## Facts

- Alecia B. Mason was employed by Continental Airlines, Inc.
- After her employment ended, Mason asserted claims against Continental for employment discrimination (including sexual discrimination), wrongful termination, and infliction of emotional distress.
- Continental’s employee handbook set out an internal appeal/arbitration procedure for resolving employment-related disputes.
- Mason signed an acknowledgment that she received the handbook and agreed to be bound by its provisions as a condition of employment.
- The handbook procedure did not provide for prehearing discovery and did not expressly state that employees could be represented by legal counsel.
- Mason filed her claims in federal district court rather than using the handbook’s arbitration process.
- Continental petitioned to compel arbitration under the Federal Arbitration Act (FAA).
- The district court ordered Mason’s claims to arbitration under the handbook procedure.
- Mason appealed, arguing (among other things) that the handbook process was not enforceable because it lacked an express waiver of her right to sue and to a jury trial, was unclear about what claims had to be arbitrated, and was an unconscionable adhesion contract given the limits on discovery and counsel.

## Issues

1. Whether Mason could be compelled to arbitrate her employment discrimination, wrongful termination, and emotional distress claims under the arbitration/appeal procedure in Continental’s employee handbook, even though the handbook did not contain an express waiver of the right to sue or the right to a jury trial and was alleged to be unclear as to coverage.
2. Whether the handbook arbitration procedure was unenforceable as unconscionable (including based on the lack of discovery and no express provision for representation by counsel).

## Decision

- The Ninth Circuit affirmed the district court’s order compelling arbitration.
- The court agreed that an arbitration agreement need not contain an express waiver of the right to sue or the right to a jury trial to be enforceable under the governing law cited by the court.
- The court held that Mason’s claims for sexual discrimination, wrongful termination, and infliction of emotional distress were subject to arbitration under the handbook policy.
- The court rejected Mason’s reliance on cases she cited for a stricter waiver or notice requirement, distinguishing them from the handbook arrangement at issue.
- By affirming the order compelling arbitration, the court declined to treat Mason’s unconscionability/adhesion arguments as a basis to avoid arbitration on this record.

## Legal Principles

- Under the FAA, courts must enforce a valid agreement to arbitrate covered disputes, including employment-related statutory and tort claims, unless a valid contract defense applies.
- An arbitration provision is not invalid solely because it lacks an express statement waiving the right to sue or the right to a jury trial; parties may be bound to arbitrate without an explicit jury-trial waiver (as reflected in the California authority the court cited).
- When determining whether particular claims must be arbitrated, courts look to the wording of the arbitration policy and apply ordinary contract principles to decide whether the claims fall within the policy’s coverage.
- A party opposing arbitration on unconscionability grounds bears the burden to show the procedure is so one-sided or unfair that it should not be enforced; alleging that arbitration is less formal than litigation, without more, is not enough.
- Limits such as streamlined procedures or the absence of an express statement about discovery or counsel do not automatically defeat enforcement absent a showing that the process prevents a fair opportunity to present the claims.

## Conclusion

The Ninth Circuit upheld an order compelling Alecia Mason to arbitrate her employment discrimination, wrongful termination, and emotional distress claims under Continental’s employee handbook procedure, holding that the absence of an express jury-trial waiver did not bar enforcement and that Mason’s challenges to the handbook’s coverage and fairness did not justify avoiding arbitration.


Continental Airlines v. Mason, 87 F.3d 1318, 12 IER Cas. 160, 1996 WL 341758 (1996)