Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 39 enforceability of the arbitration provisions, including that it was substantively unconscionable because it would force him to submit to the “inequitable laws” of India, which would deny him the protections of U.S. law, including the EPA. 314 However, the court held that there was no reason to assume this was the case as the dispute resolution agreement merely required that disputes be arbitrated according to the rules of the Nani Palkivala Arbitration Centre, leaving open the possibility that his claims would still be analyzed under U.S. law . 315 The court also noted that under Second Circuit precedent, it was not enough for a party seeking to avoid arbitration to show that an arbitral forum selection clause would be different or even less favorable, the Second Circuit has specified that the inquiry relating to an arbitral forum selection clause is whether a party ‘will be deprived of any remedy.’” 316 The court held that plaintiff had not plausibly alleged that he would be wholly deprived of any remedy just because he would be forced to arbitration under NAPC arbitration rules and possibly under Indian law . 317 In Daly v. Citigroup Inc. , 318 the Second Circuit upheld the district court’s decision to compel arbitration of, among other things, an EPA claim arising out of a lawsuit brought by an Assistant Vice President of a bank. In that case, plaintiff admitted that she was subject to an arbitration agreement, but argued that her claims were not subject to arbitration because there was clear congressional intent to preclude such claims from the waiver of judicial remedies. 319 The Second Circuit explained that its prior precedent had already established that there is insufficient evidence with respect to claims under Title VII that Congress intended to preclude the waiver of judicial remedies. 320 According to the Second Circuit, the plaintiff had failed to present any evidence that the situation was different for claims arising under the EPA: “plaintiff has failed to present any evidence that Congress intended claims arising under the EPA to be nonarbitrable. ” 321 Similarly, in Bester v. Compass Bank , 322 the District Court for the Northern District of Alabama compelled two contract analysts to arbitrate their EPA claims against their bank employer even though the plaintiffs had alleged that the arbitration agreement was enforced in a discriminatory manner. The district court held that the bank’s allegedly discriminatory enforcement of the arbitration agreement does not render the agreement unenforceable: “the plaintiffs must raise the alleged discriminatory enforcement in arbitration with their other claims.” 323 And in Davidow v. H&R Block, Inc. , 324 the court compelled a seasonal tax preparer into arbitration regarding, among other things, her EPA claim. The court first held that the arbitration agreement bound both parties to the contract and therefore there was mutuality of promise and sufficient consideration to create a valid and enforceable arbitration agreement . 325 The court then 314 Id. at *7. 315 Id. 316 Id. at *8 (quoting Roby v. Corp. of Lloyd's , 996 F.2d 1353, 1363 (2d Cir. 1993)) (emphasis in original). 317 Id. 318 Daly v. Citigroup Inc. , 939 F.3d 415 (2d Cir. 2019). 319 Id. at 420. 320 Id. at 422 (quoting and citing Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc ., 191 F.3d 198, 206 (2d Cir. 1999); Gold v. Deutsche Aktiengesellschaft , 365 F.3d 144, 148 (2d Cir. 2004)). 321 Id. (quoting Crawley v. Macy's Retail Holdings, Inc ., No. 15-CV-2228 (KPF), 2017 WL 2297018, at *5 (S.D.N.Y. May 25, 2017)). 322 Bester v. Compass Bank , No. 2:18-CV-1817-AKK, 2019 WL 1897176 (N.D. Ala. Apr. 29, 2019). In that case, the two contract analysts had signed an application containing an agreement to arbitrate any potential claims concerning any aspect of their employment relationship with the bank. Id. at *1. The court held that a valid arbitration agreement existed between the parties and that the broad language of the arbitration provision included plaintiff’s EPA claims within its scope. Id. at *2. However, plaintiffs alleged that the bank should be estopped from enforcing the arbitration agreement because it allegedly enforced it in a discriminatory manner; according to plaintiffs, the bank did not enforce the agreement against Caucasian or male employees. Id. at *3. 323 Id. at *3. The district court also rejected plaintiff’s fraudulent inducement arguments. Plaintiffs alleged that they were fraudulently induced into the arbitration agreement based on the bank’s representation that it is an equal opportunity employer. Id. The court held that that representation involves the employment contract generally, rather than the agreement to arbitrate itself. Id. 324 Davidow v. H&R Block, Inc. , No. 19-CV-1022-CV-W-ODS, 2019 WL 2090690 (W.D. Mo. May 13, 2019). 325 Id. at *4.