Melena v. Anheuser-Busch, Inc.

Docket No. 99421.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

JOANN MELENA, Appellee, v. ANHEUSER-BUSCH, INC.,

Appellant.

Opinion filed March 23, 2006.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices McMorrow, Fitzgerald,

Garman, and Karmeier concurred in the judgment and opinion.

Justice Kilbride dissented.

OPINION

This case arises from a complaint filed by plaintiff, Joann

Melena, alleging that her employer, defendant Anheuser-Busch, Inc.,

terminated her employment in retaliation for her filing of a workers=

compensation claim with the Illinois Industrial Commission. The

circuit court of Jefferson County denied Anheuser-Busch=s motion to

dismiss and compel arbitration or, in the alternative, to stay the

proceedings and compel arbitration. The appellate court affirmed the

circuit court=s order and remanded the matter for further proceedings.

352 Ill. App. 3d 699. We granted leave to appeal (177 Ill. 2d. R. 315)

and now reverse the judgment of the appellate court.

BACKGROUND

Plaintiff joined Anheuser-Busch as a nonunion employee at its

distribution center in Mt. Vernon, Illinois, on February 22, 1999. In

February 2000, Anheuser-Busch mailed to all of its Mt. Vernon

employees, including plaintiff, a letter which announced the

impending implementation of a ADispute Resolution Program.@

Attached to the letter were materials describing the new program,

including a ADispute Resolution Program Guide,@ ADispute

Resolution Program Highlights,@ and the ADispute Resolution

Program Policy Statement.@

The various materials explained the new program. For example,

the policy statement set forth:

AThis procedure is an agreement to arbitrate pursuant to the

Federal Arbitration Act, 9 U.S.C.A. Sections 1-14, or if that

Act is held to be inapplicable for any reason, the arbitration

law in the state in which the arbitration hearing is held.@

The concept of binding arbitration was described in the following

manner:

AAt the binding arbitration level, disputes that cannot be

resolved through Level 1 *** or Level 2 *** are presented to

a neutral third-party arbitrator for a final and binding

decision. The arbitrator essentially substitutes for a judge and

jury who might decide the case in a court setting. At the

arbitration hearing, the arbitrator makes a decision after both

sides have presented their positions. If the arbitrator decides

in favor of the employee, the arbitrator can award the same

remedies that would have been available in court for the type

of claim that was brought.@

The policy statement further explained that Aby continuing or

accepting an offer of employment@ with Anheuser-Busch, all

employees to whom the policy was applicable Aagree as a condition

of employment to submit all covered claims to the dispute resolution

program.@ The statement defined Acovered claims@ as Aemployment-

related claims against the company and individual managers acting

within the scope of their employment, regarding termination and/or

alleged unlawful or illegal conduct on the part of the company ***.@

Moreover, the policy made clear that the new procedure did not

operate Ato change the employment-at-will relationship between the

company and its employees.@

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In addition to the written materials included in the letter,

Anheuser-Busch arranged for a brief presentation of the new program

to be delivered to Mt. Vernon employees on February 23, 2000,

which was to be followed by a question-and-answer session.

Anheuser-Busch also placed posters explaining the program

throughout its Mt. Vernon facility. The new program became

effective on April 1, 2000.

In April 2001, Anheuser-Busch distributed AThe Promotional

Products Group [PPG] Distribution Center Handbook@ to Mt. Vernon

employees. This handbook included a description of the dispute

resolution program and referenced the written program materials

noted above. On April 27, 2001, plaintiff signed the following

AEmployee Acknowledgment and Understanding@:

AI acknowledge that I have received the PPG Mt. Vernon

employee handbook. I understand that the information in the

handbook represents guidelines only and that the company

reserves the right to modify this handbook or amend or

terminate any policies, procedures, or employee benefit

programs at any time, whether or not described in this

handbook. I understand that I am responsible for reading the

handbook, familiarizing myself with its contents and adhering

to all company policies and procedures, whether set forth in

this handbook or elsewhere.

I further understand and acknowledge that this handbook

is not a contract of employment or guarantee of employment

for any specific duration, express or implied, between me and

PPG Mt. Vernon.@

On September 11, 2002, plaintiff suffered a work-related injury

for which she filed a claim for workers= compensation with the

Illinois Industrial Commission. While plaintiff was receiving

temporary total disability benefits, Anheuser-Busch terminated her

employment on March 14, 2003.

Plaintiff filed a complaint in the circuit court of Jefferson County

on May 8, 2003. In the complaint, she alleged that Anheuser-Busch

discharged her in retaliation for exercising her rights under the

Illinois Workers= Compensation Act. Anheuser-Busch moved to

dismiss the complaint and compel arbitration or, in the alternative, to

stay the proceedings and compel arbitration. The circuit court denied

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the motion without comment.

On appeal, the appellate court affirmed the circuit court=s order.

The appellate court held that, in order to be enforceable, an

agreement to arbitrate claims like the one at issue must be entered

into knowingly and voluntarily. After considering the facts of this

case, the appellate court concluded that a remand was not necessary

because Aeven if the plaintiff entered into the agreement knowingly,

she did not do so voluntarily.@ 352 Ill. App. 3d at 707. Noting that it

had Aserious reservations@ about whether an agreement to arbitrate,

offered as a condition of employment, Ais ever voluntary,@ the court

deemed Aillusory@ whatever choice plaintiff was said to have had in

this matter. 352 Ill. App. 3d at 707-08. The court remanded the cause

to the circuit court for further proceedings on the underlying cause

for retaliatory discharge.

ANALYSIS

The issue presented in this case is whether the mandatory

arbitration provisions of the ADispute Resolution Program@ instituted

by Anheuser-Busch constitute an enforceable contract binding on

plaintiff. Anheuser-Busch assigns error to the appellate court=s

holding that the arbitration agreement, to be enforceable, must be

entered into knowingly and voluntarily. Rather, Anheuser-Busch

contends that, like any other contract, an arbitration agreement is

enforceable, based on fundamental principles of contract law.

Plaintiff, urging affirmance of the appellate court, contends that the

arbitration agreement was not enforceable because she did not enter

into the contract knowingly and voluntarily. 1

1

We have allowed several amici curiae to file briefs in this matter:

Ralph=s Grocery Company in support of Anheuser-Busch, and the National

Employment Lawyers Association, American Association of Retired

Persons, and National Employment Lawyers/Illinois, the Illinois Trial

Lawyers Association, and Professor David Schwartz in support of plaintiff.

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Anheuser-Busch filed its motion to dismiss and compel

arbitration or, in the alternative, to stay the proceedings and compel

arbitration, pursuant to section 2B619 of the Code of Civil Procedure.

(735 ILCS 5/2B619 (West 2000)). In ruling on such a motion, the

court must interpret all pleadings and supporting documents in the

light most favorable to the nonmoving party. Borowiec v. Gateway

2000, Inc., 209 Ill. 2d 376, 383 (2004), citing In re Chicago Flood

Litigation, 176 Ill. 2d 179, 189 (1997). The standard of review on

appeal is de novo. Borowiec, 209 Ill. 2d at 383.

The parties do not dispute that resolution of this case concerns the

application of the Federal Arbitration Act (FAA) (9 U.S.C. '1 et seq.

(1994)). In construing a federal statute, we generally look to federal

decisions for its interpretation of the statutory provisions. U.S. Bank

National Ass=n v. Clark, 216 Ill. 2d 334, 352 (2005); Wilson v.

Norfolk & Western Ry. Co., 187 Ill. 2d 369, 383 (1999). This court, in

Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (2004), discussed the

history and purpose of the FAA, acknowledging that in enacting the

FAA, Congress sought A >to reverse the longstanding judicial hostility

to arbitration agreements that had existed at English common law and

had been adopted by American courts, and to place arbitration

agreements upon the same footing as other contracts.= @ Borowiec,

209 Ill. 2d at 384, quoting Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20, 24, 114 L. Ed. 2d 26, 36, 111 S. Ct. 1647, 1651 (1991).

Section 2 of the FAA compels judicial enforcement of arbitration

agreements Ain any *** contract evidencing a transaction involving

commerce.@ 9 U.S.C. '2 (1994). The United States Supreme Court

has held that employment contracts are subject to the terms of the

FAA except for those employment contracts which deal with

transportation workers. Circuit City Stores, Inc. v. Adams, 532 U.S.

105, 149 L. Ed. 2d 234, 121 S. Ct. 1302 (2001). Section 2 further

provides that such a written provision

Ashall be valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revocation of

any contract.@ (Emphasis added.) 9 U.S.C. _2 (1994).

Throughout its provisions, the FAA reflects a A >liberal federal policy

favoring arbitration agreements.= @ Borowiec, 209 Ill. 2d at 384,

quoting Moses H. Cone Memorial Hospital v. Mercury Construction

Corp., 460 U.S. 1, 24, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941

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(1983).

The parties disagree over whether the choice of litigating a claim

for retaliatory discharge, based on statutory rights under the Illinois

Workers= Compensation Act (820 ILCS 305/1 et seq. (West 2000)),

in state court is an important right which may only be relinquished

through a knowing and voluntary waiver. In this context, the parties,

as well as the appellate court, have likened the claim at issue here,

i.e., retaliatory discharge based on statutory rights under the Workers=

Compensation Act, to federal statutory claims such as those advanced

under Title VII of the Civil Rights Act. In Alexander v. Gardner-

Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), the

United States Supreme Court indicated that an employee could not

forfeit substantive rights under Title VII without a voluntary and

knowing waiver. In other words, before an employee gives up a

substantive right predicated upon federal statutory law, it must be

clear that the employee understands and freely makes the decision to

do so. See Pierce v. Atchinson, Topeka, & Santa Fe Ry. Co., 65 F.3d

562, 571 (7th Cir. 1995). However, as the Seventh Circuit Court of

Appeals has noted, A[l]ess clear is whether the right to have one=s

federal claims determined judicially rather than in an arbitration

proceeding qualifies to this added protection.@ Gibson v.

Neighborhood Health Clinics, 121 F.3d 1126, 1129 (7th Cir. 1997).

The United States Supreme Court has not directly addressed this

issue. Rather, since the decision in Alexander, the Court=s views on

arbitration have evolved and become more favorable. For example,

the Court has repeatedly Arejected generalized attacks on arbitration

that rest on >suspicion of arbitration as a method of weakening the

protections afforded in the substantive law.= @ Green Tree Financial

Corp.-Ala v. Randolph, 531 U.S. 79, 89-90, 148 L. Ed. 2d 373, 383,

121 S. Ct. 513, 521 (2000), quoting Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 481, 104 L. Ed. 2d

526, 535-36, 109 S. Ct. 1917, 1920 (1989). The Court has

emphasized that Afederal statutory claims may be the subject of

arbitration agreements *** enforceable pursuant to the FAA because

the agreement only determines the choice of forum.@ Equal

Employment Opportunity Comm=n v. Waffle House, Inc., 534 U.S.

279, 295 n.10, 151 L. Ed. 2d 755, 770 n.10, 122 S. Ct. 754, 765 n.10

(2002). According to the Court, A[b]y agreeing to arbitrate a statutory

claim, a party does not forgo the substantive rights afforded by the

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statute; it only submits their resolution in an arbitral, rather than a

judicial, forum.@ Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444, 456, 105 S. Ct.

3346, 3354 (1985).

The Supreme Court has held, however, that statutory rights may

be subject to mandatory arbitration only if the arbitral forum permits

the effective vindication of those rights:

AIt is by now clear that statutory claims may be the subject

of an arbitration agreement, enforceable pursuant to the FAA.

Indeed, in recent years we have held enforceable arbitration

agreements relating to claims arising under the Sherman Act

[citation], '10(b) of the Securities Exchange Act of 1934

[citation], the civil provisions of the Racketeer Influenced and

Corrupt Organizations Act (RICO) [citation], and '12(2) of

the Securities Act of 1933 [citation]. See Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985);

Shearson/American Express Inc. v. McMahon, 482 U.S. 220

(1987); Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989). In these cases we recognized that

>[b]y agreeing to arbitrate a statutory claim, a party does not

forgo the substantive rights afforded by the statute; it only

submits to their resolution in an arbitral, rather than a judicial,

forum.= @ Gilmer, 500 U.S. at 26, 114 L. Ed. 2d at 37, 111 S.

Ct. at 1652, quoting Mitsubishi, 473 U.S. at 628, 87 L. Ed. 2d

at 456, 105 S. Ct. at 3354.

The Court has further instructed that, in order to be valid, the

agreement to arbitrate statutory claims must be clear and

unmistakable. See Wright v. Universal Maritime Service Corp., 525

U.S. 70, 142 L. Ed. 2d 361, 119 S. Ct. 391 (1998) (holding arbitration

agreement, contained within a union collective-bargaining agreement,

invalid because the clause in question was too general in stating that

Amatters under dispute@ would be subject to arbitration). The Aclear

and unmistakable@ standard relates more to the language of the

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agreement than to the state of mind of the employee. 2

Although the Supreme Court has not spoken on the need for a

knowing and voluntary standard in this context, several federal circuit

courts of appeal have weighed in on the matter. As noted by the

appellate court in this case, a split exists amongst the various circuits

regarding the knowing and voluntary standard. 352 Ill. App. 3d at

705. The appellate court found persuasive the reasoning espoused by

the Ninth Circuit Court of Appeals in Prudential Insurance Co. of

America v. Lai, 42 F.3d 1299 (9th Cir. 1994). There, the Ninth

Circuit reversed a district court order compelling arbitration on a

sexual discrimination claim because the employees had not

knowingly entered into the agreement to arbitrate employment

disputes. The employees, when applying for the positions of sales

representatives with the employer, were required to sign forms

containing agreements to arbitrate any dispute, claim or controversy

required to be arbitrated under the rules of any organization with

which the employees registered. They subsequently registered with

the National Association of Securities Dealers, which required that

disputes arising in connection with the business of its members be

arbitrated. The employees contended that when they signed the

forms, arbitration was never mentioned and they were never given a

copy of the NASD Manual, which contained the actual terms of the

arbitration agreement. Lai, 42 F.3d at 1301.

In considering the enforceability of the arbitration agreement, the

court of appeals framed the issue thusly: AThe issue before us,

however, is not whether employees may ever agree to arbitrate

statutory employment claims; they can. The issue here is whether

these particular employees entered into such a binding arbitration

2

This case does not present us with a question regarding a clear and

unmistakable waiver with respect to the contract language. The Dispute

Resolution Policy sets forth a complete list of what is covered by it,

including Aretaliation claims for legally protected activity and/or

whistleblowing.@

-8-

agreement, thereby waiving statutory court remedies otherwise

available.@ Lai, 42 F.3d at 1303. The court recognized that certain

causes of action are entitled to a heightened level of protection

pursuant to various federal statutes, such as the Age Discrimination

Employment Act, the Civil Rights Act or the Americans with

Disabilities Act. It noted that, A >Legislative enactments in this area

have long evinced a general intent to accord parallel or overlapping

remedies against discrimination. In the Civil Rights Act of 1964,

Congress indicated that they considered the policy against

discrimination to be of the >highest priority.= *** Moreover, the

legislative history of Title VII manifests a congressional intent to

allow an individual to pursue independently his rights under both

Title VII and other applicable state and federal statutes.= @ Lai, 42

F.3d at 1304, quoting Alexander v. Gardner-Denver Co., 415 U.S.

36, 47-48, 39 L. Ed. 2d 147, 158, 94 S. Ct. 1011, 1019 (1974). The

court held that the employees were not bound by any valid agreement

to arbitrate the disputes because they did not knowingly enter into a

contract to forgo their statutory remedies in favor of arbitration.

The court further cited specific provisions of legislative history to

support its adoption of the Aknowing and voluntary@ standard. H.R.

Rep. No. 102B40(I), at 97 (1991), reprinted in 1991 U.S.C.C.A.N.

549, 635. Speaking of proposed section 118, Senator Dole explicitly

declared that the arbitration provision encourages arbitration only

Awhere the parties knowingly and voluntarily elect to use these

methods.@ 137 Cong. Rec. S15472, S15478 (daily ed. October 30,

1991) (statement of Senator Dole). The knowing and voluntary

standard enunciated in Lai has been adopted by other courts, as well.

See, e.g., Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

170 F.3d 1 (1st Cir. 1999).

As the appellate court noted, however, the Ninth Circuit=s

approach to this issue has not Agarnered universal support.@ 352 Ill.

App. 3d at 705. A countervailing point of view to the knowing and

voluntary standard is one which holds that the determination of the

enforceability of a mandatory arbitration agreement between

employer and employee turns upon fundamental principles of

contract law. Under this approach,

AThe nondrafting party *** consents to arbitration by signing

the form or by manifesting assent in another way, such as by

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performance of the contract. That the consumer did not read

or understand the arbitration clause does not prevent the

consumer from consenting to it. Nor does the consumer=s

ignorance that an arbitration clause is included on the form.

These are statements of ordinary, plain-vanilla contract law.@

S. Ware, Arbitration Clauses, Jury-Waiver Clauses, and other

Contractual Waivers of Constitutional Rights, 67 Law &

Contemp. Probs. 167, 171 (Winter/Spring 2004).

Several federal circuit courts of appeal have endorsed this approach,

as exemplified by the decision of the United States Court of Appeals

for the Third Circuit in Seus v. John Nuveen & Co., 146 F.3d 175 (3d

Cir. 1998).

In Seus, the court of appeals affirmed the district court=s order

granting the employer=s motion to compel arbitration in a suit by an

employee alleging multiple claims of discrimination under Title VII

of the Civil Rights Act of 1964 and the Age in Discrimination in

Employment Act of 1967. The employee joined Nuveen brokerage

firm in 1982. Nuveen is required to register all employees who deal

in securities with the National Association of Securities Dealers. In

order to comply with this requirement, employees must sign a U-4

form in which the employee agrees to arbitrate any dispute which is

required Ato be arbitrated under the Rules.@ Although the employee in

Seus executed this form, she contended that Congress, Ain legislation

subsequent to the FAA, has carved out an exception to its provisions

for pre-dispute agreements to arbitrate claims under the ADEA.@

Seus, 146 F.3d at 179. The court, rejected this argument by citing

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d

26, 111 S. Ct. 1647 (1991), stating:

AThe Supreme Court began its analysis by making it clear

that exceptions to the FAA=s rule requiring enforcement of

agreements to arbitrate are not to be recognized lightly.

Because of the strong federal policy favoring arbitration, any

exception must be founded on clear indicia of congressional

intent.@ Seus, 146 F.3d at 179.

Rejecting the Aknowing and voluntary@ standard, the court went on to

hold:

ABy >knowing= and >voluntary=, Seus means more than

with an understanding that a binding agreement is being

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entered and without fraud or duress. Determining whether an

agreement to arbitrate is >knowing= and >voluntary=, in her

view, requires an inquiry into such matters as the specificity

of the language of the agreement, the plaintiff=s education and

experience, plaintiff=s opportunity for deliberation and

negotiation, and whether plaintiff was encouraged to consult

counsel. She does not contend that this heightened >knowing

and voluntary= standard is a generally applicable principle of

contract law. *** Nothing short of a showing of fraud, duress,

mistake or some other ground recognized by the law

applicable to contracts generally would have excused the

district court from enforcing Seus=s agreement.@ Seus, 146

F.3d at 183-84.

Similarly, the Eleventh, Fifth, Eighth and District of Columbia

Circuit Courts of Appeal have rejected the knowing and voluntary

standard. See Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359

(11th Cir. 2005); American Heritage Life Insurance Co. v. Orr, 294

F.3d 702 (5th Cir. 2002); Patterson v. Tenet Healthcare, Inc., 113

F.3d 832 (8th Cir. 1997); Cole v. Burns International Security

Services, 105 F.3d 1465 (D.C. Cir. 1997).

After careful consideration, we agree with those federal circuit

courts of appeal which base their analysis upon principles of

fundamental contract law because we believe that approach is more

faithful to the FAA. The Seventh Circuit Court of Appeals has

recently questioned the Acontinued validity@of the Ninth Circuit=s

knowing and voluntary waiver standard in the wake of recent United

States Supreme Court decisions, noting Ait is clear that arbitration

agreements in the employment context, like arbitration agreements in

other contexts, are to be evaluated according to the same standards as

any other contract.@ Penn v. Ryan=s Family Steak House, Inc., 269

F.3d 753, 758 (7th Cir. 2001). The Seventh Circuit also has

recognized that

A[w]hile the Supreme Court has stressed in recent years

that federal policy under the FAA favors the enforcement of

valid arbitration agreements [citations], the Court has been

equally adamant that a party can be forced into arbitration

only if she has in fact entered into a valid, enforceable

contract waiving her right to a judicial forum. AT&T

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Technologies, Inc. v. Communications Workers of America,

475 U.S. 643, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986)

(>[A]rbitration is a matter of contract and a party cannot be

required to submit to arbitration any dispute which he has not

agreed so to submit.=) Whether the parties have agreed to

arbitrate is determined under ordinary state law contract

principles.@ Penn, 269 F.3d at 758-59.

In our view, the FAA=s plain language makes clear that arbitration

agreements are enforceable except for state-law grounds for ordinary

contract revocation. 9 U.S.C. '2 (1994). See also Perry v. Thomas,

482 U.S. 483, 492 n.9, 96 L. Ed. 2d 426, 437 n.9, 107 S. Ct. 2520,

2527 n.9 (1987) (noting that section 2 allows state law to preclude

enforcement of arbitration agreements where Athat law arose to

govern issues concerning the validity, revocability, and enforceability

of contracts generally@). It is widely recognized that state statutes or

court decisions cannot hold arbitration agreements to a standard any

different or higher than those applicable to other contracts in general.

See Doctor=s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 134 L.

Ed. 2d 902, 909, 116 S. Ct. 1652, 1656 (1996) (ACongress precluded

States from singling out arbitration provisions for suspect status@).

Similarly, the failure to apply general contract doctrines to arbitration

agreements which require waiver of fundamental, statutory rights

would raise arbitration agreements to an elevated status not

contemplated by the FAA or Congress. AAs the >saving clause= in _2

indicates, the purpose of Congress in 1925 was to make arbitration

agreements as enforceable as other contracts, but not more so.@ Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12, 18

L. Ed. 2d 1270, 1277 n.12, 87 S. Ct. 1801, 1806 n.12 (1967). We

agree with the Eleventh Circuit Court of Appeals in that, by

Aknowing@ and Avoluntary,@ plaintiff means Amuch more than a

general understanding that a binding agreement or contract is being

entered into.@ Caley, 428 F.3d at 1370 n.12. Such an approach is

contrary to the usual maxim of contract law that a party to an

agreement is charged with knowledge of and assent to the agreement

signed. Black v. Wabash, St. Louis & Pacific Ry. Co., 111 Ill. 351,

358 (1884); Hintz v. Lazarus, 58 Ill. App. 3d 64, 66 (1978). For these

reasons, we view the heightened Aknowing and voluntary@ standard as

being inconsistent with the FAA.

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Notwithstanding the above, plaintiff, citing People v. Braggs, 209

Ill. 2d 492 (2003), argues that before a constitutional right may be

waived, it must be clear the waiver was entered into voluntarily and

knowingly. In light of this, she argues, the arbitration agreement is

ineffective to waive her seventh amendment and statutory trial rights,

such as the right to access to the courts and the right to a jury trial.

Similar arguments have been rejected by several federal circuit courts

of appeal. In discussing this same issue, the Eleventh Circuit recently

stated:

A[A]s the Fifth Circuit has noted, >[t]he Seventh

Amendment does not confer the right to a trial, but only the

right to have a jury hear the case once it is determined that

the litigation should proceed before a court. If the claims are

properly before an arbitral forum pursuant to an arbitration

agreement, the jury trial right vanishes.= American Heritage

Life Ins. Co. v. Orr, 294 F.3d 702, 711 (5th Cir. 2002)

(emphasis added); see also Sydnor v. Conseco Fin. Serv.

Corp., 252 F.3d 302, 307 (4th Cir. 2001) (>[t]he right to a jury

trial attaches in the context of judicial proceedings after it is

determined that litigation should proceed before a court.

Thus, the loss of the right to a jury trial is a necessary and

fairly obvious consequence of an agreement to arbitrate.=

(quotation marks and citation omitted) (emphasis added));

Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, 368 (7th

Cir. 1999) (>[W]e are satisfied, as was the Court in Gilmer,

that the arbitral forum adequately protects an employee=s

statutory rights, both substantively and procedurally.=); Seus

v. John Nuveen & Co., 146 F.3d 175, 183-84 (3d Cir. 1998)

(holding that applying a heightened knowing-and-voluntary

standard to arbitration agreements would be inconsistent with

the FAA and Gilmer), abrogated on other grounds, Blair v.

Scott Specialty Gases, 283 F.3d 595 (3d Cir. 2002). Thus,

where a party enters into a valid agreement to arbitrate, the

party is not entitled to a jury trial or to a judicial forum for

covered disputes.@ (Emphasis added and in original.) Caley,

428 F.3d at 1371-72.

We find this reasoning persuasive and so hold.

Having concluded that the regular principles of contract law

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apply in this case, we must now apply our state contract law in

analyzing the contract question. In other words, we must now decide

whether the parties= agreement to arbitrate amounted to an

enforceable contract under Illinois law. We hold that it did.

In Illinois, an offer, an acceptance and consideration are the basic

ingredients of a contract. Steinberg v. Chicago Medical School, 69 Ill.

2d 320, 329 (1977). We believe that Anheuser-Busch=s introduction

of the Dispute Resolution Program, its mailing of materials related to

the program to its employees, constitutes Anheuser-Busch=s Aoffer.@

By continuing her employment with Anheuser-Busch, plaintiff both

accepted the offer and provided the necessary consideration. See

Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482,

490 (1987). As Anheuser-Busch correctly notes, under Illinois law,

continued employment is sufficient consideration for the enforcement

of employment agreements. See, e.g., Lawrence & Allen, Inc. v.

Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131

(1997); McRand, Inc. v. van Beelen, 138 Ill. App. 3d 1045, 1055

(1985); see also Woodfield Group, Inc. v. DeLisle, 295 Ill. App. 3d

935, 942-43 (1998) (observing in passing that continued employment

is sufficient consideration for the addition of a covenant not to

compete in an employment contract). Plaintiff continued working for

Anheuser-Busch for three years after the initial implementation of the

Dispute Resolution Program in 2000 and for just shy of two years

after signing the acknowledgment form in 2001. Under these facts,

the agreement to arbitrate covered claims arising fro the employment

relationship is enforceable.

In so holding, we necessarily reject the appellate court=s

implication that plaintiff=s acceptance of the dispute resolution

provisions in this case was illusory by virtue of the fact that

Anheuser-Busch gave her little choice in the matter. 352 Ill. App. 3d

at 707-08. In other words, because the agreement was offered on a

Atake it or leave it@ basis, the contract is unenforceable. The appellate

court=s implication here contravenes federal, as well as Illinois,

decisional law. The United States Supreme Court in Gilmer stated

that inequality in bargaining power Ais not a sufficient reason to hold

that arbitration agreements are never enforceable in the employment

context.@ Gilmer, 500 U.S. at 33, 114 L. Ed. 2d at 41, 111 S. Ct. at

1655. Various federal circuit courts of appeal have rejected any

notion that such contracts are unconscionable or adhesive in nature.

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The Seventh Circuit recently noted the futility surrounding an

argument grounded in the doctrine of unconscionability:

ABusinesses regularly agree to arbitrate their disputes with

each other; giving employees the same terms and forum (the

AAA) that a firm deems satisfactory for commercial dispute

resolution is not suspect. Employees fare well in arbitration

with their employersBbetter by some standards than

employees who litigate, as the lower total expenses of

arbitration make it feasible to pursue smaller grievances and

leave more available for compensatory awards. See Theodore

Eisenberg & Elizabeth Hill, Employment Arbitration and

Litigation: An Empirical Comparison, 58 Dispute Resolution

J. 44 (2003-04).@ Oblix, Inc. v. Winiecki, 374 F.3d 488, 491

(7th Cir. 2004).

See also Seus, 146 F.3d at 184 (rejecting argument that agreement

was a contract of adhesion due to disparity in bargaining power);

Rosenberg, 170 F.3d at 17 (same). Likewise, Illinois courts have been

reluctant to hold that the inequality in bargaining power alone

suffices to invalidate an otherwise enforceable agreement. See, e.g.,

Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182, 191 (1983)

(holding that Adisparity of bargaining power is not sufficient grounds

to vitiate contractual obligations@); Zobrist v. Verizon Wireless, 354

Ill. App. 3d 1139 (2004) (same).

Finally, plaintiff argues that allowing for arbitration in this case

contravenes the public policy behind our recognition of the cause of

action of retaliation discharge based on our Workers= Compensation

Act. She points to our decision in Ryherd v. General Cable Co., 124

Ill. 2d 418 (1988), in which we stated that the right to recover for

retaliatory discharge is derived from Illinois public policy and

Acannot be negotiated or bargained away.@ Ryherd, 124 Ill. 2d at 426,

citing Gonzalez v. Prestress Engineering Corp., 115 Ill. 2d 1, 12

(1986). This statement, however, does not mean that an individual

cannot agree to submit such claims to arbitration. We note that, in

Ryherd, the court addressed the question of whether an employee=s

litigation of a retaliatory discharge claim was preempted by federal

labor law because the employee previously arbitrated, under a labor

contract, the question of whether he was discharged for Ajust cause.@

In holding that the claim was not preempted, the court found that a

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Ajust cause@ arbitration hearing could not substitute for a hearing on

the question of whether the employee=s common law right to be free

from retaliatory discharge was violated. We point out that Ryherd did

not involve the issue of the enforceability of an agreement to arbitrate

a statutory claim nor does its holding preclude enforcement of the

agreement to arbitrate in this case. Nothing in the Workers=

Compensation Act or in our decisions concerning retaliatory

discharge reveals an intent to preclude a waiver of a judicial forum

for such claims. We note, as the appellate court did below, that Athe

notion that statutory rights cannot be arbitrated because arbitration is

an inadequate forum for their vindication has, to a great extent, been

eroded by a more favorable view of arbitration that has evolved under

more recent cases.@ 352 Ill. App. 3d at 702. With respect to plaintiff=s

contention that retaliatory discharge claims further important social

policies that cannot be achieved through arbitration, we share the

views expressed by the United States Supreme Court in rejecting a

similar argument advanced in the context of age discrimination

claims made in the workplace:

AWe do not perceive any inherent inconsistency between

those [social] policies, however, and enforcing agreements to

arbitrate age discrimination claims. It is true that arbitration

focuses on specific disputes between the parties involved.

The same can be said, however, of judicial resolution of

claims. Both of these dispute resolution mechanisms

nevertheless also can further broader social purposes. The

Sherman Act, the Securities Exchange Act of 1934, RICO,

and the Securities Act of 1933 all are designed to advance

important public policies, but, as noted above, claims under

those statutes are appropriate for arbitration. >[S]o long as the

prospective litigant effectively may vindicate [his or her]

statutory cause of action in the arbitral forum, the statute will

continue to serve both its remedial and deterrent function.= @

Gilmer, 500 U.S. at 27-28, 114 L. Ed. 2d at 38, 111 S. Ct. at

1653, quoting Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 637, 87 L. Ed. 2d 444, 461-62,

105 S. Ct. 3346, 3359 (1985).

For these reasons, we do not believe Ryherd controls the resolution of

this case in the manner plaintiff suggests.

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We reaffirm that the public policy behind the Act, i.e., providing

for efficient and expeditious remedies for injured employees, would

be undermined Aif employers were permitted to abuse their power to

terminate by threatening to discharge employees for seeking

compensation under the Act.@ Kelsay v. Motorola, Inc., 74 Ill. 2d 172,

182 (1978). We, however, fail to see how arbitration would

contravene this public policy. As an initial matter, the Illinois General

Assembly shares the same favorable view of arbitration as Congress,

as evinced by its enactment of the Uniform Arbitration Act in 1961

(710 ILCS 5/1 et seq. (West 2000)). We have recognized that the

Abasic intention of our Arbitration Act is to discourage litigation and

foster the voluntary resolution of disputes in a forum created,

controlled and administered by the agreement to arbitrate ***.@ Flood

v. Country Mutual Insurance Co., 89 Ill. App. 2d 358, 364 (1967).

Thus, the nature of arbitration alone is not enough for us to hold that

its use in cases like this would contravene the public policy which

drives retaliatory discharge claims based on the Workers=

Compensation Act. We note that the agreement in this case does not

limit the remedies available to plaintiff. Indeed, the agreement makes

clear that the arbitrator is free to award any remedy recognized under

the law. In this way, the instant agreement is fundamentally different

from the agreement we refused to enforce in Midgett v. Sackett-

Chicago, Inc., 105 Ill. 2d 143 (1984). There, we found the agreement

to arbitrate unenforceable because it precluded employees from

receiving punitive damages. Damages, of course, serve as a tool for

compensating victims of retaliatory discharge and as a deterrent to

others to avoid such conduct. Because the arbitration agreement here

does not cause plaintiff to forgo the full range of remedies available

at law, we believe that arbitration can serve the same remedial and

deterrent functions as litigation. See Perez v. Globe Airport Security

Services, Inc., 253 F.3d 1280, 1286 (11th Cir. 2001). We further note

that courts have refused to enforce arbitration agreements where the

arbitral costs borne by the employee were deemed to be so large and

prohibitive so as to have the effect of precluding litigants from

effectively vindicating their statutory rights. See Morrison v. Circuit

City Stores, Inc., 317 F.3d 646, 659 (6th Cir. 2003) (and cases cited

therein). In this case, the agreement makes clear that the employer is

to pay all costs, with the employee paying only a $125 fee. We do not

believe such a fee would have the effect of precluding litigants from

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effectively vindicating their rights under the Workers= Compensation

Act. For these reasons, therefore, we do not believe compelling

arbitration in this case would contravene the public policy

surrounding retaliatory discharge claims based on the Workers=

Compensation Act.

CONCLUSION

For the foregoing reasons, we find that the ADispute Resolution

Program@ is an enforceable agreement between plaintiff and

Anheuser-Busch. As such, we find that the circuit court erred in

denying defendant=s motion to dismiss and compel arbitration. We

reverse the judgment of the appellate court and the order of the circuit

court and remand the cause to the circuit court for further

proceedings consonant with this opinion.

Judgments reversed;

cause remanded.

JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority=s opinion in this matter for

a number of reasons. First, the majority has failed to support

adequately the key component of the element of consideration in its

contract analysis. Second, the majority=s analysis fails to follow our

longstanding precedent in Ryherd and conflicts with this state=s

strong public policy interest in protecting workers from retaliatory

discharge. Third, the language of the employer=s dispute resolution

program policy statement and program guide (DRP) must be

construed against the employer as its drafter. Finally, employer-

mandated arbitration provisions are effectively contracts of adhesion

and raise serious issues concerning employees= actual knowledge and

voluntariness when being bound by them.

I

The majority states the plaintiff=s continued employment with

Anheuser-Busch provided the consideration needed for its contract

analysis, citing Duldulao v. Saint Mary of Nazareth Hospital Center,

115 Ill. 2d 482 (1987). Slip op. at 13. In Duldulao, this court held that

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changes in an employer=s express disciplinary policy may create

contractually enforceable rights in an employee if three conditions

are met: (1) an adequately clear promise exists to create an

employee=s reasonable belief that an offer has been presented; (2) the

distribution of the policy was performed in a way that ensured the

employee was aware of it and reasonably believed an offer was made;

and (3) the employee=s acceptance is demonstrated by the

commencement or continuation of work. Duldulao, 115 Ill. 2d at 490.

In reaching this conclusion, Duldulao adopted the reasoning of the

Minnesota Supreme Court in Pine River State Bank v. Mettille, 333

N.W.2d 622 (Minn. 1983). Notably, both Duldulao and Pine River

focused on the enforceability of disciplinary policy changes affecting

the treatment of employees during the course of their employment.

The Duldulao court considered an employee=s right to the benefit

of specific disciplinary procedures related to her employment that the

employer had added to the employee handbook. Thus, the scope of

the control exerted by the additional disciplinary provision in

Duldulao extended only for the duration of the employment

relationship. In contrast, the added dispute resolution provision here

attempts to control the plaintiff=s fundamental right to a jury trial even

after the termination of the employment relationship. The new

dispute resolution provision specifically required issues unable to be

resolved by other measures to be decided by binding arbitration,

waiving any right to a jury trial. Duldulao does not involve the

validity of an agreement entered into during the course of

employment that attempts to control the assertion of an employee=s

rights after termination of that employment. Therefore, Duldulao

cannot support the extension of the provision=s scope of control to

conduct occurring after the termination of the employment

relationship.

To fill the factual gap between Duldulao and this case, the

majority broadly adds that Aunder Illinois law, continued employment

is sufficient consideration for the enforcement of employment

agreements,@ citing only nonprecedential appellate case law. See slip

op. at 14, citing Lawrence & Allen, Inc. v. Cambridge Human

Resource Group, Inc., 292 Ill. App. 3d 131 (1997), McRand, Inc. v.

van Beelen, 138 Ill. App. 3d 1045, 1055 (1985), and Woodfield

Group, Inc. v. DeLisle, 295 Ill. App. 3d 935, 942-43 (1998). While

these cases provide a somewhat more suitable framework for

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analyzing the consideration in this case due to their consideration of

the validity of employer-imposed provisions attempting to limit

former employees= postemployment activities, they form an

inadequate basis for summarily concluding there was sufficient

consideration for the arbitration provision imposed in this case.

Initially, I note the same criticism the majority claims precludes

the application of our longstanding precedent in Ryherd to this case

also precludes the majority=s reliance on its cited appellate cases. Just

as ARyherd did not involve the issue of the enforceability of an

agreement to arbitrate a statutory claim@ (slip op. at 15), here the

cited appellate cases involve nonstatutory claims seeking to find

postemployment restrictive covenants unenforceable. Lawrence, 292

Ill. App. 3d at 137; McRand, 138 Ill. App. 3d at 1047; Woodfield, 295

Ill. App. 3d at 936. If this court=s own precedent in Ryherd is

distinguishable on this basis, there can be no justification for relying

on appellate court authority bearing the same Aflaw.@ This is

particularly true in this instance because even if the appellate court=s

cases were factually on point, they do not constitute binding authority

on this court. Department of Transportation ex rel. People v. 151

Interstate Road Corp., 209 Ill. 2d 471, 485 (2004).

In addition, although in Lawrence, 292 Ill. App. 3d at 138, and

McRand, 138 Ill. App. 3d at 1055, the courts found that Acontinued

employment for a substantial period@ may provide sufficient

consideration to support the restrictive employment covenants at

issue there, they offer no real analysis of that issue. As the McRand

court noted, our appellate court has either only Asignaled@ support for

similar findings A[w]ithout discussing the issue at length@ or enforced

restrictive covenants imposed during an ongoing employment

relationship without Adirectly addressing the issue of consideration.@

McRand, 138 Ill. App. 3d at 1055. Neither approach provides a

satisfactory basis for the majority=s reliance.

Despite this scant foundation, however, the majority

unquestioningly adopts the appellate court=s position. Indeed, it relies

on that foundation to extend our prior holding in Duldulao outside

the context of disputes arising during the course of an employment

relationship. I believe the absence of any substantive discussion in

the appellate cases merits, at a minimum, that this court undertake its

own thorough examination of the issue prior to adopting a broader

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rule. If we then determined the extension of Duldulao was justifiable

under some set of circumstances, I would remand the cause to the

trial court for a further review of the sufficiency of the consideration

in this particular case. In light of the lack of any actual analysis of

whether the plaintiff=s continued employment constitutes sufficient

consideration in the context of this case, however, I believe the

majority=s contract discussion is seriously undermined.

II

The majority=s analysis makes another critical error by ignoring

this court=s prior clear declaration that employees may not negotiate

or bargain away their right to seek recovery for retaliatory discharge

as derived from public policy. Ryherd v. General Cable Co., 124 Ill.

2d 418, 426, 433 (1988). In Ryherd, this court held that even if an

arbitrator had decided the underlying factual issues in a retaliatory

discharge claim, the former employee could not be barred from filing

a subsequent claim in state court. Ryherd, 124 Ill. 2d at 431, 434. We

based this conclusion on the principle that Athe arbitrator has no

competence and, indeed, no mandate to determine whether the

motives for the discharge contravene a clearly mandated public

policy.@ Ryherd, 124 Ill. 2d at 431.

As in this case, the plaintiff in Ryherd alleged, in relevant part,

that she was fired from her job in retaliation for filing a workers=

compensation claim. See Ryherd, 124 Ill. 2d at 423. Thus, the

rationale in Ryherd applies equally to this case. In Ryherd. this court

soundly rejected the majority=s approach permitting Athe ultimate

determination of Illinois public policy [to be] delegated to privately

appointed arbitrators. The danger of such inconsistent and

unreviewable private law militates against preemption.@ Ryherd, 124

Ill. 2d at 432. Under this established precedent, employers and

employees may not contract away the authority to decide

fundamental public policy questions to private arbitrators. Yet, that is

exactly what the majority is permitting in this case.

In support, the majority cites with approval the United States

Supreme Court=s statement in Gilmer v. Interstate/Johnson Lane

Corp. that A > A [s]o long as the prospective litigant effectively may

vindicate [his or her] statutory cause of action in the arbitral forum,

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the statute will continue to serve both its remedial and deterrent

function.@ = @ (Emphasis added.) Slip op. at 16, quoting Gilmer, 500

U.S. at 28, 114 L. Ed. 2d at 38, 111 S. Ct. at 1653, quoting

Mitsubishi, 473 U.S. at 637, 87 L. Ed. 2d at 461-62, 105 S. Ct. at

3359. It fails to note, however, that the facts in this case show the

dispute resolution procedures mandated in the arbitration provision

provide far less procedural protection than is available for the

vindication of the plaintiff=s rights through a judicial forum.

Despite the purported availability of the same remedies in the

arbitration proceedings mandated by the DRP and in court

proceedings (slip op. at 17), the complainants enjoy significantly

diminished procedural protections. For instance, according to the

DRP policy statement the Alegal rules of evidence@ are inapplicable,

with exceptions only for matters of Aattorney-client privilege,

attorney work product and compromise and offers to compromise.@

The arbitrator will not consider affidavits except by the written

agreement of both parties. The use of depositions is also quite

limited, permitting only the opposing party=s expert witnesses and Aup

to two other individuals@ to be deposed in the absence of an exception

being granted by the arbitrator. Moreover, under the DRP

complainants have only 21 days after the issuance of a written notice

that mandatory nonbindiing mediation was unsuccessful to request a

binding arbitration hearing or face the loss of their right even to

receive an arbitration hearing. Thus, the arbitration proceedings do

not provide the types of protections ordinarily extended in civil trials,

a fact most, if not virtually all, employees fail to realize when they

willingly or unwilling accept mandatory binding arbitration

provisions in order to keep their jobs. Given these vital procedural

distinctions, I do not believe the employer=s program permits

complainants to Aeffectively *** vindicate@ their statutory rights. See

Gilmer, 500 U.S. at 28, 114 L. Ed. 2d at 38, 111 S. Ct. at 1653. The

arbitral forum offered by the program does not serve the deterrent and

remedial functions of this state=s workers= compensation statute.

III

I also believe the language in the DRP policy statement is

internally conflicting and should not be construed in favor of the

employer. The policy statement defines the Acovered employees@ as

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Aall *** salaried and nonunion hourly employees of Anheuser-Busch

Companies, Inc., or any of its U.S. subsidiaries.@ Thus, at the time

this program was initiated, the plaintiff was considered a Acovered

employee.@ When her employment was terminated by Anheuser-

Busch, however, she was no longer a salaried or nonunion hourly

employee. Therefore, under the program=s definition, she was no

longer a Acovered employee@ subject to the terms of the DRP.

Moreover, she was also not a Aformer employee@ entitled to request

application of the program because the policy statement specifically

defines Aformer employees@ as A[e]mployees terminated prior to the

[dispute resolution program=s] effective date.@ Applying this language

here, the DRP was not applicable to the plaintiff as either a covered

employee or as a former employee. Nonetheless, the DRP policy

statement attempts to bind all involuntarily terminated employees by

requiring use of the specified dispute resolution procedures for all

disputes related to their terminations.

Employers cannot draft conflicting provisions requiring only

salaried and nonunion hourly employees to participate in the dispute

resolution program and at the same time also attempt to bind

individuals who are no longer salaried or hourly employees by those

same procedures. Under established principles of contract

interpretation, such ambiguity must be construed against the

employer as the drafter of the language. Dowd & Dowd, Ltd. v.

Gleason, 181 Ill. 2d 460, 479 (1998). Applying that rule of

construction in this case, the DRP is only applicable to disputes

arising with current employees, not to past employees= allegations of

retaliatory discharge. By their very nature, these claims arise after the

termination of employment, when the individuals can no longer be

considered Acovered@ by the dispute resolution program as salaried or

hourly employees. Any other interpretation would undermine the

strong support this court has previously demonstrated for the vital

public interests underlying retaliatory discharge claims. See Gonzalez

v. Prestress Engineering Corp., 115 Ill. 2d 1, 9 (1986); Kelsay v.

Motorola, Inc., 74 Ill. 2d 172, 187 (1978).

IV

In addition, I am troubled by an employer=s unilateral imposition

of a mandatory binding arbitration provision requiring employees to

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forfeit their constitutional rights to judicial process far in advance of

any actual dispute. This places employees such as the plaintiff here in

the fundamentally unfair position of being required to seek remedies

exclusively in a forum mandated by employment agreements that can

no longer logically bind them because they are no longer Acovered

employees.@ Furthermore, while there may be certain types of

disputes that a given employee may be willing to submit to

arbitration, there are undoubtedly other types that the same employee

would choose to seek vindication of the employee=s rights in a

traditional judicial forum. By being economically coerced into

signing a take-it-or-leave-it employer-mandated arbitration

agreement just to maintain employment, the employee is often

unwittingly stripped of the future ability to treat issues on a case-by-

case basis. Moreover, as noted earlier in this dissent, nearly all

employees lack sufficient knowledge of the differences in the

procedural protections afforded to them in the two forums to make

truly informed and voluntary decisions to enter into mandatory

binding arbitration provisions. Common sense and experience dictate

that, without that knowledge, employees accept the provisions solely

in order to keep their current jobs.

Indeed, the true voluntariness of such an anticipatory employment

agreement has been the subject of much criticism. See, e.g., D.

Schwartz, Enforcing Small Print to Protect Big Business: Employee

and Consumer Rights Claims in an Age of Compelled Arbitration,

1997 Wis. L. Rev. 33, 76, 114-19 (1997) (noting that the drafters and

proponents of the Federal Arbitration Act did not intend it to apply to

contracts of adhesion such as employment contracts, that there is

often a disparity of bargaining power and information between

employers and employees pertaining to these agreements, and

reviewing the critical differences between the use of settlements and

prospective waivers such as predispute arbitration agreements); M.

Eisenberg, The Limits of Cognition and the Limits of Contract, 47

Stan. L. Rev. 211, 251-52 (1995) (concluding that employees may be

exploited by arbitration provisions due to their Alimited cognition@ of

the longterm impact of their agreement to mandatory binding

arbitration over disputes that have not yet even arisen); Comment, C.

Reilly, Achieving Knowing and Voluntary Consent in Pre-Dispute

Mandatory Arbitration Agreements at the Contracting Stage of

Employment, 90 Cal. L. Rev. 1203, 1225-26, 1234-35 (2002) (citing

-24-

empirical studies showing that the majority of employees of all types

are ignorant of their legal employment rights, the available legal

processes, the procedural and remedial implications of agreeing to

arbitration of future disputes, their substantive protections as

employees, and that the economic pressures at work in these contracts

of adhesion make truly knowing and voluntary consent unlikely).

I find these matters particularly troublesome in the context of the

plaintiff=s claims in this case. The plaintiff alleged she was

discharged from her employment in retaliation for the exercise of her

statutory rights under the Illinois workers= compensation statute.

Without a doubt, retaliatory discharge is contrary to the public policy

of this state. Gonzalez v. Prestress Engineering Corp., 115 Ill. 2d 1, 9

(1986); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 187 (1978).

This court has long recognized the vital importance of the public

policy protecting employees who assert their rights under the

Workers= Compensation Act. Gonzalez, 115 Ill. 2d at 9. In addition,

the legislature=s intent to protect employees= rights through third-

party oversight is apparent from its statutory requirement of state

approval prior to the settlement of certain types of workers=

compensation claims. 820 ILCS 305/10.1 (West 2002). Here, the

DPR deprives employees of the Act=s third-party oversight

protections by barring any state oversight. A refusal to recognize the

serious question involving the voluntariness and the actual

knowledge of employees about the ramifications of signing

predispute arbitration clauses seriously undermines these intentions.

V

In sum, the majority=s analysis is internally flawed, and its

approach and outcome are in direct conflict with our prior decision in

Ryherd. The opinion also ignores the real world factors militating

against an employee=s truly voluntary and knowing agreement to a

mandatory binding arbitration provision imposed by an employer in a

contract of adhesion. When viewed in light of this court=s previous

concerted efforts to uphold the strong public policy protecting

employees who file Workers= Compensation Act claims, this analysis

is particularly disconcerting. For these reasons, I respectfully dissent.

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