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When an employer says, "waive your c. 1518 rights or you're fired," how can that not be considered interference with rights'? The peril facing Simmons was plain on the contract's face. App. 78. Consequently, Joule interfered with Simmons' in hex enjoyment of rights when it specifically stated that she would be rejected in the absence of a waiver. To enforce the arbitration agreement under t.he circumstances would encourage Joule and other employers to continue their Lawbreaking campaigns of threats and intimidation. C. COMMON LAW SKEPTICISM OF PROSPECTIVE WAIVERS OF CIVIL RIGHTS In addition to §§ 4(4A) and 8, there i s yet another source of public policy that invalidates the arbitration agreement. The comon law has long expressed a healthy skepticism of prospective waivers other civil rights. This skepticism bolsters the finding that the mandatory, forced waiver of section 5 rights violates public policy. As a society, we allow claimants to release rights after a claim axises, but not before, because a pre-dispute release diminishes deterrence to lawbreakers, and raises issues of unfairness. D. Schwartz, "Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L. Rev. 33, at 105, 110-113, 117-118. We would not tolerate, for example, the state requiring applicants to 43
prospectively waive future Miranda or jury trial rights as a condition for applying fur public employment. This Court recently held that a prospecti.ve waiver of c. 151B substantive claims would be void, as against public policy. - Warfield, 454 Mass. at 399 n. 13 ("no employment contract purporting to waive entirely an employee's right to assert or seek any redress for a claim of discrimination, no matter how unambiguously the waiver might be stated, would be entitled to enforcement"). Certain statutory rights, including c. 1518 rights, are considered not subject to prospective waiver. Ualuz ,~- v. Department of Correction, 434 Mass. 40, 46-47 (2001). This Court held, for example, that "Rights set forth in [c. 15lBJ § 4(9A) may not be waived." _I Kraft v. Police Comm'r, 410 Mass. 155, 158 L1991). Such prospective waivers undermine the protections that the Legislature imposed to protect the employee in particular, and society in general. Id. - There are plenty of other cases that hold that prospective waivers of civil rights will not be recognized. -. See Cole v. Burns Intern. Security .. Services, 105 F.3d 1465, 1482 (D.C. Cir. 1997) (prospective release of future claims of employment discrimination would be void) ; Stirlen v. Supercuts, Inc.., 60 Cal.Rptr. 2d 138, 150 (Cal. App. 1 Dist. 1997) (arbitration agreement prospectively waiving rights to award of punitive damages and attorneys fees €or discrimination claims violates public policy); Williams --^-I v. 44
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 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 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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