An e-mailed employment arbitration agreement is enforceable where the mutual agreement to arbitrate constitutes sufficient consideration, the Tenth Circuit Court of Appeals has held.

In Pennington v. Northrop Grumman Space & Mission Systems Corp., No. 07-2250, 2008 WL 695889 (10th Cir. Mar. 14, 2008), Christine Pennington filed suit against her former employer, Northrop, for alleged sexual discrimination. During the course of her employment, Pennington had received an arbitration agreement in an e-mail. On the basis of this agreement, Northrop moved to compel arbitration of Pennington's claims.

The magistrate judge determined that the arbitration clause was enforceable because Pennington had not denied receiving the e-mail. Pennington appealed to this Court.

On appeal, Pennington denied having received the e-mail and sought to introduce new evidence. The Court declined to allow her to do so.

The Court then rejected Pennington's argument that the arbitration agreement sent by Northrop was not supported by "adequate consideration," because, "consideration is required, but in no particular measure."

Treating Pennington's claim as stating that there was no consideration at all, the Court found that there was sufficient consideration in the mutuality of agreement to arbitrate.

First, Northrop had agreed to arbitrate claims it may have against Pennington. See Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th Cir. 2002); Sisneros v. Citadel Broad. Co., 142 P.3d 34, 43 (N.M. Ct. App. 2006).

Notably, there was no information to indicate whether Northrop retained the unilateral right to cancel or modify the arbitration agreement, which would have altered the outcome. See id. But Pennington did not argue this point.

Second, the Court rejected Pennington's argument that the agreement lacked consideration because "employers rarely pursue civil claims against employees."

Pennington did not offer any authority to support the proposition that an arbitration agreement lacked consideration because one party is more likely to invoke arbitration than another.

Accordingly, this Court held that the reciprocal agreement to arbitrate provided sufficient consideration and affirmed the magistrate judge.