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Once again a court has been required to consider whether a federal statutory claim might limit the reach of the Federal Arbitration Act, 9 U.S.C. &sect; 1 et. seq. (&ldquo;FAA&rdquo;), and prevent arbitration of an individual discrimination claim.&nbsp; This twenty-two-page decision reflects the on-going struggle by plaintiffs to discover potential exceptions to the U.S. Supreme Court&rsquo;s decision in AT&amp;T Mobility LLC v. Concepcion. On April 18 a Massachusetts district court held that a plaintiff must arbitrate gender discrimination claims despite alleging that her employer engaged in a pattern-or-practice of sex discrimination violative of Title VII of the 1964 Civil Rights Act and state law. In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2012/04/Karp-v.-CIGNA-Healthcare-Inc.pdf">Karp v. CIGNA Healthcare Inc.pdf</a> (Case No. 11-CV-10361, D. Mass, 04/18/2012), Judge F. Dennis Saylor, IV compelled arbitration of Bretta Karp&rsquo;s individual sex discrimination claim despite her arguments that she never waived her rights to a class action or class arbitration proceeding and that individual arbitration would deny her statutory rights under Title VII to bring a pattern-or-practice claim. The Dispute Resolution Procedure Karp, a former Provider Contract Manager, began working for CIGNA in 1997 and in early 1998 signed a receipt acknowledging that she received the Company&rsquo;s 1998 Employment Dispute Arbitration Policy requiring employees to arbitrate their disputes with the company instead of going to court.&nbsp; The 1998 policy did not reference class actions or class arbitration. In 2005, CIGNA revised its Employee Handbook to reflect changes in its policies and procedures and circulated an e-mail to advise employees. The e-mail provided a link to an electronic version of the Handbook and required employees to complete an electronic receipt.&nbsp; Karp checked &ldquo;yes&rdquo; on the Handbook receipt, which acknowledged that she reviewed the 2005 Handbook and agreed that disputes would be resolved through CIGNA&rsquo;s Employment Dispute Arbitration Program.&nbsp; Neither the Handbook, CIGNA&rsquo;s e-mails nor the electronic receipt mentioned class arbitration or a class action waiver.&nbsp; However, as noted above, the Handbook referred to the company&rsquo;s Employee Dispute Arbitration Policy, Rules and Procedures which clearly provided that no class-wide arbitrations were allowed and &ldquo;no class or representative actions permitted.&rdquo;&nbsp; And, while the court expressed concerns that the Company policies and procedures could be enforced against Karp, there was &ldquo;no doubt that [CIGNA] did not agree to permit class arbitration.&rdquo;&nbsp; Thus based on AT&amp;T Mobility LLC v. Concepcion, 131 S. Ct. 1840, 1750 (2011), the court held that CIGNA &ldquo;could not be compelled to submit to class arbitration.&rdquo; Is Litigation an Option? While the District Court found Karp could not arbitrate her class claims, &ldquo;it did not necessarily follow that she may litigate those claims in a judicial forum.&rdquo;&nbsp; Indeed, it ultimately found she could not. &nbsp;The Opinion found that &ldquo;by agreeing to arbitrate her individual claims, [Karp] cannot serve as a class representative in a litigated class action.&rdquo;&nbsp; But, Karp had contended that if she was compelled to arbitrate her claims individually, she would not be able to vindicate her statutory right under Title VII to pursue pattern-or-practice claims.&nbsp; Thus, according to Karp, the arbitration clause could not be enforced because it was not a viable alternative to litigation.&nbsp; The Court disagreed after considering the history, potential viability and practical impact of those claims.&nbsp; According to the Court, the pattern-or-practice &ldquo;claim&rdquo; under Title VII was in reality &ldquo;merely a method of proof.&rdquo;&nbsp; The District Court would not permit &ldquo;a procedural device &ndash; a burden-shifting rule contained within a method of proof &ndash; to trump the arbitration agreement and the FAA.&rdquo; Based upon that analysis, the District Court granted CIGNA&rsquo;s Motion to Compel arbitration and stayed Karp&rsquo;s action pending arbitration. The Bottom Line:&nbsp; Another lower court enforces U.S. Supreme Court precedent supporting arbitration.&nbsp; An individual cannot assert a pattern-or-practice discrimination claim to defeat arbitration.

Pattern-or-Practice Claim Doesn’t Trump Arbitration Agreement – Karp v. CIGNA Healthcare Inc.