# Amicus Curiae Brief — Circuit City Stores, Inc. v. Adams > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0355%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 532 U.S. 105 ## Text Supreme Court, U.S. FILED Y AUC ~ 4 9000 No. = IN THE Supreme Court of the United States CIRCUIT CITY STORES, INC., Petitioner, v. SAINT CLAIR ADAMS, Respondent. On WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT —eeooEoooooooooooooooooyyyyyyyyyyy—ESESESESS—SSSSSS==____a[[an===S=S=_ BRIEF OF AMICUS CURIAE SOCIETY FOR HUMAN RESOURCE MANAGEMENT IN SUPPORT OF PETITIONER Davip E. BLock Counsel of Record CHRISTINE L. WILSON JACKSON, Lewis, SCHNITZLER & KRUPMAN Attorneys for Amicus First Union Financial Center, Suite 2600 200 South Biscayne Boulevard Miami, Florida 33131-2374 (305) 577-7600 161382 @ Counsel Press LLC (800) 274-3321 + (800) 359-6859 TABLE OF CONTENTS Table of Cited Authorities .................... Interest of Amicus Curiae ..................... I ES oo ccc ecuneetevevescoeds PED 6 66.444 Oho 6cR ences dncdebecdcceecess I. II. III. The Court Of Appeals’ Ruling is Inconsistent with Congressional Intent and This Court’s Advocation of a “Federal Policy Favoring DE, (77,444 discrimination charges were filed with the EEOC in 1999). 6. In contrast, Congress conferred specific jurisdiction for the federal courts to enforce contracts between an employer and a labor organization representing employees, including jurisdiction to enforce arbitration provisions contained in collective bargaining agreements. See Labor Relations Management Act § 301, 29 U.S.C.A. § 185(a) (West 1998); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957) (holding that Section 301(a) of the LMRA authorizes federal courts to enforce agreements to arbitrate). 9 It is ‘probable that the threefold increase in filings of employment discrimination claims has been caused by a threefold increase in discriminatory conduct by employers over the past eight to ten years. To the contrary, empirical evidence suggests that in today’s tight labor market, employers are doing everything possible to attract and retain workers, including the creation of human resource procedures designed to encourage fairness in the workplace. See Employers Wage War of Workplace Lawsuits; Survey Reveals Trend Toward Prevention, PR Newswire Ass’n, Inc. (Nov. 11, 1998) (86% of U.S. Companies have created written human resource policy manuals; 63% have implemented training programs for managers and supervisors; 57% have developed employee grievance policies; 51% have hired human resource managers and 48% have purchased employment practices liability insurance). The increase in federal filings reflects a growing demand by employees to have a neutral party review their employers’ decisions. Employers, in turn, want to provide employees with fair alternatives to redress workplace problems, without resorting to the courts. Arbitration achieves this end. The deluge of employment litigation has caused some on the federal bench to note that their purpose is not to serve as “super personnel departments.” Hasham v. Califoraia State Bd. of Equalization, 200 F.3d 1035, 1048 (7* Cir. 2000) (“this Court has consistently avoided stepping into the role of a super- personnel department”); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8" Cir. 1995) (“this case appears to be precisely the typc of employment dispute that this Court has repeatedly stated is not covered by the discrimination laws. . . . [T]he employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel 10 departments”). To quell the clamor for judicial intervention into workplace disputes and to provide employers with an incentive to better manage their workplace, this Court has articulated that the law favors the institution of fair and reasonable preventative policies and procedures. For example, in Kolstad v. American Dental Ass'n, this Court ruled that an employer that trains its work force regarding discrimination may avoid liability for punitive damages. See 527 U.S. 526, 545 (1999). Specifically, with regard to punitive damages, the Court stated, “an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’ ” /d. (citation omitted). The Court also effectively has encouraged employers to create internal grievance procedures to redress issues of sexual harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (“It would . . . implement clear statutory policy and complement the Government’s Title VII enforcement efforts to recognize the employer’s affirmative obligation to prevent violations [of Title VII] and give credit here to employers who make reasonable efforts to discharge their duty”); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (a defending employer may raise an affirmative defense by showing that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise”). The establishment of alternative dispute resolution programs, including arbitration, works in conjunction with these decisions to further encourage and reward employers and, in 11 particular, direct their human resource departments to take steps to correct workplace discrimination without judicial intervention. The logical extension of these decisions, coupled with the Court’s decades-long encouragement of arbitration, is to recognize arbitration as a viable and fair means of resolving workplace grievances.’ A contrary conclusion will unravel well- established arbitration programs, as well as other employment policies and procedures.* SHRM, therefore, urges the Court to reverse the Ninth Circuit. 7. More than 40 years ago, this Court ruled that an agreement to arbitrate grievances was quid pro quo for an agreement by a labor organization (and its members) not to strike. See Lincoln Mills, 353 U.S. at 455. Since this ruling, “wild cat” strikes virtually have disappeared, arguably giving the United States greater labor peace than any other nation. In contrast, the United States has more employment-based (non-union) litigation than any other country. What has worked so well in one area of employment relations (those with unions and employers) can work equally well if arbitration between employers and non-union employees is permitted. 8. The Supreme Court has, in other areas of the law, considered whether wide-spread acceptance to a practice is reason to sustain the practice. See, e.g., Dickerson v. United States, 120 S. Ct. 2326 (2000) (“We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”); Mitchell v. United States, 526 U.S. 314, 331-32 (1999) (Scalia, J., dissenting) (noting that the fact that a rule has found “*wide acceptance in the legal culture’” is “adequate reason not to overrule” it). 12 Ill. IF THE AGREEMENT AT ISSUE IS DEEMED A CON- TRACT OF EMPLOYMENT, THE COURT’S DECI- SION WILL JEOPARDIZE OTHER LONGSTANDING HUMAN RESOURCE POLICIES AND PRACTICES. The FAA does not define the phrase “contract of employment.”” Nor does the FAA’s legislative history shed clear light on the meaning of this phrase. As a general matter of statutory construction, absent a definition, a word or phrase in a statute is given its plain and ordinary meaning. See, e.g., FDIC v. Meyer, 510 U.S. 471, 476 (1994) (stating that the term “cognizable” was not defined under the Federal Tort Claims Act and therefore the ordinary meaning of the term shall be construed); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 552-53 (1987) (determining that the statutory language at issue was plain and nothing in the statute contradicted this plain meaning). The plain and ordinary meaning of a “contract of employment” is one where one party agrees to employ the other and the other party agrees to such employment.'® Respondent completed an employment application containing a provision 9. SHRM understands that the Court did not grant certiorari on the issue of whether a coniract of employment exists, however, amicus believes there are serious issues which may impact on the field of human resources should the Ninth Circuit’s ruling be affirmed. 10. Even in an employment contract that is terminable at will, one party agrees to employ the other (albeit for an indefinite period) and the employee agrees to being employed. See, e.g., Asmus v. Pacific Bell, 999 P.2d 71, 80 (Cal. 2000) (a “ ‘specified condition’ may be one for either definite or indefinite duration”). 13 entitled “Circuit City Dispute Resolution Agreement” (“DRA”). See Circuit City v. Adams, 194 F.3d 1070, 1071 (9" Cir. 1999), cert. granted, 120 S. Ct. 2004 (2000). The DRA specifically states: “I understand that neither this Agreement nor the Dispute Resolution Rules and Procedures form a contract of employment between Circuit City and me. .. . [and] this Agreement in no way alters the ‘at-will’ status of my employment.” /d. at 1071. While the parties validly agreed to arbitrate future disputes between them in the employment application, Adams did not agree nor was he bound to work for Circuit City. Likewise, Circuit City did not agree to hire Adams. Absent either party agreeing to work for the other, the document in question cannot be considered a “contract of employment”; no employment relationship was established by the job application. The Ninth Circuit opined that the plain and ordinary meaning of the phrase “contract of employment” could be found by looking to its own precedent, which cited BLack’s Law DicTIONARY’s definition of an employment contract. See Adams, 194 F.3d at 1071 (citing Modzelewski v. Resolution Trust Corp., 14 F.3d 1374, 1376 (9" Cir. 1994) (quoting BLack’s Law Dictionary 525 (6" ed. 1990)). The full citation, which the Ninth Circuit did not provide, reads: “An agreement or contract between employer and employee in which the terms and conditions of one’s employment are provided.” BLack’s Law DicTIONARY 525 (6" ed. 1990). The circuit court, however, failed to state how the facts of this case apply to the above definition where the job application containing the agreement to arbitrate was devoid of any of the essential terms and conditions of employment. The employment application containing the agreement to arbitrate fails to evidence an agreement even to the most rudimentary terms and conditions of employment: i.e., the employee’s rate of pay or position. 14 Thus, applying the “dictionary” meaning to the phrase “contract of employment,” the job application at issue simply is not an employment contract because it fails to set forth crucial terms and conditions of employment. Employers and employees (or job applicants) routinely enter into valid agreements which are not contracts of employment: e.g., agreements to adhere to work safety rules, to comply with certain human resource policies and procedures, to submit to pre-employment and post-accident drug and alcohol tests; to keep certain business information confidential; and to restrict the employee’s post-employment conduct. Many of these agreements contain provisions permitting arbitration of disputes which arise in these limited areas. The Ninth Circuit’s decision suggests that any type of agreement between an employee and_an employer, a fortiori, is a contract of employment. SHRM disagrees. The Ninth Circuit’s holding in Adams calls into doubt whether any of these ancillary employment issues could be subject to arbitration, thus requiring employers to re-evaluate virtually all of their employment policies. 15 CONCLUSION For the foregoing reasons, amicus curiae Society for Human Resource Management respectfully requests this Court to reverse the decision of the U.S. Court of Appeals for the Ninth Circuit. Respectfully submitted, Davip E. Block Counsel of Record CHRISTINE L. WILSON JACKSON, Lewis, SCHNITZLER & KRUPMAN Attorneys for Amicus First Union Financial Center, Suite 2600 200 South Biscayne Boulevard Miami, Florida 33131-2374 (305) 577-7600 APPENDIX x 5 . ~ 7 * * #h x 7 ‘ « fat ——_ ~ a A lak a a i ode as case ens See 3 REPRE ie ays VT oan Rae ta Reiley Rene ea aE Ms eR ato ae any. eee ser. OEMS. Te athe SEY S 4 Ce Re SY a eB cre ek he eee TEN, SEE Se SGN ies ke la APPENDIX — STATUTES AND REGULATIONS INVOLVED 29 U.S.C. § 185 Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce s defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 42 U.S.C. § 2000e-5(b) (b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commiss'on; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management fa, DAS ay ak gt a bey fe ee part a tans FOP a eRe Ps ‘ . mY vi tna fey aya eo es ante 2a Appendix committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the ‘’respondent’’) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section. If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done 3a Appendix during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge. 42 U.S.C. § 12212 Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this chapter. 4a Appendix 29 C.F.R. § 1601.20(a) Prior to the issuance of a determination as to reasonable cause the Commission may encourage the parties to settle the charge on terms that are mutualiy agreeable. District Directors, Area Directors, Local Directors, the Program Director, Office of Program Operations, Director of Systemic Programs, Office of Program Operations, or Directors, Field Management Programs, Office of Program Operations, or their designees, shall have the authority to sign any settlement agreement which is agreeable to both parties. When the Commission agrees in any negotiated settlement not to process that charge further, the Commission’s agreement shall be in consideration for the promises made by the other parties to the agreement. Such an agreement shall not affect the processing of any other charge, including, but not limited to, a Commission charge or a charge, the allegations of which are like or related to the individual allegations settled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0355%3A12. Public record. Not legal advice.