©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 57 agreement included explicit language regarding employment disputes so that [plaintiff’s] statutory claims are clearly encompassed by the agreement.”470 In Govindharajan v. Tata Consultancy Services, Ltd.,471 the court 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. The court held 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 inquiry relating to an arbitral forum selection clause is whether a party ‘will be deprived of any remedy.’”472 In Bester v. Compass Bank,473 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.”474 And in Davidow v. H&R Block, Inc.,475 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.476 The court then concluded that the arbitration agreement included plaintiff’s claims because she had agreed to arbitrate claims arising under federal statute.477 470 Id. at *5. See also Daly v. Citigroup Inc., 939 F.3d 415, 422 (2d Cir. 2019) (upholding decision to compel arbitration of, among other things, an EPA claim, and rejecting plaintiff’s argument that such claims were not subject to arbitration because there was clear congressional intent to preclude such claims from the waiver of judicial remedies: “plaintiff has failed to present any evidence that Congress intended claims arising under the EPA to be nonarbitrable”) (quoting Crawley v. Macy's Retail Holdings, Inc., No. 15cv-2228 (KPF), 2017 WL 2297018, at *5 (S.D.N.Y. May 25, 2017)). 471 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 Statesbased 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. 472 Id. at *8 (quoting Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1363 (2d Cir. 1993)) (emphasis in original). 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. Id. 473 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. 474 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. 475 Davidow v. H&R Block, Inc., No. 19-cv-1022-cv-W-ODS, 2019 WL 2090690 (W.D. Mo. May 13, 2019). 476 Id. at *4. 477 Id. at *6. See also Carrone v. Unitedhealth Group, Inc., No. 20-cv-5138 (FLW), 2020 WL 4530032 (D.N.J. Aug. 6, 2020) (compelling arbitration of all matters to the arbitrator, including issues as to the agreement’s unconscionability, because the arbitration agreement delegated such “gateway” issues to the arbitrator: “Defendants have presented clear and unmistakable evidence of an agreement to arbitrate the gateway issues. In that regard, the Agreement expressly incorporates the rules of the AAA, one of which delegates the gateway issue of arbitrability to the arbitrator”).
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