The Ninth Circuit Court of Appeals has ruled that an ex-Tinder employee must arbitrate her claims against her former employer and cannot pursue her claims in court, even though her claims arose before she executed an arbitration agreement. In reaching this decision, the Ninth Circuit not only enforced the broad language of the parties’ arbitration agreement, but also held that a unilateral modification clause (granting the employer the right to make changes to the agreement) does not, in and of itself, render an arbitration agreement unenforceable. Elizabeth Sanfilippo v. Match Group LLC et al., Case No. 20-55819, 2021 U.S. App. Lexis 29263 (9th Cir. Sept. 28, 2021).

In this case, the chronology of events is important to understanding how this lawsuit arose.  In September 2016, Tinder hired the plaintiff as a brand manager.  According to the plaintiff, in mid-2017 and January 2018, she complained to human resources about sexual harassment by her coworkers and supervisors. During that same time period, in July 2017, Tinder was acquired by Match Group, Inc. After acquiring Tinder, Match Group sent its employees a mandatory arbitration agreement. The plaintiff signed the agreement and continued to work for Match Group until Match Group discharged her in March 2018. The plaintiff sued in California state court for sexual harassment and retaliation.  The case was removed to federal court at which point Match Group successfully moved to compel arbitration. The plaintiff appealed, arguing that the arbitration agreement (1) is unenforceable, and (2) does not cover her claims, which predated the agreement.

On appeal, the Ninth Circuit held the arbitration agreement was enforceable and applicable to the plaintiff’s sexual harassment allegations, even though the plaintiff did not sign the agreement until after her claims arose. In ruling for Match Group, the court highlighted the broad nature of the arbitration agreement’s language that required arbitration for “all claims and controversies arising from or in connection with [the plaintiff’s] application with, employment with, or termination from the Company.” In enforcing the agreement, the court noted that the agreement’s reference to “all claims and controversies” arising out of the plaintiff’s employment necessarily included her claims that predated the arbitration agreement.

Moreover, the Ninth Circuit was not swayed by the fact that the arbitration agreement included a provision that allowed Match Group to modify the terms of the agreement unilaterally. While the court recognized that such a provision could be substantively unconscionable, it explicitly discussed how Match Group had not actually modified the agreement but was rather seeking to enforce the agreement as written. But the court went even further in enforcing the agreement. In addition to upholding the agreement, the Ninth Circuit determined that even if it assumed that a provision permitting unilateral modifications by the employer is substantively unconscionable, such a provision alone does not render the entire agreement unenforceable. Therefore, even taking the plaintiff’s argument as true, the agreement, as a whole, was still enforceable.

The Ninth Circuit’s decision is encouraging for employers seeking to enforce their arbitration agreements for a few reasons. First, the court made clear that a unilateral modification clause will not, in of itself, render the agreement unenforceable. Second, the court  enforced the broad language in the employer’s arbitration agreement and compelled arbitration of claims that pre-date the execution of the agreement.

Co-authored by Spencer Ladd.