In Gove v. Career Systems Development Corporation, the First Circuit held that an unsuccessful pregnant job applicant was not required to arbitrate her pregnancy and gender discrimination claims because the employer's arbitration clause was ambiguous and therefore unenforceable.
In May 2008, Anne Gove began working for Training & Development Corporation (TDC), a job training and placement organization. In 2009, the account Gove had been working on at TDC was awarded to another company, Career Systems Development Corporation (CSD). During the account's transition, CSD offered Gove an opportunity to apply for a job and to continue working on the account. Gove completed CSD's online application, which included a mandatory arbitration clause stating, "any dispute between you and CSD with respect to any issue prior to your employment, which arises out of the employment process" is to be resolved through arbitration. Two weeks later, Gove, visibly pregnant, interviewed with CSD. During the interview Gove was asked when she was due and whether she had any other children. CSD did not hire Gove and continued to advertise for the position.
Gove filed a complaint with the Maine Human Rights Commission, which found reasonable grounds to conclude that she was denied the position because of her pregnancy. Gove then filed a complaint in the District Court for the District of Maine, alleging that CSD discriminated against her on account of her gender and pregnancy in violation of Title VII and the Maine Human Rights Act. CSD moved to compel arbitration, arguing that Gove was bound by the arbitration clause she had agreed to in the job application. The District Court denied CSD's motion and held that the arbitration clause was invalid and unenforceable because an ambiguity existed regarding whether it applied to an applicant, like Gove, who was never hired, and that the ambiguity must be construed against CSD, the drafter. CSD appealed.
The First Circuit rejected the District Court's decision that the arbitration clause was invalid because of the ambiguity. Rather, the issue as framed by the First Circuit concerned the scope of the arbitration clause – whether it applied to non-hired applicants – not its validity. Although normally giving significant weight to the federal policy of presuming arbitration, the First Circuit did not consider federal policy because of CSD's failure to make this argument on appeal. Like the District Court, the First Circuit applied Maine contract law construing ambiguity against the drafter. The First Circuit found that since the arbitration clause did not refer to "applicants," and instead solely referenced "your employment," "the employment process," and "pre-employment disputes," Gove could reasonably believe that she would be bound by the arbitration clause only if hired. Because the scope of the arbitration was ambiguous as to applicants not hired, the First Circuit construed the agreement against CSD and affirmed the District Court's judgment.
Gove demonstrates the need for employers who want to compel arbitration to use clear and specific language in their agreements. Employers that choose to include arbitration provisions in their applications for employment should ensure that their clauses also include references to "applicants."