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Ninth Circuit:
Lack of Mention of Statutory Claims Does Not Necessarily Exempt Them From Arbitration
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals declared yesterday that previous decisions should not be read as erecting a broad rule that arbitration agreements do not extend to statutory discrimination claims unless a waiver of a judicial forum as to such claims is expressly stated, directing that five claims by a former corporate lawyer for gender discrimination against her former employer be arbitrated.
Relying on precedents, District Court Judge Jon S. Tigar of the Northern District of California ruled on March 5, 2020, that Shannon Zoller, in signing multiple agreements consenting to arbitrate disputes in connection with her employment as a managing director of GCA, an investment bank, had not waived her right to have statutory claims adjudicated in a court. He wrote:
“Courts within the Ninth Circuit have found a knowing waiver of the right to a judicial forum where an arbitration clause explicitly refers to statutory discrimination or civil rights claims….
“On the other hand, courts generally find that broad language requiring arbitration of ‘any dispute,’ ‘controversy,’ or ‘claim’ is not specific enough to create a knowing waiver.”
Language of Agreements
The agreements she signed included such language as:
“In the event of any controversy or claim relating to or arising out of your employment with the Company, the termination of that employment, this Agreement or its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation of any of this Agreement’s provisions, you agree that such dispute shall be exclusively settled by final and binding arbitration….”
While she and GCA agreed to arbitrate nonstatutory claims, she maintained there was no agreement to arbitrate claims under the Federal Equal Pay Act, the California Fair Pay Act, state Fair Employment and Housing Act, or a federal statute barring a conspiracy to violate civil rights.
Wallace’s Opinion
Reversal of Tigar’s denial of GCA’s motion to compel arbitration of those claims came in an opinion by Senior Circuit J. Clifford Wallace. He wrote:
“[W]e hold that this appeal is resolved on the arbitration agreement’s clear language encompassing employment disputes and evidence that Zoller knowingly waived her right to a judicial forum to resolve her statutory claims.
“Ultimately, the facts here are easily distinguishable from our prior decisions holding that a plaintiff did not knowingly waive judicial consideration. Both the employment agreement and the confidentiality, non-solicitation and arbitration agreement included explicit language regarding employment disputes so that Zoller’s statutory claims are clearly encompassed by the agreement.”
He added that “Zoller’s alleged subjective misunderstanding of the documents is not dispositive because our analysis rests on the explicit terms of the agreement.”
The case is Zoller v. GCA Advisors, 20-15595.
Zoller, who earned her law degree at Chicago-Kent College of Law, had been a corporate attorney with Thompson Couburn LLP, an international law firm.
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