Last week the Eleventh Circuit interpreted the scope of the arbitration agreement within a plaintiff’s employment contract to exclude civil claims stemming from her sexual assault by fellow employees.  In doing so, the court may have signaled a discomfort with sending civil claims based on criminal conduct to arbitration. 

In Doe v. Princess Cruise Lines, Ltd., 2011 WL 4425288 (11th Cir. Sep. 23, 2011), the court held that the agreement to arbitrate “any and all disputes, claims or controversies whatsoever . . . relating to or in any way arising out of or connected with the Crew Agreement, these terms, or services performed for the [cruise ship]” was not broad enough to encompass an employee’s claims of false imprisonment, intentional infliction of emotional distress, spoliation of evidence, and invasion of privacy relating to her sexual assault. 

The plaintiff employee, a server on a cruise ship, had been drugged and sexually assaulted by other employees, and she alleged the cruise ship had repeatedly refused to let her off the ship for medical care, had humiliated her publicly, and had destroyed evidence of the crimes against her.  She brought ten claims against her employer, and the employer moved to compel arbitration.  The Florida district court found all ten claims fell outside the scope of the parties’ arbitration agreement and denied the employer’s motion to compel arbitration. 

The Eleventh Circuit disagreed, in part.  It held that five of the plaintiff’s claims fell within the scope of the arbitration agreement, because they “ar[o]se directly from her undisputed status as a ‘seaman,'” and therefore were sufficiently “related to” her employment as a “seaman.”  Those five claims were based on federal statutes that apply only to “seamen” or on common law rules that apply only to seamen. 

However, the Eleventh Circuit found the remaining five claims in the plaintiff’s complaint were outside the scope of the arbitration agreement.  In analyzing whether the claims of false imprisonment, intentional infliction of emotional distress, spoliation, etc., were related to or connected with her employment, the court repeatedly looked at whether those same claims could be brought be a non-employee.  It reasoned that the “cruise line could have engaged in that tortious conduct even in the absence of any contractual or employment relationship with” the plaintiff.”  Similarly “a passenger could have brought these same five claims against the cruise line based on virtually the same alleged facts.” 

There are at least two interesting points about this decision.  The first is a drafting point: if parties intend to arbitrate disputes like this one, the arbitration agreement needs to be broader.  Similarly, if a plaintiff wants to avoid arbitration under an employment contract, it may not want to assert claims that depend on its status as an employee.

A second point relates to this court’s apparent discomfort with sending these claims to arbitration.  The court acknowledged it could find only one case on point (Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009), which found similar claims fell outside the scope of the arbitration agreement in an employment contract).  Despite the paucity of authority, and despite language in the arbitration agreement that could have been interpreted to cover all the plaintiff’s claims, the Eleventh Circuit decided, without dissent, that the plaintiff did not have to arbitate all her claims. 

Reading between the lines, the court may have been concerned about whether proper justice could be done in arbitration.  The court was obviously disturbed by the facts in the case–the opinion describes the allegations at length, and goes out of its way to point out the disconnect between the employer’s public statements regarding how it values its employees and the employer’s alleged behavior toward the plaintiff.  The court may have been motivated, in part, by its desire to ensure that the defendant’s actions remained public and that the plaintiff’s claims be heard by a decision-maker who is arguably more accustomed than an arbitrator to dealing with claims of violence and criminal conduct.  

This case may be part of a growing trend to keep entire categories of claims (negligence in nursing homes, sexual assault, Magnuson-Moss warranty claims) out of arbitration altogether, based on public policy concerns.