Plaintiff appeals as of right an order of the circuit court granting summary disposition in favor of defendants on the basis that plaintiff’s claims are barred by an agreement to arbitrate. MCR 2.116(C)(7). Were we permitted, we would affirm for the reasons set forth in Judge (now Justice) Taylor’s opinion (concurring in part and dissenting in part) in Rushton v Meijer, Inc (On Remand),
I
Contemporaneously with his hiring by defendants, plaintiff executed a contract in which he agreed to arbitrate all employment-related disputes. Unlike in Heurtebise v Reliable Business Computers, Inc,
However, in Rushton, supra at 170, this Court in a two to one decision adopted Justice Cavanagh’s concurring opinion in Heurtebise. The Rush-ton majority held “that Meyer [the employer] cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum.” The Rushton panel based its decision on Michigan’s longstanding public policy of vigorously protecting the civil rights of its citizens.
Judge Taylor dissented, arguing the fundamental policy of freedom of contract. Judge Taylor also noted that Michigan’s public policy, as reflected in our arbitration act, MCL 600.5001; MSA 27A.5001, and judicial decisions
[T]he whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived. . . . Given that these highly valued constitutional rights may be prospectively waived without offending public policy, how can it be seriously suggested that, without a statute or provision of the constitution prohibiting it, and, in fact, our state arbitration act allowing it, the right to have a circuit court to resolve a civil rights dispute may not be prospectively waived in favor of having such a claim adjudicated in an arbitral forum?
We agree with the reasoning of Judge Taylor and would follow and adopt his opinion.*
In arguing that arbitration is inconsistent with the adea, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas [v Shearson/American Express, Inc,490 US 477 , 481;109 S Ct 1917 ;104 L Ed 2d 526 (1989)].
Post-Gilmer decisions uniformly have found its rationale to be equally applicable to the arbitration of claims arising under another federal civil rights statute, title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Cosgrove v Shearson Lehman Bros,
II
Plaintiff’s complaint alleges claims of (1) racial discrimination, (2) handicap discrimination, (3) intentional infliction of emotional distress, and (4) constructive discharge. Plaintiff’s claims of intentional infliction of emotional distress and constructive discharge are clearly covered by the arbitration contract and, therefore, the circuit court’s order subjecting these claims to arbitration is affirmed. However, pursuant to Rushton, supra, plaintiffs claims of racial discrimination and handicap discrimination may not be submitted to arbitration. Accordingly, the lower court’s order regarding plaintiff’s claims of racial discrimination and handicap discrimination is reversed.
The remaining issues raised on appeal are without merit. We agree with the ruling of the lower court that plaintiff failed to sustain his burden of submitting any evidence that he was incompetent to enter into the arbitration contract. Further, we agree that the contract for arbitration is clear and unambiguous with regard to the waiver of substantive legal rights and
Finally, during oral argument, defendants argued that the present case is distinguishable from Rushton for the reason that plaintiff’s employment allegedly involved interstate commerce and, therefore, is governed by the federal arbitration act, 9 USC 1 et seq. We disagree. For the reasons stated in the Rushton majority opinion, we hold that plaintiff’s employment contract as a breadmaker at defendant Ryan’s Family Steakhouse, Inc., was not “a contract evidencing a transaction involving [interstate] commerce . . . . “ 9 USC 2. Accordingly, plaintiff’s civil rights claims are not preempted by the federal arbitration act.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
See, e.g., Detroit v A W Kutsche & Co,
We would not adopt the unnecessary commentary contained in the footnotes.
The notion of unconscionability may be an underpinning of the Rush-ton decision. On this unarticulated issue, we note that, although atypical, many employment contracts are entered into with equal bargaining strength. Furthermore, in contracts involving some corporate executives or famous sport stars, the employee, not the employer, often has the stronger bargaining position. To hold in such situations that the employee cannot contractually agree to arbitrate prospective claims, including civil rights claims, is to deny, without reason, the right to contract. While case by case we might find some employment contracts to arbitrate future claims to be unconscionable, or not arbitrable as gleaned from legislative intent, the all-encompassing rule of law created by Rushton simply goes too far.