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BOSTON—A job applicant who ultimately did not get the job is not required to arbitrate her case because of ambiguity in the arbitration clause's language as to whether it applied only to employees, said a federal appellate court Tuesday.
According to the ruling by the 1st U.S. Circuit Court of Appeals in Ann Gove vs. Career Systems Development Corp., a “visibly pregnant” Ms. Gove, had applied for a job in Maine with West Henrietta, N.Y.-based CSDC in April 2008, about a month before she was due to deliver. On her application, she checked off a box that indicated she accepted the terms of an arbitration agreement.
She was asked during the interview when she was due, and whether she had any children. She told the interviewer she had a seven-year-old son.
After CSDC did not hire her, and continued to advertise the position, she filed a complaint charging pregnancy and gender discrimination.
The arbitration clause signed by Ms. Gove said in part that there would be arbitration “if there is any dispute between you and CSD with respect to any issue prior to your employment, which arises out of the employment process…Therefore, your submission….will also be used to resolve all pre-employment disputes.”
Both parties in the case agreed that Maine law was applicable, said the decision. “Turning to Maine law, we must determine whether the arbitration clause is ambiguous in its coverage of applicants who are not hired,” said the ruling. “CSD argues that the clause unambiguously covers all disputes between it and applicants for employment.”
However, Ms. Gove argued “that the clause's references to the ‘employment process’ and ‘pre-employment issue’ should be read literally,” said the ruling.
“Importantly, nothing in the arbitration clause refers to ‘applicants,’ said the ruling. “Because of the obligation under Maine law to construe ambiguities against the drafter of a contract, we conclude that Gove is not required to arbitrate her claims,” said the 2-1 ruling, in affirming a lower court ruling and remanding the case for further proceedings.
The dissenting opinion said federal, not Maine law, should apply. Because “all judges on this panel conclude that Gove accepted and entered into a valid agreement to arbitrate some of the disputes between herself and CSD, our precedent is clear that Maine contract law cannot trump the federal policy favoring arbitration in our assessment of CSD’s motion to compel” arbitration, it said.
Commenting on the ruling, plaintiffs attorney Paul W. Mollica, of counsel to Outten & Golden L.L.P. in Chicago, who was not involved in the case, said the opinion reflects “there were clear ways that one could have drawn such (arbitration clauses), such as by saying it could have applied to job applicants.”
Among those who testified at the recent Equal Employment Opportunity Commission hearing on pregnancy discrimination was Deane Ilukowicz, vp of human resources for Hypertherm Inc., who said employers could use more guidance on how to comply with the various federal leave and disability laws, including the Pregnancy Discrimination Act. Read her written testimony.