Gross Isn't Too Gross

In Eunice v. Valley View Local Schools, the Sixth Circuit Court of Appeals (Gibbons, J.) held that Gross's preclusion of mixed-motive claims does not apply to FMLA retaliation claims. Specifically, because the FMLA does not contain the ADA's "because of," but instead, in regulation 29 CFR s. 825.220(c) (promulgated by the Department of Labor), uses less stringent words like "negative factor," the Court held that "the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors." (It may be problematic that the Court relied upon regulations, and not the text of the statute. This may explain why the Court went out of its way to note that it had already found the regulation in question to be "reasonable" and "entitled to deferential judicial review.") As such, "if Hunter has presented evidence to establish that Valley View discriminated against her because of her FMLA leave, then the burden shifts to Valley View to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." The Court ultimately reversed the trial court's grant of summary judgment for Defendant. An extension of Gross to FMLA retaliation claims would have favored employers because it would have required employees to demonstrate that the impermissible motive was the "but for" cause of the employment action.

Click here for a copy of the Court's decision.
Click here for a copy of the FMLA.
Click here for a copy of the regulation.

Retroactive Application? -- NO

In Milholland v. Sumner County, the Sixth Circuit Court of Appeals (Rogers, J.) held that the ADA Amendments Act of 2008 does not apply retroactively. According to Judge Rogers "there is nonetheless a well-settled presumption against application of . . . new statutes that would have genuinely retroactive effect." According to Judge Rogers "Congress can only retroactively overturn that interpretation when its intent to reach conduct preceding the corrective amendment . . . clearly appears." Not so with the ADA Amendments Act of 2008, so no retro.

In Milholland this made all the difference. Milholland was pursuing a "regarded-as" claim (related to her arthritis) under the ADA. Prior to the Amendments, Milholland would have had to establish that her employer regarded her as having an impairment that substantially limits one or more of her major life activities. After the Amendments, her burden is lowered as she would only have to establish that her she was subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Milholland couldn't establish that her employer regarded her as having an impairment that substantially limits one of her major life activities and the Sixth Circuit affirmed the district court's grant of summary judgment for the employer.

Click here for a copy of the opinion.

Hostile Work Environments -- The Pushed Envelope

Ingrid Reeves was subject to a hostile work environment. As a transportation sales representative at C.H. Worldwide, Ms. Reeves heard her co-workers call women "cunts," "fucking whores," and "fucking bitches." None of this was directed at Reeves. This did not cause the 11th Circuit to pause because "a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct." Specifically, "[i]t is enough to hear co-workers on a daily basis refer to female colleagues as 'bitches,' 'whores,' and 'cunts,' to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: 'and you are a bitch too.'" The Court cites cases from the 4th, 2nd, and 7th Circuits to support its finding that the conduct need not be directed specifically at plaintiff, so long as it is directed at plaintiff's protected class. (A cleaner way to make this argument may be to state that the conduct is unwelcome because of the plaintiff's sex.)

The Court quickly disposed of the Employer's claim that "Reeves's co-workers used the terms 'bitch' and 'whore' to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific" because they are gender-specific and because "[c]alling a man a 'bitch' belittles him precisely because it belittles women."

As an initial matter, employers should control their workplace so this type of conduct does not occur. But, more importantly, Reeves reveals the importance of taking complaints seriously. Indeed, Reeves complained to her branch manager on at least five separate occasions, the Director of Branch Operations, and the Vice President. The branch manager was no help and, in fact, too called women "bitches." The other two promised one-on-one meetings but cancelled. In short, the employer knew, or had reason to know, and did nothing. This allowed Reeves to state a viable hostile work environment claim.

Message to employers: take complaints seriously and follow up to remedy the situation. Failing to do so is not only a bad business practice (as it allows hostile work environments to fester) but also exposes employers to liability.

Click here for a copy of the Court's opinion.

Twombly and Iqbal Attack

In Kasten v. Ford Motor Company, Judge Victoria A. Roberts provided good law for employers regarding whether Twombly and Iqbal apply to employment discrimination cases. Judge Roberts rejected Plaintiffs' claim that Swierkiewicz v. Sorema N.A. governs pleading in employment discrimination claims, pointing out that according to Iqbal the Twombly standard applies to "all civil actions."

Perhaps the most helpful distinction in Iqbal, and pointed out by Judge Roberts, is that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." According to Iqbal, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

No harm no foul in Kasten, however, as two weeks after Judge Roberts's opinion, Plaintiffs amended their complaint which must have been sufficiently plead as it went unchallenged. This raises an interesting question as it seems, under most circumstances, courts will allow plaintiffs to re-plead. In that sense, it seems plaintiffs' attorneys will have to do more due diligence prior to filing and defendants will be able to dismiss meritless claims without having to engage in discovery. In that sense, importantly, Twombly and Iqbal prevent plaintiffs' attorneys from using the discovery process to uncover merit for the meritless.

Click here for a copy of Twombly.

Click here for a copy of Iqbal.

What Are FMLA'ers Entitled To & How Far Does Gross Go?

In Harris v. Metro Gov't of Nashville, Judge Guy, writing for the Sixth Circuit Court of Appeals provides helpful precedent for employers regarding FMLA interference claims. Specifically, Harris draws the helpful distinction regarding exactly what benefits employees are entitled to upon return from FMLA leave. (In Harris's case, he claimed he was entitled to a supplemental stipend for coaching the high school basketball team which he did not qualify for because of his leave.) According to the Court, "[i]nterference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct. "

The Court also clarified that, despite FBL v. Gross, plaintiffs can still utilize the McDonnell Douglass framework to establish disparate treatment claims under ADEA based on circumstantial evidence. Nonetheless, as compelled by Gross, "[t]he plaintiff retains the ultimate burden of proving that 'age was the but-for cause of the employer's adverse action.'"

Click here for a copy of the Court's opinion.

Click here for a copy of Gross.

The Retaliation Anomaly

The 10th Circuit Court of Appeals, in Robinson v. Cavalry Portfolio Services reversed a jury verdict for Plaintiff, and ordered the lower court to grant Defendant's motion for a directed verdict on, among other things, that she was retaliated against for her opposition to a Title VII violation.

Robinson was a participant in a racially-charged conversation with a co-worker named Torres. She is white and her husband is black, and the conversation covered why she dated black men, why she didn't date white men, and included the N-word. Robinson's co-worker, and not Robinson, reported the incident. Defendant interviewed Robinson about the incident. Plaintiff said she felt the conversation was inappropriate, that she was offended by his language, and that his comments were racist. Two days later the offensive employee was terminated for excessive tardiness. Robinson claims she was discriminated against because she complained about Torres's comments.

The Court felt the conduct in question had not risen to the level required in order to sustain a retaliation claim. (The Court did correctly note that, according to Crawford v. Metro Gov't of Nashville, it was of no consequence that Robinson did not actually report the conduct.) In fact, according to the Court, Robinson's conduct was not "opposition" because "[n]o reasonable person could have believed that the single Torres incident violated Title VII's standard," and, as such, Robinson "misperceive[d] what constitutes an unlawful 'employment practice.'" (The Court likely would have held that Robinson suffered no adverse employment action given its discussion in connection with her racial discrimination claims.)

Robinson v. Calvary reaffirms an anomaly. Specifically, employees are not protected from retaliation when employees oppose practices that have not risen to the level of unlawful practices.

Click here for a copy of the Court's opinion.

Click here for a copy of Crawford.

Termination and Employer Missteps

Brenna Lewis worked in a front desk position at Heartland Inns. In that capacity, Lewis received good performance reviews and at least one positive customer comment. Lewis was eventually promoted to the "A Shift," a premium shift from 7:00 am to 3:00 pm. Shortly after starting the A Shift, Barb Cullinan, Defendant's Director of Operations, saw Ms. Lewis and wasn't pleased. In fact, she called Lewis's manager and said Lewis was not a "good fit," that Lewis lacked the "Midwestern girl look," and that the front desk staff should be "pretty." Cullinan subsequently ordered a second interview of Lewis. Cullinan also installed video equipment to view interviewees. To her surprise, Lewis knew about Cullinan's comments and, at the interview, mentioned that she felt the new second interview requirement was illegal. In the interview, Lewis, in addition to questioning the legality of the second interview, made some suggestions to Cullinan regarding Defendant's business practices. Three days later, Lewis was fired.

On January 21, 2010, the Eighth Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant on Lewis's retaliation and gender stereotyping claims. According to the Eighth Circuit, the district court improperly required Lewis to produce evidence that she was treated differently than similarly situated males in order to satisfy the fourth prong of the McDonnell Douglas test. Instead, Lewis was permitted to rely on evidence of pretext or evidence of discriminatory comments (both of which Lewis was able to establish.)

The Court also reaffirmed the validity of gender stereotype claims quoting Smith v. City of Salem, Ohio, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex." The takes aim at gender stereotyping claims, while noting that Price Waterhouse was a mere plurality, "[a]pparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification." As this demonstrates, the fight over gender stereotyping claims rages on.

The Court also reinstated Lewis's retaliation claim reiterating that "[i]n making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct 'as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination." According to the Court, Lewis's knowledge that she was possibly the only one subject to the second interview, that Cullinan had made sexually-charged comments, and her statement that such conduct was illegal meant she had engaged in "protected conduct, including opposition to an action prohibited by Title VII."

The facts of Lewis reveal two important missteps taken by the employer: it failed to follow its normal termination procedures and its reason for termination was based on interview at which only Lewis and Cullinan were present. To wit, when analyzing whether Lewis had established that Defendant's reason for terminating Lewis was pretextual, the Court noted that "Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however.

In short, don't engage in gender stereotyping. The words "he's not masculine enough" or "she's not feminine enough" should not be in employers' vocabularies. Additionally, don't base a termination on an interview at which only the employer and the employee are present. This is almost certain to generate a question of fact. Finally, follow procedures. If you don't, you are asking for unfavorable inferences.

Click here for a copy of the Court's opinion.

Does "Because Of" Mean "On the Basis Of"?

In Serwatka v. Rockwell Automation, the Seventh Circuit decided that the ADA does not permit mixed-motive claims. The Court followed the analysis set forth in Gross v. FBL Fin. Servs., Inc., in which the US Supreme Court held that the language of the ADEA required plaintiffs to demonstrate that age was the "but for" cause of the employment decision. As such, plaintiffs cannot rely on a mixed-motive theory when bring age or disability discrimination claims. They can still, of course, rely on mixed-motives in connection with Title VII claims.

Serwatka raises an interesting question, however. Specifically, in footnote 1, the Court notes that its analysis may be different if it were analyzing the ADA as amended by the ADA Amendments Act of 2008. That Act removed "because of" in favor of "on the basis of." According to the Court, "[w]hether 'on the basis of' means anything different from 'because of,' and whether this or any other revision to the statute matters in terms of a mixed-motive claim under the ADA" remains to be seen as they "are not questions that we need to consider in this appeal." As such, it remains to be seen whether a plaintiff may proceed under a mixed-motive theory to establish an ADA claim after passage of the Amendments. Resolving that issue will require determining if "because of" means "on the basis of."



Click here for a copy of the ADA Amendments Act of 2008.

Click here for a copy of the Court's decision.

Ledbetter Limited

Enacted in 2009, the Lilly Ledbetter Fair Pay Act provides that "an unlawful practice occurs, with respect to discrimination in compensation in violation of [the ADEA] . . . when a person is affected by application of a discriminatory practice or other practice . . . . " The Act was intended to revive pay discrimination claims that were untimely given prior precedent's guidance that those claims accrued when the initial compensation decision was made.

In Schuler v. PricewaterhouseCoopers LLC, an employee claimed that the Act revived his otherwise untimely claim that in 1999 and 2000 Defendant denied him promotions based on his age. Specifically, Plaintiff claimed that the decision not to promote was an "other practice" because it led to him receiving less pay. The DC Circuit (Judge Ginsburg) rejected this argument, holding that "compensation decision or other practice" must relate to paying wages for similar work, and not to decisions whether to promote. As such, plaintiff's "failure-to-promote claim is not a claim of 'discrimination in compensation" and was not revived by the Act.

Schuler v. PricewaterhouseCoopers is valuable precedent for defense counsel as it narrowly construes the Lilly Ledbetter Fair Pay Act and, in doing so, prevents the revival of a claims that are not truly "discrimination in compensation" claims.

Click here for a copy of the Lilly Ledbetter Fair Pay Act.

Click here for a copy of the Court's opinion.

Untimely Evidence Allowed to Show Background

In Campbell v. Dep't of Human Services, the Michigan Court of Appeals resolved a lingering issue regarding whether plaintiffs can rely on evidence outside the applicable 3-year statute of limitations to support discrimination claims. The Court held that parties may use untimely evidence as "background evidence to establish a pattern of discrimination in order to prove a timely claim." As such, plaintiffs need to establish a claim associated with an injury occurring within the limitations period before resorting to background evidence.

This case will have practical implications for the defense bar. Specifically, plaintiffs can now rely on evidence well outside of the applicable limitations period, so long as they can demonstrate they suffered an injury inside that period. In a practical sense, Campbell could function as an end-around the statute of limitations as allowing consideration as background but not for recovery seems like a distinction without a meaningful difference.

Click here for a copy of the opinion.

Gender Stereotyping and Sexual Orientation

On January 8, 2010, the Southern District of Florida, in Anderson v. Napolitano, granted summary judgement for defendant regarding plaintiff's gender stereotyping claim. Specifically, the Court felt that plaintiff's complaint merely demonstrated that his co-workers discriminated against him because he was gay, and not because he failed to act in a masculine fashion. In doing so, the Court held that being told he was "too flamboyant" was not the same as being told he failed to act in a masculine fashion. Furthermore, pointing to an incident where two co-workers lisped and spoke in flamboyant voices, but then stopped when they say plaintiff, was not relevant because there was no corresponding evidence that plaintiff had an effeminate voice.

In dismissing this case, the Court reaffirmed that Title VII does not protect discrimination based on sexual orientation. In that sense, being called a "fag" and "too gay" did nothing for plaintiff's claim. Furthermore, in order to state a gender stereotyping claim, homosexual males must show evidence demonstrating that they were discriminated against, not because they are gay, but because they did not act masculine enough.

Click here for a copy of the Court's opinion.

Stray Remarks and Circumstantial Evidence

On January 21, 2010, the Michigan Court of Appeals, in Wolfgang v. Dixie Cut Stone, in addition to providing a succinct overview of prima facie cases, provided yet another valuable precedent for employers trying to discredit plaintiffs' direct evidence claims.

To establish a direct evidence claim, plaintiffs must offer direct evidence of discrimination. If he/she does so, the discrimination case proceeds like any other civil case. In Wolfgang, the Court held that "that was something stupid only a woman would say," "[h]ere we go, Angel, thinking that because I'm a woman I can sell this and . . . it ain't going to sell," and that was "too much money for a woman to make," in addition to calling Plaintiff a "bitch" were mere stray remarks and did not constitute direct evidence of discrimination. The Court also explained away the five examples of differential treatment as not "sufficient circumstantial evidence of gender discrimination."

This case also contains a pro-employer conclusion regarding FMLA retaliation. Specifically, the Court upheld the dismissal of Plaintiff's FMLA-retaliation claim despite evidence that "the human resources department sent threatening letters to plaintiff while she was on leave" because that "evidence does not establish that plaintiff's medical leave was the reason for her termination...."

Click here for a copy of the Court's opinion.

Ministerial Exception Applies With Force in Michigan

On January 26, 2010, the Michigan Court of Appeals, in Weishuhn v. Catholic Diocese of Lansing, sent a clear message that the ministerial exception applies, in Michigan, to a broad set of employees and a broad set of claims.

First, the Court of Appeals held that a mathematics teacher, albeit one with significant non-secular responsibilities, is a ministerial employee. Importantly, the Court stated, mindful of the overlap between secular and non-secular teaching responsibilities, that " teaching 'secular' classes is not necessarily 'purely secular' in the context of religious schools," because teachers in religious schools often incorporate religion into their teachings. (As an aside, would Courts allow parties to contract this? "While teaching at X, you will be considered a ministerial employee as understood by _____ v _____.")

Second, the Court applied the exception to whistleblower claims. Michigan now joins Florida as the only state doing so. The Court emphatically closed by saying "[t]ermination by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so." The Court did acknowledge that the ministerial exception does not foreclose non-termination causes of action (e.g. independent tort claims and contract actions)

Click here for a copy of the Court's opinion.

Cross Your Fingers

On January 19, 2010, the Michigan Court of Appeals issued Foote v. Dow Chemical in which it reaffirmed the importance of including disclaimer language in employee handbooks. In Dow, no employment contract was created, and hence no breach could occur, because Dow's handbook said "[n]othing in this document constitutes a contract of employment with any individual," and "I understand that I will have the right to terminate my employment with Dow at any time without notice and for any reason. I understand that Dow has the same right."

Employers should always include similar language in order to prevent accidental contract formation.

Click here for a copy of the Court's opinion.

TWO Days Later??!! -- SJ Affirmed

On January 12, 2010, the Michigan Court of Appeals issued Upton v. Phoenix Composite Solutions in which it affirmed a trial court's decision granting an employer's motion to summarily dispose of a former-employee's whistleblower claim. Specifically, the Court agreed with the trial court's finding that plaintiff failed to establish that "there existed a causal connection between the protected activity and the discharge," despite her demonstration that she was fired a mere two days after the Department of Labor issued a ruling on her behalf regarding unpaid overtime. In doing so, the Court reiterated that "a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action . . . a plaintiff must show something more than merely a coincidence in time between protected activity and adverse employment action."

Click here for a copy of the Court's decision.

Click here for a copy of the Whistleblowers' Protection Act.

Should Parties Limit an Arbitrator's Authority

On February 9, the Michigan Court of Appeals issued City of Center Line v. Police Officers Association of Michigan and Angela Post in which it affirmed a trial court's decision to affirm an arbitration award. In that award, an arbitrator determined the employer had "unreasonably" relied on medical evidence when finding that an employee was unable to return to work and, as such, had violated the CBA. The arbitrator then ordered the employer to seek another medical opinion to determine, for damage reasons, when the employee was fit to return to work. Based on this evidence, the arbitrator ordered backpay.

The employer challenged this order on the grounds that granting this relief was not within the arbitrator's authority. After noting that the "arbitrator's chose of remedy is . . . generally broad," the Court of Appeals explicitly noted that the CBA in question "does not limit the arbitrator's authority to order a particular remedy."

This raises an important question for employers. When negotiating CBAs, should you insist on a provision that limits an arbitrator's remedial powers? CBAs traditionally contain provisions prohibiting arbitrators from adding to or subtracting from CBAs, but a remedial limitation is different and, in a more targeted fashion, addresses the authority of the arbitrator to grant certain remedies.

Click here for a copy of the Michigan Court of Appeals decision.

Notice of Return to Notice Pleading?

The US House of Representatives and the US Sentate have introduced bills designed to overturn Bell Atlantic v. Twombly, and usher in a return to notice pleading. Both bills, in one or another, express disapproval of Twombly's "plausibility" standard, and advocate for a return to Conley v. Gibson's "notice" standard.

Defense country nationwide have taken Twombly and ran with it. In fact, according to Lexis, Twombly has been cited 928 times this year alone. In practice, Twombly motions have secured the dismissal of numerous complaints that, if judged under a notice standard, would have survived and opened the floodgates to discovery (and maybe even settlement).

The defense bar, and its clients, should lobby for the defeat of these proposals.

Click here for a copy of the House's proposal titled "Open Access to Courts Act."

Click here for a copy of the Senate's proposal titled "Notice Pleading Restoration Act of 2009."

ADEA -- Prima Facie Hurdle Heightened -- SJ Affirmed

In Schoonmaker v. Spartan Graphics Leasing, LLC (No. 09-1732)(decided February 3, 2010)(ADEA), the Sixth Circuit Court of Appeals reiterated that in workforce reduction situations the fourth element of the McDonnell Douglas test is modified. Specifically, in workforce reduction situations, Plaintiffs must provide additional evidence tending to demonstrate that the employer impermissibly singled him/her out for discharge. (This is instead of the traditional fourth element which is that the employe was replaced by someone outside the protected class.) In doing so, the Court made it more difficult for employees who are terminated in workforce reductions to state a prima facie case of age discrimination.

Plaintiff proffered three sets of additional evidence to satisfy the fourth element of the McDonnell Douglas test. The Sixth Circuit rejected Plaintiff's additional evidence. First, retaining a younger employer is irrelevant unless Plaintiff can she he or she was more qualified than that younger employee. Second, a sample including two other terminated employees is too small to be probative. Third, failure to follow layoff criteria in handbook does not demonstrate discrimination.

Click here for a copy of the Sixth Circuit's decision.

Michigan Legislature to Make Noncompetes in Broadcast Industry Illegal?

Both house of the Michigan legislature have proposed legislation banning noncompetes in the broadcast industry. SB No. 1068 and HB No. 5750, if passed, would prohibit broadcast industry employers from requiring broadcast employees to agree to, among other things, noncompetes. Similar bills are already law in Arizona, Connecticut, Illinois, Massachusetts, Maine, New York, Washington, and Washington D.C. The proposals provide that parties who prevail in an action for a violation are entitled to attorneys' fees and costs. The proposals provide for civil damages but don't indicate an amount.

Michigan employers heavily rely on noncompete agreements. They should view this as an attempt to infringe on their rights to insist on these provisions.

Click here for a copy of the House bill.

Click here for a copy of the Senate bill.

Employee Privacy -- Certiorari Granted

On December 14, the United States Supreme Court granted certiorari in City of Ontario v. Quon, 08-1332. In this case, the Court will address important issues involving employee privacy, the workplace, and technology.

Quon deals with employer-owned pagers used to send text messages. The employer policies in question clearly established that the employer owned the pagers and that employees should have no expectation of privacy when using them. Despite these policies, supervisors told employees that their pagers would not be audited so long as they agreed to pay any overage charges. In fact, the employer had followed this informal policy, and had done so regarding Quon on at least three occasions. Because of this informal policy, and despite the formal policy, the Ninth Circuit upheld the district court's grant of summary judgment, holding that Quon had a reasonable expectation of privacy in his text messages and that the search in question was unreasonable as a matter of law.

To be sure, Quon will only directly relate to public employers and other entities subject to Constitutional restraint. Nonetheless, the Court's decision in Quon should provide much needed guidance to all employers regarding employee privacy, the workplace, and technology.

Click here for a copy of the Ninth Circuit's decision.

Conscionability of Arbitration Provisions -- Certiorari Granted

On January 15, the United States Supreme Court granted certiorari in Rent-A-Center, West, Inc. v. Jackson, 09-497. The issues involved in Rent-A-Center is whether a federal district court is required to determine whether an arbitration provision is conscionable, even if the parties' agreement contains a provision assigning this issue to an arbitrator. The Ninth Circuit held that a district court must decide the threshold question of arbitrability regardless of the language in the parties' agreement. In doing so, the Ninth Circuit reversed the district court's decision to dismiss the case and compel arbitration based on the parties' agreement to assign conscionability to an arbitrator.



Entities who rely on arbitration provisions, including employers, should carefully follow Rent-A-Center. Michigan employers, in particular, rely heavily on arbitration provisions to assure that disputes between them and their employees are promptly and efficiently resolved. If the Court concludes that conscionability is for a court to decide, and not an arbitrator, that desirable promptness and efficiency will be affected.

Click here for a copy of the Ninth Circuit's decision.