Developments In Equal Pay Litigation - 2022 Update

50 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP district court for not undergoing the rigorous statutory analysis and legislative history review that would be required to determine if the knowing waiver doctrine applied to plaintiff’s claims, but held that it could not change the result because the employer’s arguments were not based solely on the Form U4 arbitration provisions. The Ninth Circuit found that “[b]oth the employment agreement and the confidentiality, non- solicitation and arbitration agreement included explicit language regarding employment disputes so that [plaintiff’s] statutory claims are clearly encompassed by the agreement.” 426 Moreover, although plaintiff’s employment claims were excluded from the arbitration provision contained in the Form U4, there was nothing in that form that would preclude the arbitration of those claims under FINRA rules provided that the parties had separately agreed to arbitrate those disputes, which they had. The Ninth Circuit therefore concluded that the district court “erred in holding that the arbitration agreement's reference to the FINRA rules related to the way arbitration would be conducted rather than the matters subject to arbitration.” 427 In Govindharajan v. Tata Consultancy Services, Ltd. , 428 the District Court for the Southern District of New York enforced an arbitration provision even though it required a U.S.-based employee to arbitrate under an Indian arbitration program, and possibly under Indian law, which the employee argued would force him to submit to the “inequitable laws” of India and deny him the protections of U.S. law, including the EPA. However, the court held that there was no reason to assume so, 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. 429 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.’” 430 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 arbitrate under NAPC arbitration rules and possibly under Indian law. 431 In Daly v. Citigroup Inc. , 432 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. 433 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. 434 According to the Second Circuit, the plaintiff had failed to show 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.” 435 knowingly waived their right to judicial remedies because the form did not describe the types of actions subject to arbitration. Id. (citing Prudential Ins. Co. of Am. v. Lai , 42 F.3d 1299 (9th Cir. 1994) and Renteria v. Prudential Ins. Co. of Am. , 113 F.3d 1104 (9th Cir. 1997)). 426 Id. at *5. 427 Id . 428 Govindharajan v. Tata Consultancy Servs., Ltd. , No. 19-cv-10017 (RA), 2020 WL 4016109 (S.D.N.Y. July 16, 2020). In that case, a Business Development Manager working for an Indian-based consultancy on assignment in New York and New Jersey brought a class action complaint alleging, among other things, that his employer violated the EPA by paying him less than his United States- based coworkers. Id. at *1-2. Prior to relocating to the United States, the plaintiff had signed a deputation agreement with a dispute resolution clause that the employer argued required him to bring his claims in arbitration. The plaintiff made several arguments against the 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. Id. at *7. 429 Id. 430 Id. at *8 (quoting Roby v. Corp. of Lloyd's , 996 F.2d 1353, 1363 (2d Cir. 1993)) (emphasis in original). 431 Id. 432 Daly v. Citigroup Inc. , 939 F.3d 415 (2d Cir. 2019). 433 Id. at 420. 434 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)). 435 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)).