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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
Page 1: COMMONWEALTH OF MASSACHUSETTS SUPRE
Page 4 and 5: - 11. MASSACHUSETTS PUBLIC POLICY I
Page 6 and 7: EEOC V. Waffle House, InC., 122 s.
Page 8 and 9: Wal.ker v. Lakewood, 272 F.3d 1114
Page 10 and 11: 1. STATEMENT OF ISSUES siyned by th
Page 12 and 13: STATEMENT OF TAE CASE MELA adopts D
Page 14 and 15: undermining the many cases pursued
Page 18 and 19: MCAD to enforce the law and rectify
Page 20 and 21: Labor Comissioner serves simply as
Page 22 and 23: The Supreme Court held that the arb
Page 24 and 25: The MUD was established to enforce
Page 26 and 27: If the private parties agree to res
Page 28 and 29: case in suppori of the Complainant,
Page 30 and 31: Stonehill College, 141 Mass. at. 56
Page 32 and 33: comprehensive scheme to combat disc
Page 34 and 35: een imposed? Or otherwise assure th
Page 36 and 37: G. JOULE'S OTHER ARGUMENTS ARE OFF-
Page 38 and 39: to create a stumbling block. The tr
Page 40 and 41: Moreover, the MCAD wrote in its ami
Page 42 and 43: and remedy violations of the statut
Page 44 and 45: up the substantial right to seek ad
Page 46 and 47: 2. The Threat To Reject. Simmons' F
Page 48 and 49: Components, Inc., 548 F.2d 24, 26 (
Page 50 and 51: nursing home contract was ruled enf
Page 52 and 53: When an employer says, "waive your
Page 54 and 55: Vokovich, 720 F.2d 909, 925 (8th Ci
Page 56 and 57: coerced"). It is up to state law to

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