By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center (CAC)
Cross-posted at CAC's Text & History blog
From Monday's oral argument in Rent-A-Center v. Jackson, it appears that corporate America, and apparently some Justices on the Supreme Court, believe that there are basically only two situations in which a court can invalidate a broad, mandatory, pre-dispute arbitration agreement signed by an applicant for a job with a corporate employer as a condition of being hired. First, arbitration might not be required if the would-be-employee signed the agreement only because the employer put a gun to her head or got her drunk and had her sign under the influence. Second, the courthouse doors might be open if it were discovered that it was not the now-employed person's signature on the agreement, but rather the handwriting of "Joe Bananas," some weirdo (courtesy of Justice Breyer's imagination) who has been running around impersonating the poor employee.
It should be noted that these fanciful hypotheticals discussed at oral argument do not cover the most frequent, real world "gun-to-the-head" scenario faced by job applicants, in which their only "choice," if they want the job, is to agree to arbitrate, on the employer's terms, any and all future disputes -a "choice" characterized by Chief Justice Roberts as "economic inequality or whatever." Only the literal gun-to-the-head scenario will suffice, apparently; not being free to assert your right to access the courts because it means you won't be hired and maybe won't be able to support your family, does not.
While the hypotheticals were plentiful at argument, the actual facts of the case before the Court were little discussed. The petitioner, Antonio Jackson, signed an agreement when he was offered a job at Rent-A-Center that required him to give up his right to access the courts in the event of a future claim against his employer, and instead submit any and all future claims to a private arbitrator. Jackson did not have a real choice about whether to sign this agreement; he was given no opportunity to negotiate its terms, and the failure to sign would have meant he would not get the job. The terms of the agreement were lop-sided in favor of Rent-A-Center, particularly with respect to fees and discovery procedures. Moreover, corporate employers like Rent-A-Center are repeat players in the arbitration system and their continued patronage keeps arbitrators in profitable business, which means that arbitrators may well be predisposed in the employers' favor.