“Under this standard, the conduct’s 10 severity and pervasiveness are relevant only to the issue of damages.”
How later courts described this case
- “Under this standard, the conduct’s 10 severity and pervasiveness are relevant only to the issue of damages.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 DING DING, Case No. 24-cv-01368-JSC
8 Plaintiff,
ORDER DENYING DEFENDANTS’
9 v. MOTION TO COMPEL
ARBITRATION
10 STRUCTURE THERAPEUTICS, INC., et
al., Re: Dkt. Nos. 24, 62
11
Defendants.
12
13 Dr. Ding Ding alleges Defendants created a hostile work environment and terminated her
14 employment because of her sex and status as a victim of domestic violence. (Dkt. No. 60.)1 The
15 Court previously denied Defendants’ motion to compel arbitration on the grounds the complaint is
16 covered by the Ending Forced Arbitration of Sexual Assault and Harassment Act (EFAA) because
17 Dr. Ding pleads a plausible sexual harassment claim under California law. (Dkt. No. 56.) But, the
18 Court deferred final ruling to give Dr. Ding the opportunity to amend her New York state law
19 claims so the Court could determine whether those claims, too, are covered by the EFAA. (Dkt.
20 No. 56 at 21-22.) Dr. Ding did so and Defendants again moved to compel arbitration arguing the
21 New York claims are not covered by the EFAA. (Dkt. No. 62.) Having carefully considered the
22 arguments and briefing, the Court concludes oral argument is not required on the amended
23 complaint, see N.D. Cal. Civ. L.R. 7-1(b), and DENIES Defendants’ motion to compel arbitration
24 for the reasons stated in its October 29, 2024 Order (Dkt. No. 56), and because Dr. Ding plausibly
25 pleads New York law sexual harassment claims covered by the EFAA.
26 //
27
1 ANALYSIS
2 The EFAA provides:
3 Notwithstanding any other provision of this title, at the election of the
person alleging conduct constituting a sexual harassment dispute or
4 sexual assault dispute, . . . no predispute arbitration agreement or
predispute joint-action waiver shall be valid or enforceable with
5 respect to a case which is filed under Federal, Tribal, or State law and
relates to the sexual assault dispute or the sexual harassment dispute.
6
7 9 U.S.C. § 402(a). A “‘sexual harassment dispute’ means a dispute relating to conduct that is
8 alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. §
9 401(4). The EFAA “makes pre-dispute arbitration agreements unenforceable”” upon the
10 plaintiff’s election. Johnson v. Everyrealm, Inc. 657 F. Supp. 3d 535, 561 (S.D.N.Y. 2023). The
11 Court must first determine whether the plaintiff “‘alleges conduct constituting a sexual harassment
12 dispute,’ so as to come within the EFAA” and then decides whether “the EFAA makes the
13 arbitration agreement unenforceable as to the entirety of the [complaint]’s claims.” Id. at 550-51.
14 The Court previously held: (1) Dr. Ding plausibly alleged a sexual harassment claim under
15 California’s Fair Employment and Housing Act (“FEHA”), (2) Dr. Ding properly elected to
16 invalidate the arbitration clause by filing her federal suit, and (3) the EFAA made the arbitration
17 agreement unenforceable as to the entirety of the complaint’s claims. (Dkt. No. 56.) Pending
18 before the Court is solely the question of whether Dr. Ding’s amended complaint now also
19 plausibly alleges sexual harassment claims under the New York City Human Rights Law
20 (“NYCHRL”) and the New York State Human Rights Law (“NYSHRL”).2
21 A. NYCHRL Claim
22 Of the two New York laws, the NYCHRL has the “most lenient applicable liability
23 standard.” Johnson, 657 F. Supp. 3d at 552. Under the NYCHRL, “there are not separate
24 standards for ‘discrimination’ and ‘harassment’ claims; rather, ‘there is only the provision of the
25
2 Courts agree “state law” under the EFAA includes local laws such as the NYCHRL because
26
“where Congress has defined ‘state’ elsewhere, it has done so broadly as including states’
subdivisions.” Johnson, 657 F. Supp. 3d at 552 n.14 (citing federal statutes and collecting cases);
27
see also Delo v. Paul Taylor Dance Found., Inc., 685 F. Supp. 3d 173, 182 n.2 (S.D.N.Y. 2023)
1 law that proscribes imposing different terms, conditions and privileges of employment based, inter
2 alia, on gender.’” Clarke v. InterContinental Hotels Grp., PLC, No. 12-cv-2671 (JPO), 2013 WL
3 2358596, at *11 (S.D.N.Y. May 30, 2013) (quoting Sotomayor v. City of New York, 862 F. Supp.
4 2d 226, 261 (E.D.N.Y. 2012) (citing N.Y.C. Admin. Code § 8-107[1][a])). To state an NYCHRL
5 hostile work environment sexual harassment claim a plaintiff must plead only “unwanted gender-
6 based conduct.” Delo, 685 F. Supp. 3d at 182 (cleaned up). And under the NYCHRL, a plaintiff
7 need not plead conduct was “severe or pervasive” to state a claim. See Golston-Green v. City of
8 New York, 123 N.Y.S.3d 656, 670 (N.Y. App. Div. 2020); see also Mihalik v. Credit Agricole
9 Chevrequx N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (“Under this standard, the conduct’s
10 severity and pervasiveness are relevant only to the issue of damages.”) (citing Williams v. New
11 York City Housing Authority, 872 N.Y.S.2d 27, 38 (N.Y. App. Div. 2009)). “A single comment
12 ‘being made in circumstances where that comment would, for example, signal views about women
13 in the workplace’ may be actionable under the City Human Rights Law.” Id. (quoting Williams,
14 872 N.Y.S.2d at 41 n.30; citing Hernandez v. Kaisman, 103 A.D.3d 106, 115 (N.Y. App. Div.
15 2012)).
16 Dr. Ding plausibly states an NYCHRL claim for hostile work environment sexual
17 harassment. Defendant Stevens expressed a preference to hire a man for the CFO position, though
18 the Board, “to emphasize ‘gender diversity’ in its recruitment efforts,” did not. (Dkt. No. 60 ¶¶
19 17, 18.) From the time she began working for Defendant Structure Therapeutics (the
20 “Company”), Defendants “almost immediately began to sideline Dr. Ding and not allow her to
21 perform the primary functions of her position.” (Id. ¶ 34.) Defendant Stevens “diminished Dr.
22 Ding’s roles on various projects and instead directed her to read and listen for her first year with
23 the company.” (Id.) Defendant Stevens reiterated comments to Dr. Ding that she “was ‘too
24 aggressive’” and that investment bankers felt “lectured” by her. “If Dr. Ding was a man, these
25 ‘Wolves of Wall Street’ never would have opined that she was being ‘too aggressive’ or that she
26 had been ‘lecturing them.’ Rather than recognizing these sexist comments, Defendant Stevens
27 adopted and ratified their behavior, and later would use such sexist opinions to form a pretextual
1 injuries suffered from a domestic violence incident, Defendant Stevens remarked “I can hardly see
2 anything. You may be more sensitive to it than others.” (Id. ¶ 48.) Days later, Defendant Stevens
3 pressured Dr. Ding not to attend executive meetings, asked her repeatedly to reconsider her role as
4 CFO in light of her domestic violence incident, and recommended her termination to the Board.
5 (Id. ¶¶ 49-53.)
6 Drawing all reasonable inferences in Dr. Ding’s favor, Defendants subjected her to
7 “‘unwanted gender-based conduct’” and as such “‘she has been treated less well than other
8 employees because of her gender.’” Mitura v. Finco Servs., Inc., 712 F. Supp. 3d 442, 452-53
9 (S.D.N.Y. 2024) (quoting McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y.
10 2020); citing Mihalik, 715 F.3d at 110). Defendant Stevens’s noted preference for a male CFO,
11 reiteration of sexist comments about her “aggressive[ness],” and belittling Dr. Ding’s domestic
12 violence experience, support an inference the conduct was based on Dr. Ding’s gender and created
13 a hostile work environment. Further, Defendants’ assumptions about Dr. Ding’s ability to do her
14 job both at the outset and after having suffered from domestic violence support an inference of
15 unwanted gender-based conduct. While Defendants argue this conduct is “gender neutral” (Dkt.
16 No. 62 at 14), drawing all reasonable inferences in Dr. Ding’s favor, the Court cannot conclude at
17 this early stage that these actions do not support an inference of gender-based animus creating a
18 hostile work environment. And though certain comments in a vacuum may appear gender-neutral,
19 the Court considers the conduct as a whole, not piecemeal. See Delo, 685 F. Supp. 3d at 184
20 (taking all allegations together to determine if the plaintiff established sexual harassment under the
21 NYCHRL and NYSHRL). Thus, accepting all well-pleaded allegations as true, Dr. Ding plausibly
22 states an NYCHRL sexual harassment claim.
23 Defendants protest that “‘gender discrimination’ and ‘sexual harassment’ are not
24 coextensive under the statute.” Singh v. Meetup LLC (Singh I), 23-cv-9502 (JPO), --- F. Supp. 3d
25 ---, 2024 WL 3904799, at *4 (S.D.N.Y. Aug. 22, 2024) (citing N.Y.C. Admin. Code §§ 8-
26 107(29)(b)). In Singh I, the court determined that because the EFAA only applies to “sexual
27 harassment dispute[s]” and the NYCHRL does not distinguish between gender discrimination and
1 EFAA is triggered. Id. at *4. The court then reviewed NYCHRL sexual harassment cases and
2 found “successful plaintiffs have alleged conduct or language of the same kind of romantic,
3 sexual, or lewd nature that the [New York City Commission on Human Rights] has described in
4 its guidance materials.” Id. (collecting cases).3 And because the plaintiff there did not plead
5 romantic, sexual, or lewd conduct, the court held she did not properly plead a sexual harassment
6 claim under the NYCHRL, the EFAA was not triggered, and thus the court compelled arbitration.
7 Id. at *6-7. The court held it could not “collapse the difference between ‘gender discrimination’
8 and ‘sexual harassment,’ … absent contrary guidance from the state courts.” Id. at *7.
9 The Court is not persuaded by Singh I. The EFAA unambiguously states: “[t]he term
10 ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual
11 harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4). In construing
12 sexual harassment under the NYCHRL, New York state courts have held:
13 Despite the popular notion that “sex discrimination” and “sexual
harassment” are two distinct things, it is of course, the case that the
14 latter is one species of sex- or gender-based discrimination. There is
no “sexual harassment provision” of the law to interpret; there is only
15 the provision of the law that proscribes imposing different terms,
conditions and privileges of employment based, inter alia, on gender.
16
Williams, 872 N.Y.S. 2d at 37 (citing N.Y.C. Admin. Code § 8-107[1][a]). So, under the
17
NYCHRL, “the primary issue for a trier of fact in harassment cases, as in other terms-and-
18
conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she
19
has been treated less well than other employees because of her gender.” Id. at 39. Thus, “a focus
20
on unequal treatment based on gender … is in fact the approach that is most faithful to the
21
uniquely broad and remedial purposes of the local statute.” Id. at 40. Under the EFAA “‘sexual
22
harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual
23
harassment under applicable . . . State law.” 9 U.S.C. § 401(4). The NYCHRL, as interpreted by
24
New York courts, says sexual harassment is conduct involving treating the plaintiff less well than
25
other employees based on her gender. The EFAA requires the Court adopt that definition.
26
27
3 By statute, the New York Commission on Human Rights is required to “post conspicuously on
1 Further, in Singh I, the court cites the New York City Commission on Human Rights’
2 website online training module and guidance for victims which states “[s]exual harassment is
3 unwelcome verbal or physical behavior based on a person’s gender … .” Stop Sexual Harassment
4 Act, NYC Human Rights, https://www.nyc.gov/site/cchr/law/sexual-harassment-training-
5 main.page [https://perma.cc/BT9E-UXXK] (last visited Feb. 5, 2025). The Commission is further
6 tasked with creating a poster displaying “[a]n explanation of sexual harassment” to be displayed
7 by employers. N.Y.C. Admin. Code § 8-107[29][b][1]. In the poster, the Commission defines
8 sexual harassment as “a form of gender-based discrimination, [which] is unwelcome verbal or
9 physical behavior based on a person’s gender.” Stop Sexual Harassment Act Notice, NYC Human
10 Rights, https://www.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice8.5x14-
11 English.pdf [https://perma.cc/PQ3V-FRS6] (last visited Feb. 5, 2025). In the poster’s examples of
12 sexual harassment, the Commission includes “making sexist remarks or derogatory comments
13 based on gender” as well as “making lewd or sexual comments about an individual’s appearance,
14 body, or style of dress.” Id. That the Commission described both lewd or sexual remarks and
15 sexist or derogatory comments based on gender is consistent with the state courts’ interpretation of
16 “sexual harassment” as broader than just lewd, sexual, or romantic harassment. In both the poster
17 and the website, the Commission does not define sexual harassment as the Singh I court does;
18 instead, it defines it as “unwelcome verbal or physical behavior based on a person’s gender.” So,
19 the Court will not stray from the definition of sexual harassment under the NYCHRL as stated by
20 New York state and federal courts, as well as the New York Human Rights Commission.
21 For these reasons, the Court concludes Dr. Ding plausibly pled her NYCHRL claim for
22 sexual harassment.
23 B. NYSHRL Claim4
24 The NYSHRL “expressly proscribes harassment on the basis of sex.” Diaz-Roa v. Hermes
25
4 A subsection of the NYSHRL not relevant to this case was held unconstitutional by a New York
26
court. People by James v. Commons West, LLC, --- N.Y.S.3d ---, 2024 WL 5083546, at *1 (N.Y.
App. Div., Dec. 11, 2024) (holding subdivision (5)(a)(1) unconstitutional under the New York
27
state constitution “to the extent that it makes it an unlawful discriminatory practice to refuse to
1 Law, P.C., 24-cv-2105 (LJL), --- F. Supp. 3d ---, 2024 WL 4866450, at *22 (S.D.N.Y. Nov. 21,
2 2024) (appeal filed) (citing 2019 Sess. Laws Ch. 160 (A. 8421) (McKinney)). Before the
3 NYSHRL was amended in 2019, “claims brought under New York State’s Human Rights Law
4 [were] analytically identical to claims brought under Title VII.” Rojas v. Roman Catholic Diocese
5 of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (quoting Torres v. Pisano, 116 F.3d 625, 629
6 n.1 (2d Cir. 1997)). Thus, a plaintiff can claim sexual harassment under the NYSHRL on a theory
7 of “hostile work environment.” Diaz-Roa, 2024 WL 4866450, at *22. Under the amended
8 NYSHRL, a plaintiff is not required to plead harassing conduct is “severe or pervasive”; instead,
9 “a plaintiff need only show that she was subjected ‘to inferior terms, conditions or privileges of
10 employment because of [her] membership in one or more of [the] protected categories.’” Delo,
11 685 F. Supp. 3d at 182 (quoting N.Y. Exec. Law § 296(1)(h)); see also Mitura, 712 F. Supp. 3d at
12 453 (“[T]he federal ‘severe or pervasive’ standard of liability does not apply to NYCHRL or the
13 post-amendment NYSHRL claims.”). To state a claim for sexual harassment under a theory of
14 hostile work environment, Dr. Ding “need only show that she was subjected to ‘inferior terms,
15 conditions or privileges of employment because of the individual’s membership in one or more of
16 the[] protected categories.” Mitura, 712 F. Supp. 3d at 453 (quoting Mayorga v. Greenberg, No.
17 22-cv-387, 2023 WL 6307994, at *8 (E.D.N.Y. Sept. 28, 2023)). So, for the reasons explained
18 above, Dr. Ding plausibly pleads sexual harassment under the NYSHRL.
19 Defendants similarly argue as they did with the NYCHRL, that under the NYSHRL sexual
20 harassment is different from sex discrimination. (Dkt. No. 62 at 11 n.7.) In Singh II, the court, on
21 reconsideration of its prior order compelling arbitration, concluded that while “[t]he NYSHRL
22 does not distinguish sexual harassment from sex-based or gender-based harassment” the court
23 would still distinguish between the two. Singh v. Meetup LLC (Singh II), 23-cv-9502 (JPO), 2024
24 WL 4635482, at *2 (S.D.N.Y. Oct. 31, 2024). The court then emphasized that other NYSHRL
25 sexual harassment cases in the EFAA context “all involve clearly sexual and lewd behavior.” Id.
26 (citing Mitura, 712 F. Supp. 3d at 450; Delo, 685 F. Supp. 3d at 178; Johnson, 657 F. Supp. 3d at
27 543-44). Finally, the court looked to guidance from the New York State Division of Human
1 as “a form of sex discrimination under the New York State Human Rights Law.” Id. at *3
2 (quoting Sexual Harassment, N.Y. State Div. of Hum. Rts.). Thus, the court held, “sex
3 discrimination cannot be a subset of sexual harassment, nor can the two be coextensive.” Id.
4 The Court does not agree. First, the EFAA does not require courts to impose a distinction
5 between sexual harassment that is lewd, romantic, or sexual and that which is not when the state
6 law itself does not do so. Again, the EFAA states “[t]he term ‘sexual harassment dispute’ means a
7 dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal,
8 Tribal, or State law.” 9 U.S.C. § 401(4). Here, New York has defined sexual harassment under its
9 own law—the NYSHRL—to mean a person was subjected “to inferior terms, conditions or
10 privileges of employment because of [sex].” N.Y. Exec. Law § 296(1)(h). Further, the New York
11 State Division of Human Rights, in the brochure cited in Singh II, states regarding sexual
12 harassment, “[h]arassment is against the law whenever an individual is subjected to inferior terms,
13 conditions or privileges of employment.” Sexual Harassment, N.Y. State Div. of Hum. Rts.,
14 https://dhr.ny.gov/system/files/documents/2024/04/nysdhr-sexual-harassment-brochure_0.pdf (last
15 visited Feb. 5, 2025). The Division goes on to explain sexual harassment “can consist of
16 unwanted verbal or physical sexual advances, sexually explicit statements, or discriminatory
17 remarks that are offensive or objectionable to the recipient.” Id. (emphasis added). The EFAA
18 provides that state law controls the meaning of “sexual harassment dispute.” So, the Court must
19 follow New York law.
20 Dr. Ding has therefore plausibly pled her NYSHRL sexual harassment claim.
21 CONCLUSION
22 The Court concludes Dr. Ding properly pleads New York sexual harassment claims under
23 the NYCHRL and NYSHRL. Because the Court concludes these claims and the FEHA sexual
24 harassment claim all trigger the EFAA, Dr. Ding properly and timely elected to pursue litigation in
25 this forum, and the remaining claims all relate to the sexual harassment dispute, the Court
26 DENIES Defendants’ motion to compel arbitration. (See Dkt. No. 56.)
27 The Court sets a case management conference for March 26, 2025 at 2:00 p.m. A joint
1 This Order disposes of Docket Nos. 24 and 62.
2 IT IS SO ORDERED.
3 Dated: February 5, 2025
4
5 ’
CQUELINE SCOTT CORLEY
6 nited’ States District Judge
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