Adler v. Fred Lind Manor

¶54 (concurring) — I write only to emphasize that the majority should not be read to suggest that an employee’s disagreement with the terms of an arbitration agreement entered into upon employment or continued employment will be sufficient to invalidate that agreement. The Ninth Circuit has recently held that an arbitration agreement entered into as a condition of employment is enforceable, notwithstanding the purposes of and remedies available under Title VII. EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003). The court overturned its prior case law to the contrary in light of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991). In Gilmer, the United States Supreme Court held that an age discrimination claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, was subject to compulsory arbitration pursuant to an agreement in a securities registration application.

Madsen, J.

¶55 Although the Ninth Circuit’s decision might be criticized as not necessarily flowing from Gilmer in that it may have blurred the issue of compulsory arbitration with the issue of compelling an employee to enter into an arbitration agreement, its result nevertheless appears to be correct given the logic of Gilmer and Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001). In these and similar cases the court has declared that agreements providing for compulsory arbitration are enforceable, even as to claims of unlawful discrimination, and are enforceable in the employment setting. The Court’s cases demonstrate a strong preference for arbitration regardless of the oftentimes compulsory nature of the agreements. Thus, it is no great leap of logic to conclude that regardless of whether one is given a choice of signing an arbitration agreement in order to obtain employment or to continue employment, the law and policy favoring enforcement of compulsory arbitration also favors enforcement of an agreement to which an employee must agree to become or remain employed. The employee will rarely be in a position to complain other than by choosing to decline employment or continued employment. Any other view would essentially negate arbitration agreements in the workplace, contrary to United States Supreme Court precedent.

¶56 I concur in the majority opinion.