Whether an employee’s agreement to arbitrate all “claims and disputes” bars her from asserting claims before the Mass. Commission Against Discrimination.

The employee, Randi Simmons, signed an agreement shortly after beginning employment in which she agreed to arbitrate all disputes and claims, and acknowledged that she was waiving her right to a jury trial in so doing. When the employer, Joulé, fired her several years later, Simmons asserted discrimination and retaliation claims relating to pregnancy leave.

Joulé filed a civil action seeking to compel Simmons to initiate arbitration and bar her from participating in MCAD proceedings. The judge rejected Joulé’s request, Joulé appealed, and the SJC granted Simmons’ and MCAD’s motions for direct appellate review. 

The key question is whether an employee has the ability to waive MCAD enforcement. MCAD argues that investigation and enforcement of complaints under G.L. c. 151B, § 5, is an exercise of police power, to deter discrimination in the public interest, and cannot be waived by private parties. MCAD notes that rather than serving solely as a neutral arbiter, MCAD and its attorneys (possibly deputizing a complainant’s attorney) investigate and prosecute the complaint in MCAD’s name.

Joulé did not respond as of writing. Simmons also raises claims that she lacked sufficient notice of the waiver, even if it was permissible, which is difficult to evaluate on the available record.

MCAD investigates discrimination through employee complaints, attorney general complaints, or of its own accord. G.L. c. 151B, § 5. The last two categories clearly cannot be controlled by any private agreement between employee and employer, nor could a private agreement prevent the employee from assisting in such an investigation. So the question is only whether a private agreement may prevent an employee from filing a complaint with MCAD in the first place. Given the rest of the investigatory structure, as argued by MCAD, it is difficult to imagine that it can.

That decision would leave a number of unanswered questions, however, given that arbitration agreements can bar civil litigation. For example, if the Attorney General commences an action in the Superior Court on behalf of the complainant as a result of the MCAD process, may the complainant exercise her right to intervene?