Signing Away Your Rights— No Signature Required?
I've written, perhaps ad nauseam, about the perils of pre-dispute binding mandatory arbitration clauses. For the most part we've covered the dangers of a) unwittingly signing them, like when you purchase a cell phone or get a new credit card; or b) signing them in a context where you feel you have no real choice in the matter, such as in employment contracts.
Stephanie Mencimer, a past TortDeform contributor and a columnist for Mother Jones, uncovers a new layer of arbitration atrocities. She writes about the case of a health care employee named Fonza Luke who refused to sign an arbitration agreement at work, an act which brought her under heightened scrutiny at work and eventually resulted in her being discriminated against. But, as Mencimer describes, Ms. Luke couldn't take her discrimination claim to court because her employer argued that simply showing up to work each day was tantamount to her agreement to arbitrate any disputes. That is, even though she actively refused to sign the arbitration agreement, she was still subject to it. And a federal judge agreed!
This case reveals the ridiculously twisted "logic" of the claim that banning binding mandatory arbitration clauses would be bad for regular people because it would take away our right to choose arbitration in exchange for cheaper goods and services. But if one's "choice" must be between remaining employed or losing one's right to take a discrimination claim to court, then this is no substantive choice at all. I wonder what tort deformers have to say about imposing binding mandatory arbitration on people who affirmatively oppose it. Well, I can guess.