By Rrita Osmani,
There’s rarely a “smoking gun” in employment law discovery, but in Dr. Ding Ding’s case Ding v. Structure Therapeutics, the smoking gun to beat forced arbitration came in a callous email by her CEO. The email described the CEO’s stated preference for male investment bankers as the “ideal phenotype” for the role. This email allowed Dr. Ding to remove her case from arbitration and file in California state court under the Fair Employment and Housing Act (“FHA”), and therefore under the Ending Forced Arbitration for Sexual Assault and Sexual Harassment Act (“EFAA”). Defendants removed to federal court and challenged her removal from arbitration. In a 2 to 1 decision, the Ninth Circuit held that if plaintiff discovers misconduct was of a sexual nature during arbitration, the EFAA still applies. While most employment law cases are built and won based on circumstantial evidence alone, Dr. Ding used the email as direct evidence in addition to the circumstantial evidence she had of sexual harassment and sex discrimination.
Mandatory arbitration clauses are increasingly common in employment agreements and usually require employees to resolve employment-related claims in a private arbitration. Arbitration strips plaintiffs from a jury trial, a public record, choice of venue and often waives participation in class actions. The closed door venue of arbitration allows companies and employers to skirt the public shame of their comments and actions. For example, if Dr. Ding was forced to arbitrate her claim, the public would never have known that Structure Therapeutics suggested her termination ten days after her domestic violence incident. Public shame can be a very powerful tool for employees, as it forces employers to answer the public’s uncomfortable questions. Public allegations detailing discrimination can hurt companies’ reputation which in turn hurts their effort to recruit and retain talent. Concerned consumers who feel strongly about certain issues like worker mistreatment or sexism in the workplace may boycott the companies who are accused of that conduct. Therefore, public shame serves as an important tool to keep companies and employers in check. Forcing arbitration plucks away at the already-light toolbox employees have. Additionally, forced arbitration removes a plaintiff’s day in court and denies them a jury trial, stripping them of the most fundamental rights they have under the Seventh Amendment.
Dr. Ding, the former CFO of Structure Therapeutics USA, Inc., initially asserted claims in arbitration for discrimination and harassment based on national origin and her status as a victim of domestic violence following her termination. During discovery, evidence was found that her mistreatment at work was motivated by her sex. That evidence is what prompted Dr. Ding to then withdraw from arbitration and file an action in civil court under the EFAA. Defendants, naturally, challenged the removal.
The Ninth Circuit stated plainly: “Both the text of the federal statute and its underlying purpose make clear that Congress intended to afford victims of workplace sexual assault and sexual harassment a genuine choice whether to pursue their claims in a court of law, notwithstanding a preexisting agreement to arbitrate. Where, as here, a plaintiff discovers a basis to pursue claims covered by the EFAA during arbitration, she may elect to end arbitration and proceed in court.” Ding v. Structure Therapeutics, Inc., NASDAQ, No. 25-1532, 2026 WL 2420555, at *2 (9th Cir. Aug. 19, 2026).
Structure Therapeutics’ CEO, Raymond Stevens circulated an email on August 5, 2021 that outlined his “ideal phenotype” for a CFO to take Structure Therapeutics through its IPO. Stevens’ ideal phenotype was two men with investment banking backgrounds. Resistant to Stevens’ preference, the Board of Directors wanted to emphasize gender diversity and recruited Dr. Ding, a Wharton graduate and pharmacology Ph.D, who was working at Credit Suisse as head of its Asia-Pacific healthcare investment banking and capital markets division, with over twenty years in biopharmaceutical equity research and investment banking experience. As many employment agreements today, Dr. Ding’s employment contract included an arbitration clause that required all employment disputes “by final, binding and confidential arbitration” with JAMS.
Dr. Ding alleged that, from the outset of her employment, Stevens undermined her position and sought to sideline her. She described Stevens telling her to “read and listen for her first year with the company” instead of allowing her to “perform the primary functions of her position, including managing and interfacing with lead investment banks who were serving [Structure Therapeutics] as part of the IPO.” Id.
In January 2022, Stevens told Dr. Ding that the Wall Street bankers involved in Structured Therapeutics IPO said that she was “too aggressive” and “lectured” them. Dr. Ding was confused as “she was always polite and never raised her voice on any communications with these bankers.” Id. Stevens later stated in his deposition that he considered the Wall Street bankers’ complaints when terminating her. Id., at 3.
On March 7, 2022, Dr. Ding was the victim of a domestic violence incident where she suffered “visible injuries to her face and eye.” Id. Dr. Ding informed Stevens of this and suggested skipping a Zoom meeting. Stevens told her that he “[could] hardly see anything,” and that she “may be more sensitive to it than others.” Other employees saw her injuries and expressed sympathy. Id.
Despite the incident, Dr. Ding was willing and able to travel to a planned monthly week long executive meeting in San Francisco. Stevens questioned whether she should attend and asked whether she “wanted to reconsider [her] role a CFO given [her] transition in life.” Id. Dr. Ding was “deeply troubled and offended” by these comments and confirmed her willingness and ability to continue as CFO. Id.
On March 17, 2022, ten days after the domestic violence incident, Dr. Stevens recommended Dr. Ding’s termination to the Board of Directors and informed her of her termination on March 22. He “provided no performance-related reason for her termination, but specifically called out [her] domestic situation as a factor in his decision.” Id. Dr. Ding also alleged that the CFO position was then given to a man who had “no business, accounting or finance degree” and “had been laid off at almost every employment” since college. Id. These allegations already gave strong circumstantial evidence in support of an inference of sex discrimination and discrimination based on Dr. Ding’s status as a victim of domestic violence, particularly given the temporal proximity between the incident and her termination. In addition, her job duties were given to a man who was less qualified than Dr. Ding, again suggesting gender discrimination as Stevens would not be able to argue that he preferred someone more qualified than Dr. Ding. However, the direct evidence of Stevens’ email strengthened Dr. Ding’s position that her termination was based on gender discrimination and is what triggered Dr. Ding to remove her case from arbitration.
The Ninth Circuit squarely rejected Defendants’ arguments that Dr. Ding was barred from raising a sexual harassment claim because she had previously initiated arbitration on non-sexual-harassment claims: “The plain text of the EFAA does not limit when a plaintiff may allege a sexual harassment claim or exercise her rights under the EFAA.” Id., at 4. The majority also responded to their dissenting colleague, stating, “she could not have triggered an “election” under the EFAA by filing an arbitration demand with non-sexual harassment claims. Under the facts of this case, Dr. Ding made an election only one time—when she chose to pursue the newly discovered sexual harassment claim by filing her claims in federal court.” Id.
The Ninth Circuit also looked to the purpose of the statute to support victims of sexual assault’s choice of forum: “Under Defendants’ reading, a plaintiff could lose her ability to have her sexual harassment claim heard in court before she knows she has such a claim. Such an interpretation would deprive individuals who uncover a sexual harassment claim during discovery of the choice the EFAA was enacted to provide.” Id., at 5.
However, the Ninth Circuit did clarify that, “Our conclusion does not mean that a plaintiff may start in arbitration, bring a sexual harassment claim at any time, under any circumstances, and then pursue her claims in court… a court may find waiver where a plaintiff is aware of the facts giving rise to a sexual harassment claim and either unduly delays in bringing such a claim through intentional acts or decides to pursue that claim in arbitration rather than court.” Id.
Defendants then made a Hail Mary argument, arguing that Dr. Ding’s allegation did not “state a sexual harassment claim within the meaning of the EFAA.” Id., at 6. The court did a thorough analysis under the FEHA stating that, “Dr. Stevens’s alleged preference for a male CFO, reiteration of sexist remarks, belittling of Dr. Ding’s domestic violence experience, and comment about Dr. Ding’s inability to continue her job all support an inference that his conduct towards Dr. Ding was plausibly based on her sex.” Id., at 7. Therefore, the Ninth Circuit held that, “a sex-based hostile work environment claim under the FEHA is a “sexual harassment dispute” under the EFAA.” Id., at 8.
This case serves as an interesting exhibition of how different types of evidence arise in employment discrimination cases. Dr. Ding’s testimony of Dr. Stevens’ sexist remarks and the temporal proximity of her termination following the domestic violence incident alone were enough to give rise to an inference of sex discrimination. However, the email that Stevens sent detailing his “ideal phenotype” was the type of direct evidence that is rare in employment cases. The email laid out the sex discrimination clearly – that Dr. Stevens discriminated against Dr. Ding because of her sex. The procedural posture of Dr. Ding’s case raises interesting questions for plaintiff’s lawyers regarding discovery and when circumstantial evidence of sex discrimination, on its own, may be enough to argue that a case belongs out of arbitration. Ultimately, the Ninth Circuit’s decision is certainly a win for employees in a world where mandatory arbitration clauses threaten to restrict the choice of venue employees have in their discrimination claims.
If you would like more information about this issue, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.
