that opens the door to employees in arbitration getting their claims into Court under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”). This case also illustrates the importance of compliance with California Code of Civil Procedure 1281.98 (“1281.98”) and paying arbitration fees timely. The employer’s misstep of untimely payment of arbitration fees opened the door to Dr. Ding withdrawing from arbitration and later filing her claims in Court.
This decision, essentially, allows employees to test-drive their claims in an arbitration — take discovery, gauge the arbitrator, assess their odds (at the employer’s expense) -- and bail out for court if they don’t like how the arbitration is moving by adding a sex discrimination claim.
In early 2022, Dr. Ding, a former CFO, commenced a JAMS arbitration against her former employer within several months after the termination of her employment, claiming discrimination due to her national origin and having been the victim of domestic violence. For over one year, the parties actively engaged in arbitration, including hearings, discovery and discovery disputes. During discovery, Dr. Ding uncovered emails, board directives and complaints from males that she later used to form the basis for sex discrimination allegations under California law.
After the employer’s late payment of JAMS’ fees, Dr. Ding gave...
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