Justice ?Bridge ?issued ?the ?majority? opinions ?in two companion cases deciding the enforceability of? pre-dispute? employment? arbitration agreements to claims under the WLAD. Plaintiff Zuver?? alleged?? disability?? discrimination?? and failure?? to?? reasonably?? accommodate.?? Plaintiff Adler alleged disability, age, and national origin discrimination and other claims including common law torts. Both appealed orders compelling them to arbitrate their discrimination claims against their respective employers. They argued that various provisions in the arbitration agreements were procedurally and substantively unconscionable rendering them unenforceable. Adler also argued that the arbitration agreement was not a valid waiver of the state constitutional right to trial by jury In Zuver, a 7-2 ruling, the Court held that provisions of the agreement requiring confidentiality and limiting plaintiff?s remedies so as to prohibit punitive or exemplary damages are substantively unconscionable. However, applying a severability clause in the contract, the Court found the remainder of the agreement enforceable, including a true ?prevailing party? fee provision so long as the arbitrator follows discrimination law on the issue.? ?It concluded that because there were ?only two? unconscionable ?provisions,? that? unfairness? did not ?pervade? the agreement. ?The Court rejected Zuver=s? procedural ?unconscion-ability arguments based solely on the parties? unequal bargaining power and the adhesionary nature of the agreement. ?In explanation, the Court stated: ?At minimum, an employee who asserts an arbitration agreement is procedurally unsconscionable must show some evidence that the employer refused to respond to her questions or concerns, placed undue pressure on her to sign the agreement without providing her with a reasonable opportunity to consider its terms, and/or that the terms of the agreement were set forth in such a way that an average person could not understand them.??? Justice Madsen, joined by Justice Johnson, dissented on the ground that the provision limiting remedies is not invalid because the majority=s analysis is based upon a lack of mutuality which is not a valid basis for finding unconscionability.
In? Adler,? an? 8-1? ruling,? the? Court? held substantively unconscionable provisions depriving an employee of prevailing party fee-shifting pursuant ?to ?RCW ?49.60.030(2) ?and ?imposing ?a 180-day statute of limitations on all claims.?? The Court remanded for a factual determination of whether arbitration fee-splitting provision is prohibitively expensive as to Adler rendering it substantively unconscionable.
On remand, the trial court is also instructed to determine whether the agreement is procedurally unconscionable and whether Adler knowingly, intelligently and voluntarily waived his right to a jury trial.?? The Court declined to decide whether procedural unconscionability alone is sufficient to render a contract void.? ?However, the Court explained: ?On remand, if the trial court concludes that Fred Lind Manor?s representative threatened to fire him if he refused to sign the agreement despite the fact he raised concerns with its terms or indicated?? a?? lack?? of?? understanding,?? then?? the evidence?? here?? would?? not?? support?? Fred?? Lind Manor?s ?claim? that ?Adler ?knowingly ?and voluntarily? agreed? to? arbitration,? and? thus implicitly?? waived? ?his?? right? ?to? ?a? ?jury?? trial.? Although the Court did not address the issue, Adler likely bears the burden of proving procedural unconscionability? whereas? his? employer? would have the presumably greater burden of establishing valid waiver of his state constitutional right to a jury trial. In a concurrence, Justice Madsen remarked that ?an employee?s disagreement with the terms of an arbitration agreement entered into upon employment or continued employment will be sufficient to invalidate the agreement.? ?Zuver v. Airtouch ?Comms., ?Inc., ?No. ?74156-5 ?(Bridge; 12/23/04); Adler v. Fred Lind Manor, No. 74701-6 (Bridge; 12/23/04).