I just commented on a case from an Ohio Appellate Court where, according to adrworld.com,
“the court ruled that a party’s consent to arbitrate an employment discrimination claim through the filing of a counterclaim that was later dismissed did not constitute a waiver of that party’s right to bring the same action in court where there is no enforceable mandatory arbitration agreement.”

Although I am no civil procedure expert, it seems like the court got this case right. Cercone filed a counterclaim alleging disability discrimination in response to Merrill Lynch’s demand that he repay a loan, but then NASD dismissed the case because the parties said they were going to settle. It would be a harsh result to require Cercone, who is not obligated to arbitrate employment discrimination claims unless he explicitly agrees to do so, to have to file with the NASD and pay filing fees for his discrimination claim because his assertion of the discrimination claim in arbitration over the loan repayment amounted to a waiver of his right to bring his employment claim in court. I think that a lot of unknowing employees would fall victim to this practice if courts enforced it. In other words, unknowing waiver of one’s right to pursue an employment discrimination claim in court would happen more frequently if this case had gone the other way