The plaintiff filed a race discrimination suit in federal court.? ?The employer moved to dismiss based on a pre-hiring mandatory arbitration provision. ?The employee argued that district court had to decide whether the agreement was unconscionable.?? The employer argued that issue was for the arbitrator because a provision of the agreement? ?said? ?it? ?was? ?for? ?the? ?arbitrator?? to determine whether the agreement was void or voidable.

The district court agreed with the employer but the Ninth Circuit reversed.?? The majority concluded that this was a straightforward challenge to solely the validity of the arbitration provision of the employment, which is an issue for the court to decide. ?The majority said that because the issue is whether the employee voluntarily agreed to arbitration at all, the court must resolve that threshold issue rather than the arbitrator.? ?The majority found that cases involving arbitration agreements between sophisticated commercial enterprises did not apply in the employer-employee context, where there is usually unequal bargaining power.?? The panel remanded the case for a full determination whether the agreement was both procedurally and substantively unconscionable under Nevada law.?? Judge Hall dissented on the basis that the plain language of the agreement delegated to the arbitrator the issue of whether it was void or voidable.

Jackson v. Rent-a-Center West. Inc.,?? — F.3d — (9th?? ?Cir.?? Sep.?? 9,?? 2009)?? (Thomas,?? Hall,?? T.G. Nelson).