Melena v. Anheuser-Busch, Inc. ( 2006 )

Docket No. 99421.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
JOANN MELENA, Appellee, v. ANHEUSER-BUSCH, INC.,
Appellant.
Opinion filed March 23, 2006.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices McMorrow, Fitzgerald,
Garman, and Karmeier concurred in the judgment and opinion.
Justice Kilbride dissented.
OPINION
This case arises from a complaint filed by plaintiff, Joann
Melena, alleging that her employer, defendant Anheuser-Busch, Inc.,
terminated her employment in retaliation for her filing of a workers=
compensation claim with the Illinois Industrial Commission. The
circuit court of Jefferson County denied Anheuser-Busch=s motion to
dismiss and compel arbitration or, in the alternative, to stay the
proceedings and compel arbitration. The appellate court affirmed the
circuit court=s order and remanded the matter for further proceedings.
352 Ill. App. 3d 699. We granted leave to appeal (177 Ill. 2d. R. 315)
and now reverse the judgment of the appellate court.
BACKGROUND
Plaintiff joined Anheuser-Busch as a nonunion employee at its
distribution center in Mt. Vernon, Illinois, on February 22, 1999. In
February 2000, Anheuser-Busch mailed to all of its Mt. Vernon
employees, including plaintiff, a letter which announced the
impending implementation of a ADispute Resolution Program.@
Attached to the letter were materials describing the new program,
including a ADispute Resolution Program Guide,@ ADispute
Resolution Program Highlights,@ and the ADispute Resolution
Program Policy Statement.@
The various materials explained the new program. For example,
the policy statement set forth:
AThis procedure is an agreement to arbitrate pursuant to the
Federal Arbitration Act, 9 U.S.C.A. Sections 1-14, or if that
Act is held to be inapplicable for any reason, the arbitration
law in the state in which the arbitration hearing is held.@
The concept of binding arbitration was described in the following
manner:
AAt the binding arbitration level, disputes that cannot be
resolved through Level 1 *** or Level 2 *** are presented to
a neutral third-party arbitrator for a final and binding
decision. The arbitrator essentially substitutes for a judge and
jury who might decide the case in a court setting. At the
arbitration hearing, the arbitrator makes a decision after both
sides have presented their positions. If the arbitrator decides
in favor of the employee, the arbitrator can award the same
remedies that would have been available in court for the type
of claim that was brought.@
The policy statement further explained that Aby continuing or
accepting an offer of employment@ with Anheuser-Busch, all
employees to whom the policy was applicable Aagree as a condition
of employment to submit all covered claims to the dispute resolution
program.@ The statement defined Acovered claims@ as Aemployment-
related claims against the company and individual managers acting
within the scope of their employment, regarding termination and/or
alleged unlawful or illegal conduct on the part of the company ***.@
Moreover, the policy made clear that the new procedure did not
operate Ato change the employment-at-will relationship between the
company and its employees.@
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In addition to the written materials included in the letter,
Anheuser-Busch arranged for a brief presentation of the new program
to be delivered to Mt. Vernon employees on February 23, 2000,
which was to be followed by a question-and-answer session.
Anheuser-Busch also placed posters explaining the program
throughout its Mt. Vernon facility. The new program became
effective on April 1, 2000.
In April 2001, Anheuser-Busch distributed AThe Promotional
Products Group [PPG] Distribution Center Handbook@ to Mt. Vernon
employees. This handbook included a description of the dispute
resolution program and referenced the written program materials
noted above. On April 27, 2001, plaintiff signed the following
AEmployee Acknowledgment and Understanding@:
AI acknowledge that I have received the PPG Mt. Vernon
employee handbook. I understand that the information in the
handbook represents guidelines only and that the company
reserves the right to modify this handbook or amend or
terminate any policies, procedures, or employee benefit
programs at any time, whether or not described in this
handbook. I understand that I am responsible for reading the
handbook, familiarizing myself with its contents and adhering
to all company policies and procedures, whether set forth in
this handbook or elsewhere.
I further understand and acknowledge that this handbook
is not a contract of employment or guarantee of employment
for any specific duration, express or implied, between me and
PPG Mt. Vernon.@
On September 11, 2002, plaintiff suffered a work-related injury
for which she filed a claim for workers= compensation with the
Illinois Industrial Commission. While plaintiff was receiving
temporary total disability benefits, Anheuser-Busch terminated her
employment on March 14, 2003.
Plaintiff filed a complaint in the circuit court of Jefferson County
on May 8, 2003. In the complaint, she alleged that Anheuser-Busch
discharged her in retaliation for exercising her rights under the
Illinois Workers= Compensation Act. Anheuser-Busch moved to
dismiss the complaint and compel arbitration or, in the alternative, to
stay the proceedings and compel arbitration. The circuit court denied
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the motion without comment.
On appeal, the appellate court affirmed the circuit court=s order.
The appellate court held that, in order to be enforceable, an
agreement to arbitrate claims like the one at issue must be entered
into knowingly and voluntarily. After considering the facts of this
case, the appellate court concluded that a remand was not necessary
because Aeven if the plaintiff entered into the agreement knowingly,
she did not do so voluntarily.@ 352 Ill. App. 3d at 707. Noting that it
had Aserious reservations@ about whether an agreement to arbitrate,
offered as a condition of employment, Ais ever voluntary,@ the court
deemed Aillusory@ whatever choice plaintiff was said to have had in
this matter. 352 Ill. App. 3d at 707-08. The court remanded the cause
to the circuit court for further proceedings on the underlying cause
for retaliatory discharge.
ANALYSIS
The issue presented in this case is whether the mandatory
arbitration provisions of the ADispute Resolution Program@ instituted
by Anheuser-Busch constitute an enforceable contract binding on
plaintiff. Anheuser-Busch assigns error to the appellate court=s
holding that the arbitration agreement, to be enforceable, must be
entered into knowingly and voluntarily. Rather, Anheuser-Busch
contends that, like any other contract, an arbitration agreement is
enforceable, based on fundamental principles of contract law.
Plaintiff, urging affirmance of the appellate court, contends that the
arbitration agreement was not enforceable because she did not enter
into the contract knowingly and voluntarily. 1
1
We have allowed several amici curiae to file briefs in this matter:
Ralph=s Grocery Company in support of Anheuser-Busch, and the National
Employment Lawyers Association, American Association of Retired
Persons, and National Employment Lawyers/Illinois, the Illinois Trial
Lawyers Association, and Professor David Schwartz in support of plaintiff.
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Anheuser-Busch filed its motion to dismiss and compel
arbitration or, in the alternative, to stay the proceedings and compel
arbitration, pursuant to section 2B619 of the Code of Civil Procedure.
(735 ILCS 5/2B619 (West 2000)). In ruling on such a motion, the
court must interpret all pleadings and supporting documents in the
light most favorable to the nonmoving party. Borowiec v. Gateway
2000, Inc., 209 Ill. 2d 376, 383 (2004), citing In re Chicago Flood
Litigation, 176 Ill. 2d 179, 189 (1997). The standard of review on
appeal is de novo. Borowiec, 209 Ill. 2d at 383.
The parties do not dispute that resolution of this case concerns the
application of the Federal Arbitration Act (FAA) (9 U.S.C. '1 et seq.
(1994)). In construing a federal statute, we generally look to federal
decisions for its interpretation of the statutory provisions. U.S. Bank
National Ass=n v. Clark, 216 Ill. 2d 334, 352 (2005); Wilson v.
Norfolk & Western Ry. Co., 187 Ill. 2d 369, 383 (1999). This court, in
Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (2004), discussed the
history and purpose of the FAA, acknowledging that in enacting the
FAA, Congress sought A >to reverse the longstanding judicial hostility
to arbitration agreements that had existed at English common law and
had been adopted by American courts, and to place arbitration
agreements upon the same footing as other contracts.= @ Borowiec,
209 Ill. 2d at 384, quoting Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 24, 114 L. Ed. 2d 26, 36, 111 S. Ct. 1647, 1651 (1991).
Section 2 of the FAA compels judicial enforcement of arbitration
agreements Ain any *** contract evidencing a transaction involving
commerce.@ 9 U.S.C. '2 (1994). The United States Supreme Court
has held that employment contracts are subject to the terms of the
FAA except for those employment contracts which deal with
transportation workers. Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 149 L. Ed. 2d 234, 121 S. Ct. 1302 (2001). Section 2 further
provides that such a written provision
Ashall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of
any contract.@ (Emphasis added.) 9 U.S.C. _2 (1994).
Throughout its provisions, the FAA reflects a A >liberal federal policy
favoring arbitration agreements.= @ Borowiec, 209 Ill. 2d at 384,
quoting Moses H. Cone Memorial Hospital v. Mercury Construction
Corp., 460 U.S. 1, 24, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941
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(1983).
The parties disagree over whether the choice of litigating a claim
for retaliatory discharge, based on statutory rights under the Illinois
Workers= Compensation Act (820 ILCS 305/1 et seq. (West 2000)),
in state court is an important right which may only be relinquished
through a knowing and voluntary waiver. In this context, the parties,
as well as the appellate court, have likened the claim at issue here,
i.e., retaliatory discharge based on statutory rights under the Workers=
Compensation Act, to federal statutory claims such as those advanced
under Title VII of the Civil Rights Act. In Alexander v. Gardner-
Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), the
United States Supreme Court indicated that an employee could not
forfeit substantive rights under Title VII without a voluntary and
knowing waiver. In other words, before an employee gives up a
substantive right predicated upon federal statutory law, it must be
clear that the employee understands and freely makes the decision to
do so. See Pierce v. Atchinson, Topeka, & Santa Fe Ry. Co., 65 F.3d
562, 571 (7th Cir. 1995). However, as the Seventh Circuit Court of
Appeals has noted, A[l]ess clear is whether the right to have one=s
federal claims determined judicially rather than in an arbitration
proceeding qualifies to this added protection.@ Gibson v.
Neighborhood Health Clinics, 121 F.3d 1126, 1129 (7th Cir. 1997).
The United States Supreme Court has not directly addressed this
issue. Rather, since the decision in Alexander, the Court=s views on
arbitration have evolved and become more favorable. For example,
the Court has repeatedly Arejected generalized attacks on arbitration
that rest on >suspicion of arbitration as a method of weakening the
protections afforded in the substantive law.= @ Green Tree Financial
Corp.-Ala v. Randolph, 531 U.S. 79, 89-90, 148 L. Ed. 2d 373, 383,
121 S. Ct. 513, 521 (2000), quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 481, 104 L. Ed. 2d
526, 535-36, 109 S. Ct. 1917, 1920 (1989). The Court has
emphasized that Afederal statutory claims may be the subject of
arbitration agreements *** enforceable pursuant to the FAA because
the agreement only determines the choice of forum.@ Equal
Employment Opportunity Comm=n v. Waffle House, Inc., 534 U.S.
279, 295 n.10, 151 L. Ed. 2d 755, 770 n.10, 122 S. Ct. 754, 765 n.10
(2002). According to the Court, A[b]y agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded by the
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statute; it only submits their resolution in an arbitral, rather than a
judicial, forum.@ Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444, 456, 105 S. Ct.
3346, 3354 (1985).
The Supreme Court has held, however, that statutory rights may
be subject to mandatory arbitration only if the arbitral forum permits
the effective vindication of those rights:
AIt is by now clear that statutory claims may be the subject
of an arbitration agreement, enforceable pursuant to the FAA.
Indeed, in recent years we have held enforceable arbitration
agreements relating to claims arising under the Sherman Act
[citation], '10(b) of the Securities Exchange Act of 1934
[citation], the civil provisions of the Racketeer Influenced and
Corrupt Organizations Act (RICO) [citation], and '12(2) of
the Securities Act of 1933 [citation]. See Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985);
Shearson/American Express Inc. v. McMahon, 482 U.S. 220
(1987); Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477 (1989). In these cases we recognized that
>[b]y agreeing to arbitrate a statutory claim, a party does not
forgo the substantive rights afforded by the statute; it only
submits to their resolution in an arbitral, rather than a judicial,
forum.= @ Gilmer, 500 U.S. at 26, 114 L. Ed. 2d at 37, 111 S.
Ct. at 1652, quoting Mitsubishi, 473 U.S. at 628, 87 L. Ed. 2d
at 456, 105 S. Ct. at 3354.
The Court has further instructed that, in order to be valid, the
agreement to arbitrate statutory claims must be clear and
unmistakable. See Wright v. Universal Maritime Service Corp., 525
U.S. 70, 142 L. Ed. 2d 361, 119 S. Ct. 391 (1998) (holding arbitration
agreement, contained within a union collective-bargaining agreement,
invalid because the clause in question was too general in stating that
Amatters under dispute@ would be subject to arbitration). The Aclear
and unmistakable@ standard relates more to the language of the
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agreement than to the state of mind of the employee. 2
Although the Supreme Court has not spoken on the need for a
knowing and voluntary standard in this context, several federal circuit
courts of appeal have weighed in on the matter. As noted by the
appellate court in this case, a split exists amongst the various circuits
regarding the knowing and voluntary standard. 352 Ill. App. 3d at
705. The appellate court found persuasive the reasoning espoused by
the Ninth Circuit Court of Appeals in Prudential Insurance Co. of
America v. Lai, 42 F.3d 1299 (9th Cir. 1994). There, the Ninth
Circuit reversed a district court order compelling arbitration on a
sexual discrimination claim because the employees had not
knowingly entered into the agreement to arbitrate employment
disputes. The employees, when applying for the positions of sales
representatives with the employer, were required to sign forms
containing agreements to arbitrate any dispute, claim or controversy
required to be arbitrated under the rules of any organization with
which the employees registered. They subsequently registered with
the National Association of Securities Dealers, which required that
disputes arising in connection with the business of its members be
arbitrated. The employees contended that when they signed the
forms, arbitration was never mentioned and they were never given a
copy of the NASD Manual, which contained the actual terms of the
arbitration agreement. Lai, 42 F.3d at 1301.
In considering the enforceability of the arbitration agreement, the
court of appeals framed the issue thusly: AThe issue before us,
however, is not whether employees may ever agree to arbitrate
statutory employment claims; they can. The issue here is whether
these particular employees entered into such a binding arbitration
2
This case does not present us with a question regarding a clear and
unmistakable waiver with respect to the contract language. The Dispute
Resolution Policy sets forth a complete list of what is covered by it,
including Aretaliation claims for legally protected activity and/or
whistleblowing.@
-8-
agreement, thereby waiving statutory court remedies otherwise
available.@ Lai, 42 F.3d at 1303. The court recognized that certain
causes of action are entitled to a heightened level of protection
pursuant to various federal statutes, such as the Age Discrimination
Employment Act, the Civil Rights Act or the Americans with
Disabilities Act. It noted that, A >Legislative enactments in this area
have long evinced a general intent to accord parallel or overlapping
remedies against discrimination. In the Civil Rights Act of 1964,
Congress indicated that they considered the policy against
discrimination to be of the >highest priority.= *** Moreover, the
legislative history of Title VII manifests a congressional intent to
allow an individual to pursue independently his rights under both
Title VII and other applicable state and federal statutes.= @ Lai, 42
F.3d at 1304, quoting Alexander v. Gardner-Denver Co., 415 U.S.
36, 47-48, 39 L. Ed. 2d 147, 158, 94 S. Ct. 1011, 1019 (1974). The
court held that the employees were not bound by any valid agreement
to arbitrate the disputes because they did not knowingly enter into a
contract to forgo their statutory remedies in favor of arbitration.
The court further cited specific provisions of legislative history to
support its adoption of the Aknowing and voluntary@ standard. H.R.
Rep. No. 102B40(I), at 97 (1991), reprinted in 1991 U.S.C.C.A.N.
549, 635. Speaking of proposed section 118, Senator Dole explicitly
declared that the arbitration provision encourages arbitration only
Awhere the parties knowingly and voluntarily elect to use these
methods.@ 137 Cong. Rec. S15472, S15478 (daily ed. October 30,
1991) (statement of Senator Dole). The knowing and voluntary
standard enunciated in Lai has been adopted by other courts, as well.
See, e.g., Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
170 F.3d 1 (1st Cir. 1999).
As the appellate court noted, however, the Ninth Circuit=s
approach to this issue has not Agarnered universal support.@ 352 Ill.
App. 3d at 705. A countervailing point of view to the knowing and
voluntary standard is one which holds that the determination of the
enforceability of a mandatory arbitration agreement between
employer and employee turns upon fundamental principles of
contract law. Under this approach,
AThe nondrafting party *** consents to arbitration by signing
the form or by manifesting assent in another way, such as by
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performance of the contract. That the consumer did not read
or understand the arbitration clause does not prevent the
consumer from consenting to it. Nor does the consumer=s
ignorance that an arbitration clause is included on the form.
These are statements of ordinary, plain-vanilla contract law.@
S. Ware, Arbitration Clauses, Jury-Waiver Clauses, and other
Contractual Waivers of Constitutional Rights, 67 Law &
Contemp. Probs. 167, 171 (Winter/Spring 2004).
Several federal circuit courts of appeal have endorsed this approach,
as exemplified by the decision of the United States Court of Appeals
for the Third Circuit in Seus v. John Nuveen & Co., 146 F.3d 175 (3d
Cir. 1998).
In Seus, the court of appeals affirmed the district court=s order
granting the employer=s motion to compel arbitration in a suit by an
employee alleging multiple claims of discrimination under Title VII
of the Civil Rights Act of 1964 and the Age in Discrimination in
Employment Act of 1967. The employee joined Nuveen brokerage
firm in 1982. Nuveen is required to register all employees who deal
in securities with the National Association of Securities Dealers. In
order to comply with this requirement, employees must sign a U-4
form in which the employee agrees to arbitrate any dispute which is
required Ato be arbitrated under the Rules.@ Although the employee in
Seus executed this form, she contended that Congress, Ain legislation
subsequent to the FAA, has carved out an exception to its provisions
for pre-dispute agreements to arbitrate claims under the ADEA.@
Seus, 146 F.3d at 179. The court, rejected this argument by citing
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d
26, 111 S. Ct. 1647 (1991), stating:
AThe Supreme Court began its analysis by making it clear
that exceptions to the FAA=s rule requiring enforcement of
agreements to arbitrate are not to be recognized lightly.
Because of the strong federal policy favoring arbitration, any
exception must be founded on clear indicia of congressional
intent.@ Seus, 146 F.3d at 179.
Rejecting the Aknowing and voluntary@ standard, the court went on to
hold:
ABy >knowing= and >voluntary=, Seus means more than
with an understanding that a binding agreement is being
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entered and without fraud or duress. Determining whether an
agreement to arbitrate is >knowing= and >voluntary=, in her
view, requires an inquiry into such matters as the specificity
of the language of the agreement, the plaintiff=s education and
experience, plaintiff=s opportunity for deliberation and
negotiation, and whether plaintiff was encouraged to consult
counsel. She does not contend that this heightened >knowing
and voluntary= standard is a generally applicable principle of
contract law. *** Nothing short of a showing of fraud, duress,
mistake or some other ground recognized by the law
applicable to contracts generally would have excused the
district court from enforcing Seus=s agreement.@ Seus, 146
F.3d at 183-84.
Similarly, the Eleventh, Fifth, Eighth and District of Columbia
Circuit Courts of Appeal have rejected the knowing and voluntary
standard. See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359
(11th Cir. 2005); American Heritage Life Insurance Co. v. Orr, 294
F.3d 702 (5th Cir. 2002); Patterson v. Tenet Healthcare, Inc., 113
F.3d 832 (8th Cir. 1997); Cole v. Burns International Security
Services, 105 F.3d 1465 (D.C. Cir. 1997).
After careful consideration, we agree with those federal circuit
courts of appeal which base their analysis upon principles of
fundamental contract law because we believe that approach is more
faithful to the FAA. The Seventh Circuit Court of Appeals has
recently questioned the Acontinued validity@of the Ninth Circuit=s
knowing and voluntary waiver standard in the wake of recent United
States Supreme Court decisions, noting Ait is clear that arbitration
agreements in the employment context, like arbitration agreements in
other contexts, are to be evaluated according to the same standards as
any other contract.@ Penn v. Ryan=s Family Steak House, Inc., 269
F.3d 753, 758 (7th Cir. 2001). The Seventh Circuit also has
recognized that
A[w]hile the Supreme Court has stressed in recent years
that federal policy under the FAA favors the enforcement of
valid arbitration agreements [citations], the Court has been
equally adamant that a party can be forced into arbitration
only if she has in fact entered into a valid, enforceable
contract waiving her right to a judicial forum. AT&T
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Technologies, Inc. v. Communications Workers of America,
475 U.S. 643, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986)
(>[A]rbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit.=) Whether the parties have agreed to
arbitrate is determined under ordinary state law contract
principles.@ Penn, 269 F.3d at 758-59.
In our view, the FAA=s plain language makes clear that arbitration
agreements are enforceable except for state-law grounds for ordinary
contract revocation. 9 U.S.C. '2 (1994). See also Perry v. Thomas,
482 U.S. 483, 492 n.9, 96 L. Ed. 2d 426, 437 n.9, 107 S. Ct. 2520,
2527 n.9 (1987) (noting that section 2 allows state law to preclude
enforcement of arbitration agreements where Athat law arose to
govern issues concerning the validity, revocability, and enforceability
of contracts generally@). It is widely recognized that state statutes or
court decisions cannot hold arbitration agreements to a standard any
different or higher than those applicable to other contracts in general.
See Doctor=s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 134 L.
Ed. 2d 902, 909, 116 S. Ct. 1652, 1656 (1996) (ACongress precluded
States from singling out arbitration provisions for suspect status@).
Similarly, the failure to apply general contract doctrines to arbitration
agreements which require waiver of fundamental, statutory rights
would raise arbitration agreements to an elevated status not
contemplated by the FAA or Congress. AAs the >saving clause= in _2
indicates, the purpose of Congress in 1925 was to make arbitration
agreements as enforceable as other contracts, but not more so.@ Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12, 18
L. Ed. 2d 1270, 1277 n.12, 87 S. Ct. 1801, 1806 n.12 (1967). We
agree with the Eleventh Circuit Court of Appeals in that, by
Aknowing@ and Avoluntary,@ plaintiff means Amuch more than a
general understanding that a binding agreement or contract is being
entered into.@ Caley, 428 F.3d at 1370 n.12. Such an approach is
contrary to the usual maxim of contract law that a party to an
agreement is charged with knowledge of and assent to the agreement
signed. Black v. Wabash, St. Louis & Pacific Ry. Co., 111 Ill. 351,
358 (1884); Hintz v. Lazarus, 58 Ill. App. 3d 64, 66 (1978). For these
reasons, we view the heightened Aknowing and voluntary@ standard as
being inconsistent with the FAA.
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Notwithstanding the above, plaintiff, citing People v. Braggs, 209
Ill. 2d 492 (2003), argues that before a constitutional right may be
waived, it must be clear the waiver was entered into voluntarily and
knowingly. In light of this, she argues, the arbitration agreement is
ineffective to waive her seventh amendment and statutory trial rights,
such as the right to access to the courts and the right to a jury trial.
Similar arguments have been rejected by several federal circuit courts
of appeal. In discussing this same issue, the Eleventh Circuit recently
stated:
A[A]s the Fifth Circuit has noted, >[t]he Seventh
Amendment does not confer the right to a trial, but only the
right to have a jury hear the case once it is determined that
the litigation should proceed before a court. If the claims are
properly before an arbitral forum pursuant to an arbitration
agreement, the jury trial right vanishes.= American Heritage
Life Ins. Co. v. Orr, 294 F.3d 702, 711 (5th Cir. 2002)
(emphasis added); see also Sydnor v. Conseco Fin. Serv.
Corp., 252 F.3d 302, 307 (4th Cir. 2001) (>[t]he right to a jury
trial attaches in the context of judicial proceedings after it is
determined that litigation should proceed before a court.
Thus, the loss of the right to a jury trial is a necessary and
fairly obvious consequence of an agreement to arbitrate.=
(quotation marks and citation omitted) (emphasis added));
Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, 368 (7th
Cir. 1999) (>[W]e are satisfied, as was the Court in Gilmer,
that the arbitral forum adequately protects an employee=s
statutory rights, both substantively and procedurally.=); Seus
v. John Nuveen & Co., 146 F.3d 175, 183-84 (3d Cir. 1998)
(holding that applying a heightened knowing-and-voluntary
standard to arbitration agreements would be inconsistent with
the FAA and Gilmer), abrogated on other grounds, Blair v.
Scott Specialty Gases, 283 F.3d 595 (3d Cir. 2002). Thus,
where a party enters into a valid agreement to arbitrate, the
party is not entitled to a jury trial or to a judicial forum for
covered disputes.@ (Emphasis added and in original.) Caley,
428 F.3d at 1371-72.
We find this reasoning persuasive and so hold.
Having concluded that the regular principles of contract law
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apply in this case, we must now apply our state contract law in
analyzing the contract question. In other words, we must now decide
whether the parties= agreement to arbitrate amounted to an
enforceable contract under Illinois law. We hold that it did.
In Illinois, an offer, an acceptance and consideration are the basic
ingredients of a contract. Steinberg v. Chicago Medical School, 69 Ill.
2d 320, 329 (1977). We believe that Anheuser-Busch=s introduction
of the Dispute Resolution Program, its mailing of materials related to
the program to its employees, constitutes Anheuser-Busch=s Aoffer.@
By continuing her employment with Anheuser-Busch, plaintiff both
accepted the offer and provided the necessary consideration. See
Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482,
490 (1987). As Anheuser-Busch correctly notes, under Illinois law,
continued employment is sufficient consideration for the enforcement
of employment agreements. See, e.g., Lawrence & Allen, Inc. v.
Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131
(1997); McRand, Inc. v. van Beelen, 138 Ill. App. 3d 1045, 1055
(1985); see also Woodfield Group, Inc. v. DeLisle, 295 Ill. App. 3d
935, 942-43 (1998) (observing in passing that continued employment
is sufficient consideration for the addition of a covenant not to
compete in an employment contract). Plaintiff continued working for
Anheuser-Busch for three years after the initial implementation of the
Dispute Resolution Program in 2000 and for just shy of two years
after signing the acknowledgment form in 2001. Under these facts,
the agreement to arbitrate covered claims arising fro the employment
relationship is enforceable.
In so holding, we necessarily reject the appellate court=s
implication that plaintiff=s acceptance of the dispute resolution
provisions in this case was illusory by virtue of the fact that
Anheuser-Busch gave her little choice in the matter. 352 Ill. App. 3d
at 707-08. In other words, because the agreement was offered on a
Atake it or leave it@ basis, the contract is unenforceable. The appellate
court=s implication here contravenes federal, as well as Illinois,
decisional law. The United States Supreme Court in Gilmer stated
that inequality in bargaining power Ais not a sufficient reason to hold
that arbitration agreements are never enforceable in the employment
context.@ Gilmer, 500 U.S. at 33, 114 L. Ed. 2d at 41, 111 S. Ct. at
1655. Various federal circuit courts of appeal have rejected any
notion that such contracts are unconscionable or adhesive in nature.
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The Seventh Circuit recently noted the futility surrounding an
argument grounded in the doctrine of unconscionability:
ABusinesses regularly agree to arbitrate their disputes with
each other; giving employees the same terms and forum (the
AAA) that a firm deems satisfactory for commercial dispute
resolution is not suspect. Employees fare well in arbitration
with their employersBbetter by some standards than
employees who litigate, as the lower total expenses of
arbitration make it feasible to pursue smaller grievances and
leave more available for compensatory awards. See Theodore
Eisenberg & Elizabeth Hill, Employment Arbitration and
Litigation: An Empirical Comparison, 58 Dispute Resolution
J. 44 (2003-04).@ Oblix, Inc. v. Winiecki, 374 F.3d 488, 491
(7th Cir. 2004).
See also Seus, 146 F.3d at 184 (rejecting argument that agreement
was a contract of adhesion due to disparity in bargaining power);
Rosenberg, 170 F.3d at 17 (same). Likewise, Illinois courts have been
reluctant to hold that the inequality in bargaining power alone
suffices to invalidate an otherwise enforceable agreement. See, e.g.,
Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182, 191 (1983)
(holding that Adisparity of bargaining power is not sufficient grounds
to vitiate contractual obligations@); Zobrist v. Verizon Wireless, 354
Ill. App. 3d 1139 (2004) (same).
Finally, plaintiff argues that allowing for arbitration in this case
contravenes the public policy behind our recognition of the cause of
action of retaliation discharge based on our Workers= Compensation
Act. She points to our decision in Ryherd v. General Cable Co., 124
Ill. 2d 418 (1988), in which we stated that the right to recover for
retaliatory discharge is derived from Illinois public policy and
Acannot be negotiated or bargained away.@ Ryherd, 124 Ill. 2d at 426,
citing Gonzalez v. Prestress Engineering Corp., 115 Ill. 2d 1, 12
(1986). This statement, however, does not mean that an individual
cannot agree to submit such claims to arbitration. We note that, in
Ryherd, the court addressed the question of whether an employee=s
litigation of a retaliatory discharge claim was preempted by federal
labor law because the employee previously arbitrated, under a labor
contract, the question of whether he was discharged for Ajust cause.@
In holding that the claim was not preempted, the court found that a
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Ajust cause@ arbitration hearing could not substitute for a hearing on
the question of whether the employee=s common law right to be free
from retaliatory discharge was violated. We point out that Ryherd did
not involve the issue of the enforceability of an agreement to arbitrate
a statutory claim nor does its holding preclude enforcement of the
agreement to arbitrate in this case. Nothing in the Workers=
Compensation Act or in our decisions concerning retaliatory
discharge reveals an intent to preclude a waiver of a judicial forum
for such claims. We note, as the appellate court did below, that Athe
notion that statutory rights cannot be arbitrated because arbitration is
an inadequate forum for their vindication has, to a great extent, been
eroded by a more favorable view of arbitration that has evolved under
more recent cases.@ 352 Ill. App. 3d at 702. With respect to plaintiff=s
contention that retaliatory discharge claims further important social
policies that cannot be achieved through arbitration, we share the
views expressed by the United States Supreme Court in rejecting a
similar argument advanced in the context of age discrimination
claims made in the workplace:
AWe do not perceive any inherent inconsistency between
those [social] policies, however, and enforcing agreements to
arbitrate age discrimination claims. It is true that arbitration
focuses on specific disputes between the parties involved.
The same can be said, however, of judicial resolution of
claims. Both of these dispute resolution mechanisms
nevertheless also can further broader social purposes. The
Sherman Act, the Securities Exchange Act of 1934, RICO,
and the Securities Act of 1933 all are designed to advance
important public policies, but, as noted above, claims under
those statutes are appropriate for arbitration. >[S]o long as the
prospective litigant effectively may vindicate [his or her]
statutory cause of action in the arbitral forum, the statute will
continue to serve both its remedial and deterrent function.= @
Gilmer, 500 U.S. at 27-28, 114 L. Ed. 2d at 38, 111 S. Ct. at
1653, quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 637, 87 L. Ed. 2d 444, 461-62,
105 S. Ct. 3346, 3359 (1985).
For these reasons, we do not believe Ryherd controls the resolution of
this case in the manner plaintiff suggests.
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We reaffirm that the public policy behind the Act, i.e., providing
for efficient and expeditious remedies for injured employees, would
be undermined Aif employers were permitted to abuse their power to
terminate by threatening to discharge employees for seeking
compensation under the Act.@ Kelsay v. Motorola, Inc., 74 Ill. 2d 172,
182 (1978). We, however, fail to see how arbitration would
contravene this public policy. As an initial matter, the Illinois General
Assembly shares the same favorable view of arbitration as Congress,
as evinced by its enactment of the Uniform Arbitration Act in 1961
(710 ILCS 5/1 et seq. (West 2000)). We have recognized that the
Abasic intention of our Arbitration Act is to discourage litigation and
foster the voluntary resolution of disputes in a forum created,
controlled and administered by the agreement to arbitrate ***.@ Flood
v. Country Mutual Insurance Co., 89 Ill. App. 2d 358, 364 (1967).
Thus, the nature of arbitration alone is not enough for us to hold that
its use in cases like this would contravene the public policy which
drives retaliatory discharge claims based on the Workers=
Compensation Act. We note that the agreement in this case does not
limit the remedies available to plaintiff. Indeed, the agreement makes
clear that the arbitrator is free to award any remedy recognized under
the law. In this way, the instant agreement is fundamentally different
from the agreement we refused to enforce in Midgett v. Sackett-
Chicago, Inc., 105 Ill. 2d 143 (1984). There, we found the agreement
to arbitrate unenforceable because it precluded employees from
receiving punitive damages. Damages, of course, serve as a tool for
compensating victims of retaliatory discharge and as a deterrent to
others to avoid such conduct. Because the arbitration agreement here
does not cause plaintiff to forgo the full range of remedies available
at law, we believe that arbitration can serve the same remedial and
deterrent functions as litigation. See Perez v. Globe Airport Security
Services, Inc., 253 F.3d 1280, 1286 (11th Cir. 2001). We further note
that courts have refused to enforce arbitration agreements where the
arbitral costs borne by the employee were deemed to be so large and
prohibitive so as to have the effect of precluding litigants from
effectively vindicating their statutory rights. See Morrison v. Circuit
City Stores, Inc., 317 F.3d 646, 659 (6th Cir. 2003) (and cases cited
therein). In this case, the agreement makes clear that the employer is
to pay all costs, with the employee paying only a $125 fee. We do not
believe such a fee would have the effect of precluding litigants from
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effectively vindicating their rights under the Workers= Compensation
Act. For these reasons, therefore, we do not believe compelling
arbitration in this case would contravene the public policy
surrounding retaliatory discharge claims based on the Workers=
Compensation Act.
CONCLUSION
For the foregoing reasons, we find that the ADispute Resolution
Program@ is an enforceable agreement between plaintiff and
Anheuser-Busch. As such, we find that the circuit court erred in
denying defendant=s motion to dismiss and compel arbitration. We
reverse the judgment of the appellate court and the order of the circuit
court and remand the cause to the circuit court for further
proceedings consonant with this opinion.
Judgments reversed;
cause remanded.
JUSTICE KILBRIDE, dissenting:
I respectfully dissent from the majority=s opinion in this matter for
a number of reasons. First, the majority has failed to support
adequately the key component of the element of consideration in its
contract analysis. Second, the majority=s analysis fails to follow our
longstanding precedent in Ryherd and conflicts with this state=s
strong public policy interest in protecting workers from retaliatory
discharge. Third, the language of the employer=s dispute resolution
program policy statement and program guide (DRP) must be
construed against the employer as its drafter. Finally, employer-
mandated arbitration provisions are effectively contracts of adhesion
and raise serious issues concerning employees= actual knowledge and
voluntariness when being bound by them.
I
The majority states the plaintiff=s continued employment with
Anheuser-Busch provided the consideration needed for its contract
analysis, citing Duldulao v. Saint Mary of Nazareth Hospital Center,
115 Ill. 2d 482 (1987). Slip op. at 13. In Duldulao, this court held that
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changes in an employer=s express disciplinary policy may create
contractually enforceable rights in an employee if three conditions
are met: (1) an adequately clear promise exists to create an
employee=s reasonable belief that an offer has been presented; (2) the
distribution of the policy was performed in a way that ensured the
employee was aware of it and reasonably believed an offer was made;
and (3) the employee=s acceptance is demonstrated by the
commencement or continuation of work. Duldulao, 115 Ill. 2d at 490.
In reaching this conclusion, Duldulao adopted the reasoning of the
Minnesota Supreme Court in Pine River State Bank v. Mettille, 333
N.W.2d 622 (Minn. 1983). Notably, both Duldulao and Pine River
focused on the enforceability of disciplinary policy changes affecting
the treatment of employees during the course of their employment.
The Duldulao court considered an employee=s right to the benefit
of specific disciplinary procedures related to her employment that the
employer had added to the employee handbook. Thus, the scope of
the control exerted by the additional disciplinary provision in
Duldulao extended only for the duration of the employment
relationship. In contrast, the added dispute resolution provision here
attempts to control the plaintiff=s fundamental right to a jury trial even
after the termination of the employment relationship. The new
dispute resolution provision specifically required issues unable to be
resolved by other measures to be decided by binding arbitration,
waiving any right to a jury trial. Duldulao does not involve the
validity of an agreement entered into during the course of
employment that attempts to control the assertion of an employee=s
rights after termination of that employment. Therefore, Duldulao
cannot support the extension of the provision=s scope of control to
conduct occurring after the termination of the employment
relationship.
To fill the factual gap between Duldulao and this case, the
majority broadly adds that Aunder Illinois law, continued employment
is sufficient consideration for the enforcement of employment
agreements,@ citing only nonprecedential appellate case law. See slip
op. at 14, citing Lawrence & Allen, Inc. v. Cambridge Human
Resource Group, Inc., 292 Ill. App. 3d 131 (1997), McRand, Inc. v.
van Beelen, 138 Ill. App. 3d 1045, 1055 (1985), and Woodfield
Group, Inc. v. DeLisle, 295 Ill. App. 3d 935, 942-43 (1998). While
these cases provide a somewhat more suitable framework for
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analyzing the consideration in this case due to their consideration of
the validity of employer-imposed provisions attempting to limit
former employees= postemployment activities, they form an
inadequate basis for summarily concluding there was sufficient
consideration for the arbitration provision imposed in this case.
Initially, I note the same criticism the majority claims precludes
the application of our longstanding precedent in Ryherd to this case
also precludes the majority=s reliance on its cited appellate cases. Just
as ARyherd did not involve the issue of the enforceability of an
agreement to arbitrate a statutory claim@ (slip op. at 15), here the
cited appellate cases involve nonstatutory claims seeking to find
postemployment restrictive covenants unenforceable. Lawrence, 292
Ill. App. 3d at 137; McRand, 138 Ill. App. 3d at 1047; Woodfield, 295
Ill. App. 3d at 936. If this court=s own precedent in Ryherd is
distinguishable on this basis, there can be no justification for relying
on appellate court authority bearing the same Aflaw.@ This is
particularly true in this instance because even if the appellate court=s
cases were factually on point, they do not constitute binding authority
on this court. Department of Transportation ex rel. People v. 151
Interstate Road Corp., 209 Ill. 2d 471, 485 (2004).
In addition, although in Lawrence, 292 Ill. App. 3d at 138, and
McRand, 138 Ill. App. 3d at 1055, the courts found that Acontinued
employment for a substantial period@ may provide sufficient
consideration to support the restrictive employment covenants at
issue there, they offer no real analysis of that issue. As the McRand
court noted, our appellate court has either only Asignaled@ support for
similar findings A[w]ithout discussing the issue at length@ or enforced
restrictive covenants imposed during an ongoing employment
relationship without Adirectly addressing the issue of consideration.@
McRand, 138 Ill. App. 3d at 1055. Neither approach provides a
satisfactory basis for the majority=s reliance.
Despite this scant foundation, however, the majority
unquestioningly adopts the appellate court=s position. Indeed, it relies
on that foundation to extend our prior holding in Duldulao outside
the context of disputes arising during the course of an employment
relationship. I believe the absence of any substantive discussion in
the appellate cases merits, at a minimum, that this court undertake its
own thorough examination of the issue prior to adopting a broader
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rule. If we then determined the extension of Duldulao was justifiable
under some set of circumstances, I would remand the cause to the
trial court for a further review of the sufficiency of the consideration
in this particular case. In light of the lack of any actual analysis of
whether the plaintiff=s continued employment constitutes sufficient
consideration in the context of this case, however, I believe the
majority=s contract discussion is seriously undermined.
II
The majority=s analysis makes another critical error by ignoring
this court=s prior clear declaration that employees may not negotiate
or bargain away their right to seek recovery for retaliatory discharge
as derived from public policy. Ryherd v. General Cable Co., 124 Ill.
2d 418, 426, 433 (1988). In Ryherd, this court held that even if an
arbitrator had decided the underlying factual issues in a retaliatory
discharge claim, the former employee could not be barred from filing
a subsequent claim in state court. Ryherd, 124 Ill. 2d at 431, 434. We
based this conclusion on the principle that Athe arbitrator has no
competence and, indeed, no mandate to determine whether the
motives for the discharge contravene a clearly mandated public
policy.@ Ryherd, 124 Ill. 2d at 431.
As in this case, the plaintiff in Ryherd alleged, in relevant part,
that she was fired from her job in retaliation for filing a workers=
compensation claim. See Ryherd, 124 Ill. 2d at 423. Thus, the
rationale in Ryherd applies equally to this case. In Ryherd. this court
soundly rejected the majority=s approach permitting Athe ultimate
determination of Illinois public policy [to be] delegated to privately
appointed arbitrators. The danger of such inconsistent and
unreviewable private law militates against preemption.@ Ryherd, 124
Ill. 2d at 432. Under this established precedent, employers and
employees may not contract away the authority to decide
fundamental public policy questions to private arbitrators. Yet, that is
exactly what the majority is permitting in this case.
In support, the majority cites with approval the United States
Supreme Court=s statement in Gilmer v. Interstate/Johnson Lane
Corp. that A > A [s]o long as the prospective litigant effectively may
vindicate [his or her] statutory cause of action in the arbitral forum,
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the statute will continue to serve both its remedial and deterrent
function.@ = @ (Emphasis added.) Slip op. at 16, quoting Gilmer, 500
U.S. at 28, 114 L. Ed. 2d at 38, 111 S. Ct. at 1653, quoting
Mitsubishi, 473 U.S. at 637, 87 L. Ed. 2d at 461-62, 105 S. Ct. at
3359. It fails to note, however, that the facts in this case show the
dispute resolution procedures mandated in the arbitration provision
provide far less procedural protection than is available for the
vindication of the plaintiff=s rights through a judicial forum.
Despite the purported availability of the same remedies in the
arbitration proceedings mandated by the DRP and in court
proceedings (slip op. at 17), the complainants enjoy significantly
diminished procedural protections. For instance, according to the
DRP policy statement the Alegal rules of evidence@ are inapplicable,
with exceptions only for matters of Aattorney-client privilege,
attorney work product and compromise and offers to compromise.@
The arbitrator will not consider affidavits except by the written
agreement of both parties. The use of depositions is also quite
limited, permitting only the opposing party=s expert witnesses and Aup
to two other individuals@ to be deposed in the absence of an exception
being granted by the arbitrator. Moreover, under the DRP
complainants have only 21 days after the issuance of a written notice
that mandatory nonbindiing mediation was unsuccessful to request a
binding arbitration hearing or face the loss of their right even to
receive an arbitration hearing. Thus, the arbitration proceedings do
not provide the types of protections ordinarily extended in civil trials,
a fact most, if not virtually all, employees fail to realize when they
willingly or unwilling accept mandatory binding arbitration
provisions in order to keep their jobs. Given these vital procedural
distinctions, I do not believe the employer=s program permits
complainants to Aeffectively *** vindicate@ their statutory rights. See
Gilmer, 500 U.S. at 28, 114 L. Ed. 2d at 38, 111 S. Ct. at 1653. The
arbitral forum offered by the program does not serve the deterrent and
remedial functions of this state=s workers= compensation statute.
III
I also believe the language in the DRP policy statement is
internally conflicting and should not be construed in favor of the
employer. The policy statement defines the Acovered employees@ as
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Aall *** salaried and nonunion hourly employees of Anheuser-Busch
Companies, Inc., or any of its U.S. subsidiaries.@ Thus, at the time
this program was initiated, the plaintiff was considered a Acovered
employee.@ When her employment was terminated by Anheuser-
Busch, however, she was no longer a salaried or nonunion hourly
employee. Therefore, under the program=s definition, she was no
longer a Acovered employee@ subject to the terms of the DRP.
Moreover, she was also not a Aformer employee@ entitled to request
application of the program because the policy statement specifically
defines Aformer employees@ as A[e]mployees terminated prior to the
[dispute resolution program=s] effective date.@ Applying this language
here, the DRP was not applicable to the plaintiff as either a covered
employee or as a former employee. Nonetheless, the DRP policy
statement attempts to bind all involuntarily terminated employees by
requiring use of the specified dispute resolution procedures for all
disputes related to their terminations.
Employers cannot draft conflicting provisions requiring only
salaried and nonunion hourly employees to participate in the dispute
resolution program and at the same time also attempt to bind
individuals who are no longer salaried or hourly employees by those
same procedures. Under established principles of contract
interpretation, such ambiguity must be construed against the
employer as the drafter of the language. Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 479 (1998). Applying that rule of
construction in this case, the DRP is only applicable to disputes
arising with current employees, not to past employees= allegations of
retaliatory discharge. By their very nature, these claims arise after the
termination of employment, when the individuals can no longer be
considered Acovered@ by the dispute resolution program as salaried or
hourly employees. Any other interpretation would undermine the
strong support this court has previously demonstrated for the vital
public interests underlying retaliatory discharge claims. See Gonzalez
v. Prestress Engineering Corp., 115 Ill. 2d 1, 9 (1986); Kelsay v.
Motorola, Inc., 74 Ill. 2d 172, 187 (1978).
IV
In addition, I am troubled by an employer=s unilateral imposition
of a mandatory binding arbitration provision requiring employees to
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forfeit their constitutional rights to judicial process far in advance of
any actual dispute. This places employees such as the plaintiff here in
the fundamentally unfair position of being required to seek remedies
exclusively in a forum mandated by employment agreements that can
no longer logically bind them because they are no longer Acovered
employees.@ Furthermore, while there may be certain types of
disputes that a given employee may be willing to submit to
arbitration, there are undoubtedly other types that the same employee
would choose to seek vindication of the employee=s rights in a
traditional judicial forum. By being economically coerced into
signing a take-it-or-leave-it employer-mandated arbitration
agreement just to maintain employment, the employee is often
unwittingly stripped of the future ability to treat issues on a case-by-
case basis. Moreover, as noted earlier in this dissent, nearly all
employees lack sufficient knowledge of the differences in the
procedural protections afforded to them in the two forums to make
truly informed and voluntary decisions to enter into mandatory
binding arbitration provisions. Common sense and experience dictate
that, without that knowledge, employees accept the provisions solely
in order to keep their current jobs.
Indeed, the true voluntariness of such an anticipatory employment
agreement has been the subject of much criticism. See, e.g., D.
Schwartz, Enforcing Small Print to Protect Big Business: Employee
and Consumer Rights Claims in an Age of Compelled Arbitration,
1997 Wis. L. Rev. 33, 76, 114-19 (1997) (noting that the drafters and
proponents of the Federal Arbitration Act did not intend it to apply to
contracts of adhesion such as employment contracts, that there is
often a disparity of bargaining power and information between
employers and employees pertaining to these agreements, and
reviewing the critical differences between the use of settlements and
prospective waivers such as predispute arbitration agreements); M.
Eisenberg, The Limits of Cognition and the Limits of Contract, 47
Stan. L. Rev. 211, 251-52 (1995) (concluding that employees may be
exploited by arbitration provisions due to their Alimited cognition@ of
the longterm impact of their agreement to mandatory binding
arbitration over disputes that have not yet even arisen); Comment, C.
Reilly, Achieving Knowing and Voluntary Consent in Pre-Dispute
Mandatory Arbitration Agreements at the Contracting Stage of
Employment, 90 Cal. L. Rev. 1203, 1225-26, 1234-35 (2002) (citing
-24-
empirical studies showing that the majority of employees of all types
are ignorant of their legal employment rights, the available legal
processes, the procedural and remedial implications of agreeing to
arbitration of future disputes, their substantive protections as
employees, and that the economic pressures at work in these contracts
of adhesion make truly knowing and voluntary consent unlikely).
I find these matters particularly troublesome in the context of the
plaintiff=s claims in this case. The plaintiff alleged she was
discharged from her employment in retaliation for the exercise of her
statutory rights under the Illinois workers= compensation statute.
Without a doubt, retaliatory discharge is contrary to the public policy
of this state. Gonzalez v. Prestress Engineering Corp., 115 Ill. 2d 1, 9
(1986); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 187 (1978).
This court has long recognized the vital importance of the public
policy protecting employees who assert their rights under the
Workers= Compensation Act. Gonzalez, 115 Ill. 2d at 9. In addition,
the legislature=s intent to protect employees= rights through third-
party oversight is apparent from its statutory requirement of state
approval prior to the settlement of certain types of workers=
compensation claims. 820 ILCS 305/10.1 (West 2002). Here, the
DPR deprives employees of the Act=s third-party oversight
protections by barring any state oversight. A refusal to recognize the
serious question involving the voluntariness and the actual
knowledge of employees about the ramifications of signing
predispute arbitration clauses seriously undermines these intentions.
V
In sum, the majority=s analysis is internally flawed, and its
approach and outcome are in direct conflict with our prior decision in
Ryherd. The opinion also ignores the real world factors militating
against an employee=s truly voluntary and knowing agreement to a
mandatory binding arbitration provision imposed by an employer in a
contract of adhesion. When viewed in light of this court=s previous
concerted efforts to uphold the strong public policy protecting
employees who file Workers= Compensation Act claims, this analysis
is particularly disconcerting. For these reasons, I respectfully dissent.
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