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COMMONWEALTH OF MASSACHUSETTS<br />
SUPREME JUDICIAL COURT<br />
SJC No. 10712<br />
JO&, INC., JOULE TECHNICIAL STAFFING,<br />
INC., JOHN G. WELLMAN and KhRI BURKE<br />
Plaintiff-Appellants<br />
V.<br />
RAND1 SIMMONS,<br />
Defendant-Appellee<br />
and<br />
MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION<br />
Defendant Intervener-Appellee<br />
On Appeal From an Order of the Superior Court<br />
<strong>for</strong> <strong>Suffolk</strong> <strong>County</strong><br />
Memorandum of Amicus Curiae of the<br />
<strong>Mass</strong>achusetts Employment Lawyers Association<br />
<strong>Mass</strong>achusetts<br />
Fmp 1 o pent. Law ye r s<br />
As so cia t ion,<br />
Robert S. Mantell<br />
BBO# 559715<br />
Rodgers, Powers & Schwartz LLP<br />
18 Trcmont St., Suite 500<br />
Boston, MA 02108<br />
(617) 742-703.0, ext. 305<br />
Fax (617) 742-7225
TABLE OF AUTHORITIF3 iii<br />
STATEMENT OE' ISSUES 1<br />
INTEREST OF' AMICIIS CUR.lAE 1<br />
STATKMENT OF THE: CASE 3<br />
STATEMENT OF THE FACTS 3<br />
SUMMARY OF THE ARGUMENT 3<br />
ARGUMENT 7<br />
I. THE MCAD'S INVESTIGATIVE AND LAW ENFORCEMENT<br />
!?UNCTIONS ARE: NOT IJERAILED BY A PRIVATE<br />
I<br />
AGREEMENT BETWEEN OTHER PARTIE3 . 8<br />
A. UNDER PRESTON, A GOVRRNMENTAL PROSECITYOR<br />
RETAINS ITS AUTHORITY TO ENFORCE THE IAW,<br />
DESPITE AN ARBITRATION PROVTSION SIGNED BY<br />
PRIVATE PARTIES 10<br />
R. ENFORCEMENT ACTIONS OF TIIE EQUAL EMPLOYMENT<br />
OPPORTUNITY COMMTSSION ARE NOT STAYED OR<br />
DISMISSED DUE TO ARRITRA1'ION PROVISIONS 11.2<br />
C. THE M a0 EXERCISES POLICE POWER IN THE<br />
PROSECUTION OF' SECTION 5 CLAIMS . 14<br />
D. THE MCAD'S ROLE IS ANALOGOUS TO TINT OF<br />
THE EEOC 20<br />
E. THE MCAD ACTS AS A PROSECUTOR, EVEN WHEN IT<br />
IS ALSO PERFORMING A FACT-k-INDING FUNCTION 24<br />
F. .MCAD AND EEOC PROCEEDINGS ARE INTERWOVEN, AND<br />
INTERFERENCE WITH MCAU ACTIONS WILL CmTE<br />
EXTREMELY DIFFICULT PROBLEMS INVOLVING 26<br />
INEFFICIENT, DUPLICATIVE PROCEEDINGS<br />
G.<br />
JOULk'S OTHER ARGUMENTS ARE OFF-POINT<br />
AND ERRONEOUS 27
-<br />
11. MASSACHUSETTS PUBLIC POLICY I'RECLUDES<br />
- ENFORCEMENT OF A PRE-DISPUTE WAIVER OF<br />
c. 1518 RIGHTS, SIGNED AS A CONDITION<br />
OF EMPLOYMENT 29<br />
A. CHAPTER 1538, SECTION 8 32<br />
R. CHAPTER 1510, SECTION 4(4A) 33<br />
1. The Option To Pursue A Section 5 Case<br />
Constitutes A Chapter 151B Hight 34<br />
2. The Threat To Reject Simmons' For Failing<br />
1'0 Agree To Mandatory Arbitration Constitutes<br />
Threats, Coercion And Interference With<br />
Rights In Violation Of Section 4(4A) 37<br />
a. Joule Unlawfully Coerced Simmons To<br />
Obtain The Release of Chapter 151B § 5<br />
Forum Rights 3 'I<br />
b. Joule Threatened Simmons . 39<br />
c. JoulG Interfered With Simons' Right.s 41<br />
C. COMMON LAW SKEPTICISM OF PROSPECTIVE<br />
WAIVKRS OF CIVIL RIGHTS 43<br />
13. THE FEDERAL ARBITRATION ACT DOES NOT<br />
PROTECT COERCED AGREEMENTS 45<br />
CONCLUSION 41<br />
CERTIFICATES OF SERVICE AND COMPLIANCE 48<br />
..<br />
11
CASES<br />
-<br />
TABLE OF AUTHORITIES<br />
Ackerman v. .The Money Store, 728 A.2d 873<br />
(N.J. Super. Ct. LA ~ iv. 7998)<br />
Advest, -. Tnc. v. McCa*, 914 P.2d 6<br />
,.<br />
(1st Cir. 1990)<br />
- Bain v. Springfield, 424 <strong>Mass</strong>'. 758 (1997)<br />
-<br />
Barbour v. Dynamics Research Coxp.,<br />
63 F.3d 32, 37 (lSt Cir. 1995)<br />
Beacon Hill Civic Ass'n v. Ristorante<br />
Toscano, Inc., 422 <strong>Mass</strong>. 318 (1996)<br />
- Bcaupre v. Cliff Smith & Assoc.,<br />
50 <strong>Mass</strong>. App. 480 (2000)<br />
Blanchctte v. School Committee of Westwood -r<br />
427 <strong>Mass</strong>. 176 (1998)<br />
Buster v. George W. Moore, Inc. ---r<br />
438 <strong>Mass</strong>. 635(2003)<br />
C.oasta1 O il of N.E., Inc. v. Teamsters Local,<br />
134 F.3d 466 (1st Cir. 1998)<br />
Cole v. Burns Intern. Security Services,<br />
105 F.3d 1465 (D.C. Cir. 1997)<br />
Cuddyer v. Stop L Shop Supermarket I Co.,<br />
434 <strong>Mass</strong>. 521 (2001)<br />
Daluz v. Department of Correction,<br />
434 <strong>Mass</strong>. 40 (2001)<br />
East Chop Tennis Club v. MCAD,<br />
364 <strong>Mass</strong>. 444 (1973)<br />
EEOC v. AStm USA, Inc.,<br />
94 F.3d 738 (lSt Cir. 1996)<br />
...<br />
111<br />
42<br />
32<br />
39<br />
42<br />
30<br />
38, 10<br />
36<br />
38<br />
32<br />
44<br />
3 1.<br />
44<br />
18, 22<br />
30
EEOC V. Waffle House, InC.,<br />
122 s. Ct. 754 (20021<br />
Feeney ,v. Dell, 454 <strong>Mass</strong>. 192 (2009)<br />
Garrity v. New Jersey, 87 5. Ct. 616 (1967)<br />
-<br />
-.<br />
Gilmcr v. Xnterstate/Johnson Lane Cork, 111 S. Ct. 1647 (1991)<br />
Hospital Cristo Redentor, Inc. v. NLRB,<br />
488 F. 3d 513 (lSt<br />
Cir. 2007)<br />
In re Mohawk Greenfield Motel C o p ,<br />
239 B.R. 1 (Bankr. D. <strong>Mass</strong>, 1999)<br />
Joule, Inc. v. Simmons, Order on Plaintiffs'<br />
Motion to En<strong>for</strong>ce an Arbitration Agreement<br />
Under Federal Arbitration Act and<br />
<strong>Mass</strong>achusetts Arbitration Act, C.A. No. 09-4920,<br />
<strong>Suffolk</strong> ss., Troy, J., January 7, 2010<br />
Kraft v. Police Comm'r, 410 <strong>Mass</strong>. 155 (1991)<br />
Lynn Teachers Union, Local ~" LO37 v. .- MUD,<br />
406 <strong>Mass</strong>. 515 (1990)<br />
passim<br />
passim<br />
38<br />
46<br />
38<br />
16, 21<br />
Marie v. Allied Home Mortgage Corp., -.x<br />
402 F.3d 1 (19t Cir. 2005) 14, 26, 28, 41<br />
<strong>Mass</strong>. Bar Association, Inc. v. Wellington and MCAD,<br />
Memorandum of Decision and Order on Plaintiff's<br />
Motion to Reconsider, C.A. No. SUCV2009-1257 €1,<br />
June 16, 2009 24<br />
<strong>Mass</strong>achusetts Bay Transp. Auth. v. Boston<br />
Carmen's Union, Local - 589, 545 M&. 19 (2009)<br />
- -<br />
Mastrobuono v. Shearson Lehman Hutton,<br />
115 s. Ct. 3.212 (1995)<br />
McCarthy v. Azure, 22 F.3d 351 (1st Cir. 1994) 47<br />
Melnychenko v. 84 Lumber Co.,<br />
424 <strong>Mass</strong>. 285 (1997) 41<br />
Miller v. Cotter, 448 <strong>Mass</strong>. 671 (2007) 40<br />
iv<br />
23<br />
44<br />
32<br />
15<br />
46
Navarro v. Pfizer Corp.,<br />
261 F.3d 90, 95ylst Ci;. 2001)<br />
NLRB v. Horizons Hotel Corp.,<br />
-I<br />
49 F.3d 795, 804 (ISt bir. 1995)<br />
NLRB v. Marine Optical, Inc.<br />
671 F.2d 11 (lSt Cir. 1982) r<br />
NLRB v. Reed & Prince Mfg.Co. .-<<br />
118 F.2d 874 (1st Cir. 1941)<br />
NLRB v. Vernitron Elec. Components, Inc.,<br />
548 F.2d 24 (1st C ir. 19'77)<br />
Preston v. Ferrs, 128 S. Ct. 978 (2008)<br />
Rent-a-Center, West, Inc. v. Jackson,<br />
2010 U.S. Lexis 4891 (June 21, 2010)<br />
Skirchak v. Dynamics - Research Corp.,<br />
508 F.3d 49 (1st Cir. 2007)<br />
- St. Fleur v. WPI Cable Sys./Mutron,<br />
450 <strong>Mass</strong>. 345 (2008)<br />
Stirlcn v. Supercuts, Inc.,<br />
60 Cal.Rptr. 2d 138 (Cal. App. 1 D ist. 1997)<br />
-_ Stonehill College v. MCAD, 441 <strong>Mass</strong>. 549,<br />
cert. denied sub nom. -. Wilfcrt Bros. Realty Co.<br />
v. MCAD, 543 U.S. 979 (2004)<br />
- Thomas v. ED1 Specialists, I-nL,<br />
437,<strong>Mass</strong>. 536 (2002)<br />
Thurdin v. SEI Boston, LLC, -.<br />
452 <strong>Mass</strong>. 436 (2008)<br />
United States v. Allegheny-Ludlum Industries,<br />
-I Inc. 517 F.2d 826 (5th Ci.r. 1975),<br />
cere. denied 425 U.S. 944 (1976)<br />
I<br />
Volt Info. Sci., Inc. v. Ed. of Tr. of<br />
Leland Stan<strong>for</strong>d, 109 S. Ct'i 1248 (1989)<br />
I "_<br />
V<br />
42<br />
42<br />
38<br />
39<br />
38<br />
10-11, 20-1<br />
P<br />
3 1.<br />
20<br />
ssi<br />
44<br />
passim<br />
17, 23<br />
16<br />
45<br />
46<br />
n
Wal.ker v. Lakewood,<br />
272 F.3d 1114 (9th Cir. 2001)<br />
Warfield v. Beth Israel DeaconesS Medical<br />
Center, E, 454 <strong>Mass</strong>. 390 (2009)<br />
-. Williams v. Vokovich,<br />
720 F.2d 909 (8th Cir. 1983)<br />
Wright. v. Universal Maritime Service Corp.,<br />
-<br />
119 S. Ct. 393 (i'998)<br />
STATUTES AND REGULATIONS<br />
9 U.S.C. 55 1, et seq.<br />
29 U.S.C. 5 158(a) (1)<br />
G.L. c. 151B, 5 4(4A)<br />
G.L. c. 151B, 5 5<br />
G.L. c. 151B, 5 6<br />
G.L. c. 1519, 5 8<br />
G.L. c. 151B, 5 9<br />
G.L. c. 251, 5 1<br />
804 CMR 1.02<br />
804 CMR 1.09(5)<br />
804 CMR 1.13(4)<br />
004 CMR 1.15(6)<br />
804 CMR 1.18(1) (a)<br />
804 CMR 1.18(1) (c)<br />
804 CMR 1.10(4)<br />
804 CMR 1.20(3)<br />
vi<br />
41<br />
passim<br />
44<br />
40<br />
45, 46<br />
38<br />
passim<br />
passim<br />
19, 23,<br />
29, 32-33<br />
passim<br />
23<br />
15, 20<br />
19, 21<br />
17, 22<br />
17, 21<br />
16, 23<br />
16, 22<br />
18, 21<br />
16, 21, 22
801 CMR 1.2Z(1)<br />
oTnm AUTHORITIES<br />
D. Schwartz, "En<strong>for</strong>cing Small Print to Protect<br />
Big Business: Employee and Consumer Rights<br />
Claims in an Age of Compelled Arbitration,<br />
1997 wis. L. Rev. 33<br />
Superior Court Standing Order 1-96(2)<br />
vii<br />
22<br />
43<br />
19, 21
1.<br />
STATEMENT OF ISSUES<br />
siyned by the <strong>Mass</strong>achusetts Commission Against<br />
Discrimination, prevents the MCAD from pursuing an<br />
administrative en<strong>for</strong>cement action in its own name to<br />
discover, remedy and deter discrimination.<br />
2.<br />
Whether an arbitration agreement that has not been<br />
Where an employer threatens to terminate an employee<br />
unless she signs an arbitration agreement, does public<br />
policy void the agreement because the law prohibits<br />
threats, coercion and interference with respect to<br />
enjoyment of chapter 1518 rights.<br />
INTEWZST OF AMINS CURIAE<br />
The <strong>Mass</strong>achusetts Employment Lawyers Association<br />
("MELA") is a voluntary membership organization of over 145<br />
lawyers who regularly represent employees in labor,<br />
employment and civil rights disputes in <strong>Mass</strong>achusetts.<br />
MELA is an affiliate of the National Employment Lawyers<br />
Association ("NELA") , one of the largest organizations of<br />
attorneys in the United States (approximately 3,000<br />
lawyers), whose members regularly represent employees and<br />
applicants with claims arising out of the workplace.<br />
MELA's members are active in advocating <strong>for</strong> the rights<br />
of employees be<strong>for</strong>e the executive, legislative and judicial<br />
branches. MELA has filed a sizable number of amicus curiae<br />
briefs in cases be<strong>for</strong>e the Appellate Courts of<br />
<strong>Mass</strong>achusetts, including: St. Fleur v. WPZ Cable<br />
Sys/Mutron, 450 <strong>Mass</strong>. 345 (2008); Gasior v. <strong>Mass</strong>. Gen.<br />
I
Hosp., 446 <strong>Mass</strong>. 645 (2006); 3ash v. Dana-Farber .. Cancer<br />
Inst., 443 <strong>Mass</strong>. 367 (2005); Thomas v. ED1 Specialists,<br />
- Inc., 437 <strong>Mass</strong>. 536 (2002); and Weber v. Cmty. Teamwork,<br />
- Inc., 434 <strong>Mass</strong>. 761 (2001).<br />
The <strong>Mass</strong>achusetts Conmission Against Discrimination<br />
("MCAD") is the front line <strong>for</strong> en<strong>for</strong>cement of the<br />
Commonwealth' s anti-discriminati.on statutes. The MCAD' s<br />
caseload is diverse, and includes many pro se complainants,<br />
and cases brought by employees who simpxy do not have the<br />
financial capac,ity to retain lawyers.<br />
arbitration of these cases, and divesting the MCAD of<br />
jurisdiction, wi.11 result in a substantial reduction in the<br />
en<strong>for</strong>cement of our anti-discrimination laws.<br />
Compelling<br />
The MCAD's prosecutorial presence is crucial to<br />
support the Commonwealth's overriding public policy to<br />
prohibit discrimination.<br />
to take this activist role, as it is necessary to maintain<br />
public safety and welfare. MELA's members, lawyers who<br />
represent employees against more powerful, corporate<br />
entities, understand the pub1i.c policy disaster that will<br />
result if employers are permitted to avoid the scrutiny and<br />
en<strong>for</strong>cement powers of the MCAD through coerced, pre-dispute<br />
side-agreements.<br />
-_<br />
The Legislature designed the MCAD<br />
2
STATEMENT OF TAE CASE<br />
MELA adopts Defendant-Appellee Randi Simmons'<br />
stalment of the case.<br />
STATWdEWl! OF THE EACTS<br />
MELA adopts Simmons' statement of the facts.<br />
S-Y OF THE ARGUMENT<br />
The Supreme Court held, in Preston v. Ferrer, that an<br />
arbitration agreement between private parties is powerless<br />
to divest the en<strong>for</strong>cement authority of a governmental<br />
agency acting in the role of a prosecutor.<br />
would be similar to requiring the police and District<br />
Attorney not to investigate and prosecute criminal actions,<br />
based on side-agreements imposed on victims.<br />
agency is acting solely in the capacity of a neutral<br />
arbiter, then its role may be supplanted by arbitration.<br />
However, when an agency is acting as a prosecutor,<br />
protecting the public health and welfare, arbitration<br />
agreements between the private parties does not interfere<br />
with the government's police power.<br />
(8-11)<br />
A contrary rule<br />
When an<br />
Likewise, in EEOC v. Waffle House, Inc., the Supreme<br />
Court held that a private arbitration agreement will not<br />
undermine an en<strong>for</strong>cement action initiated by the Equal<br />
Employment Opportunity Commission (''EEOC") . The Court<br />
protected the EEOC's role <strong>for</strong> many reasons, including that<br />
the EEOC en<strong>for</strong>cement action was prosecuted in the EEOC's<br />
name, the EEOC sought relief in the public interest, the<br />
EEOC controlled the contours of the case and the relief<br />
3
sought, and the GEOC did not sign the arbitration<br />
agreemcnt. (12-14) .<br />
The <strong>Mass</strong>achusetts Comrni.ssion Against Discrimination is<br />
Lrhe Commonwealth's anal.ogue to the FEOC, and the MCAD<br />
prosecutes c. 153.8 cases in a manner similar to the EEOC.<br />
The MCAll is thc Conunonwealth's primary en<strong>for</strong>cer of c. 151B,<br />
and c. 151H represents the Commonwealth's overriding public<br />
polj.cy. The MCAU prosecutes section 5 actions in its own<br />
name, and in the public interest. It is the MCAD that<br />
controls the course of the litigation, permits and pursues<br />
discovery, frames the issues to be decided, seeks remedies<br />
to satisfy the public's interest in the claim, and en<strong>for</strong>ces<br />
the decisions. Finally, the MUD did not sign the<br />
arbitration agreement, and there<strong>for</strong>e, the agreement is not<br />
binding upon it. (24-19)<br />
The Supreme Court has identified eleven factors on<br />
which it based its detominatien that prosecuting agencies<br />
are immunized from compelled arbitration. A review of the<br />
law and regulations demonstrates that the MCAD falls within<br />
each of these factors, and should likewise be protected.<br />
Furthermore, en<strong>for</strong>cement of the arbitration agreement would<br />
considerably undermine the MCAD's protective function, and<br />
undcnine the c. 151B en<strong>for</strong>cement scheme. (20-24).<br />
The Federal and <strong>Mass</strong>achusetts arbitration acts do not<br />
apply, because the MCAD did not sign the arbitration<br />
agreement. (14). Moreover, en<strong>for</strong>cement of the arbitration<br />
agreement would have an enormous, real-world effect in<br />
4
undermining the many cases pursued by the MCAD, including<br />
claims of pro se and/or low-wage-earning claimants. (24-<br />
25). En<strong>for</strong>cement of arbitration agreements in this<br />
circumstance would lead to a procedural morass, whereby the<br />
MCAD's en<strong>for</strong>cement authority is curtailed, but the EEOC's<br />
ri.qht to en<strong>for</strong>ce parallel claims continues. (26).<br />
<strong>Mass</strong>achusetts public policy provides a second,<br />
independent basis <strong>for</strong> voiding the arbitration agreement.<br />
Public policy renders agreements unen<strong>for</strong>ceable where one<br />
party has obtained assent through unlawful means or<br />
pressure. ln this case, the agreement was obtained by<br />
Jodi! by threatening Simmons with termination.<br />
should not be permitted to enjoy the benefit of its<br />
illegal, coercive conduct. (29-30).<br />
The MCAD has taken the position that coerced,<br />
Joule<br />
prospective waivers of c. 151B rights violates c. 1518<br />
itself, and public policy. All reasonable deference should<br />
be accorded to the positions taken by the MCAD. (30-31).<br />
Jouli! violated G.L. c. 151B, 5 8, because its coercive<br />
conduct has the effect of impairing employee participation<br />
in the MCAD's investigations and proceedings. Full<br />
participation of complainants has the effect of protecting<br />
the particular individual, other co-workers at that<br />
employer, arid society in general. Thus, the hurdles<br />
imposed by Joule violates broad public policy. (31-32).<br />
Moreover, Joule violated G.L. c 1518, 5 4(4A), when it<br />
obtained an arbitration agreement by resorting to threats
to the employment relationship. Simmons' option to pursue<br />
charges of discrimination using the MCAD <strong>for</strong>um has beer)<br />
determiried by this Court to const-i.tute a c. 151B "right."<br />
Joulk's insistence that Simmons sign away that right, under<br />
threat of termination, constitutes threats, coercion, and<br />
interference with enjoyment of rights.<br />
squarely violates. G.L. c. 151B, 5 4(4A). Public policy<br />
demands t.hat LJoule not get the benefit of its illegally<br />
obtained agreement. (32-42) .<br />
Such conduct<br />
A third sourcc of public policy i s represented by the<br />
common law skepticism of prospective waivers of civil<br />
rights.<br />
Such pre-dispute waivers take away the deterrent<br />
value of our rules, and constitute an invitation to<br />
lawlessness. Furthermore, such prospective waiver cuts<br />
against our notions of fairness. For example, could a<br />
state require a citizen to waive their Miranda rights<br />
prospectively, <strong>for</strong> the rest of thejr lives, in return <strong>for</strong> a<br />
student loan? Marly cases demonstrate resistance to pre-<br />
dispute waivers of rights. (42-44).<br />
The Federal. Arbitration Act dues not preempt a state<br />
rule that refuses to en<strong>for</strong>ce prospective waivers of c. 1518<br />
rights, where the waiver is obtained through threats and<br />
intimidation.<br />
The FAA does nat protect coerced agreements,<br />
and states are permitted to regulate what constitutes<br />
coercion, so I.ong as arbitration agreements are subject to<br />
the same standards as other agreements. (44-46)<br />
6
ARmJmwr<br />
The <strong>Mass</strong>achusetts Employment Lawyers Association<br />
supports the positions urged by Appellees Handi Simmons and<br />
the <strong>Mass</strong>achusetts Commission Against Discrimination. MELA<br />
adds its voice t u emphasize that the arbitration agreement<br />
at issue is unen<strong>for</strong>ceable because it violates public policy<br />
in two ways. Feency v. Dell, "~. 454 <strong>Mass</strong>. 192, 199-200 (2009)<br />
(contracts, including agreements (la arbitrate, that violate<br />
public policy are unen<strong>for</strong>ceable).<br />
First, the agreement improperly divests the MCAD of<br />
its police power to irivestj.gatc and en<strong>for</strong>ce the provisions<br />
of chapter 151B, and intolerably interferes with<br />
comprehensive administrative mechanisms designed to protect<br />
all <strong>Mass</strong>achusetts employees. Second, Joule violated<br />
substantive provisions of c. 15lR 55 4(4A) and 8, when it<br />
demanded that Simons agree to a prc-dispute waiver of c.<br />
151B <strong>for</strong>um rights as a condition of employment, essentially<br />
threatening to terminate her unless she agreed.<br />
Joul&'s ultimatum amounts to unlawful threats to<br />
employment, coercion and interference with enjoyment of c.<br />
151B rights, which the statute proscribes. G.L. c. 1518, §<br />
4(4A).<br />
Public policy prevents en<strong>for</strong>cement of a contract<br />
procured by unlawful means. See St. Fleur v. WPI Cable<br />
~<br />
Sys./Mutron, 450 <strong>Mass</strong>. 345, 350-356 (2008). Both o€ these<br />
arguments will be addressed below.<br />
- I-<br />
7
I. TBE W' S INVESTIGATIVE AND LAW ENEoRcEMplT EUNCTIONS<br />
ARE NOT DERAILED BY A PRIVATE A m<br />
BETWEi3J OTHER<br />
PARTIES<br />
Under Sections 5 and 9 of c. 151B, employees have the<br />
choice of litigating their discrimination claims at the<br />
<strong>Mass</strong>achusetts Commission Ayahst Discrimination (Secti.on 5<br />
claims), or by de novo trials in Court (Section 9 clajms) .<br />
G.L. c. 151B, §§ 5, 9; Stonehill College v. MCAD, 411 <strong>Mass</strong>.<br />
549, 565, cert. denied sub nom. Wilfert Rros. Real.ty Co. v.<br />
MCAD, 543 U.S. 979 (2004). The Supreme Judicial Court has<br />
held.that a clearly worded arbitration agreement, signed by<br />
an employee and employer, may be en<strong>for</strong>ceable as against a<br />
pending Section 9 action in Court. Warficld v. Beth Israel<br />
Deaconess Medical Center, Inc., 454 <strong>Mass</strong>. 390, 393 n.6, 398<br />
(2009). This case addresses a different. question: whether<br />
an arbitration provision between an employee and employer<br />
will prevent the MCAD from investigating and pursuing a<br />
section 5 claim.<br />
-<br />
--<br />
The answer should clearly be "no," because the MCAD<br />
acts as a goverrunental investigator and prosecutor in<br />
Section 5 actions, and that role should not be impaired by<br />
private arbitration agreements. The United States Supreme<br />
Court has declared that en<strong>for</strong>cement actions of the Equal<br />
Employment Opportunity Commission (EEOC), which is the<br />
MCAD's sister organization, are not blocked by arbitration<br />
-<br />
agreements. EEOC v. Waffle House, Inc., 122 S. Ct. 754<br />
(2002). Since termination of the MCAD's Section 5<br />
proceeding would displace the independent authority of the<br />
S
MCAD to en<strong>for</strong>ce the law and rectify violations of c. 1518,<br />
and would otherwise eviscerate MCAD's exerci-se of police<br />
powers, the arbi.tration provision should have no effect on<br />
its proceedings.<br />
The Federal. Arbitration Act (F'M) requires that<br />
arbitration agreements - between partics are en<strong>for</strong>ceable.<br />
The FAA has no application here, because in Section 5<br />
actions, the MCAD is a necessary party, and the MCAI) has<br />
never signed the agreement. - See Waffle House, .. I:nc., 122 S.<br />
Ct. 763 & n.9 (EEOC need not arbitrate where it did not<br />
sign agreement).<br />
A contrary ruling would consign thousands of cases,<br />
including pro se cases, to an arbitral panel, where the<br />
MCAD could not provide counsel to assist complainants, and<br />
could not make sure that: the public interest is protected.<br />
The result would be the quick end of many meritorious<br />
cases, as pro se complainants would be overwhelmed, out-<br />
spent and outmaneuvered by wealthier, more sophisticated<br />
corporate defendants. See Feeney, 454 <strong>Mass</strong>. 192 (class<br />
action waiver in arbitration provision, which would lead to<br />
the chilling of small. damages wage cases, i s void under<br />
public policy).<br />
these cases, agreements such as the one at issue would<br />
consign the MCAD to irrelevance, and leave the public<br />
interest unprotected.<br />
Whereas the MCAD was designed to nurture<br />
AS will. be shown, a public policy supported by these<br />
factors precludes en<strong>for</strong>cement of the arbitration agreement.<br />
9
Moreover, there i s no agreement to en<strong>for</strong>ce, as the MCAD is<br />
an essential party in a Section 5 claim, and the MTAD has<br />
not agreed to arbitration,<br />
A. UNDER PRESTON, A GOVERNMENTAL PROSECUTOR RETAINS ITS<br />
AUTHORITY TO ~ENMRCE THE LAW, DESPITE AN ARRITRATION<br />
PROVISION SIGNED BY PRXVATE I'IIRTIES<br />
It is a given that agencies acting in the ro1.e of<br />
prosecutor are not displaced by an arbitration agreement<br />
signed by private actors. -- See - Pceslon v. Perrer, 128 S.<br />
Ct. 978, 986-987 (2008). 'To do SO would be like requi.ring<br />
police and prosecutors to refrain from investigating crimes<br />
and prosecuting wrongdoers based on private prospective<br />
agreements between criminals and victims. Such ~1 state of<br />
affairs violates public policy, because en<strong>for</strong>cement of the<br />
law protects society as a whole, as well. as individual<br />
interests.<br />
The predispute agreements of victims of illegal<br />
conduct do not limit the police power of the government.<br />
For example, a prosecutor may prosecute a criminal, even<br />
when the crime victim does not want the crirnhal<br />
prosecuted.<br />
lawlessness.<br />
A contrary rule would be an invi.tation to<br />
The -_- Preston case involved a fee dispute involving an<br />
artist and an alleged talent agent, in Cali<strong>for</strong>nia.<br />
Preston, 128 S. Ct. at 984. Cali<strong>for</strong>nia has a statute<br />
regulating talent agencies that directs its Labor<br />
Commissioner to determine disputes arisi.ng under the law's<br />
scope. Id., at 984-985. In determining such disputes, the<br />
10
Labor Comissioner serves simply as an impartial arbiter;<br />
it is not a party to the case, nor is it acting as an<br />
advocate advancing a cause. Id., at 987. Under these<br />
circumstances, the Supreme Court held that. an arbitration<br />
provision signed by the pri-vate parti.es was suffjcient to<br />
compel arbitration.<br />
However, the Supreme Court was careful to distinguish<br />
the Preston facts from a si-tuation in which the state<br />
agency exercises prosecutorial authority to investigate,<br />
en<strong>for</strong>ce the law and remedy violations. "En<strong>for</strong>cement of the<br />
parties' arbitration agreement in this case does not<br />
displace any independent authority the Labor Commission may<br />
have to investigate and rectify violations of the TAA."<br />
Preston, 120 S. Ct. at 986-987. "Ferrer argues [that] the<br />
arbitration clause in his contract with Preston leaves<br />
undisturbed the Labor Commissioner's independent authority<br />
to en<strong>for</strong>ce the TAA. (citation omitted]. And so it my."<br />
Preston, Id., at 987.<br />
The Preston arbitration provision was en<strong>for</strong>ced because<br />
it did not prevent the Labor Commission from exerci.si.ng its<br />
independent authority to en<strong>for</strong>ce the statute.<br />
Court was careful to point out that "the Labor Commissioner<br />
functions not as an advocate advancing a cause be<strong>for</strong>e a<br />
tribunal authorized to find facts and apply the law;<br />
The Supreme<br />
instead, the Commissioner serves as an impartial arbiter."<br />
Preston, 128 S. Ct. at 987. Thus, Preston establishes that.<br />
an arbitration agreement may divest an agency of the role<br />
11
of independent arbiter, but it may not divest the agency of<br />
its role in acting as a prosecutor to investigate<br />
violations, en<strong>for</strong>ce the law, and rectify the harm. - Id., at<br />
986-987.<br />
B. ENFORCEMENT ACTIONS OF TIIE EQUAL EMPLOYMENT<br />
OPPORTUNITY COMMISSION ARE NOT STAYED OR DISMISSED DUE<br />
TO ARBITRATION PROVISIONS<br />
The protection of an agency's prasecutorial function<br />
finds further expression in EEOC v. Waffle House, hc., - 122<br />
S. Ct. 754 (2002), which held that a private arbitration<br />
agreement does not affect en<strong>for</strong>cement actions of the ELOC<br />
nor docs it. narrow the ranye of remedies the EEOC is<br />
entitled to seek. In Waffle House, an employee signed an<br />
arbitration agreement at the outset o€ employment. 122 S.<br />
Ct., at 158. Sixteen days later, the employee suffered a<br />
seizure and was discharged soon thereafter. - Id. The<br />
employee filed a timely handicap discrimination charge with<br />
the EEOC, but did not initiate arbitration. - Id.<br />
The EEOC investigated the complaint and attempted to<br />
conciliate. I Waffle House,<br />
Inc., 122 S. Ct. at 758. Next,<br />
the EEOC filed an en<strong>for</strong>cement action in Federal Court in<br />
its own name in the public interest, as it is authorized to<br />
do by statute. Id., at 758, 759, 761. The complaint<br />
alleged 'chat the employee was terminated because of his<br />
disability, and requested injunctive relief to eradicate<br />
the effects of the discrimination, and to compensate the<br />
employee. -- Id. at 758.<br />
12
The Supreme Court held that the arbitration agreement<br />
did not undermine the EEOC's en<strong>for</strong>cement action, and that<br />
the EEOC may continue to obtain victim-specific relief on<br />
behalf of the complainant in court. This result obtains<br />
<strong>for</strong> a number of reasons.<br />
The EEOC action was brought in the name of the EEOC to<br />
vindicate the public interest, and the EEOC did not sign<br />
the arbitration agreement. Waffle House, Inc., 122 S. Ct.,<br />
at 761-766.<br />
in the EEOC's suit, she does not control the prosecution of<br />
the claim, nor does she dictate its prayer <strong>for</strong> relief.<br />
Id., at 762-763. It i s the EEOC that is master of its<br />
cause, and the statute confers on the agency the authority<br />
to define the contours of the public's interest in the<br />
case. Id., at 763, 766. "[Tlhe EEOC docs not function<br />
I<br />
While an individual complainant may intervene<br />
simply as a vehicle <strong>for</strong> conducting litigation on behalf of<br />
private parties." z., at 761.<br />
To the extent that the EEOC pursues an en<strong>for</strong>cement<br />
action, the complainant has no independent cause of action.<br />
Waffle House, Inc., 122 S. Ct., at 763. The Court noted<br />
that the EECC's attempted conciliation duplicated some of<br />
the benefits of arbitration. E., at 762 n.7. The anti-<br />
discrimination statutes, and the FAA, fail Lo suggest that<br />
an arbitration agreement would alter or limit the EEOC's<br />
statutory function. Id. at 761, 762.<br />
The Supreme Court reasoned that a large and rising<br />
number of workers are being subjected to mandatory<br />
13
arbitration, and Urnits on EEOC en<strong>for</strong>cement actions would<br />
create a substantial disincentive to employees to file<br />
discrimination charges with the EEOC.<br />
- Waffle House,-,<br />
122 S. Ct. at 765 n.11. The Supreme Court emphasized a<br />
reluctance to en<strong>for</strong>ce a remedy that impairs the EEOC's<br />
ability to investigate and choose en<strong>for</strong>cement priorities<br />
from a broad sample of claims. Id. All these factors<br />
supported the highest court's conclusion that arbitration<br />
was inapplicable to an EEOC en<strong>for</strong>cement action.<br />
The Federal Arbitration Agreement does not compcl a<br />
different result. -. Waffle House, Inc., 122 S. Ct. at 763.<br />
The FAA requires courts to place arbitration contracts on<br />
"equal footing" with other contracts, and requires<br />
arbitration only when the parties to an actions have agreed<br />
to do so. Id., at 763. As a party to its en<strong>for</strong>cement<br />
action, the EEOC i.s not bound by an agreement it never<br />
signed. - Id.<br />
agency, the FAA does not apply. - Id., at 763 & n.9; see<br />
--<br />
also Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 16<br />
(lSt Cir. 2005)<br />
In the absence of an agreement signed by the<br />
("The EEOC is a nonparty to the arbitration<br />
agreement and there<strong>for</strong>e cannot be bound by it").<br />
C. THE MCAD EXERCISES POLICE POWER IN THE PROSECUTION OF<br />
SECTION 5 CLAIMS<br />
An examination of claims processed by the MCaD<br />
(Section 5 claims) shows that the MCAD, like the EEOC,<br />
functions in a prosecutorial rol.e, and not merely as an<br />
independent arbiter.<br />
14
The MUD was established to en<strong>for</strong>ce the Commonwealth's<br />
antidiscrimination laws. Stonehill College, 441 <strong>Mass</strong>., at<br />
563.<br />
The Commission is charged with working <strong>for</strong> the public<br />
good in en<strong>for</strong>cing the Cornonwealth's anti-discrimination<br />
statutes, including c. 1518, in order to "protect,<br />
preserve, and en<strong>for</strong>ce the civil rights of its citizens."<br />
804 CMH 1.02. Chapter 151B, and its proscript-ions on<br />
employment discrimination, represent an "overriding<br />
governmental. pplicy," and is often exclusive o€ other laws<br />
and remedies. Warfield v. Beth Israel Deaconess Med. Ctr.,<br />
Inc., 454 <strong>Mass</strong>. 390, 398 (2009); G.L. c. 151B, § 9, 1.<br />
Chapter 1.518 represents policies so "well-defined and<br />
dominant" that a remedy to a c. 1518 violation will be<br />
upheld, even if the remedy would otherwise result in an<br />
independent violation of a collective bargaining agreement.<br />
<strong>Mass</strong>achusetts Bay - Transp. Auth. v. Boston Carmen's Union,<br />
Local 589, 545 <strong>Mass</strong>. 19, 26, 29-30 (2009). In other words,<br />
the policies supporting c. 151B can be elevated over<br />
private agreements. - Id. at 29-30.<br />
Under Section 5, the MCAD investigates the claim, and<br />
if the claim i s found worthy, <strong>for</strong>mal proceedings are<br />
"initiated . . . [and] directed . . . by the commission,<br />
on behalf of the Commonwealth, against a named respondent."<br />
Stonehill College v. <strong>Mass</strong>achusetts Commission Against<br />
Discrimination, 441 <strong>Mass</strong>., at 567 (emphasis added). Note<br />
that in the Stonehill College case, it is the MCAD, and not<br />
15
thc individual complainant, that is listed as the party-<br />
defendant.<br />
"It is t.hc MCAD, and not the complainant, that<br />
prosecutes the [Secti.on 51 discrimination claim."<br />
-- -<br />
Stonehill C o l a , (141 <strong>Mass</strong>., at 563; see also Thurdin v.<br />
- SKI Boston, ~-<br />
LLC, 452 <strong>Mass</strong>. 436, 442 (2008) ("During the<br />
administrative process, the commission, not the<br />
complainant, prosecutes the claim"). Once probable cause<br />
enters, a notice and complaint are issued "in the name of<br />
the commission." G.L. c. 1518, 5 5, 2; 804 CMR 1.20(3).<br />
By undertaking Section 5 proceedings, the MCAD acts<br />
with "police and rcgul.atory powers" to en<strong>for</strong>ce anti-<br />
discrimination law, with the primary purpose of protecting<br />
public safety and welfare. In re Mohawk Greenfield Motel<br />
Corp., 239 B.R. 1, 6-9 (Bankr. D. <strong>Mass</strong>. 1999).<br />
Importantly, MCAD proceedings are not subject to automatic<br />
stays under the bankruptcy code, because the MCAD's<br />
en<strong>for</strong>cement role is conducted in the public interest. _I<br />
Id.<br />
In cases that extend beyond the investigation phase,<br />
the MCAD undertakes a conciliation process, in which the<br />
commission wil.1 attempt to assure that aggrieved employees<br />
receive a just remedy. 8011 CMR 1.18(1) (a). However, the<br />
Commission will also seek "Provisions Sought <strong>for</strong> the Pub1j.c<br />
Interest," which go beyond an individual remedy to benefit<br />
the public, including elimination of future discrimination,<br />
apologies, reporting mandates, education, training ef<strong>for</strong>ts,<br />
and monitoring of future activities. 804 CMR 1.18(1) (c).<br />
16
If the private parties agree to resolve the case, the<br />
complaint is dismissed only after the MCAD has reviewed the<br />
settlement, and agrees that its terms serve the public<br />
interest. 004 CMR 1.15(6) (a). Once approved, the<br />
settlement has the effect: of an Order of the Commission <strong>for</strong><br />
purposes of en<strong>for</strong>cement. Id.<br />
-<br />
.If conciliation fails, the MCAD may then, in its<br />
discretion, schedule a pub1j.c hearing. 804 CMR 1.20(3).<br />
Tho Investigating Corranissioner, who at this stage acts as<br />
an en<strong>for</strong>cement activist, issues the MCAD's complaint in its<br />
name, frames the issues to be decided at public hearing,<br />
specifies the particular procedural route that the case<br />
will take within the MCAD, and makes other orders he or she<br />
'deems appropriate in the public interest." 804 CMR<br />
1.20(3).<br />
The Commission guards its authority over the Section 5<br />
case, regardless of any side agreements among the private<br />
parties. Its regulations state, "No waiver agreement<br />
signed by any individual shall affect the Commission's<br />
right and statutory duty to on<strong>for</strong>ce M.G.L. c. 151B . . . or<br />
to investigate any complaint filed be<strong>for</strong>e it." 804 CMR<br />
1.13(4).<br />
Chapter 151B sets <strong>for</strong>th a comprehensive en<strong>for</strong>cement<br />
scheme <strong>for</strong> reso1"ution of discrimination claims, including<br />
an expansive and complicated administrative process.<br />
laws must be interpreted in a way that does not interfere<br />
with the administrative process. Thomas v. ED1<br />
17<br />
Other
Specialists, Inc., 437 <strong>Mass</strong>. 536, 540, 542 (2002)<br />
(contrj.bution statute does not apply to c. 151B claims, as<br />
it would interfere with the MCAD's administrative process).<br />
The underlyiny statute safeguards the MCAD's<br />
en<strong>for</strong>cement role, with the mandate that, "the<br />
administrative procedure provided in this chapter under<br />
section 5 shall, while pending, be exclusive." G.L. c.<br />
151B, 5 9, 1;' see also -. East Chop Tennis Club v. MCAD,<br />
- -<br />
364 <strong>Mass</strong>. 144, 448 (1973) (prohibiting a respondent from<br />
pursuing a declaratory judgment action whi1.e Section 5<br />
procedures are pending, as it would interfere with the<br />
MCAD's powers to investigate and act on complaints of<br />
discrimination).<br />
The MCAD even reserves <strong>for</strong> itself the authority to<br />
dismiss meritorious complaints based on a complainant's<br />
refusal to accept a settlement that is acceptable to the<br />
Commission, and where termination of: the proceeding is in<br />
the public interest. 804 (3MR 1.1814). At the <strong>for</strong>mal<br />
hearing on the claim, the Commission has the right to<br />
designate one of its attorneys or agents to present the<br />
~~~ ~~<br />
' The first paragraph of Section 9 states: "This chapter<br />
shall be construed liberally <strong>for</strong> the accomplishment of its<br />
purposes, and any law inconsistent with any provision of<br />
this chapter shall not apply, but nothing contained in this<br />
chapter shall be deemed to repeal any provision of any<br />
other law of this comonweal~th relating to discrimination;<br />
but, as to acts declared unlawful by section 4, the<br />
administrative procedure provided in this chapter under<br />
section 5 shall, while pending, be exclusive; and the final<br />
determination on the merits shall exclude any other civil<br />
action, based on the same grievance of the individual<br />
concerned." G-L+ c. 151B, 5 9, 1.
case in suppori of the Complainant, and this decision is<br />
responsive to t-he public interest. 804 CMR 1.09(5) (a) &<br />
(b) (2) -<br />
hen in cases where the Commission has permitted a<br />
pri.vate attorney to present the evidence favoring the<br />
Complainant on behalf of the Commissi.on, the Commission may<br />
nevertheless appoint an MCAD attorney to remain involved in<br />
the proceedings tu ensure protection of the CommissionIs<br />
hterest and the policies of c. 151B. 804 CMR 1.09(5) (a) &<br />
(b) ( 2).<br />
Remedies ordered by the MCAD are made pursuant to an<br />
equitable standard, that they "effectuate the purposes of<br />
this chapter." G.L. c. 151B, 5 5, 9 2. Included in the<br />
possible remedies are civil penalties, which are collected<br />
by the Commonwealth. G.I.. c. 151B, 5 5. Appeals of Orders<br />
of the MCAD in Court name the MCAI) as a party. G.L. c.<br />
151B, 5 6; Superior Court Standing Order 1-96(2).<br />
In summary, a Section.5 claim is not a mechanism to<br />
adjudicate private rights,.<br />
"Unl.ike private actions<br />
pursuant to § 9, MCAD proceedings 'do not involve a suit<br />
I I, between two or more [private] persons . . . --- Stonehill<br />
College, 441 <strong>Mass</strong>. a t 567. The differences between Section<br />
9 and Section 5 proceedings "are significant," and "the<br />
primary purpose of an administrative proceeding be<strong>for</strong>e the<br />
MCAD is to vindicate the public's interest in reducing<br />
discrimination in the workplace." Id., 441 <strong>Mass</strong>. at 562-<br />
563. Thus, it is clear that the MCAD acts as a prosecutor,<br />
19
and not mere1.y as 3 neutral farurn, i.n its processing of<br />
Section 5 claims.<br />
D. ‘THE MCAD’S ROLE IS ANALOGOUS TO THAT OF THE EEOC<br />
As shown above, “an employer cannot preclude a public<br />
en<strong>for</strong>cement agcricy from bringing an en<strong>for</strong>cement action <strong>for</strong><br />
employee-specific relief by relying on an emp,loyer-employee<br />
arhi tratiori agreemenk . ” Skirchak . v. Dynamics Research<br />
Corp., . . 508 P.3d 19, 58 n.3 (1st. Cir. 2007). The Supreme<br />
Court has identified many factors to assist in determining<br />
whether an agency action is to be precluded by a private<br />
arbitration agreement. As will be shown below, every one<br />
of thosc factors demonstrates that the MCAD is a public<br />
en<strong>for</strong>cement agency whose section 5 proceedings.are<br />
safeguarded:<br />
Factor 1: Agencies that en<strong>for</strong>ce the l aw and seek<br />
remedies <strong>for</strong> violations are imune from private arbitration<br />
clauses. Preston, 3.28 S. Ct. at 986-987. The MCAD was<br />
established to en<strong>for</strong>ce c. 1518, and remedy violations of<br />
the law. - SZlonehi.ll . College, -. 443. <strong>Mass</strong>., at 563 (“The MCAD<br />
was established to en<strong>for</strong>ce the Commonwealth‘s<br />
antidiscrimination laws”); G.L. G. 1518, 5 5; 804 CMR 1.02<br />
(MCAD en<strong>for</strong>ces c. 151B).<br />
Factor 2: The MCAD, like the EEOC, is not merely a<br />
neutral <strong>for</strong>um <strong>for</strong> litigating an issue between private<br />
parties. Stonehill College, 441 <strong>Mass</strong>. at 562-567; compare<br />
Waffle House, Inc., 122 S. Ct. at 761. Rather, both<br />
agencies act in the public interest, to advance a cause.<br />
20
Stonehill College, 141 <strong>Mass</strong>. at. 562-563; compare Preston,<br />
-, , I.I. .,,". ., . ., -.. .<br />
-<br />
120 S . Ct. at 387; Waffle House, Inc. 122 S . Ct. at 765.<br />
Factor 3: Section 5 claims, as 1iti.gated within the<br />
Commissj.on and later appealed in Court, are prosecuted in<br />
the name of the agency, pursuant to its police powers, just<br />
as EEOC en<strong>for</strong>cemcnl: actions are prosecuted in that agency's<br />
name. Stonehill College, 441 <strong>Mass</strong>. at 563, 567; Thurdin,<br />
452 <strong>Mass</strong>. at 442; In re Mohawk - Greenfield Motel Corp., 239<br />
B.K. at 6-9; G.L. c. 1518, 5 5, 2; G.L. c. 1518, 5 6;<br />
Superior Court Standing Order 1-96(2); compare Waffle<br />
House, Tnc., 122 S. Ct. at 758, 759, 761-766<br />
Factor 4: The MCAD, and not the individual<br />
complainant:, controls the Section 5 claim, and is master<br />
over thc prosecution of the action, which parallels the<br />
EEOC's role. Stonehill College, 441. <strong>Mass</strong>. at 563, 567<br />
(section 5 actions are "directed" and "prosecuted" by the<br />
Commonwealth); 804 CMR 1.20(3) (MCAD schedules public<br />
hearing at its discretion); 804 CMR 1.09(5)(a) & (b)(2)<br />
(MCAD, or its designee, presents the complainant's evidence<br />
at public hearing); 804 CMR 1.18(4) (MCAD may dismiss even<br />
meritorious cases in its discretion); compare - Waffle House,<br />
12% S. Ct. at 762-763 (EEOC controls the prosecution of its<br />
en<strong>for</strong>cement action) .<br />
Factor 5: The MCAD, like the EEOC, controls the<br />
relief sought. I-<br />
Stonehill College, 441 <strong>Mass</strong>. at 567-568<br />
(MCAD accorded discretion and authority to fashion remedial<br />
rel.i.ef) ; 801 CMR 1.15 (6) (MCAD approves private settlement<br />
21
agreements prior: to dismissal, Lo protect the public<br />
interest); 801 MCR 1.20(3) (a) (6); compare Waffle House,<br />
- Inc., 122 S. Ct. at 762-763.<br />
Factor ._ 6:<br />
I<br />
- -.<br />
Remcdies are sought by both the MCAD and<br />
EEOC to further the purposes of the undarl.ying anti-<br />
discri.mination statutes, and in support of the public<br />
interest. Stonchil.1. College,<br />
, 441. <strong>Mass</strong>. at 563 ("the<br />
commission is empowered to fashion equitable remedies<br />
designed chiefly to protect and promote the broader public<br />
interest in eradicating systemic discrimination"): G.L. c.<br />
151B, § 5, 2; 804 CMR 1.18(1) (c), 1.22(1); compare Waffle<br />
House, Inc., -- 122 S. Ct. at 765.<br />
Factor 7: To the extent that the MCAD pursues a<br />
Section 5 claim, the proceedings are exclusive. G.L. c.<br />
1518, 5 9, I 1; - see - also .I- 'dast Chop Tennis<br />
- Club, 364 <strong>Mass</strong>.<br />
at 448. EEOC en<strong>for</strong>cement actions are similarly protected.<br />
__I Waffle House, Inc., 122 S. Ct. at 763.<br />
Factor - 8: Neither the MCAD nor the EEOC have signed<br />
the arbitration agreement at issue, and both have signaled<br />
their refusal to be bound by such agreements. 804 CMR<br />
1.13(4) (no waiver agreements shall affect the MCAD's right<br />
to en<strong>for</strong>ce the law); Waffle House, Inc. -- 122 S. Ct. at 763<br />
& n.9.<br />
-,<br />
Factor 9: Divesting the MCAD of jurisdiction .in this<br />
circumstance would generate an enormous disincentive to the<br />
filing of MCAD complaints, which would damage the MCAD's<br />
fact-finding and en<strong>for</strong>cement role, and undermine its<br />
22
comprehensive scheme to combat discrimi-nation. Waffle<br />
House, Inc., 122 S. Ct. at 765 & n.1.l [en<strong>for</strong>cing<br />
arbitration agreement would undermine “the detailed<br />
en<strong>for</strong>cement scheme [In Title VI1 and the ADA] created by<br />
Congress” and would serve as a disincentive to free<br />
reporting of complaints to F:KOC). Chapter 151B, like Title<br />
VI1 and the Americans with Disability Act (“ADA”), should<br />
be interpreted to avoid. such interference. - Id. ; Thomas,<br />
437 <strong>Mass</strong>. at 540, 542.<br />
Factor 10: Mandatory conciliation by both the MCAD<br />
and EEOC is in place, which satisfies some of the major<br />
policy considerations supporting the use of arbitration.<br />
G.L. c. 1518, § 5; 804 CMR 1.18(1) (a); compare Waffle<br />
House, Inc., 122 S. Ct. at ’162 n.7.<br />
-, .-<br />
Factor 11: Chapter 1518 and the <strong>Mass</strong>achusetts<br />
Arbitration Act, like Title VI1 and the Federal Arbitration<br />
Act, do not suggest that an arbitration agreement wou1.d<br />
displace Section 5 claims. G.L. c. 1518; c. 251, 5 1;<br />
Waffle House, - Inc., 172 S. Ct. at 761, 762.<br />
Thus, in all aspects, the MCAD has the characteristics<br />
identified by the Supreme Court as reasons to exempt an<br />
agency action from arbitration. For this reason, the court<br />
below refused to enjoin MCAD proceedings. See Joule, Inc.<br />
v. Simons, Order on Plaintiffs‘ Motion to En<strong>for</strong>ce an<br />
Arbitration Agreement Under Federal Arbitration Act and<br />
<strong>Mass</strong>achusetts Arbitration Act:, C.A. No. 09-4920, <strong>Suffolk</strong><br />
ss., Troy, J., January 7, 2010, App. 231. In addition,<br />
23
Judge Rrassard, in a similar case, refuscd to compel<br />
arbitration of a pending MCAL) case, statinq: "The MCAI)<br />
acts as investigator, prosecutor and adjudicator at the<br />
administration proceeding and does so under the broad<br />
authority recognized by - Stonehill College v. MCAII, 441<br />
<strong>Mass</strong>. 549 (2004) ." <strong>Mass</strong>. Bar Association, Inc. v.<br />
-. .- ,-<br />
Wclli.ngton and MCAD, Memorandum of Decision and Order on<br />
I -<br />
.-<br />
Plaintiff's ,. Motion to Reconsider, .- C.A. No. SUCV2009-1257 11,<br />
June 16, 2009, Addendum C. Thus, this Court should<br />
preserve the MCAD' s en<strong>for</strong>cement function.<br />
-, . -~<br />
E. THE MCAD ACTS AS A PROSECUTOR, EVEN WHEN 1'1' IS ALSO<br />
PERFORMING A FACT-FINDING E'UNCTION<br />
The MCAD's proceedings should be protected, because it<br />
per<strong>for</strong>ms the role of a prosecutor, even when it is also<br />
conducting a fact-finding hearing.<br />
-<br />
See Waf€le House, Ir~c., - ~ .-<br />
122 S. Ct. at 761. It is not possi.ble to segregate out<br />
MCAD's prosecutorial role from its fact-finding role, and<br />
replace the latter with arbitration, i.n a manner consistent<br />
with the MCAD's en<strong>for</strong>cement function under c. 1518.<br />
If a case is arbi,trated, how will the MCAD control how<br />
important overriding governmental interests are presented<br />
to the arbitrator? How will. the MCAD control the framing<br />
of the issues? Or assure qualified representation of the<br />
complainant, or proper presentation of evidence? Or ensure<br />
that adequate fact-finding has been accomplished? Or<br />
assure that remedies to protect the public interest have<br />
24
een imposed?<br />
Or otherwise assure that the statute has<br />
been properly interpreted and complied with?<br />
It could not. Realistically, once arbitrakion is<br />
initiated, the MCAD’s en<strong>for</strong>cement role is at an end. The<br />
prosecutorial role is supported by the fact-finding role,<br />
and vice versa.<br />
capacity to hold a hearing, without also undermining iks<br />
prosecutorial function.<br />
The MCAD may not be divested of its<br />
One example will highlight this point. At the MCAU,<br />
after probable cause is found, pro se complainants are<br />
assigned an attorney to assist them, without cost, in the<br />
taking of discovery and the presentation of evi.dence at<br />
trial. However, if arbitration is ordered, these pra se<br />
complainants will be on their own, and rendered efEectively<br />
unable to prosecute their cases. This Court should not<br />
turn a blind eye to the real world effects that such a<br />
decision would have. Feeney, 454 <strong>Mass</strong>. at 200-205<br />
(prohibition of class action claims in arbitration clause<br />
would have the real world effect of obliterating many wage<br />
claims of modest size, and so the waiver violates public<br />
policy). There<strong>for</strong>e, the MCAD must retain its fact-finding<br />
function in order to be successful in its en<strong>for</strong>cement<br />
function.<br />
25
F. MCAU AND EEOC PROCEEDINGS ARE INTERWOVEN, AND<br />
INTERFERENCE WITH MCAD ACTIONS WILL CREATE EXTREMELY<br />
DIFFICULT PROBLEMS INVOLVING INEFFICIEN'T, DUPLICATIVE<br />
PROCEEDINGS<br />
A ruling in favor of JoulG would create an<br />
intractable, bureaucratic tangle, with respect to the<br />
parallel proceedings that take place between the MCAD and<br />
EEOC.<br />
The MCAD and EEOC have a work-sharing agreement<br />
which permits claims filed with one to be cross-filed with<br />
the other, and which permits the parallel processing of<br />
claims. The EEOC typically defers to the MCAD's<br />
investigation and adopts the MCAD's findinys. Allowing<br />
employers to interfere with MCAD en<strong>for</strong>cement of c. 15lB<br />
will necessarily impair EEOC processing of those claims.<br />
If EEOC proceedings remain despite an arbitration<br />
agreement, but MCAD proceedings dissolve, there would be a<br />
nightmarish procedural challenge.<br />
go ahead, without the MCAD's salutary input. Meanwhile,<br />
arbitrations would proceed as well. It would result in<br />
inefficient, duplicative proceedings which by all means<br />
should be avoided. Marie, 402 F.3d at 16 (duplicative<br />
arbitration and EEOC en<strong>for</strong>cement action would be<br />
hefficient, disruptive to EEOC procedures, and contrary to<br />
the purposes of the FAA). It would create enormous burdens<br />
on employees, who would have to participate in dual tracks.<br />
Such complexities are unnecessary, and are intrusive on the<br />
contemplated process, and should dri.ve this Court to reject<br />
Joule's position.<br />
26<br />
EEOC proceedings would
G. JOULE'S OTHER ARGUMENTS ARE OFF-POINT AND ERRONEOUS<br />
Joule asserts that c. 1518 claims are gencrally<br />
arbitrable, citing Warfield v, Beth Israel Deaconess<br />
Medical Center<br />
--r 454 <strong>Mass</strong>. 390 (2009). However, Warfield<br />
dealt with Section 9 claims, and not Sectinn 5 claims,<br />
which are distinguishable. Section 9 claims are de now<br />
actions be<strong>for</strong>e neutral <strong>for</strong>ums such as the Superior Court,<br />
Housing Court or Probate Court, and are not governmental<br />
en<strong>for</strong>cement actions. G.L. c. 151B, 5 9, 412.<br />
Next, Joulh arques that arbitration would not impair<br />
the MCAD's en<strong>for</strong>cement function, because even if Ms.<br />
Simons' action there is dismissed, the MTAD could pursue a<br />
commission-initiated action against Joule. Joul& Brief, at<br />
33. The fallacy of this argument bears some explanation.<br />
There are two ways to initiate complaints at the MCAD.<br />
First, a complainant may file a discrimination charge, or<br />
second, the Commission may initiate a case itself. G.L. c.<br />
151B, § 5. Joulfi is suggesting that the complainant-<br />
initiated case be dismissed, but that the MCAD retains the<br />
option to start a case all over, with a commission-<br />
initiated charge.<br />
Irrespective of how the complaint is initiated, both<br />
avenues represent MCAD en<strong>for</strong>cement actions, which, if a<br />
remedy is ordered, are prosecuted in the name of the<br />
Commission. See Stonehill-College, 441 <strong>Mass</strong>., at 567.<br />
There is no justifiable reason to bar one, but not the<br />
other. Moreover, JoulP fails to identify why one type of<br />
27
complaint would be a protected en<strong>for</strong>cement act.ion, and the<br />
other type would not be.<br />
The only reason <strong>for</strong> Joule to suggest such a dichotomy<br />
between Complaj.nant- and Commission-initiated charges would<br />
be to disrupt the MCAD‘s en<strong>for</strong>cement function. E’or<br />
example, in a similar case, and lodging a similar argument,<br />
the <strong>Mass</strong>achusetts Bar Association, in its role as an<br />
employer attempting to en<strong>for</strong>ce an arbitration agreement,<br />
suggested that an arbitration could co-exist wi.th a<br />
commission-initiated action, but that thc arbitration award<br />
would be preclusive as to the Comission’s remedies. Reply<br />
Brief of Plaintiff-Appellant MBA, MBA v Wel-lington and<br />
- MCAD, Appeals Court No. 2004-P-2137, at 4-5 n.2. Addendum<br />
- D. JoulG’s suggestion is simply a back door attempt to<br />
undermine the MCAU‘s authority, and prevenk it from<br />
ordering remedies.<br />
The dual track suggested by JouG would clearly be<br />
inefficient and disruptive, and inconsistent with thc<br />
contemplated procedures. - Marie, 402 F.3d at 16.<br />
Finally, the dual arbitration/conunission-initiated<br />
charge track suggested by Soul& is unworkable, given the<br />
rule that all section 5 proceedings are exclusi.ve of other<br />
proceedings. G.L. c. 151B, 5 9, I 1. Joule does not<br />
explain how an arbitration could lawfully take place, if<br />
the MCAD is continuing to pursue an commission-initiated<br />
charge. Thus, Joule‘s true objective in asserting the<br />
false alternative of commission-initiated actions is solely<br />
28
to create a stumbling block. The trial court correctly<br />
rejected this attempt to interfere with the MCAD's role.<br />
11. MASSACHUSETTS PUBLIC POLICY PRECLUDES ENEI3RcEMENT OF A<br />
EWE-DISPUTE WKCVER OF C. 151B RIGHTS, SIGNED AS A<br />
CONDITION OF -!WENT<br />
There is a separate, independent basis <strong>for</strong> dismissing<br />
Joule's complaint. You18 required that Simmons sign the<br />
arbitration agreement as an obligatory prerequisite of<br />
employment, and warned her that a lack of consent would<br />
result in loss of the job. The Court should not en<strong>for</strong>ce<br />
the arbitration agreement because JoulB's conduct<br />
represents unlawful threats, coercion and interference with<br />
rights, in violation of c. 1518 and public policy. G.L. c.<br />
151B, 55 4(4A), 8.<br />
Near the beginning of Simmons' employment, she was<br />
<strong>for</strong>ced to si.gn an arbitration agreement. App. 78. The<br />
agrement stated, "I will not be offered employment until I<br />
sign and return this agreement." App. 78. After Simmons<br />
was hired, she was told by a superior that she would have<br />
to sign "if she wanted to work at Joule." App. 68. Thus,<br />
it was made clear that the employment relationship would<br />
not continue unless and until Simmons prospectively signed<br />
away her c. 151B <strong>for</strong>um rights.<br />
Joule considered the retention of c. 151B rights to be<br />
so despicable that it would not consider retaining an<br />
employee that possessed them. As we will see, Joul6's<br />
conduct in obtaining the "agreement" upon threat of<br />
29
ejection, undermined public policy so fundamentally as to<br />
void the agreement.<br />
Courts do not en<strong>for</strong>ce contracts, including arbitration<br />
agreements, that violate public policy. Feeney, 454 <strong>Mass</strong>.<br />
at 199-200 (class action waiver in arbitration agreement<br />
voj,ded as it would have the effect of chilling consumer<br />
cl-aims). Courts have long refused to give effect to<br />
purported waivers of statutory rights, where en<strong>for</strong>cement of<br />
the waiver would do vj.olence to the public policy<br />
underlying the statute. EEOC v. Astra USA, Inc., 94 F.3d<br />
738, 744 (Isf Cir. 1996); Beacon Hill _I - Civic Ass'n v.<br />
Ristorante Toscano, Inc., 422 <strong>Mass</strong>. 318, 320-323 (1996).<br />
Arbitration agreements may be voided by public policy where<br />
an employer uses unlawful means to obtain the agreement..<br />
See St. Fleur, - 450 <strong>Mass</strong>. at 350-356 (arbitration agreement<br />
can be voided where the employer fraudulently induces<br />
assent to the contract).<br />
The MCAD has clearly taken the position that<br />
<strong>for</strong>ced, prospective waiver of section 5 rights violates c.<br />
1518, and thus, becomes unen<strong>for</strong>ceable in light of public<br />
policy.<br />
". Wellington case, Appeals Court No. 2009-P-2137, the MCAD<br />
took the position khat, "An employer that requires a pre-<br />
dispute waiver of a 5 5 right as a condition of employment<br />
violates G.L. c. 151B, § 8 and/or $ 4(4)." Addendum E, at<br />
3 n.4.<br />
For example, j.n a brief filed in the MBA v.<br />
30
Moreover, the MCAD wrote in its amicus brief in the<br />
case of St. Fleur v. WPI Cable Systems 450 <strong>Mass</strong>. 245<br />
(20081, that a coerced arbitration agreement signed as a<br />
condition of employment may constitute of per se violation<br />
of G.I.. c. 151B, 5 4 (4A). Addendum -. F, at 22-23. With<br />
section 4(4A) in mind, the MCAD also wrote,<br />
The Commission views compulsory pre-dispute<br />
arbitration agreements presented as a condition of<br />
employment as violating the public's interest in fair,<br />
open and public proceedings envisioned by the<br />
Legislature through G.L. c. 151B. . . . Moreover,<br />
arbitration agreements where the employer exacts a<br />
waiver by coercion, threats, or intimidation, of any<br />
right granted or protected by Chapter 1518, may<br />
constitute a per se violation of G.L. c. 151B. . . .<br />
The Commission believes that such agreements violate<br />
the Camonwealth's anti-discrimination statute and are<br />
there<strong>for</strong>e unen<strong>for</strong>ceable.<br />
Addendum F, at 8 (emphasis added). The MCAD is accorded<br />
deference in its reasonable interpretation of C. 1518.<br />
-. Cuddyer v. Stop & Shop Supermarket Co-.", 434 <strong>Mass</strong>. 521, 534,<br />
536 (2001) ("We have consistently granted deference to MCAD<br />
decisions and policies").<br />
invalidate the agreement based on Joule's coercive conduct<br />
in inducing the "agreement. 'a<br />
-I<br />
MEIA urges this Court to<br />
' A recent decision of the United States Supreme Court,<br />
Rent-a-Center, West, Inc. v. Jackson -1 2010 U.S. Lexis 4891<br />
(June 21, 2010), heid that employers can impose agreements<br />
that require arbitrators, and not courts, to rule on the<br />
en<strong>for</strong>ceability of arbitration agreements. Arbitrators, <strong>for</strong><br />
many reasons, are institutionally inclined to favor the<br />
en<strong>for</strong>cement arbitration agreements. Once an arbitrator has<br />
found an agreement en<strong>for</strong>ceable, a litigant is unlikely to<br />
obtain de novo court review, as arbitration decisions are<br />
upheld, even if they are based on an error of law. Advest,<br />
31
'The public policy prohibiting JoulB's conduct is<br />
absolutely clear, and is found in the non-interference<br />
provisions of c. 151B, §§ 8, 4(4A), and the common law<br />
proscripkion against prospective waivers of civil rights.<br />
MElA will address these public policies below.<br />
A, CIIAI'TER 1518, SE:CTION 8<br />
Section 8 of chapter 1518 is a criminal provision,<br />
designed to proscribe interference with the MCAD's<br />
proceedings. The prov.ision states in per.tinent part: "my<br />
person, employer . . . who or which shall . . . interfere<br />
with the Commi.ssion . . . in the per<strong>for</strong>mance of duty under<br />
this chapter . . . shall be punished . . .." G.L. c. 151B,<br />
S 8. The provision is entitled "interference with<br />
commission," which evinces an intent to protect the<br />
unfettered operation of the MCAD's functions. G.L. c.<br />
151B, 5 8; Lynn Teachers Union, Local 1037 v. MCAD, 406<br />
<strong>Mass</strong>. 515, 524 (1990) (title of act reveals the object to<br />
sought to be accomplished).<br />
The MCAD is correct that, the <strong>for</strong>ced, pre-dispute<br />
arbitration agreement amounts to interference, or attempted<br />
intefference with the ability of the MCAD to investigate<br />
Inc. v. McCarthy, 914 F.2d 6, 8-9 (1st Cir. 1990); Coastal .-<br />
Oil of N.E., Inc. v. Teamsters Local, 134 F.3d 466, 469<br />
(1st Cir. 1998). Indeed, any court review of an<br />
arbitrator's decision on this issue, regardless of how the<br />
arbitrator rules, must be conducted through the prism of<br />
extreme deference to the arbitrator. Consequently, it is<br />
important <strong>for</strong> t.he Court to rule on this public policy<br />
issue, as if will be exceedingly difficult to find another<br />
chance to allow this Court to rule in a conclusive fashion,<br />
on the merits.<br />
32
and remedy violations of the statute.<br />
heartcd participation in the MCAD's en<strong>for</strong>cement actions is<br />
necessary <strong>for</strong> the MCAD to per<strong>for</strong>m adequate investigations,<br />
and to prot-ect the public interest. To send a case to<br />
arbitration, and stay or dismiss the MCAD action, consigns<br />
the MCAD to irrelevance, and sabotages its ability to<br />
protcclr us all. Thus, the arbitration provision, obtained<br />
under an express threat to employment, and imposed at the<br />
whim of the employer, violates the public policy in c.<br />
3.51B, § 8, by impairing the Commission in its ability to<br />
hold effective proceedings and do its job.<br />
B. CHAPTER 151B, SECTION 4(4A)<br />
The employee's full-<br />
'The public pol.icy prohibiting interference with c.<br />
1.51B rights also finds expression in a civil provision of<br />
the statuCe, G.I.. c. 151B, 5 4(4A). According 'to c. 1518,<br />
5 4(4A), it i s a prohibited practice <strong>for</strong> an employer to<br />
"coerce, intimidate, threaten or interfere with another<br />
person in the exercise or enjoyment of any right granted or<br />
protected by this chapter [c. 15181.'' The MCAD is correct<br />
that arbitration agreements obtained by employers as a<br />
condition of employment may constitute per se violations of<br />
this provision. Addendum - F, at 8, 22-23.<br />
Joule's conduct violated this provision, because it<br />
used the threat of rejection to <strong>for</strong>ce an employee to<br />
prospectively waive her right to litigate at the MCAD.<br />
App. 68, 78. When an employer states, "waive your rights<br />
or you are fired," that must be considered interference<br />
33
with rights. As will be shown, section 4(4A) establishes<br />
putil i.c pol icy inimical to mandatory, coerced arbitration,<br />
because c. 151B confers the right to pursue discrimination<br />
claims at the MCAD, and Joule interfered with this right<br />
when it required Simmons to prospectively waive that right<br />
as a condition of employment.<br />
1. The - Option - To Pursue A Section 5 Case<br />
Constitutes A Chapter 1518 Right -.<br />
Chapler 151B, 5 4(4A) prohibits interference with a<br />
person in thcir enjoyment of c. 15:tB rights. G.L. c. 151B,<br />
5 4(4A). There<strong>for</strong>e, the first step is to determine whether<br />
mandatory arbitration stifles a c. l51B right. It does.<br />
The option to pursue section 5 procedures is a c. 151B<br />
right. The decision of Stonehill Colleqe, 441 <strong>Mass</strong>. 549,<br />
564 (2004), noted that Complainants could 1itj.gate using<br />
section 5 procedures at the MCAD or could go to Court, and<br />
specifically upheld Complai.nants' "right to choose the<br />
<strong>for</strong>um in which their cl.aim will bc heard."<br />
The case of Warfield v. Beth Israel Deaconess Medical<br />
- Ccnter, Inc., 454 <strong>Mass</strong>. 390 (2009), confirms that the<br />
option of pursuing a section 5 remedy constitutes a 'right"<br />
accorded by c. 3.51B.<br />
The decision refers to the "right to<br />
seek redress <strong>for</strong> employment discrimination through the<br />
remedial paths set out in c. 151B." Warfield, 454 <strong>Mass</strong>. alr<br />
400 (emphasis added). An employee who purportedly agrees<br />
to arbit-rate a discrimihation claim represents a "limited<br />
waiver of rights under G.L. c. 1518. . . . [and] does give<br />
34
up the substantial right to seek administrative and<br />
judicial remedies." - Warfield, 454 <strong>Mass</strong>. at 399 6 n.13<br />
(emphasis added)<br />
JoulG's brief twice quotes this phrase from n. 13 of<br />
the Warfj-eld case out of context, and falsely asserts that<br />
it stands <strong>for</strong> the proposition that an arbitration agreement<br />
wil.1. succes.sfully trump section 5 clai.ms.<br />
Brief, at 12, 31. Ilowever, the Warfield court was not<br />
sayiny that mandatory axbitration agreements are always<br />
valid as against administrative remedies. Rather, Warfield<br />
was making the point that MELA is making here, that to the<br />
extent that a mandatory arbitration agreement is en<strong>for</strong>ced,<br />
it represents a limitation on c. 151B rights.<br />
Joul& Principal -<br />
Furthermore, the context of the statement in n. 13 is<br />
the Supreme Judicial Court's suggestion that public policy<br />
may preclude en<strong>for</strong>cement of such waivers of c. 1518 rights.<br />
A fuller version of the quote follows:<br />
An agreement to arbitration employment discrimination<br />
claims represents a limited waiver of Tights under<br />
G.L. c. 151B. An employee who agrees to arbitration<br />
such a claim of course does not <strong>for</strong>go the substantive<br />
fights af<strong>for</strong>ded by the statute [citation omitted], but<br />
does give up the substantial right to seek<br />
administrative or judicial remedies. Because it is<br />
not raised here, we do not reach the question whether,<br />
in view of our public policy proscribing employment<br />
discrimination, any additional protections beyond<br />
unambiguous language may be necessary be<strong>for</strong>e an<br />
employment contract may provide <strong>for</strong> limitations on the<br />
rights and remedies spelled out in G.L. c. 151B.<br />
Warfield, 451 <strong>Mass</strong>. at 399 n. 13 (emphasis added). Thus,<br />
mandatory arbitration impairs c. 151R rights, and raises<br />
35
public policy concerns, which may justify "additional<br />
protcctions" restricting such waivers. Id.<br />
-<br />
'J'he case of Blanchette v. School Cormnittee of<br />
-1 -.<br />
Westwood, -__ 421 <strong>Mass</strong>. 176 (1998), made the analogous holding<br />
t-hat the abill.ty to choose a judicial <strong>for</strong>um (SectJon 9<br />
claim) iinplicates a c. 151B right. Hlanchette involved the<br />
quest-ion of whether an employee pursuing a c. 151B claim<br />
waived her right to a judicial <strong>for</strong>um by pursuing a union<br />
arbitration uf a re1at.p.d grievance. The Supreme Judicial<br />
Court held that Che ri.ght to a court determination was<br />
preserved, stating:<br />
- .-<br />
We note first that Blanchette did not waive her right<br />
to pursue hex statutory civil rights claim in a<br />
judicial <strong>for</strong>um merely by being a member of a union<br />
that was'covered by a collective bargaining agrement.<br />
...<br />
The larger question js whether Blanchette, by her own<br />
individual actions, waived her right to pursue her<br />
statutory civil rights claim in a judicial <strong>for</strong>um. . .<br />
Blanchette may have been able explicitly and<br />
voluntarily to waive her right to pursue her statutory<br />
civil rights claim in a judicial <strong>for</strong>um.<br />
Blanchette, .- 42'1 <strong>Mass</strong>. at 183-184 (emphasis added). If c.<br />
151B confers a "right" to pursue a section 9 claim, then<br />
there must be a similar ri.ght to litiyate under section 5.<br />
Thus, it is established beyond dispute that the right to<br />
pursue a section 5 claim in the MUD, is a c. 151B right.<br />
36
2. The Threat To Reject. Simmons' For Failing To<br />
Agrco To Mandatory Arbitration Constitutes<br />
Threats, Coercion And Interference With Rights<br />
In Violation Of Section 4 (4a)<br />
Having established that the option of pursuing a<br />
section 5 c1ai.m i.s a c. 1518 "right," it necessarily<br />
follows that an employer's requirement, under threat of<br />
rejection, that an employee or applicant prospectively<br />
waives that right, constitutes a threat, coercion, or<br />
interference with rights in violation of G.L. c. 151B, 5<br />
4 (4A). It is only necessary to prove one of these elements<br />
to demonstrate a violation of the Law. MELA will establish<br />
the presence of interference, coercion and/or threats in<br />
the following three sections.<br />
a. Joule Unlawfully Coerced Simmons To - Obtain The<br />
Release of Chapter 151B 5 5 Forum Rights<br />
I<br />
Tt i.s i.llegal "to coerce . . . another person in the<br />
exercise or enjoyment of any right granted or protected by<br />
[c. 15181 ." G.L. c. 151B, 5 4(4A). Simons was coerced<br />
with respect to her rights, in the she was instructed to<br />
waive her rights under the threat of termination<br />
(indus.tr.ial capital. punishment). Simmons signed the<br />
agreement after she was in<strong>for</strong>med in writing that, "I will<br />
not bo offered employment until I sign and return this<br />
agreement," and after being in<strong>for</strong>med verbally that she had<br />
to sign if she wanted to work there. App. 68, 78.<br />
Coercion is "the application to another of such <strong>for</strong>ce,<br />
either physical. or moral, as to constrain him to do against<br />
his will something he would not otherwise have done."<br />
37
Buster v. .. George W. Moore, Inc., - 138 <strong>Mass</strong>. 635, 645 (2003)<br />
(<strong>Mass</strong>achusetts Civil. Rights Act) .<br />
ticonomic coercion,<br />
standing alone, may be actionable. - Id. at 616-48.<br />
Joul6's conduct was not ar1 acceptable means <strong>for</strong><br />
inducing Complainant' s consent. Condikioning continued<br />
employment on a wai.ver of rights is cocrci.ve. Garrity - v.<br />
- New Jersey, 8.1 S. CL. 616, 618 (3967) (where cmployees were<br />
given the choice hetween waiving their Fifth Amendment<br />
rights and job <strong>for</strong>feiture, this constituted coercion);<br />
-_ Beaupre v. Cliff Smith & Assoc., . .- 50 <strong>Mass</strong>. App. 480, 495-496<br />
(2000)<br />
(conditioning continued empl.oymcnt on acquiescence<br />
to sexual harassment is coercion under c. 1.51B).<br />
The National Labor Relations Act ("NLKA") contains a<br />
prohibition similar (but not identical) to c. 151B, in that<br />
it prohibits empl.oyers from Bnterfering with, or coercing<br />
employees in their exercise of NLRA rights. 29 U.S.C. 5<br />
l58(a)(1). The First Circuit recognized that supervisors'<br />
mere presence when signatures are solicited, observing who<br />
signed or did not, was coercive in gettiny recognition <strong>for</strong><br />
an employer-favored union. NLRB v. Vernitron -I. Elec.<br />
3<br />
Conduct is illeqallv - coercive if it reasonably - tends to<br />
chill the exercise of rights. Hospital Cristo Redentor,<br />
Inc. v. NLRB, 488 F. 3d 513, 517 (lst Cir. 2007)<br />
(interpreting similar provision in the NLRA) . "1.t is the<br />
coercive tendency of employer statements, not their actual<br />
effect, that constitutes a violation of the Act." Id. at<br />
517, quoting NLRB v. . Marine Optical, Inc. 671. F.2d 11, 18<br />
(lst Cir.-'-1982) (emphasis in original). Thus, conduct may<br />
be held coercive, even if they are also susceptible to a<br />
non-coercive interpretation. Marine<br />
F.2d at 18.<br />
38
Components, Inc., 548 F.2d 24, 26 (Jst Cir. 1977). If a<br />
supervisor's presence at signing can bc deemed a coercive<br />
influence over an employee's decision to sign, a pre-<br />
printed waiver that an applicant must sign in order to<br />
remain an employee has to constitute coercion. Civil.<br />
rights have no substance if the party being regulated can<br />
unilaterally opt out of the regulatory system by <strong>for</strong>cing<br />
the other party, to give up her rights. Thus, Joul&'s<br />
conduct was coercive, in violation of section 4(4A).<br />
b. Joule Threatened Sirrunons<br />
An employer may not threaten an employee with respect.<br />
to that employee's enjoyment of c. 151B rights. G.1,. c.<br />
151B, 5 4(4A). It is "an unlawful practice . . . Fox any<br />
person to . . . threaten . . . another person in the<br />
exercise or enjoyment of any riyht granted or protected by<br />
[c. 15181." - Id. Here, the threat was overt; Shmons was<br />
repeatedly in<strong>for</strong>med that she could not continue as an<br />
employee unless she signed the arbitration agreement. App.<br />
68, 78.<br />
To be actionable, the threat need not constitute<br />
physical intimidation. A threat to the employment<br />
relationship is sufficient. Bairi v. Sprixfield, - - .- 424 <strong>Mass</strong>.<br />
758, 765 (1997). A threat violates 5 4(4A) even if the<br />
employer does not act on it. ~<br />
Bain, 424 <strong>Mass</strong>. at 765 & n.4.<br />
Thus, Joule's conduct in obtaining the arbitration<br />
agreement violated c. 1518. See NLRn v. Reed & Prince Mfg.<br />
Co., 118 F.2d 874, 884-885, 887 (1st Cir. 1941) (employer's<br />
39
campaign againsl: union constitut.ed interference and<br />
coercion, because i.n its literature, "the threat was only<br />
thinly veiled that. thc acceptance of that contract was a<br />
sine qua rion of recmpl.oyment") .<br />
The line between acceptable hard bargaining and one<br />
that is threatening varies, depending upon the rights at<br />
issue, and the underlying public policy.<br />
Universal Maritime .. . Servi.ce -. Corp., 119 S. Ct. 391, 396<br />
(1998). For example, an employer may tell an employee,<br />
"you will work here <strong>for</strong> $10.00 an hour; take it: or leave<br />
it." The resulting contract is en<strong>for</strong>ceable, and not<br />
coercivc, because an employer is generally entitled to<br />
retain an at-will employee on terms satisfactory to the<br />
employer. Hard bargaining involving compensation (beyond<br />
minimum wage) is l.egitimate, and is not an actionable<br />
threat.<br />
- See Wright - v.<br />
However, an employer may not tell an employee, "we'll<br />
only retain you if you promise to acquiesce to sexual<br />
harassment; take it or leave it." - See Beaupre, 50 <strong>Mass</strong>.<br />
App. at 495-496. That contract is the result of an<br />
unlawful threat or coercion, and it is precisely the<br />
conduct that c. 3.51B, S§ 4(4A) & 4(5) sought to prohibit.<br />
- Id. Hard bargaining over c. 151B rights is impermissible.<br />
A waiver of important civil rights must not be a<br />
condition of: employment.<br />
This prhciple is demonstrated in<br />
a backward €ashion in the case ol Miller v. Cotter, 448<br />
<strong>Mass</strong>. 671 (2007), where an arbitration agreement in a<br />
40
nursing home contract was ruled en<strong>for</strong>ceable, becausc it was<br />
I not a condition of admission.<br />
was not a condition of admission was repeatedly stressed as<br />
an important factor favoring en<strong>for</strong>cement. Id. at 673, 680,<br />
681, 682 n.15. Consequently, the act of conditioning<br />
employment upon a prospective waiver of c. 1518 rights must<br />
be deemed coercive.<br />
The fact that the agrement<br />
-<br />
c. Youle Interfered With Simmons‘ Rights<br />
Joule interfered with Simons‘ enjoyment of her<br />
section 5 rights when it required her to prospectively sign<br />
away those rights, on threat of termination. Under the<br />
statute, it is unlawful to “threaten . . . another person<br />
in the exercise or enjoyment of any right granted or<br />
protected by [c. 1SlBl .“ G.L. c. 151B, 5 4 (4A). Joule<br />
acted in a manner calculated to interfere with rights, i.e.<br />
that is, to prevent. Simmons from enjoying those rights <strong>for</strong><br />
future claims. G.L. c. 1518, 5 4(4A) +<br />
“Interference” with rights is a term with broad<br />
application to practices designed to diminish rights.<br />
Walker v. Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001)<br />
See<br />
(discussing similar provision in federal fair housing act).<br />
When an employer attempts to have an employee sign a<br />
contract that limits their c. 151B rights, that can seen as<br />
improper interference. Fox example, in I Melnychenko v.<br />
84 -<br />
Lumber Co., 424 <strong>Mass</strong>. 285, 295 (1997), the employer sought<br />
to have an employee sign away his rights to assist a CO-<br />
worker in the co-worker’s sexual harassment case. The<br />
41
Supreme Judicial Court found that the attempt tu extinyuish<br />
this right through a contract would have warranted a<br />
finding that the company attempted to interfere wi.th the<br />
employee's rights. -~ Id. Thus, a contractual waiver of<br />
rights demanded by an employer may <strong>for</strong>m the basis of<br />
unlawful interference with enjoyment of rights. 4<br />
A New Jersey Superior Court has found that mandatory<br />
arbitration constitutes unlawful "interference" under a<br />
provision similar to section 1(4A). Ackerman v. The Money<br />
Store, 728 A.2d 873, 878 (N.J. Super. Ct. Law Div. 1998).<br />
In Ackerman<br />
-.-r the plaintiff was fired <strong>for</strong> refusing to agree<br />
to a pre-dispute arbitration provision.<br />
anti-discrimination statute, like c. 151H, 5 4(4A) makes it<br />
unlawful to "coerce, intimidate, threaten, or interfere<br />
with any person in the exercise or enjoyment of . . . any<br />
right granted or protected by this act."<br />
N.J.S.A. 10:5-12(6). The court noted that the arbitration<br />
provision amounted to a waiver of procedural rights.<br />
at 878-879. After an extensive analysis, the court held<br />
that conditioning employment on agreement to mandatory<br />
arbitration constitutes actionable interference with those<br />
rights. - Id. at 879-880.<br />
-,<br />
The New Jersey<br />
- Id. at 877;<br />
4<br />
Firing an individual based on protected status may also<br />
constitute interference with rights. NLRB v. Horizons<br />
-- Hotel Corp., 49 F.3d 795, 804 (ISt Cir. 1995); Navarro v.<br />
Pfizer Cory., 261 F.3d 90, 95 (lSt Cir. 2001); --- Barbour v.<br />
Qnmi.cs Research Corp., 63 F.3d 32, 37 (lSt Cir. 1995).<br />
Consequently, a threat to fire falls within this category<br />
of unlawfu,l conduct.<br />
42<br />
Id.
When an employer says, "waive your c. 1518 rights or<br />
you're fired," how can that not be considered interference<br />
with rights'? The peril facing Simmons was plain on the<br />
contract's face. App. 78. Consequently, Joule interfered<br />
with Simmons' in hex enjoyment of rights when it<br />
specifically stated that she would be rejected in the<br />
absence of a waiver. To en<strong>for</strong>ce the arbitration agreement<br />
under t.he circumstances would encourage Joule and other<br />
employers to continue their Lawbreaking campaigns of<br />
threats and intimidation.<br />
C. COMMON LAW SKEPTICISM OF PROSPECTIVE WAIVERS OF CIVIL<br />
RIGHTS<br />
In addition to §§ 4(4A) and 8, there i s yet another<br />
source of public policy that invalidates the arbitration<br />
agreement. The comon law has long expressed a healthy<br />
skepticism of prospective waivers other civil rights. This<br />
skepticism bolsters the finding that the mandatory, <strong>for</strong>ced<br />
waiver of section 5 rights violates public policy.<br />
As a society, we allow claimants to release rights<br />
after a claim axises, but not be<strong>for</strong>e, because a pre-dispute<br />
release diminishes deterrence to lawbreakers, and raises<br />
issues of unfairness. D. Schwartz, "En<strong>for</strong>cing Small Print<br />
to Protect Big Business:<br />
Employee and Consumer Rights<br />
Claims in an Age of Compelled Arbitration, 1997 Wis. L.<br />
Rev. 33, at 105, 110-113, 117-118. We would not tolerate,<br />
<strong>for</strong> example, the state requiring applicants to<br />
43
prospectively waive future Miranda or jury trial rights as<br />
a condition <strong>for</strong> applying fur public employment.<br />
This Court recently held that a prospecti.ve waiver of<br />
c. 151B substantive claims would be void, as against public<br />
policy. - Warfield, 454 <strong>Mass</strong>. at 399 n. 13 ("no employment<br />
contract purporting to waive entirely an employee's right<br />
to assert or seek any redress <strong>for</strong> a claim of<br />
discrimination, no matter how unambiguously the waiver<br />
might be stated, would be entitled to en<strong>for</strong>cement").<br />
Certain statutory rights, including c. 1518 rights,<br />
are considered not subject to prospective waiver. Ualuz ,~- v.<br />
Department of Correction, 434 <strong>Mass</strong>. 40, 46-47 (2001). This<br />
Court held, <strong>for</strong> example, that "Rights set <strong>for</strong>th in [c.<br />
15lBJ § 4(9A) may not be waived." _I<br />
Kraft v. Police Comm'r,<br />
410 <strong>Mass</strong>. 155, 158 L1991). Such prospective waivers<br />
undermine the protections that the Legislature imposed to<br />
protect the employee in particular, and society in general.<br />
Id.<br />
-<br />
There are plenty of other cases that hold that<br />
prospective waivers of civil rights will not be recognized.<br />
-. See Cole v. Burns Intern. Security .. Services, 105 F.3d 1465,<br />
1482 (D.C. Cir. 1997) (prospective release of future claims<br />
of employment discrimination would be void) ; Stirlen v.<br />
Supercuts, Inc.., 60 Cal.Rptr. 2d 138, 150 (Cal. App. 1<br />
Dist. 1997) (arbitration agreement prospectively waiving<br />
rights to award of punitive damages and attorneys fees €or<br />
discrimination claims violates public policy); Williams --^-I v.<br />
44
Vokovich, 720 F.2d 909, 925 (8th Cir. 1983) (consent decree<br />
containing waivers of future discrimination claims held<br />
invalid); United States v. Allegheny-Ludlum Industries,<br />
Inc., 51’1 F.2d 826, 854-5 (5th Cir. 1975), cert. denied 425<br />
U.S. 944 (1976).<br />
Consequently, the common law supports a public policy<br />
preventing en<strong>for</strong>cement of prospective waivers of: c. 151H<br />
rights, especially where procured by threats to the<br />
employment relationship.<br />
D. THE FEDERM ARBITRATION ACT WES NOT PROTECT COERCED<br />
AGREEMENTS<br />
The rule urged by MELA is one of general application,<br />
that an employer may not use threats to employment or other<br />
coercion in obtaining prospective waivers of civil riqhts.<br />
The rule applies to arbitration agreements, but it applies<br />
equally to all waivers of other civil rights, including the<br />
right to be free of discrimination and harassment, the<br />
right to file claims with investigatory bodies, ‘chc right<br />
to assist others in opposing discrimination, and the right<br />
to a full panoply of monetary and equitable remedies.<br />
Section 5 rights should be protected from coerced<br />
prospective waiver no more than these othex rights, but<br />
certainly no less.<br />
Given that such a defense would protect all civil<br />
riqhts equally, whether or not such rights touch upon<br />
arbitration, the rule would not be preempted by the Federal.<br />
Arbitration Act, 9 U.S.C. §§ 1, et seq. St. Fleur, 450<br />
45
<strong>Mass</strong>. at 354 (fraud-in-the-inducement defense to an<br />
arbitration agreement is valid, and not subject to FAA<br />
preemption, because the defense applies to contracts<br />
generally, and not just arbitration agreements); Warfield,<br />
IS4 <strong>Mass</strong>. at 398-400 (public policy precluding waiver of<br />
any c. 1518 right, unless the written waiver is clear and<br />
unmistakable, is not preempted by FAA, because all c. 151B<br />
rights are so protected, whether or not arbitration is<br />
involved); Feeney, 451 <strong>Mass</strong>. at 208-210 (class action<br />
waiver in an arbitration agreement, that had the effect of<br />
prohibiting small consumer protection act claims, violates<br />
pub]-ic policy and voids the arbitration provision; and the<br />
policy protecting small" c. 93A claims is not preempted by<br />
the FAA because it is not inherently antagonistic towards<br />
arbitration, and applies to other actions that would impair<br />
c. 93A claims).<br />
The courts have not, nor could they, authorize coerced<br />
arbitration agreements. "[Alrbitration under the [FAA] is<br />
a matter of consent, not coercion." Volt Info. Sci., Inc.<br />
v. Bd. "._-I of Tr. of Leland Stan<strong>for</strong>d, 109 S. Ct. 1248, 1256<br />
(1989); Mastrobuono v. Shearson Lehman Hutton, -_ 115 S. Ct.<br />
1212, 1216 (1995); Waffle House, Inc., 122 S . Cf. aC 769.<br />
The Supreme Court has en<strong>for</strong>ced arbitration agreements only<br />
in the absence of cvidencc of coercion. Gilmer v.<br />
-<br />
Interstate/Johnson Lane Corp., 111 S. Ct. 1647, 1656 (1991)<br />
("There is no indication . . . that Gilrner . . . was<br />
46
coerced"). It is up to state law to define what improper<br />
coercion is. 9 W.S.C. § 2.<br />
Under the FAA, where the voluntariness of the<br />
agreement is at issue, there is no presumption favoring<br />
arbitration. - McCarthy<br />
-_. v. Azure, 1- 22<br />
F.3d 351, 355 (1st Cir.<br />
1994) (presumption of arbitrability does not apply when<br />
Court is considering whether "arbitration rest [SI on a<br />
consensual foundation"). Thus, neither the FAA or MAA, or<br />
the presumption of arbitrability that they may imply, bear<br />
upon the en<strong>for</strong>ceability of this agreement.<br />
Moreover, as shown above, the FAA and MAA are<br />
inapplicable, because the MCAD never signed the arbitration<br />
agreement at issue. Maria, 402 F.3d at 16 ("The EEOC is a<br />
nonparty to the arbitration agreement and there<strong>for</strong>e cannot<br />
be bound by it"). Thus, <strong>Mass</strong>achusetts law, and public<br />
policy controls here, and clearly invalidates the<br />
agreement, as the product of unlawful threats.<br />
CONLWSICW<br />
For tho <strong>for</strong>egoing reasons, the JoulG complaint should<br />
be dismissed, and the MCAD proceedings should be permitted<br />
to continue.<br />
47
,-<br />
Respectfully submitted,<br />
The <strong>Mass</strong>achusetts Employment<br />
Lawyers Association,<br />
By its Attorney<br />
Robert S. Mantell<br />
BBO# 559715<br />
Rodgess, Powers & Schwartz LLP<br />
18 Tremont Street<br />
Suite 500<br />
Boston, MA 02108<br />
(617) 742-7010<br />
RULE 16 (k) CERTIFICATION<br />
I hereby certify that the <strong>for</strong>egoing brief complies<br />
with all rules pertai.ning to the filing of briefs with this<br />
court.. *-<br />
CERTIFICATE OF SERVICE<br />
I hereby certify that on August 13, 2010, I served two<br />
copies of this brief on counsel of record <strong>for</strong> all parties,<br />
including Barbara A. Robb, Esq., Shilepsky O'Connell<br />
Hartley Casey Michon Yden Robb LLP, One Financial Center,<br />
15th Floor, Boston, MA 02111-2688, Herbert L. Holtz, Esq.,<br />
Holtz & Reed, LLP, One Bowdoin Square, Boston, MA 02114,<br />
and Beverly I. Ward, Esq., <strong>Mass</strong>achusetts Commission Against<br />
Discrimination, One Asburton Place, Room 601, Boston, MA<br />
02108, by First Class Mail.<br />
48