Some Florida employers can force arbitration of employee discrimination claims


On November 12 a Tampa court ruled that a former employee was required to arbitrate her claims under the FMLA, Title VII (sex discrimination), ADA (failure to make reasonable accommodations), and Florida Civil Rights Act.

The employee had signed an employment agreement including a clause requiring arbitration of any claim that arises out of the agreement (with the exception of non-disclosure and non-compete provisions).

The employee in the case argued that FMLA, Title VII, ADA, and FCRA claims do not arise out of the employment agreement, because they do not allege a breach of the contract, and the claims would exist even if the employment was not governed by any employment agreement at all.

The court held that arbitration clauses in employment agreements apply to all rights arising out of the employment relationship, not just to rights created by the employment agreement itself. If that sounds confusing, it is. Explained another way, the court appears to be saying that when two parties have an agreement (an employment agreement, at least), and the agreement has an arbitration clause, and the parties have a dispute, they have to arbitrate the dispute, even if their dispute would still exist without the written agreement.

To reach this conclusion, the court did its own research in order to find cases where arbitration agreements were applied to a variety of statutory rights of employees, including FLSA (overtime) claims, fraud claims, and discrimination claims. The reasoning is that these claims, though not predicated on any breach of the employment agreement, would not exist were there no employment agreement (in other words, no employment relationship).

Based on this case, at the very least, “any dispute” related to employment may be subject to arbitration, even if the dispute would exist without any employment contract, and without any applicable arbitration clause. Before signing any employment contract in Florida, look carefully for an arbitration clause, and think carefully about whether to completely waive your right to access the court system (and be forced into arbitration instead) if your civil rights are violated or if you are not paid as agreed.