What are the chances employers will hire job applicants who opt-out of a “voluntary” clause that requires them to forgo their right to file a lawsuit if they are subject to future civil rights violations?
Lori Burchett thought the odds were not good when she applied to work as a “My Stylist” at a Macy’s Inc. store at Oak Brook Center in Illinois in 2017. In any case, she didn’t want to gamble. She needed a job.
Burchett, then 58, agreed to something that was clearly not in her best interests, a clause requiring her to submit to arbitration any future claims of employment discrimination based on age, gender and race.
In the following months, Burchett alleges she encountered gross age discrimination from managers and coworkers that led to her termination by Macy’s in 2018.
U.S. District Judge Sharon Johnson Coleman earlier this month dismissed Burchett’s age discrimination lawsuit and granted Macy’s motion to compel arbitration in the case.
Judge Coleman notes that Burchett, who represented herself, “contends that Macy’s would not have hired her if she did not sign the arbitration agreement.”
But Judge Coleman said Macy’s legal team provided “painstakingly detailed evidence and averments” that Burchett was informed in advance of hire that she could opt-out of the arbitration clause.
“Without proof to the contrary, courts will not presume that arbitration is unfair or biased, especially in light of federal policy favoring arbitration,” ruled Judge Coleman.
Apparently, Burchett’s “averments” did not constitute evidence or proof to the contrary.
The implications of Judge Coleman’s ruling is that employers can easily exempt themselves from being sued in federal courts for future violations of U.S. civil rights laws simply by asking job applicants to sign a “voluntary” arbitration clause in an employment agreement.
Does The Emperor Have Clothes?
Is a voluntary requirement to submit to arbitration really voluntary in an age of epidemic age discrimination in hiring for older women, especially in retail.
By dismissing the case shortly after it was filed, Judge Coleman foreclosed the possibility of discovery by Burchett on the question of whether she was effectively forced to agree to the clause. Questions that come to mind include the following:
- How many applicants refuse to sign Macy’s voluntary arbitration clause ?
- How many applicants who refuse to sign the clause are hired by Macy’s?
- Did Burchett, who is a stylist and not an attorney, really understand the meaning of the clause and its future implications?
- How many federal judges would refuse to sign such a clause if they needed a job? (Well, maybe not that one.)
Trump’s EEOC Lite
Until January, the EEOC took the position that mandatory arbitration agreements undermine the enforcement of federal anti-discrimination laws. In a 1997 guidance, the EEOC held that such agreements “deprive civil rights claimants of the choice to vindicate their statutory rights in the courts.” The EEOC officially withdrew that position in January, citing various U.S. Supreme Court decisions holding that employment-related arbitration agreements are enforceable under the Federal Arbitration Act.
The vote to rescind the policy statement followed President Donald A. Trump’s appointment of Republican Janet Dhillon, a former corporate counsel, to chair the EEOC. Dillon and EEOC member Victoria Lipnic are now in the majority. The vote to rescind the clause was 2- to 1, with the dissenting vote cast by Charlotte Burrows, a Democrat.
The case is Burchett v. Macy’s Inc., No. 20-cv-0488 (9/4/20).