The Second Appellate District affirmed a trial court order. The court held that a collective bargaining agreement’s vague arbitration clause, even when construed in conjunction with an antidiscrimination provision elsewhere in the agreement, was insufficient to compel arbitration of an employee’s discrimination claims under the Fair Employment and Housing Act.
Sixty-six-year old Mid-Wilshire Health Care Center employee Maribel Mendez was terminated after she suffered a health problem.
Mendez sued Mid-Wilshire for breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy, intentional infliction of emotional distress, and retaliation. She also asserted causes of action for disability discrimination, age discrimination, and failure to provide reasonable accommodation in violation of California’s Fair Employment and Housing Act (FEHA).
Mid-Wilshire moved to compel arbitration, arguing that Mendez’s claims were subject to the grievance and arbitration procedure set forth in the collective bargaining agreement between Mid-Wilshire and Mendez’s union.
Mendez opposed, arguing, among other things, that the terms of the agreement did not encompass her FEHA claims.
The trial court denied the motion, finding that the vagueness of the arbitration clause undermined Mid-Wilshire’s claim that the agreement mandated arbitration of Mendez’s FEHA claims.
The court of appeal affirmed, holding that the trial court properly construed the agreement as not compelling arbitration of Mendez’s FEHA claims.
An employee’s waiver of the right to have employment discrimination claims heard in a judicial forum must be “clear and unmistakable,” the court stated. The collective bargaining agreement at issue in this case did not meet that standard with regard to the arbitration of statutory discrimination claims. The arbitration provision contained only the most general language regarding grievances. It did not mention FEHA, did not explicitly incorporate by reference any statutory anti-discrimination laws, and did not contain an explicit waiver of the right to seek judicial redress for statutory discrimination causes of action. Nothing in the agreement made noncompliance with FEHA subject to the arbitration provision. In the absence of any “clear and unmistakable,” “particularly clear,” or “explicitly stated” reference to arbitrating statutory discrimination claims in the agreement, Mendez was not required to arbitrate her statutory claims.
The court acknowledged that even a “broad, nonspecific” arbitration clause could include statutory discrimination claims if coupled with an explicit incorporation of statutory antidiscrimination requirements elsewhere in the contract. But the court rejected Mid-Wilshire’s contention that any agreement containing both a broad arbitration clause and general language about complying with the law will pass the clear and unmistakable waiver test. At a minimum, the court found, an agreement needs to specify the statutes for which claims of violation will be subject to arbitration.
Here, although the parties’ collective bargaining agreement included a commitment not to discriminate, there was no express provision that the antidiscrimination commitment was subject to the grievance and arbitration provisions, nor was FEHA even mentioned. The commitment not to discriminate could accordingly not be construed as compelling arbitration of Mendez’s FEHA claims.
With respect to Mendez’s common law claims, the court found Mid-Wilshire failed to present any legal argument that the trial court’s denial of Mid-Wilshire’s motion to compel arbitration of those claims was erroneous.