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and remedy violations of the statute. heartcd participation in the MCAD's enforcement actions is necessary for the MCAD to perform adequate investigations, and to prot-ect the public interest. To send a case to arbitration, and stay or dismiss the MCAD action, consigns the MCAD to irrelevance, and sabotages its ability to protcclr us all. Thus, the arbitration provision, obtained under an express threat to employment, and imposed at the whim of the employer, violates the public policy in c. 3.51B, § 8, by impairing the Commission in its ability to hold effective proceedings and do its job. B. CHAPTER 151B, SECTION 4(4A) The employee's full- 'The public pol.icy prohibiting interference with c. 1.51B rights also finds expression in a civil provision of the statuCe, G.I.. c. 151B, 5 4(4A). According 'to c. 1518, 5 4(4A), it i s a prohibited practice for an employer to "coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter [c. 15181.'' The MCAD is correct that arbitration agreements obtained by employers as a condition of employment may constitute per se violations of this provision. Addendum - F, at 8, 22-23. Joule's conduct violated this provision, because it used the threat of rejection to force an employee to prospectively waive her right to litigate at the MCAD. App. 68, 78. When an employer states, "waive your rights or you are fired," that must be considered interference 33
with rights. As will be shown, section 4(4A) establishes putil i.c pol icy inimical to mandatory, coerced arbitration, because c. 151B confers the right to pursue discrimination claims at the MCAD, and Joule interfered with this right when it required Simmons to prospectively waive that right as a condition of employment. 1. The - Option - To Pursue A Section 5 Case Constitutes A Chapter 1518 Right -. Chapler 151B, 5 4(4A) prohibits interference with a person in thcir enjoyment of c. 15:tB rights. G.L. c. 151B, 5 4(4A). Therefore, the first step is to determine whether mandatory arbitration stifles a c. l51B right. It does. The option to pursue section 5 procedures is a c. 151B right. The decision of Stonehill Colleqe, 441 Mass. 549, 564 (2004), noted that Complainants could 1itj.gate using section 5 procedures at the MCAD or could go to Court, and specifically upheld Complai.nants' "right to choose the forum in which their cl.aim will bc heard." The case of Warfield v. Beth Israel Deaconess Medical - Ccnter, Inc., 454 Mass. 390 (2009), confirms that the option of pursuing a section 5 remedy constitutes a 'right" accorded by c. 3.51B. The decision refers to the "right to seek redress for employment discrimination through the remedial paths set out in c. 151B." Warfield, 454 Mass. alr 400 (emphasis added). An employee who purportedly agrees to arbit-rate a discrimihation claim represents a "limited waiver of rights under G.L. c. 1518. . . . [and] does give 34
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 16 and 17: ARmJmwr The Massachusetts Employmen
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 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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