for Suffolk County - Mass Cases

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SJC No. 10712
JO&, INC., JOULE TECHNICIAL STAFFING,
INC., JOHN G. WELLMAN and KhRI BURKE
Plaintiff-Appellants
V.
RAND1 SIMMONS,
Defendant-Appellee
and
MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION
Defendant Intervener-Appellee
On Appeal From an Order of the Superior Court
for Suffolk County
Memorandum of Amicus Curiae of the
Massachusetts Employment Lawyers Association
Massachusetts
Fmp 1 o pent. Law ye r s
As so cia t ion,
Robert S. Mantell
BBO# 559715
Rodgers, Powers & Schwartz LLP
18 Trcmont St., Suite 500
Boston, MA 02108
(617) 742-703.0, ext. 305
Fax (617) 742-7225

TABLE OF AUTHORITIF3 iii
STATEMENT OE' ISSUES 1
INTEREST OF' AMICIIS CUR.lAE 1
STATKMENT OF THE: CASE 3
STATEMENT OF THE FACTS 3
SUMMARY OF THE ARGUMENT 3
ARGUMENT 7
I. THE MCAD'S INVESTIGATIVE AND LAW ENFORCEMENT
!?UNCTIONS ARE: NOT IJERAILED BY A PRIVATE
I
AGREEMENT BETWEEN OTHER PARTIE3 . 8
A. UNDER PRESTON, A GOVRRNMENTAL PROSECITYOR
RETAINS ITS AUTHORITY TO ENFORCE THE IAW,
DESPITE AN ARBITRATION PROVTSION SIGNED BY
PRIVATE PARTIES 10
R. ENFORCEMENT ACTIONS OF TIIE EQUAL EMPLOYMENT
OPPORTUNITY COMMTSSION ARE NOT STAYED OR
DISMISSED DUE TO ARRITRA1'ION PROVISIONS 11.2
C. THE M a0 EXERCISES POLICE POWER IN THE
PROSECUTION OF' SECTION 5 CLAIMS . 14
D. THE MCAD'S ROLE IS ANALOGOUS TO TINT OF
THE EEOC 20
E. THE MCAD ACTS AS A PROSECUTOR, EVEN WHEN IT
IS ALSO PERFORMING A FACT-k-INDING FUNCTION 24
F. .MCAD AND EEOC PROCEEDINGS ARE INTERWOVEN, AND
INTERFERENCE WITH MCAU ACTIONS WILL CmTE
EXTREMELY DIFFICULT PROBLEMS INVOLVING 26
INEFFICIENT, DUPLICATIVE PROCEEDINGS
G.
JOULk'S OTHER ARGUMENTS ARE OFF-POINT
AND ERRONEOUS 27

-
11. MASSACHUSETTS PUBLIC POLICY I'RECLUDES
- ENFORCEMENT OF A PRE-DISPUTE WAIVER OF
c. 1518 RIGHTS, SIGNED AS A CONDITION
OF EMPLOYMENT 29
A. CHAPTER 1538, SECTION 8 32
R. CHAPTER 1510, SECTION 4(4A) 33
1. The Option To Pursue A Section 5 Case
Constitutes A Chapter 151B Hight 34
2. The Threat To Reject Simmons' For Failing
1'0 Agree To Mandatory Arbitration Constitutes
Threats, Coercion And Interference With
Rights In Violation Of Section 4(4A) 37
a. Joule Unlawfully Coerced Simmons To
Obtain The Release of Chapter 151B § 5
Forum Rights 3 'I
b. Joule Threatened Simmons . 39
c. JoulG Interfered With Simons' Right.s 41
C. COMMON LAW SKEPTICISM OF PROSPECTIVE
WAIVKRS OF CIVIL RIGHTS 43
13. THE FEDERAL ARBITRATION ACT DOES NOT
PROTECT COERCED AGREEMENTS 45
CONCLUSION 41
CERTIFICATES OF SERVICE AND COMPLIANCE 48
..
11

CASES
-
TABLE OF AUTHORITIES
Ackerman v. .The Money Store, 728 A.2d 873
(N.J. Super. Ct. LA ~ iv. 7998)
Advest, -. Tnc. v. McCa*, 914 P.2d 6
,.
(1st Cir. 1990)
- Bain v. Springfield, 424 Mass'. 758 (1997)
-
Barbour v. Dynamics Research Coxp.,
63 F.3d 32, 37 (lSt Cir. 1995)
Beacon Hill Civic Ass'n v. Ristorante
Toscano, Inc., 422 Mass. 318 (1996)
- Bcaupre v. Cliff Smith & Assoc.,
50 Mass. App. 480 (2000)
Blanchctte v. School Committee of Westwood -r
427 Mass. 176 (1998)
Buster v. George W. Moore, Inc. ---r
438 Mass. 635(2003)
C.oasta1 O il of N.E., Inc. v. Teamsters Local,
134 F.3d 466 (1st Cir. 1998)
Cole v. Burns Intern. Security Services,
105 F.3d 1465 (D.C. Cir. 1997)
Cuddyer v. Stop L Shop Supermarket I Co.,
434 Mass. 521 (2001)
Daluz v. Department of Correction,
434 Mass. 40 (2001)
East Chop Tennis Club v. MCAD,
364 Mass. 444 (1973)
EEOC v. AStm USA, Inc.,
94 F.3d 738 (lSt Cir. 1996)
...
111
42
32
39
42
30
38, 10
36
38
32
44
3 1.
44
18, 22
30

EEOC V. Waffle House, InC.,
122 s. Ct. 754 (20021
Feeney ,v. Dell, 454 Mass. 192 (2009)
Garrity v. New Jersey, 87 5. Ct. 616 (1967)
-
-.
Gilmcr v. Xnterstate/Johnson Lane Cork, 111 S. Ct. 1647 (1991)
Hospital Cristo Redentor, Inc. v. NLRB,
488 F. 3d 513 (lSt
Cir. 2007)
In re Mohawk Greenfield Motel C o p ,
239 B.R. 1 (Bankr. D. Mass, 1999)
Joule, Inc. v. Simmons, Order on Plaintiffs'
Motion to Enforce an Arbitration Agreement
Under Federal Arbitration Act and
Massachusetts Arbitration Act, C.A. No. 09-4920,
Suffolk ss., Troy, J., January 7, 2010
Kraft v. Police Comm'r, 410 Mass. 155 (1991)
Lynn Teachers Union, Local ~" LO37 v. .- MUD,
406 Mass. 515 (1990)
passim
passim
38
46
38
16, 21
Marie v. Allied Home Mortgage Corp., -.x
402 F.3d 1 (19t Cir. 2005) 14, 26, 28, 41
Mass. Bar Association, Inc. v. Wellington and MCAD,
Memorandum of Decision and Order on Plaintiff's
Motion to Reconsider, C.A. No. SUCV2009-1257 €1,
June 16, 2009 24
Massachusetts Bay Transp. Auth. v. Boston
Carmen's Union, Local - 589, 545 M&. 19 (2009)
- -
Mastrobuono v. Shearson Lehman Hutton,
115 s. Ct. 3.212 (1995)
McCarthy v. Azure, 22 F.3d 351 (1st Cir. 1994) 47
Melnychenko v. 84 Lumber Co.,
424 Mass. 285 (1997) 41
Miller v. Cotter, 448 Mass. 671 (2007) 40
iv
23
44
32
15
46

Navarro v. Pfizer Corp.,
261 F.3d 90, 95ylst Ci;. 2001)
NLRB v. Horizons Hotel Corp.,
-I
49 F.3d 795, 804 (ISt bir. 1995)
NLRB v. Marine Optical, Inc.
671 F.2d 11 (lSt Cir. 1982) r
NLRB v. Reed & Prince Mfg.Co. .-<
118 F.2d 874 (1st Cir. 1941)
NLRB v. Vernitron Elec. Components, Inc.,
548 F.2d 24 (1st C ir. 19'77)
Preston v. Ferrs, 128 S. Ct. 978 (2008)
Rent-a-Center, West, Inc. v. Jackson,
2010 U.S. Lexis 4891 (June 21, 2010)
Skirchak v. Dynamics - Research Corp.,
508 F.3d 49 (1st Cir. 2007)
- St. Fleur v. WPI Cable Sys./Mutron,
450 Mass. 345 (2008)
Stirlcn v. Supercuts, Inc.,
60 Cal.Rptr. 2d 138 (Cal. App. 1 D ist. 1997)
-_ Stonehill College v. MCAD, 441 Mass. 549,
cert. denied sub nom. -. Wilfcrt Bros. Realty Co.
v. MCAD, 543 U.S. 979 (2004)
- Thomas v. ED1 Specialists, I-nL,
437,Mass. 536 (2002)
Thurdin v. SEI Boston, LLC, -.
452 Mass. 436 (2008)
United States v. Allegheny-Ludlum Industries,
-I Inc. 517 F.2d 826 (5th Ci.r. 1975),
cere. denied 425 U.S. 944 (1976)
I
Volt Info. Sci., Inc. v. Ed. of Tr. of
Leland Stanford, 109 S. Ct'i 1248 (1989)
I "_
V
42
42
38
39
38
10-11, 20-1
P
3 1.
20
ssi
44
passim
17, 23
16
45
46
n

Wal.ker v. Lakewood,
272 F.3d 1114 (9th Cir. 2001)
Warfield v. Beth Israel DeaconesS Medical
Center, E, 454 Mass. 390 (2009)
-. Williams v. Vokovich,
720 F.2d 909 (8th Cir. 1983)
Wright. v. Universal Maritime Service Corp.,
-
119 S. Ct. 393 (i'998)
STATUTES AND REGULATIONS
9 U.S.C. 55 1, et seq.
29 U.S.C. 5 158(a) (1)
G.L. c. 151B, 5 4(4A)
G.L. c. 151B, 5 5
G.L. c. 151B, 5 6
G.L. c. 1519, 5 8
G.L. c. 151B, 5 9
G.L. c. 251, 5 1
804 CMR 1.02
804 CMR 1.09(5)
804 CMR 1.13(4)
004 CMR 1.15(6)
804 CMR 1.18(1) (a)
804 CMR 1.18(1) (c)
804 CMR 1.10(4)
804 CMR 1.20(3)
vi
41
passim
44
40
45, 46
38
passim
passim
19, 23,
29, 32-33
passim
23
15, 20
19, 21
17, 22
17, 21
16, 23
16, 22
18, 21
16, 21, 22

801 CMR 1.2Z(1)
oTnm AUTHORITIES
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
Superior Court Standing Order 1-96(2)
vii
22
43
19, 21

1.
STATEMENT OF ISSUES
siyned by the Massachusetts Commission Against
Discrimination, prevents the MCAD from pursuing an
administrative enforcement action in its own name to
discover, remedy and deter discrimination.
2.
Whether an arbitration agreement that has not been
Where an employer threatens to terminate an employee
unless she signs an arbitration agreement, does public
policy void the agreement because the law prohibits
threats, coercion and interference with respect to
enjoyment of chapter 1518 rights.
INTEWZST OF AMINS CURIAE
The Massachusetts Employment Lawyers Association
("MELA") is a voluntary membership organization of over 145
lawyers who regularly represent employees in labor,
employment and civil rights disputes in Massachusetts.
MELA is an affiliate of the National Employment Lawyers
Association ("NELA") , one of the largest organizations of
attorneys in the United States (approximately 3,000
lawyers), whose members regularly represent employees and
applicants with claims arising out of the workplace.
MELA's members are active in advocating for the rights
of employees before the executive, legislative and judicial
branches. MELA has filed a sizable number of amicus curiae
briefs in cases before the Appellate Courts of
Massachusetts, including: St. Fleur v. WPZ Cable
Sys/Mutron, 450 Mass. 345 (2008); Gasior v. Mass. Gen.
I

Hosp., 446 Mass. 645 (2006); 3ash v. Dana-Farber .. Cancer
Inst., 443 Mass. 367 (2005); Thomas v. ED1 Specialists,
- Inc., 437 Mass. 536 (2002); and Weber v. Cmty. Teamwork,
- Inc., 434 Mass. 761 (2001).
The Massachusetts Conmission Against Discrimination
("MCAD") is the front line for enforcement of the
Commonwealth' s anti-discriminati.on statutes. The MCAD' s
caseload is diverse, and includes many pro se complainants,
and cases brought by employees who simpxy do not have the
financial capac,ity to retain lawyers.
arbitration of these cases, and divesting the MCAD of
jurisdiction, wi.11 result in a substantial reduction in the
enforcement of our anti-discrimination laws.
Compelling
The MCAD's prosecutorial presence is crucial to
support the Commonwealth's overriding public policy to
prohibit discrimination.
to take this activist role, as it is necessary to maintain
public safety and welfare. MELA's members, lawyers who
represent employees against more powerful, corporate
entities, understand the pub1i.c policy disaster that will
result if employers are permitted to avoid the scrutiny and
enforcement powers of the MCAD through coerced, pre-dispute
side-agreements.
-_
The Legislature designed the MCAD
2

STATEMENT OF TAE CASE
MELA adopts Defendant-Appellee Randi Simmons'
stalment of the case.
STATWdEWl! OF THE EACTS
MELA adopts Simmons' statement of the facts.
S-Y OF THE ARGUMENT
The Supreme Court held, in Preston v. Ferrer, that an
arbitration agreement between private parties is powerless
to divest the enforcement authority of a governmental
agency acting in the role of a prosecutor.
would be similar to requiring the police and District
Attorney not to investigate and prosecute criminal actions,
based on side-agreements imposed on victims.
agency is acting solely in the capacity of a neutral
arbiter, then its role may be supplanted by arbitration.
However, when an agency is acting as a prosecutor,
protecting the public health and welfare, arbitration
agreements between the private parties does not interfere
with the government's police power.
(8-11)
A contrary rule
When an
Likewise, in EEOC v. Waffle House, Inc., the Supreme
Court held that a private arbitration agreement will not
undermine an enforcement action initiated by the Equal
Employment Opportunity Commission (''EEOC") . The Court
protected the EEOC's role for many reasons, including that
the EEOC enforcement action was prosecuted in the EEOC's
name, the EEOC sought relief in the public interest, the
EEOC controlled the contours of the case and the relief
3

sought, and the GEOC did not sign the arbitration
agreemcnt. (12-14) .
The Massachusetts Comrni.ssion Against Discrimination is
Lrhe Commonwealth's anal.ogue to the FEOC, and the MCAD
prosecutes c. 153.8 cases in a manner similar to the EEOC.
The MCAll is thc Conunonwealth's primary enforcer of c. 151B,
and c. 151H represents the Commonwealth's overriding public
polj.cy. The MCAU prosecutes section 5 actions in its own
name, and in the public interest. It is the MCAD that
controls the course of the litigation, permits and pursues
discovery, frames the issues to be decided, seeks remedies
to satisfy the public's interest in the claim, and enforces
the decisions. Finally, the MUD did not sign the
arbitration agreement, and therefore, the agreement is not
binding upon it. (24-19)
The Supreme Court has identified eleven factors on
which it based its detominatien that prosecuting agencies
are immunized from compelled arbitration. A review of the
law and regulations demonstrates that the MCAD falls within
each of these factors, and should likewise be protected.
Furthermore, enforcement of the arbitration agreement would
considerably undermine the MCAD's protective function, and
undcnine the c. 151B enforcement scheme. (20-24).
The Federal and Massachusetts arbitration acts do not
apply, because the MCAD did not sign the arbitration
agreement. (14). Moreover, enforcement of the arbitration
agreement would have an enormous, real-world effect in
4

undermining the many cases pursued by the MCAD, including
claims of pro se and/or low-wage-earning claimants. (24-
25). Enforcement of arbitration agreements in this
circumstance would lead to a procedural morass, whereby the
MCAD's enforcement authority is curtailed, but the EEOC's
ri.qht to enforce parallel claims continues. (26).
Massachusetts public policy provides a second,
independent basis for voiding the arbitration agreement.
Public policy renders agreements unenforceable where one
party has obtained assent through unlawful means or
pressure. ln this case, the agreement was obtained by
Jodi! by threatening Simmons with termination.
should not be permitted to enjoy the benefit of its
illegal, coercive conduct. (29-30).
The MCAD has taken the position that coerced,
Joule
prospective waivers of c. 151B rights violates c. 1518
itself, and public policy. All reasonable deference should
be accorded to the positions taken by the MCAD. (30-31).
Jouli! violated G.L. c. 151B, 5 8, because its coercive
conduct has the effect of impairing employee participation
in the MCAD's investigations and proceedings. Full
participation of complainants has the effect of protecting
the particular individual, other co-workers at that
employer, arid society in general. Thus, the hurdles
imposed by Joule violates broad public policy. (31-32).
Moreover, Joule violated G.L. c 1518, 5 4(4A), when it
obtained an arbitration agreement by resorting to threats

to the employment relationship. Simmons' option to pursue
charges of discrimination using the MCAD forum has beer)
determiried by this Court to const-i.tute a c. 151B "right."
Joulk's insistence that Simmons sign away that right, under
threat of termination, constitutes threats, coercion, and
interference with enjoyment of rights.
squarely violates. G.L. c. 151B, 5 4(4A). Public policy
demands t.hat LJoule not get the benefit of its illegally
obtained agreement. (32-42) .
Such conduct
A third sourcc of public policy i s represented by the
common law skepticism of prospective waivers of civil
rights.
Such pre-dispute waivers take away the deterrent
value of our rules, and constitute an invitation to
lawlessness. Furthermore, such prospective waiver cuts
against our notions of fairness. For example, could a
state require a citizen to waive their Miranda rights
prospectively, for the rest of thejr lives, in return for a
student loan? Marly cases demonstrate resistance to pre-
dispute waivers of rights. (42-44).
The Federal. Arbitration Act dues not preempt a state
rule that refuses to enforce prospective waivers of c. 1518
rights, where the waiver is obtained through threats and
intimidation.
The FAA does nat protect coerced agreements,
and states are permitted to regulate what constitutes
coercion, so I.ong as arbitration agreements are subject to
the same standards as other agreements. (44-46)
6

ARmJmwr
The Massachusetts Employment Lawyers Association
supports the positions urged by Appellees Handi Simmons and
the Massachusetts Commission Against Discrimination. MELA
adds its voice t u emphasize that the arbitration agreement
at issue is unenforceable because it violates public policy
in two ways. Feency v. Dell, "~. 454 Mass. 192, 199-200 (2009)
(contracts, including agreements (la arbitrate, that violate
public policy are unenforceable).
First, the agreement improperly divests the MCAD of
its police power to irivestj.gatc and enforce the provisions
of chapter 151B, and intolerably interferes with
comprehensive administrative mechanisms designed to protect
all Massachusetts employees. Second, Joule violated
substantive provisions of c. 15lR 55 4(4A) and 8, when it
demanded that Simons agree to a prc-dispute waiver of c.
151B forum rights as a condition of employment, essentially
threatening to terminate her unless she agreed.
Joul&'s ultimatum amounts to unlawful threats to
employment, coercion and interference with enjoyment of c.
151B rights, which the statute proscribes. G.L. c. 1518, §
4(4A).
Public policy prevents enforcement of a contract
procured by unlawful means. See St. Fleur v. WPI Cable
~
Sys./Mutron, 450 Mass. 345, 350-356 (2008). Both o€ these
arguments will be addressed below.
- I-
7

I. TBE W' S INVESTIGATIVE AND LAW ENEoRcEMplT EUNCTIONS
ARE NOT DERAILED BY A PRIVATE A m
BETWEi3J OTHER
PARTIES
Under Sections 5 and 9 of c. 151B, employees have the
choice of litigating their discrimination claims at the
Massachusetts Commission Ayahst Discrimination (Secti.on 5
claims), or by de novo trials in Court (Section 9 clajms) .
G.L. c. 151B, §§ 5, 9; Stonehill College v. MCAD, 411 Mass.
549, 565, cert. denied sub nom. Wilfert Rros. Real.ty Co. v.
MCAD, 543 U.S. 979 (2004). The Supreme Judicial Court has
held.that a clearly worded arbitration agreement, signed by
an employee and employer, may be enforceable as against a
pending Section 9 action in Court. Warficld v. Beth Israel
Deaconess Medical Center, Inc., 454 Mass. 390, 393 n.6, 398
(2009). This case addresses a different. question: whether
an arbitration provision between an employee and employer
will prevent the MCAD from investigating and pursuing a
section 5 claim.
-
--
The answer should clearly be "no," because the MCAD
acts as a goverrunental investigator and prosecutor in
Section 5 actions, and that role should not be impaired by
private arbitration agreements. The United States Supreme
Court has declared that enforcement actions of the Equal
Employment Opportunity Commission (EEOC), which is the
MCAD's sister organization, are not blocked by arbitration
-
agreements. EEOC v. Waffle House, Inc., 122 S. Ct. 754
(2002). Since termination of the MCAD's Section 5
proceeding would displace the independent authority of the
S

MCAD to enforce the law and rectify violations of c. 1518,
and would otherwise eviscerate MCAD's exerci-se of police
powers, the arbi.tration provision should have no effect on
its proceedings.
The Federal. Arbitration Act (F'M) requires that
arbitration agreements - between partics are enforceable.
The FAA has no application here, because in Section 5
actions, the MCAD is a necessary party, and the MCAI) has
never signed the agreement. - See Waffle House, .. I:nc., 122 S.
Ct. 763 & n.9 (EEOC need not arbitrate where it did not
sign agreement).
A contrary ruling would consign thousands of cases,
including pro se cases, to an arbitral panel, where the
MCAD could not provide counsel to assist complainants, and
could not make sure that: the public interest is protected.
The result would be the quick end of many meritorious
cases, as pro se complainants would be overwhelmed, out-
spent and outmaneuvered by wealthier, more sophisticated
corporate defendants. See Feeney, 454 Mass. 192 (class
action waiver in arbitration provision, which would lead to
the chilling of small. damages wage cases, i s void under
public policy).
these cases, agreements such as the one at issue would
consign the MCAD to irrelevance, and leave the public
interest unprotected.
Whereas the MCAD was designed to nurture
AS will. be shown, a public policy supported by these
factors precludes enforcement of the arbitration agreement.
9

Moreover, there i s no agreement to enforce, as the MCAD is
an essential party in a Section 5 claim, and the MTAD has
not agreed to arbitration,
A. UNDER PRESTON, A GOVERNMENTAL PROSECUTOR RETAINS ITS
AUTHORITY TO ~ENMRCE THE LAW, DESPITE AN ARRITRATION
PROVISION SIGNED BY PRXVATE I'IIRTIES
It is a given that agencies acting in the ro1.e of
prosecutor are not displaced by an arbitration agreement
signed by private actors. -- See - Pceslon v. Perrer, 128 S.
Ct. 978, 986-987 (2008). 'To do SO would be like requi.ring
police and prosecutors to refrain from investigating crimes
and prosecuting wrongdoers based on private prospective
agreements between criminals and victims. Such ~1 state of
affairs violates public policy, because enforcement of the
law protects society as a whole, as well. as individual
interests.
The predispute agreements of victims of illegal
conduct do not limit the police power of the government.
For example, a prosecutor may prosecute a criminal, even
when the crime victim does not want the crirnhal
prosecuted.
lawlessness.
A contrary rule would be an invi.tation to
The -_- Preston case involved a fee dispute involving an
artist and an alleged talent agent, in California.
Preston, 128 S. Ct. at 984. California has a statute
regulating talent agencies that directs its Labor
Commissioner to determine disputes arisi.ng under the law's
scope. Id., at 984-985. In determining such disputes, the
10

Labor Comissioner serves simply as an impartial arbiter;
it is not a party to the case, nor is it acting as an
advocate advancing a cause. Id., at 987. Under these
circumstances, the Supreme Court held that. an arbitration
provision signed by the pri-vate parti.es was suffjcient to
compel arbitration.
However, the Supreme Court was careful to distinguish
the Preston facts from a si-tuation in which the state
agency exercises prosecutorial authority to investigate,
enforce the law and remedy violations. "Enforcement of the
parties' arbitration agreement in this case does not
displace any independent authority the Labor Commission may
have to investigate and rectify violations of the TAA."
Preston, 120 S. Ct. at 986-987. "Ferrer argues [that] the
arbitration clause in his contract with Preston leaves
undisturbed the Labor Commissioner's independent authority
to enforce the TAA. (citation omitted]. And so it my."
Preston, Id., at 987.
The Preston arbitration provision was enforced because
it did not prevent the Labor Commission from exerci.si.ng its
independent authority to enforce the statute.
Court was careful to point out that "the Labor Commissioner
functions not as an advocate advancing a cause before a
tribunal authorized to find facts and apply the law;
The Supreme
instead, the Commissioner serves as an impartial arbiter."
Preston, 128 S. Ct. at 987. Thus, Preston establishes that.
an arbitration agreement may divest an agency of the role
11

of independent arbiter, but it may not divest the agency of
its role in acting as a prosecutor to investigate
violations, enforce the law, and rectify the harm. - Id., at
986-987.
B. ENFORCEMENT ACTIONS OF TIIE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION ARE NOT STAYED OR DISMISSED DUE
TO ARBITRATION PROVISIONS
The protection of an agency's prasecutorial function
finds further expression in EEOC v. Waffle House, hc., - 122
S. Ct. 754 (2002), which held that a private arbitration
agreement does not affect enforcement actions of the ELOC
nor docs it. narrow the ranye of remedies the EEOC is
entitled to seek. In Waffle House, an employee signed an
arbitration agreement at the outset o€ employment. 122 S.
Ct., at 158. Sixteen days later, the employee suffered a
seizure and was discharged soon thereafter. - Id. The
employee filed a timely handicap discrimination charge with
the EEOC, but did not initiate arbitration. - Id.
The EEOC investigated the complaint and attempted to
conciliate. I Waffle House,
Inc., 122 S. Ct. at 758. Next,
the EEOC filed an enforcement action in Federal Court in
its own name in the public interest, as it is authorized to
do by statute. Id., at 758, 759, 761. The complaint
alleged 'chat the employee was terminated because of his
disability, and requested injunctive relief to eradicate
the effects of the discrimination, and to compensate the
employee. -- Id. at 758.
12

The Supreme Court held that the arbitration agreement
did not undermine the EEOC's enforcement action, and that
the EEOC may continue to obtain victim-specific relief on
behalf of the complainant in court. This result obtains
for a number of reasons.
The EEOC action was brought in the name of the EEOC to
vindicate the public interest, and the EEOC did not sign
the arbitration agreement. Waffle House, Inc., 122 S. Ct.,
at 761-766.
in the EEOC's suit, she does not control the prosecution of
the claim, nor does she dictate its prayer for relief.
Id., at 762-763. It i s the EEOC that is master of its
cause, and the statute confers on the agency the authority
to define the contours of the public's interest in the
case. Id., at 763, 766. "[Tlhe EEOC docs not function
I
While an individual complainant may intervene
simply as a vehicle for conducting litigation on behalf of
private parties." z., at 761.
To the extent that the EEOC pursues an enforcement
action, the complainant has no independent cause of action.
Waffle House, Inc., 122 S. Ct., at 763. The Court noted
that the EECC's attempted conciliation duplicated some of
the benefits of arbitration. E., at 762 n.7. The anti-
discrimination statutes, and the FAA, fail Lo suggest that
an arbitration agreement would alter or limit the EEOC's
statutory function. Id. at 761, 762.
The Supreme Court reasoned that a large and rising
number of workers are being subjected to mandatory
13

arbitration, and Urnits on EEOC enforcement actions would
create a substantial disincentive to employees to file
discrimination charges with the EEOC.
- Waffle House,-,
122 S. Ct. at 765 n.11. The Supreme Court emphasized a
reluctance to enforce a remedy that impairs the EEOC's
ability to investigate and choose enforcement priorities
from a broad sample of claims. Id. All these factors
supported the highest court's conclusion that arbitration
was inapplicable to an EEOC enforcement action.
The Federal Arbitration Agreement does not compcl a
different result. -. Waffle House, Inc., 122 S. Ct. at 763.
The FAA requires courts to place arbitration contracts on
"equal footing" with other contracts, and requires
arbitration only when the parties to an actions have agreed
to do so. Id., at 763. As a party to its enforcement
action, the EEOC i.s not bound by an agreement it never
signed. - Id.
agency, the FAA does not apply. - Id., at 763 & n.9; see
--
also Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 16
(lSt Cir. 2005)
In the absence of an agreement signed by the
("The EEOC is a nonparty to the arbitration
agreement and therefore cannot be bound by it").
C. THE MCAD EXERCISES POLICE POWER IN THE PROSECUTION OF
SECTION 5 CLAIMS
An examination of claims processed by the MCaD
(Section 5 claims) shows that the MCAD, like the EEOC,
functions in a prosecutorial rol.e, and not merely as an
independent arbiter.
14

The MUD was established to enforce the Commonwealth's
antidiscrimination laws. Stonehill College, 441 Mass., at
563.
The Commission is charged with working for the public
good in enforcing the Cornonwealth's anti-discrimination
statutes, including c. 1518, in order to "protect,
preserve, and enforce the civil rights of its citizens."
804 CMH 1.02. Chapter 151B, and its proscript-ions on
employment discrimination, represent an "overriding
governmental. pplicy," and is often exclusive o€ other laws
and remedies. Warfield v. Beth Israel Deaconess Med. Ctr.,
Inc., 454 Mass. 390, 398 (2009); G.L. c. 151B, § 9, 1.
Chapter 1.518 represents policies so "well-defined and
dominant" that a remedy to a c. 1518 violation will be
upheld, even if the remedy would otherwise result in an
independent violation of a collective bargaining agreement.
Massachusetts Bay - Transp. Auth. v. Boston Carmen's Union,
Local 589, 545 Mass. 19, 26, 29-30 (2009). In other words,
the policies supporting c. 151B can be elevated over
private agreements. - Id. at 29-30.
Under Section 5, the MCAD investigates the claim, and
if the claim i s found worthy, formal proceedings are
"initiated . . . [and] directed . . . by the commission,
on behalf of the Commonwealth, against a named respondent."
Stonehill College v. Massachusetts Commission Against
Discrimination, 441 Mass., at 567 (emphasis added). Note
that in the Stonehill College case, it is the MCAD, and not
15

thc individual complainant, that is listed as the party-
defendant.
"It is t.hc MCAD, and not the complainant, that
prosecutes the [Secti.on 51 discrimination claim."
-- -
Stonehill C o l a , (141 Mass., at 563; see also Thurdin v.
- SKI Boston, ~-
LLC, 452 Mass. 436, 442 (2008) ("During the
administrative process, the commission, not the
complainant, prosecutes the claim"). Once probable cause
enters, a notice and complaint are issued "in the name of
the commission." G.L. c. 1518, 5 5, 2; 804 CMR 1.20(3).
By undertaking Section 5 proceedings, the MCAD acts
with "police and rcgul.atory powers" to enforce anti-
discrimination law, with the primary purpose of protecting
public safety and welfare. In re Mohawk Greenfield Motel
Corp., 239 B.R. 1, 6-9 (Bankr. D. Mass. 1999).
Importantly, MCAD proceedings are not subject to automatic
stays under the bankruptcy code, because the MCAD's
enforcement role is conducted in the public interest. _I
Id.
In cases that extend beyond the investigation phase,
the MCAD undertakes a conciliation process, in which the
commission wil.1 attempt to assure that aggrieved employees
receive a just remedy. 8011 CMR 1.18(1) (a). However, the
Commission will also seek "Provisions Sought for the Pub1j.c
Interest," which go beyond an individual remedy to benefit
the public, including elimination of future discrimination,
apologies, reporting mandates, education, training efforts,
and monitoring of future activities. 804 CMR 1.18(1) (c).
16

If the private parties agree to resolve the case, the
complaint is dismissed only after the MCAD has reviewed the
settlement, and agrees that its terms serve the public
interest. 004 CMR 1.15(6) (a). Once approved, the
settlement has the effect: of an Order of the Commission for
purposes of enforcement. Id.
-
.If conciliation fails, the MCAD may then, in its
discretion, schedule a pub1j.c hearing. 804 CMR 1.20(3).
Tho Investigating Corranissioner, who at this stage acts as
an enforcement activist, issues the MCAD's complaint in its
name, frames the issues to be decided at public hearing,
specifies the particular procedural route that the case
will take within the MCAD, and makes other orders he or she
'deems appropriate in the public interest." 804 CMR
1.20(3).
The Commission guards its authority over the Section 5
case, regardless of any side agreements among the private
parties. Its regulations state, "No waiver agreement
signed by any individual shall affect the Commission's
right and statutory duty to onforce M.G.L. c. 151B . . . or
to investigate any complaint filed before it." 804 CMR
1.13(4).
Chapter 151B sets forth a comprehensive enforcement
scheme for reso1"ution of discrimination claims, including
an expansive and complicated administrative process.
laws must be interpreted in a way that does not interfere
with the administrative process. Thomas v. ED1
17
Other

Specialists, Inc., 437 Mass. 536, 540, 542 (2002)
(contrj.bution statute does not apply to c. 151B claims, as
it would interfere with the MCAD's administrative process).
The underlyiny statute safeguards the MCAD's
enforcement role, with the mandate that, "the
administrative procedure provided in this chapter under
section 5 shall, while pending, be exclusive." G.L. c.
151B, 5 9, 1;' see also -. East Chop Tennis Club v. MCAD,
- -
364 Mass. 144, 448 (1973) (prohibiting a respondent from
pursuing a declaratory judgment action whi1.e Section 5
procedures are pending, as it would interfere with the
MCAD's powers to investigate and act on complaints of
discrimination).
The MCAD even reserves for itself the authority to
dismiss meritorious complaints based on a complainant's
refusal to accept a settlement that is acceptable to the
Commission, and where termination of: the proceeding is in
the public interest. 804 (3MR 1.1814). At the formal
hearing on the claim, the Commission has the right to
designate one of its attorneys or agents to present the
~~~ ~~
' The first paragraph of Section 9 states: "This chapter
shall be construed liberally for the accomplishment of its
purposes, and any law inconsistent with any provision of
this chapter shall not apply, but nothing contained in this
chapter shall be deemed to repeal any provision of any
other law of this comonweal~th relating to discrimination;
but, as to acts declared unlawful by section 4, the
administrative procedure provided in this chapter under
section 5 shall, while pending, be exclusive; and the final
determination on the merits shall exclude any other civil
action, based on the same grievance of the individual
concerned." G-L+ c. 151B, 5 9, 1.

case in suppori of the Complainant, and this decision is
responsive to t-he public interest. 804 CMR 1.09(5) (a) &
(b) (2) -
hen in cases where the Commission has permitted a
pri.vate attorney to present the evidence favoring the
Complainant on behalf of the Commissi.on, the Commission may
nevertheless appoint an MCAD attorney to remain involved in
the proceedings tu ensure protection of the CommissionIs
hterest and the policies of c. 151B. 804 CMR 1.09(5) (a) &
(b) ( 2).
Remedies ordered by the MCAD are made pursuant to an
equitable standard, that they "effectuate the purposes of
this chapter." G.L. c. 151B, 5 5, 9 2. Included in the
possible remedies are civil penalties, which are collected
by the Commonwealth. G.I.. c. 151B, 5 5. Appeals of Orders
of the MCAD in Court name the MCAI) as a party. G.L. c.
151B, 5 6; Superior Court Standing Order 1-96(2).
In summary, a Section.5 claim is not a mechanism to
adjudicate private rights,.
"Unl.ike private actions
pursuant to § 9, MCAD proceedings 'do not involve a suit
I I, between two or more [private] persons . . . --- Stonehill
College, 441 Mass. a t 567. The differences between Section
9 and Section 5 proceedings "are significant," and "the
primary purpose of an administrative proceeding before the
MCAD is to vindicate the public's interest in reducing
discrimination in the workplace." Id., 441 Mass. at 562-
563. Thus, it is clear that the MCAD acts as a prosecutor,
19

and not mere1.y as 3 neutral farurn, i.n its processing of
Section 5 claims.
D. ‘THE MCAD’S ROLE IS ANALOGOUS TO THAT OF THE EEOC
As shown above, “an employer cannot preclude a public
enforcement agcricy from bringing an enforcement action for
employee-specific relief by relying on an emp,loyer-employee
arhi tratiori agreemenk . ” Skirchak . v. Dynamics Research
Corp., . . 508 P.3d 19, 58 n.3 (1st. Cir. 2007). The Supreme
Court has identified many factors to assist in determining
whether an agency action is to be precluded by a private
arbitration agreement. As will be shown below, every one
of thosc factors demonstrates that the MCAD is a public
enforcement agency whose section 5 proceedings.are
safeguarded:
Factor 1: Agencies that enforce the l aw and seek
remedies for violations are imune from private arbitration
clauses. Preston, 3.28 S. Ct. at 986-987. The MCAD was
established to enforce c. 1518, and remedy violations of
the law. - SZlonehi.ll . College, -. 443. Mass., at 563 (“The MCAD
was established to enforce the Commonwealth‘s
antidiscrimination laws”); G.L. G. 1518, 5 5; 804 CMR 1.02
(MCAD enforces c. 151B).
Factor 2: The MCAD, like the EEOC, is not merely a
neutral forum for litigating an issue between private
parties. Stonehill College, 441 Mass. at 562-567; compare
Waffle House, Inc., 122 S. Ct. at 761. Rather, both
agencies act in the public interest, to advance a cause.
20

Stonehill College, 141 Mass. at. 562-563; compare Preston,
-, , I.I. .,,". ., . ., -.. .
-
120 S . Ct. at 387; Waffle House, Inc. 122 S . Ct. at 765.
Factor 3: Section 5 claims, as 1iti.gated within the
Commissj.on and later appealed in Court, are prosecuted in
the name of the agency, pursuant to its police powers, just
as EEOC enforcemcnl: actions are prosecuted in that agency's
name. Stonehill College, 441 Mass. at 563, 567; Thurdin,
452 Mass. at 442; In re Mohawk - Greenfield Motel Corp., 239
B.K. at 6-9; G.L. c. 1518, 5 5, 2; G.L. c. 1518, 5 6;
Superior Court Standing Order 1-96(2); compare Waffle
House, Tnc., 122 S. Ct. at 758, 759, 761-766
Factor 4: The MCAD, and not the individual
complainant:, controls the Section 5 claim, and is master
over thc prosecution of the action, which parallels the
EEOC's role. Stonehill College, 441. Mass. at 563, 567
(section 5 actions are "directed" and "prosecuted" by the
Commonwealth); 804 CMR 1.20(3) (MCAD schedules public
hearing at its discretion); 804 CMR 1.09(5)(a) & (b)(2)
(MCAD, or its designee, presents the complainant's evidence
at public hearing); 804 CMR 1.18(4) (MCAD may dismiss even
meritorious cases in its discretion); compare - Waffle House,
12% S. Ct. at 762-763 (EEOC controls the prosecution of its
enforcement action) .
Factor 5: The MCAD, like the EEOC, controls the
relief sought. I-
Stonehill College, 441 Mass. at 567-568
(MCAD accorded discretion and authority to fashion remedial
rel.i.ef) ; 801 CMR 1.15 (6) (MCAD approves private settlement
21

agreements prior: to dismissal, Lo protect the public
interest); 801 MCR 1.20(3) (a) (6); compare Waffle House,
- Inc., 122 S. Ct. at 762-763.
Factor ._ 6:
I
- -.
Remcdies are sought by both the MCAD and
EEOC to further the purposes of the undarl.ying anti-
discri.mination statutes, and in support of the public
interest. Stonchil.1. College,
, 441. Mass. at 563 ("the
commission is empowered to fashion equitable remedies
designed chiefly to protect and promote the broader public
interest in eradicating systemic discrimination"): G.L. c.
151B, § 5, 2; 804 CMR 1.18(1) (c), 1.22(1); compare Waffle
House, Inc., -- 122 S. Ct. at 765.
Factor 7: To the extent that the MCAD pursues a
Section 5 claim, the proceedings are exclusive. G.L. c.
1518, 5 9, I 1; - see - also .I- 'dast Chop Tennis
- Club, 364 Mass.
at 448. EEOC enforcement actions are similarly protected.
__I Waffle House, Inc., 122 S. Ct. at 763.
Factor - 8: Neither the MCAD nor the EEOC have signed
the arbitration agreement at issue, and both have signaled
their refusal to be bound by such agreements. 804 CMR
1.13(4) (no waiver agreements shall affect the MCAD's right
to enforce the law); Waffle House, Inc. -- 122 S. Ct. at 763
& n.9.
-,
Factor 9: Divesting the MCAD of jurisdiction .in this
circumstance would generate an enormous disincentive to the
filing of MCAD complaints, which would damage the MCAD's
fact-finding and enforcement role, and undermine its
22

comprehensive scheme to combat discrimi-nation. Waffle
House, Inc., 122 S. Ct. at 765 & n.1.l [enforcing
arbitration agreement would undermine “the detailed
enforcement scheme [In Title VI1 and the ADA] created by
Congress” and would serve as a disincentive to free
reporting of complaints to F:KOC). Chapter 151B, like Title
VI1 and the Americans with Disability Act (“ADA”), should
be interpreted to avoid. such interference. - Id. ; Thomas,
437 Mass. at 540, 542.
Factor 10: Mandatory conciliation by both the MCAD
and EEOC is in place, which satisfies some of the major
policy considerations supporting the use of arbitration.
G.L. c. 1518, § 5; 804 CMR 1.18(1) (a); compare Waffle
House, Inc., 122 S. Ct. at ’162 n.7.
-, .-
Factor 11: Chapter 1518 and the Massachusetts
Arbitration Act, like Title VI1 and the Federal Arbitration
Act, do not suggest that an arbitration agreement wou1.d
displace Section 5 claims. G.L. c. 1518; c. 251, 5 1;
Waffle House, - Inc., 172 S. Ct. at 761, 762.
Thus, in all aspects, the MCAD has the characteristics
identified by the Supreme Court as reasons to exempt an
agency action from arbitration. For this reason, the court
below refused to enjoin MCAD proceedings. See Joule, Inc.
v. Simons, Order on Plaintiffs‘ Motion to Enforce an
Arbitration Agreement Under Federal Arbitration Act and
Massachusetts Arbitration Act:, C.A. No. 09-4920, Suffolk
ss., Troy, J., January 7, 2010, App. 231. In addition,
23

Judge Rrassard, in a similar case, refuscd to compel
arbitration of a pending MCAL) case, statinq: "The MCAI)
acts as investigator, prosecutor and adjudicator at the
administration proceeding and does so under the broad
authority recognized by - Stonehill College v. MCAII, 441
Mass. 549 (2004) ." Mass. Bar Association, Inc. v.
-. .- ,-
Wclli.ngton and MCAD, Memorandum of Decision and Order on
I -
.-
Plaintiff's ,. Motion to Reconsider, .- C.A. No. SUCV2009-1257 11,
June 16, 2009, Addendum C. Thus, this Court should
preserve the MCAD' s enforcement function.
-, . -~
E. THE MCAD ACTS AS A PROSECUTOR, EVEN WHEN 1'1' IS ALSO
PERFORMING A FACT-FINDING E'UNCTION
The MCAD's proceedings should be protected, because it
performs the role of a prosecutor, even when it is also
conducting a fact-finding hearing.
-
See Waf€le House, Ir~c., - ~ .-
122 S. Ct. at 761. It is not possi.ble to segregate out
MCAD's prosecutorial role from its fact-finding role, and
replace the latter with arbitration, i.n a manner consistent
with the MCAD's enforcement function under c. 1518.
If a case is arbi,trated, how will the MCAD control how
important overriding governmental interests are presented
to the arbitrator? How will. the MCAD control the framing
of the issues? Or assure qualified representation of the
complainant, or proper presentation of evidence? Or ensure
that adequate fact-finding has been accomplished? Or
assure that remedies to protect the public interest have
24

een imposed?
Or otherwise assure that the statute has
been properly interpreted and complied with?
It could not. Realistically, once arbitrakion is
initiated, the MCAD’s enforcement role is at an end. The
prosecutorial role is supported by the fact-finding role,
and vice versa.
capacity to hold a hearing, without also undermining iks
prosecutorial function.
The MCAD may not be divested of its
One example will highlight this point. At the MCAU,
after probable cause is found, pro se complainants are
assigned an attorney to assist them, without cost, in the
taking of discovery and the presentation of evi.dence at
trial. However, if arbitration is ordered, these pra se
complainants will be on their own, and rendered efEectively
unable to prosecute their cases. This Court should not
turn a blind eye to the real world effects that such a
decision would have. Feeney, 454 Mass. at 200-205
(prohibition of class action claims in arbitration clause
would have the real world effect of obliterating many wage
claims of modest size, and so the waiver violates public
policy). Therefore, the MCAD must retain its fact-finding
function in order to be successful in its enforcement
function.
25

F. MCAU AND EEOC PROCEEDINGS ARE INTERWOVEN, AND
INTERFERENCE WITH MCAD ACTIONS WILL CREATE EXTREMELY
DIFFICULT PROBLEMS INVOLVING INEFFICIEN'T, DUPLICATIVE
PROCEEDINGS
A ruling in favor of JoulG would create an
intractable, bureaucratic tangle, with respect to the
parallel proceedings that take place between the MCAD and
EEOC.
The MCAD and EEOC have a work-sharing agreement
which permits claims filed with one to be cross-filed with
the other, and which permits the parallel processing of
claims. The EEOC typically defers to the MCAD's
investigation and adopts the MCAD's findinys. Allowing
employers to interfere with MCAD enforcement of c. 15lB
will necessarily impair EEOC processing of those claims.
If EEOC proceedings remain despite an arbitration
agreement, but MCAD proceedings dissolve, there would be a
nightmarish procedural challenge.
go ahead, without the MCAD's salutary input. Meanwhile,
arbitrations would proceed as well. It would result in
inefficient, duplicative proceedings which by all means
should be avoided. Marie, 402 F.3d at 16 (duplicative
arbitration and EEOC enforcement action would be
hefficient, disruptive to EEOC procedures, and contrary to
the purposes of the FAA). It would create enormous burdens
on employees, who would have to participate in dual tracks.
Such complexities are unnecessary, and are intrusive on the
contemplated process, and should dri.ve this Court to reject
Joule's position.
26
EEOC proceedings would

G. JOULE'S OTHER ARGUMENTS ARE OFF-POINT AND ERRONEOUS
Joule asserts that c. 1518 claims are gencrally
arbitrable, citing Warfield v, Beth Israel Deaconess
Medical Center
--r 454 Mass. 390 (2009). However, Warfield
dealt with Section 9 claims, and not Sectinn 5 claims,
which are distinguishable. Section 9 claims are de now
actions before neutral forums such as the Superior Court,
Housing Court or Probate Court, and are not governmental
enforcement actions. G.L. c. 151B, 5 9, 412.
Next, Joulh arques that arbitration would not impair
the MCAD's enforcement function, because even if Ms.
Simons' action there is dismissed, the MTAD could pursue a
commission-initiated action against Joule. Joul& Brief, at
33. The fallacy of this argument bears some explanation.
There are two ways to initiate complaints at the MCAD.
First, a complainant may file a discrimination charge, or
second, the Commission may initiate a case itself. G.L. c.
151B, § 5. Joulfi is suggesting that the complainant-
initiated case be dismissed, but that the MCAD retains the
option to start a case all over, with a commission-
initiated charge.
Irrespective of how the complaint is initiated, both
avenues represent MCAD enforcement actions, which, if a
remedy is ordered, are prosecuted in the name of the
Commission. See Stonehill-College, 441 Mass., at 567.
There is no justifiable reason to bar one, but not the
other. Moreover, JoulP fails to identify why one type of
27

complaint would be a protected enforcement act.ion, and the
other type would not be.
The only reason for Joule to suggest such a dichotomy
between Complaj.nant- and Commission-initiated charges would
be to disrupt the MCAD‘s enforcement function. E’or
example, in a similar case, and lodging a similar argument,
the Massachusetts Bar Association, in its role as an
employer attempting to enforce an arbitration agreement,
suggested that an arbitration could co-exist wi.th a
commission-initiated action, but that thc arbitration award
would be preclusive as to the Comission’s remedies. Reply
Brief of Plaintiff-Appellant MBA, MBA v Wel-lington and
- MCAD, Appeals Court No. 2004-P-2137, at 4-5 n.2. Addendum
- D. JoulG’s suggestion is simply a back door attempt to
undermine the MCAU‘s authority, and prevenk it from
ordering remedies.
The dual track suggested by JouG would clearly be
inefficient and disruptive, and inconsistent with thc
contemplated procedures. - Marie, 402 F.3d at 16.
Finally, the dual arbitration/conunission-initiated
charge track suggested by Soul& is unworkable, given the
rule that all section 5 proceedings are exclusi.ve of other
proceedings. G.L. c. 151B, 5 9, I 1. Joule does not
explain how an arbitration could lawfully take place, if
the MCAD is continuing to pursue an commission-initiated
charge. Thus, Joule‘s true objective in asserting the
false alternative of commission-initiated actions is solely
28

to create a stumbling block. The trial court correctly
rejected this attempt to interfere with the MCAD's role.
11. MASSACHUSETTS PUBLIC POLICY PRECLUDES ENEI3RcEMENT OF A
EWE-DISPUTE WKCVER OF C. 151B RIGHTS, SIGNED AS A
CONDITION OF -!WENT
There is a separate, independent basis for dismissing
Joule's complaint. You18 required that Simmons sign the
arbitration agreement as an obligatory prerequisite of
employment, and warned her that a lack of consent would
result in loss of the job. The Court should not enforce
the arbitration agreement because JoulB's conduct
represents unlawful threats, coercion and interference with
rights, in violation of c. 1518 and public policy. G.L. c.
151B, 55 4(4A), 8.
Near the beginning of Simmons' employment, she was
forced to si.gn an arbitration agreement. App. 78. The
agrement stated, "I will not be offered employment until I
sign and return this agreement." App. 78. After Simmons
was hired, she was told by a superior that she would have
to sign "if she wanted to work at Joule." App. 68. Thus,
it was made clear that the employment relationship would
not continue unless and until Simmons prospectively signed
away her c. 151B forum rights.
Joule considered the retention of c. 151B rights to be
so despicable that it would not consider retaining an
employee that possessed them. As we will see, Joul6's
conduct in obtaining the "agreement" upon threat of
29

ejection, undermined public policy so fundamentally as to
void the agreement.
Courts do not enforce contracts, including arbitration
agreements, that violate public policy. Feeney, 454 Mass.
at 199-200 (class action waiver in arbitration agreement
voj,ded as it would have the effect of chilling consumer
cl-aims). Courts have long refused to give effect to
purported waivers of statutory rights, where enforcement of
the waiver would do vj.olence to the public policy
underlying the statute. EEOC v. Astra USA, Inc., 94 F.3d
738, 744 (Isf Cir. 1996); Beacon Hill _I - Civic Ass'n v.
Ristorante Toscano, Inc., 422 Mass. 318, 320-323 (1996).
Arbitration agreements may be voided by public policy where
an employer uses unlawful means to obtain the agreement..
See St. Fleur, - 450 Mass. at 350-356 (arbitration agreement
can be voided where the employer fraudulently induces
assent to the contract).
The MCAD has clearly taken the position that
forced, prospective waiver of section 5 rights violates c.
1518, and thus, becomes unenforceable in light of public
policy.
". Wellington case, Appeals Court No. 2009-P-2137, the MCAD
took the position khat, "An employer that requires a pre-
dispute waiver of a 5 5 right as a condition of employment
violates G.L. c. 151B, § 8 and/or $ 4(4)." Addendum E, at
3 n.4.
For example, j.n a brief filed in the MBA v.
30

Moreover, the MCAD wrote in its amicus brief in the
case of St. Fleur v. WPI Cable Systems 450 Mass. 245
(20081, that a coerced arbitration agreement signed as a
condition of employment may constitute of per se violation
of G.I.. c. 151B, 5 4 (4A). Addendum -. F, at 22-23. With
section 4(4A) in mind, the MCAD also wrote,
The Commission views compulsory pre-dispute
arbitration agreements presented as a condition of
employment as violating the public's interest in fair,
open and public proceedings envisioned by the
Legislature through G.L. c. 151B. . . . Moreover,
arbitration agreements where the employer exacts a
waiver by coercion, threats, or intimidation, of any
right granted or protected by Chapter 1518, may
constitute a per se violation of G.L. c. 151B. . . .
The Commission believes that such agreements violate
the Camonwealth's anti-discrimination statute and are
therefore unenforceable.
Addendum F, at 8 (emphasis added). The MCAD is accorded
deference in its reasonable interpretation of C. 1518.
-. Cuddyer v. Stop & Shop Supermarket Co-.", 434 Mass. 521, 534,
536 (2001) ("We have consistently granted deference to MCAD
decisions and policies").
invalidate the agreement based on Joule's coercive conduct
in inducing the "agreement. 'a
-I
MEIA urges this Court to
' A recent decision of the United States Supreme Court,
Rent-a-Center, West, Inc. v. Jackson -1 2010 U.S. Lexis 4891
(June 21, 2010), heid that employers can impose agreements
that require arbitrators, and not courts, to rule on the
enforceability of arbitration agreements. Arbitrators, for
many reasons, are institutionally inclined to favor the
enforcement arbitration agreements. Once an arbitrator has
found an agreement enforceable, a litigant is unlikely to
obtain de novo court review, as arbitration decisions are
upheld, even if they are based on an error of law. Advest,
31

'The public policy prohibiting JoulB's conduct is
absolutely clear, and is found in the non-interference
provisions of c. 151B, §§ 8, 4(4A), and the common law
proscripkion against prospective waivers of civil rights.
MElA will address these public policies below.
A, CIIAI'TER 1518, SE:CTION 8
Section 8 of chapter 1518 is a criminal provision,
designed to proscribe interference with the MCAD's
proceedings. The prov.ision states in per.tinent part: "my
person, employer . . . who or which shall . . . interfere
with the Commi.ssion . . . in the performance of duty under
this chapter . . . shall be punished . . .." G.L. c. 151B,
S 8. The provision is entitled "interference with
commission," which evinces an intent to protect the
unfettered operation of the MCAD's functions. G.L. c.
151B, 5 8; Lynn Teachers Union, Local 1037 v. MCAD, 406
Mass. 515, 524 (1990) (title of act reveals the object to
sought to be accomplished).
The MCAD is correct that, the forced, pre-dispute
arbitration agreement amounts to interference, or attempted
intefference with the ability of the MCAD to investigate
Inc. v. McCarthy, 914 F.2d 6, 8-9 (1st Cir. 1990); Coastal .-
Oil of N.E., Inc. v. Teamsters Local, 134 F.3d 466, 469
(1st Cir. 1998). Indeed, any court review of an
arbitrator's decision on this issue, regardless of how the
arbitrator rules, must be conducted through the prism of
extreme deference to the arbitrator. Consequently, it is
important for t.he Court to rule on this public policy
issue, as if will be exceedingly difficult to find another
chance to allow this Court to rule in a conclusive fashion,
on the merits.
32

and remedy violations of the statute.
heartcd participation in the MCAD's enforcement actions is
necessary for the MCAD to perform adequate investigations,
and to prot-ect the public interest. To send a case to
arbitration, and stay or dismiss the MCAD action, consigns
the MCAD to irrelevance, and sabotages its ability to
protcclr us all. Thus, the arbitration provision, obtained
under an express threat to employment, and imposed at the
whim of the employer, violates the public policy in c.
3.51B, § 8, by impairing the Commission in its ability to
hold effective proceedings and do its job.
B. CHAPTER 151B, SECTION 4(4A)
The employee's full-
'The public pol.icy prohibiting interference with c.
1.51B rights also finds expression in a civil provision of
the statuCe, G.I.. c. 151B, 5 4(4A). According 'to c. 1518,
5 4(4A), it i s a prohibited practice for an employer to
"coerce, intimidate, threaten or interfere with another
person in the exercise or enjoyment of any right granted or
protected by this chapter [c. 15181.'' The MCAD is correct
that arbitration agreements obtained by employers as a
condition of employment may constitute per se violations of
this provision. Addendum - F, at 8, 22-23.
Joule's conduct violated this provision, because it
used the threat of rejection to force an employee to
prospectively waive her right to litigate at the MCAD.
App. 68, 78. When an employer states, "waive your rights
or you are fired," that must be considered interference
33

with rights. As will be shown, section 4(4A) establishes
putil i.c pol icy inimical to mandatory, coerced arbitration,
because c. 151B confers the right to pursue discrimination
claims at the MCAD, and Joule interfered with this right
when it required Simmons to prospectively waive that right
as a condition of employment.
1. The - Option - To Pursue A Section 5 Case
Constitutes A Chapter 1518 Right -.
Chapler 151B, 5 4(4A) prohibits interference with a
person in thcir enjoyment of c. 15:tB rights. G.L. c. 151B,
5 4(4A). Therefore, the first step is to determine whether
mandatory arbitration stifles a c. l51B right. It does.
The option to pursue section 5 procedures is a c. 151B
right. The decision of Stonehill Colleqe, 441 Mass. 549,
564 (2004), noted that Complainants could 1itj.gate using
section 5 procedures at the MCAD or could go to Court, and
specifically upheld Complai.nants' "right to choose the
forum in which their cl.aim will bc heard."
The case of Warfield v. Beth Israel Deaconess Medical
- Ccnter, Inc., 454 Mass. 390 (2009), confirms that the
option of pursuing a section 5 remedy constitutes a 'right"
accorded by c. 3.51B.
The decision refers to the "right to
seek redress for employment discrimination through the
remedial paths set out in c. 151B." Warfield, 454 Mass. alr
400 (emphasis added). An employee who purportedly agrees
to arbit-rate a discrimihation claim represents a "limited
waiver of rights under G.L. c. 1518. . . . [and] does give
34

up the substantial right to seek administrative and
judicial remedies." - Warfield, 454 Mass. at 399 6 n.13
(emphasis added)
JoulG's brief twice quotes this phrase from n. 13 of
the Warfj-eld case out of context, and falsely asserts that
it stands for the proposition that an arbitration agreement
wil.1. succes.sfully trump section 5 clai.ms.
Brief, at 12, 31. Ilowever, the Warfield court was not
sayiny that mandatory axbitration agreements are always
valid as against administrative remedies. Rather, Warfield
was making the point that MELA is making here, that to the
extent that a mandatory arbitration agreement is enforced,
it represents a limitation on c. 151B rights.
Joul& Principal -
Furthermore, the context of the statement in n. 13 is
the Supreme Judicial Court's suggestion that public policy
may preclude enforcement of such waivers of c. 1518 rights.
A fuller version of the quote follows:
An agreement to arbitration employment discrimination
claims represents a limited waiver of Tights under
G.L. c. 151B. An employee who agrees to arbitration
such a claim of course does not forgo the substantive
fights afforded by the statute [citation omitted], but
does give up the substantial right to seek
administrative or judicial remedies. Because it is
not raised here, we do not reach the question whether,
in view of our public policy proscribing employment
discrimination, any additional protections beyond
unambiguous language may be necessary before an
employment contract may provide for limitations on the
rights and remedies spelled out in G.L. c. 151B.
Warfield, 451 Mass. at 399 n. 13 (emphasis added). Thus,
mandatory arbitration impairs c. 151R rights, and raises
35

public policy concerns, which may justify "additional
protcctions" restricting such waivers. Id.
-
'J'he case of Blanchette v. School Cormnittee of
-1 -.
Westwood, -__ 421 Mass. 176 (1998), made the analogous holding
t-hat the abill.ty to choose a judicial forum (SectJon 9
claim) iinplicates a c. 151B right. Hlanchette involved the
quest-ion of whether an employee pursuing a c. 151B claim
waived her right to a judicial forum by pursuing a union
arbitration uf a re1at.p.d grievance. The Supreme Judicial
Court held that Che ri.ght to a court determination was
preserved, stating:
- .-
We note first that Blanchette did not waive her right
to pursue hex statutory civil rights claim in a
judicial forum merely by being a member of a union
that was'covered by a collective bargaining agrement.
...
The larger question js whether Blanchette, by her own
individual actions, waived her right to pursue her
statutory civil rights claim in a judicial forum. . .
Blanchette may have been able explicitly and
voluntarily to waive her right to pursue her statutory
civil rights claim in a judicial forum.
Blanchette, .- 42'1 Mass. at 183-184 (emphasis added). If c.
151B confers a "right" to pursue a section 9 claim, then
there must be a similar ri.ght to litiyate under section 5.
Thus, it is established beyond dispute that the right to
pursue a section 5 claim in the MUD, is a c. 151B right.
36

2. The Threat To Reject. Simmons' For Failing To
Agrco To Mandatory Arbitration Constitutes
Threats, Coercion And Interference With Rights
In Violation Of Section 4 (4a)
Having established that the option of pursuing a
section 5 c1ai.m i.s a c. 1518 "right," it necessarily
follows that an employer's requirement, under threat of
rejection, that an employee or applicant prospectively
waives that right, constitutes a threat, coercion, or
interference with rights in violation of G.L. c. 151B, 5
4 (4A). It is only necessary to prove one of these elements
to demonstrate a violation of the Law. MELA will establish
the presence of interference, coercion and/or threats in
the following three sections.
a. Joule Unlawfully Coerced Simmons To - Obtain The
Release of Chapter 151B 5 5 Forum Rights
I
Tt i.s i.llegal "to coerce . . . another person in the
exercise or enjoyment of any right granted or protected by
[c. 15181 ." G.L. c. 151B, 5 4(4A). Simons was coerced
with respect to her rights, in the she was instructed to
waive her rights under the threat of termination
(indus.tr.ial capital. punishment). Simmons signed the
agreement after she was informed in writing that, "I will
not bo offered employment until I sign and return this
agreement," and after being informed verbally that she had
to sign if she wanted to work there. App. 68, 78.
Coercion is "the application to another of such force,
either physical. or moral, as to constrain him to do against
his will something he would not otherwise have done."
37

Buster v. .. George W. Moore, Inc., - 138 Mass. 635, 645 (2003)
(Massachusetts Civil. Rights Act) .
ticonomic coercion,
standing alone, may be actionable. - Id. at 616-48.
Joul6's conduct was not ar1 acceptable means for
inducing Complainant' s consent. Condikioning continued
employment on a wai.ver of rights is cocrci.ve. Garrity - v.
- New Jersey, 8.1 S. CL. 616, 618 (3967) (where cmployees were
given the choice hetween waiving their Fifth Amendment
rights and job forfeiture, this constituted coercion);
-_ Beaupre v. Cliff Smith & Assoc., . .- 50 Mass. App. 480, 495-496
(2000)
(conditioning continued empl.oymcnt on acquiescence
to sexual harassment is coercion under c. 1.51B).
The National Labor Relations Act ("NLKA") contains a
prohibition similar (but not identical) to c. 151B, in that
it prohibits empl.oyers from Bnterfering with, or coercing
employees in their exercise of NLRA rights. 29 U.S.C. 5
l58(a)(1). The First Circuit recognized that supervisors'
mere presence when signatures are solicited, observing who
signed or did not, was coercive in gettiny recognition for
an employer-favored union. NLRB v. Vernitron -I. Elec.
3
Conduct is illeqallv - coercive if it reasonably - tends to
chill the exercise of rights. Hospital Cristo Redentor,
Inc. v. NLRB, 488 F. 3d 513, 517 (lst Cir. 2007)
(interpreting similar provision in the NLRA) . "1.t is the
coercive tendency of employer statements, not their actual
effect, that constitutes a violation of the Act." Id. at
517, quoting NLRB v. . Marine Optical, Inc. 671. F.2d 11, 18
(lst Cir.-'-1982) (emphasis in original). Thus, conduct may
be held coercive, even if they are also susceptible to a
non-coercive interpretation. Marine
F.2d at 18.
38

Components, Inc., 548 F.2d 24, 26 (Jst Cir. 1977). If a
supervisor's presence at signing can bc deemed a coercive
influence over an employee's decision to sign, a pre-
printed waiver that an applicant must sign in order to
remain an employee has to constitute coercion. Civil.
rights have no substance if the party being regulated can
unilaterally opt out of the regulatory system by forcing
the other party, to give up her rights. Thus, Joul&'s
conduct was coercive, in violation of section 4(4A).
b. Joule Threatened Sirrunons
An employer may not threaten an employee with respect.
to that employee's enjoyment of c. 151B rights. G.1,. c.
151B, 5 4(4A). It is "an unlawful practice . . . Fox any
person to . . . threaten . . . another person in the
exercise or enjoyment of any riyht granted or protected by
[c. 15181." - Id. Here, the threat was overt; Shmons was
repeatedly informed that she could not continue as an
employee unless she signed the arbitration agreement. App.
68, 78.
To be actionable, the threat need not constitute
physical intimidation. A threat to the employment
relationship is sufficient. Bairi v. Sprixfield, - - .- 424 Mass.
758, 765 (1997). A threat violates 5 4(4A) even if the
employer does not act on it. ~
Bain, 424 Mass. at 765 & n.4.
Thus, Joule's conduct in obtaining the arbitration
agreement violated c. 1518. See NLRn v. Reed & Prince Mfg.
Co., 118 F.2d 874, 884-885, 887 (1st Cir. 1941) (employer's
39

campaign againsl: union constitut.ed interference and
coercion, because i.n its literature, "the threat was only
thinly veiled that. thc acceptance of that contract was a
sine qua rion of recmpl.oyment") .
The line between acceptable hard bargaining and one
that is threatening varies, depending upon the rights at
issue, and the underlying public policy.
Universal Maritime .. . Servi.ce -. Corp., 119 S. Ct. 391, 396
(1998). For example, an employer may tell an employee,
"you will work here for $10.00 an hour; take it: or leave
it." The resulting contract is enforceable, and not
coercivc, because an employer is generally entitled to
retain an at-will employee on terms satisfactory to the
employer. Hard bargaining involving compensation (beyond
minimum wage) is l.egitimate, and is not an actionable
threat.
- See Wright - v.
However, an employer may not tell an employee, "we'll
only retain you if you promise to acquiesce to sexual
harassment; take it or leave it." - See Beaupre, 50 Mass.
App. at 495-496. That contract is the result of an
unlawful threat or coercion, and it is precisely the
conduct that c. 3.51B, S§ 4(4A) & 4(5) sought to prohibit.
- Id. Hard bargaining over c. 151B rights is impermissible.
A waiver of important civil rights must not be a
condition of: employment.
This prhciple is demonstrated in
a backward €ashion in the case ol Miller v. Cotter, 448
Mass. 671 (2007), where an arbitration agreement in a
40

nursing home contract was ruled enforceable, becausc it was
I not a condition of admission.
was not a condition of admission was repeatedly stressed as
an important factor favoring enforcement. Id. at 673, 680,
681, 682 n.15. Consequently, the act of conditioning
employment upon a prospective waiver of c. 1518 rights must
be deemed coercive.
The fact that the agrement
-
c. Youle Interfered With Simmons‘ Rights
Joule interfered with Simons‘ enjoyment of her
section 5 rights when it required her to prospectively sign
away those rights, on threat of termination. Under the
statute, it is unlawful to “threaten . . . another person
in the exercise or enjoyment of any right granted or
protected by [c. 1SlBl .“ G.L. c. 151B, 5 4 (4A). Joule
acted in a manner calculated to interfere with rights, i.e.
that is, to prevent. Simmons from enjoying those rights for
future claims. G.L. c. 1518, 5 4(4A) +
“Interference” with rights is a term with broad
application to practices designed to diminish rights.
Walker v. Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001)
See
(discussing similar provision in federal fair housing act).
When an employer attempts to have an employee sign a
contract that limits their c. 151B rights, that can seen as
improper interference. Fox example, in I Melnychenko v.
84 -
Lumber Co., 424 Mass. 285, 295 (1997), the employer sought
to have an employee sign away his rights to assist a CO-
worker in the co-worker’s sexual harassment case. The
41

Supreme Judicial Court found that the attempt tu extinyuish
this right through a contract would have warranted a
finding that the company attempted to interfere wi.th the
employee's rights. -~ Id. Thus, a contractual waiver of
rights demanded by an employer may form the basis of
unlawful interference with enjoyment of rights. 4
A New Jersey Superior Court has found that mandatory
arbitration constitutes unlawful "interference" under a
provision similar to section 1(4A). Ackerman v. The Money
Store, 728 A.2d 873, 878 (N.J. Super. Ct. Law Div. 1998).
In Ackerman
-.-r the plaintiff was fired for refusing to agree
to a pre-dispute arbitration provision.
anti-discrimination statute, like c. 151H, 5 4(4A) makes it
unlawful to "coerce, intimidate, threaten, or interfere
with any person in the exercise or enjoyment of . . . any
right granted or protected by this act."
N.J.S.A. 10:5-12(6). The court noted that the arbitration
provision amounted to a waiver of procedural rights.
at 878-879. After an extensive analysis, the court held
that conditioning employment on agreement to mandatory
arbitration constitutes actionable interference with those
rights. - Id. at 879-880.
-,
The New Jersey
- Id. at 877;
4
Firing an individual based on protected status may also
constitute interference with rights. NLRB v. Horizons
-- Hotel Corp., 49 F.3d 795, 804 (ISt Cir. 1995); Navarro v.
Pfizer Cory., 261 F.3d 90, 95 (lSt Cir. 2001); --- Barbour v.
Qnmi.cs Research Corp., 63 F.3d 32, 37 (lSt Cir. 1995).
Consequently, a threat to fire falls within this category
of unlawfu,l conduct.
42
Id.

When an employer says, "waive your c. 1518 rights or
you're fired," how can that not be considered interference
with rights'? The peril facing Simmons was plain on the
contract's face. App. 78. Consequently, Joule interfered
with Simmons' in hex enjoyment of rights when it
specifically stated that she would be rejected in the
absence of a waiver. To enforce the arbitration agreement
under t.he circumstances would encourage Joule and other
employers to continue their Lawbreaking campaigns of
threats and intimidation.
C. COMMON LAW SKEPTICISM OF PROSPECTIVE WAIVERS OF CIVIL
RIGHTS
In addition to §§ 4(4A) and 8, there i s yet another
source of public policy that invalidates the arbitration
agreement. The comon law has long expressed a healthy
skepticism of prospective waivers other civil rights. This
skepticism bolsters the finding that the mandatory, forced
waiver of section 5 rights violates public policy.
As a society, we allow claimants to release rights
after a claim axises, but not before, because a pre-dispute
release diminishes deterrence to lawbreakers, and raises
issues of unfairness. 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, at 105, 110-113, 117-118. We would not tolerate,
for example, the state requiring applicants to
43

prospectively waive future Miranda or jury trial rights as
a condition for applying fur public employment.
This Court recently held that a prospecti.ve waiver of
c. 151B substantive claims would be void, as against public
policy. - Warfield, 454 Mass. at 399 n. 13 ("no employment
contract purporting to waive entirely an employee's right
to assert or seek any redress for a claim of
discrimination, no matter how unambiguously the waiver
might be stated, would be entitled to enforcement").
Certain statutory rights, including c. 1518 rights,
are considered not subject to prospective waiver. Ualuz ,~- v.
Department of Correction, 434 Mass. 40, 46-47 (2001). This
Court held, for example, that "Rights set forth in [c.
15lBJ § 4(9A) may not be waived." _I
Kraft v. Police Comm'r,
410 Mass. 155, 158 L1991). Such prospective waivers
undermine the protections that the Legislature imposed to
protect the employee in particular, and society in general.
Id.
-
There are plenty of other cases that hold that
prospective waivers of civil rights will not be recognized.
-. See Cole v. Burns Intern. Security .. Services, 105 F.3d 1465,
1482 (D.C. Cir. 1997) (prospective release of future claims
of employment discrimination would be void) ; Stirlen v.
Supercuts, Inc.., 60 Cal.Rptr. 2d 138, 150 (Cal. App. 1
Dist. 1997) (arbitration agreement prospectively waiving
rights to award of punitive damages and attorneys fees €or
discrimination claims violates public policy); Williams --^-I v.
44

Vokovich, 720 F.2d 909, 925 (8th Cir. 1983) (consent decree
containing waivers of future discrimination claims held
invalid); United States v. Allegheny-Ludlum Industries,
Inc., 51’1 F.2d 826, 854-5 (5th Cir. 1975), cert. denied 425
U.S. 944 (1976).
Consequently, the common law supports a public policy
preventing enforcement of prospective waivers of: c. 151H
rights, especially where procured by threats to the
employment relationship.
D. THE FEDERM ARBITRATION ACT WES NOT PROTECT COERCED
AGREEMENTS
The rule urged by MELA is one of general application,
that an employer may not use threats to employment or other
coercion in obtaining prospective waivers of civil riqhts.
The rule applies to arbitration agreements, but it applies
equally to all waivers of other civil rights, including the
right to be free of discrimination and harassment, the
right to file claims with investigatory bodies, ‘chc right
to assist others in opposing discrimination, and the right
to a full panoply of monetary and equitable remedies.
Section 5 rights should be protected from coerced
prospective waiver no more than these othex rights, but
certainly no less.
Given that such a defense would protect all civil
riqhts equally, whether or not such rights touch upon
arbitration, the rule would not be preempted by the Federal.
Arbitration Act, 9 U.S.C. §§ 1, et seq. St. Fleur, 450
45

Mass. at 354 (fraud-in-the-inducement defense to an
arbitration agreement is valid, and not subject to FAA
preemption, because the defense applies to contracts
generally, and not just arbitration agreements); Warfield,
IS4 Mass. at 398-400 (public policy precluding waiver of
any c. 1518 right, unless the written waiver is clear and
unmistakable, is not preempted by FAA, because all c. 151B
rights are so protected, whether or not arbitration is
involved); Feeney, 451 Mass. at 208-210 (class action
waiver in an arbitration agreement, that had the effect of
prohibiting small consumer protection act claims, violates
pub]-ic policy and voids the arbitration provision; and the
policy protecting small" c. 93A claims is not preempted by
the FAA because it is not inherently antagonistic towards
arbitration, and applies to other actions that would impair
c. 93A claims).
The courts have not, nor could they, authorize coerced
arbitration agreements. "[Alrbitration under the [FAA] is
a matter of consent, not coercion." Volt Info. Sci., Inc.
v. Bd. "._-I of Tr. of Leland Stanford, 109 S. Ct. 1248, 1256
(1989); Mastrobuono v. Shearson Lehman Hutton, -_ 115 S. Ct.
1212, 1216 (1995); Waffle House, Inc., 122 S . Cf. aC 769.
The Supreme Court has enforced arbitration agreements only
in the absence of cvidencc of coercion. Gilmer v.
-
Interstate/Johnson Lane Corp., 111 S. Ct. 1647, 1656 (1991)
("There is no indication . . . that Gilrner . . . was
46

coerced"). It is up to state law to define what improper
coercion is. 9 W.S.C. § 2.
Under the FAA, where the voluntariness of the
agreement is at issue, there is no presumption favoring
arbitration. - McCarthy
-_. v. Azure, 1- 22
F.3d 351, 355 (1st Cir.
1994) (presumption of arbitrability does not apply when
Court is considering whether "arbitration rest [SI on a
consensual foundation"). Thus, neither the FAA or MAA, or
the presumption of arbitrability that they may imply, bear
upon the enforceability of this agreement.
Moreover, as shown above, the FAA and MAA are
inapplicable, because the MCAD never signed the arbitration
agreement at issue. Maria, 402 F.3d at 16 ("The EEOC is a
nonparty to the arbitration agreement and therefore cannot
be bound by it"). Thus, Massachusetts law, and public
policy controls here, and clearly invalidates the
agreement, as the product of unlawful threats.
CONLWSICW
For tho foregoing reasons, the JoulG complaint should
be dismissed, and the MCAD proceedings should be permitted
to continue.
47

,-
Respectfully submitted,
The Massachusetts Employment
Lawyers Association,
By its Attorney
Robert S. Mantell
BBO# 559715
Rodgess, Powers & Schwartz LLP
18 Tremont Street
Suite 500
Boston, MA 02108
(617) 742-7010
RULE 16 (k) CERTIFICATION
I hereby certify that the foregoing brief complies
with all rules pertai.ning to the filing of briefs with this
court.. *-
CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2010, I served two
copies of this brief on counsel of record for all parties,
including Barbara A. Robb, Esq., Shilepsky O'Connell
Hartley Casey Michon Yden Robb LLP, One Financial Center,
15th Floor, Boston, MA 02111-2688, Herbert L. Holtz, Esq.,
Holtz & Reed, LLP, One Bowdoin Square, Boston, MA 02114,
and Beverly I. Ward, Esq., Massachusetts Commission Against
Discrimination, One Asburton Place, Room 601, Boston, MA
02108, by First Class Mail.
48