Gender Discrimination and Retaliation Claims Not Subject to Arbitration Clause, Court Holds

In Saltzman v. Exlservice Holdings Inc., No. 154361/2019, 2019 WL 6843028 (N.Y. Sup Ct, New York County Dec. 11, 2019), the court denied defendants’ motion to compel arbitration of plaintiff’s gender discrimination and retaliation claims asserted under the New York City Human Rights Law.

In sum, plaintiff asserts that defendants treated her worse than similarly-situated male employees, and retaliated against plaintiff for complaining about this unequal treatment.

Defendants, in lieu of answering, filed the instant motion seeking to compel arbitration pursuant to a letter agreement containing the following arbitration clause:

Any dispute regarding this letter agreement shall be resolved by binding confidential arbitration, to be held in New York, New York in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by arbitrator(s) may be entered in any court having jurisdiction thereof.

Initially, the court held that

contrary to Defendants’ argument, it is the role of this Court and not the arbitrator to determine arbitrability (see CPLR 7503 [a][”…If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action”]; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45 [1997]). Because the arbitration provision is narrow, only applying to “any dispute regarding this letter agreement,” the reference to the AAA rules does not constitute clear and unmistakable evidence that the parties intended to have an arbitrator decide arbitrability[.]

Next, the court held that plaintiff’s statutory claims were not required to be arbitrated, explaining:

Here the three causes of action asserted by Plaintiff are not contained within the letter agreement. Neither New York City Human Rights Law § 8-107 nor claims for retaliation or gender discrimination are mentioned anywhere in the agreement. While the agreement does have a section entitled “Termination” it does not address unlawful discharge based on gender. Moreover, as it is Defendants’ position that Plaintiff “indicated a desire to separate” from ExlService Holdings Inc., plausibly Plaintiff was not “terminated” and that section of the letter agreement has no application in this case. Thus, since Plaintiff’s causes of action fall outside the letter agreement, Plaintiff is not required to arbitrate these claims