Section 9 Procedural Protections for Employees

• Library: Employment Discrimination 2008

Courts have held that the language used by the parties must be sufficiently clear that the employee is making a knowing and voluntary waiver of the right to have the employee’s discrimination claim adjudicated in a court. Compare Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8^th Cir. 1997) (an agreement to arbitrate contained in a tear-out acknowledgment form of an employee handbook was held enforceable, despite disclaimers that the handbook did not create a contract, because the language of the arbitration acknowledgment was sufficiently distinct as to communicate the agreement to arbitrate), with Kummetz v. Tech Mold, Inc., 152 F.3d 1153 (9^th Cir. 1998) (an agreement contained in an employment information booklet was not enforced because it was neither explicitly presented nor explicitly accepted and because the acknowledgment form signed by the employee only confirmed that the employee had read and understood the booklet), and Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054 (11^th Cir. 1998) (handbook acknowledgment “woefully deficient” as a waiver).

Courts have also scrutinized the fundamental fairness of the
process adopted by the parties and will not enforce an agreement to arbitrate that is found to be unconscionable. A particularly one-sided agreement was held to be unenforceable in Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4^th Cir. 1999) (lower court decision reported at
39 F. Supp. 2d 582 (D.S.C. 1998)). The district court described Hooters’ arbitration rules as “a spectacle of Gilmer [v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)] gone mad.” Hooters, 39 F. Supp. 2d at 615. Under the rules, which Hooters reserved the right to unilaterally change, all arbitrators had to be chosen from a list approved by...