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Joann MELENA, Appellee,
v.
ANHEUSER-BUSCH, INC., Appellant.
Supreme Court of Illinois.
*100 Joseph J. Torres, Megan Glunz Horton, Andrew Malahowski, of Winston & Strawn, L.L.P., Chicago, for appellant.
Gary L. Bement, of Bement & Stubblefield, P.C., Belleville, and John Vail, of Washington, D.C., for appellee.
Adam C. Wit, of Littler Mendelson, P.C., Chicago, for amicus curiae Ralph's Grocery Company.
Aaron B. Maduff, Deanne S. Medina, of Maduff, Medina & Maduff, Chicago, Thomas W. Osborne, Washington, D.C., Cliff Palefsky, Keith Ehrman, of McGuinn, *101 Hillsman & Palefsky, Marissa M. Tirona, all of San Francisco, California, for amici curiae National Employment Lawyers Association et al.
Bruce R. Pfaff, of Pfaff & Gill, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.
David S. Schwartz, Madison, Wisconsin, amicus curiae pro se.
Justice FREEMAN delivered the judgment of the court, with 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, 287 Ill.Dec. 859, 816 N.E.2d 826. 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 "Dispute Resolution Program." Attached to the letter were materials describing the new program, including a "Dispute Resolution Program Guide," "Dispute Resolution Program Highlights," and the "Dispute Resolution Program Policy Statement."
The various materials explained the new program. For example, the policy statement set forth:
"This 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:
"At 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 "by continuing or accepting an offer of employment" with Anheuser-Busch, all employees to whom the policy was applicable "agree as a condition of employment to submit all covered claims to the dispute resolution program." The statement defined "covered claims" as "employment-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 "to change the employment-at-will relationship between the company and its employees."
In addition to the written materials included in the letter, Anheuser-Busch arranged *102 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 "The 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 "Employee Acknowledgment and Understanding":
"I 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 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 "even if the plaintiff entered into the agreement knowingly, she did not do so voluntarily." 352 Ill.App.3d at 707, 287 Ill.Dec. 859, 816 N.E.2d 826. Noting that it had "serious reservations" about whether an agreement to arbitrate, offered as a condition of employment, "is ever voluntary," the court deemed "illusory" whatever choice plaintiff was said to have had in this matter. 352 Ill.App.3d at 707-08, 287 Ill.Dec. 859, 816 N.E.2d 826. 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 "Dispute 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. *103 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]
Anheuser-Busch filed its motion to dismiss and compel arbitration or, in the alternative, to stay the proceedings and compel arbitration, pursuant to section 2-619 of the Code of Civil Procedure. (735 ILCS 5/2-619 (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, 283 Ill.Dec. 669, 808 N.E.2d 957 (2004), citing In re Chicago Flood Litigation, 176 Ill.2d 179, 189, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997). The standard of review on appeal is de novo. Borowiec, 209 Ill.2d at 383, 283 Ill.Dec. 669, 808 N.E.2d 957.
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, 297 Ill.Dec. 294, 837 N.E.2d 74 (2005); Wilson v. Norfolk & Western Ry. Co., 187 Ill.2d 369, 383, 240 Ill.Dec. 691, 718 N.E.2d 172 (1999). This court, in Borowiec v. Gateway 2000, Inc., 209 Ill.2d 376, 283 Ill.Dec. 669, 808 N.E.2d 957 (2004), discussed the history and purpose of the FAA, acknowledging that in enacting the FAA, Congress sought "`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, 283 Ill.Dec. 669, 808 N.E.2d 957, quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26, 36 (1991). Section 2 of the FAA compels judicial enforcement of arbitration agreements "in 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, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Section 2 further provides that such a written provision
"shall 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 "`liberal federal policy favoring arbitration agreements.'" Borowiec, 209 Ill.2d at 384, 283 Ill.Dec. 669, 808 N.E.2d 957, quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785 (1983).
The parties disagree over whether the choice of litigating a claim for retaliatory discharge, based on statutory rights under the Illinois Workers' Compensation *104 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, 94 S.Ct. 1011, 39 L.Ed.2d 147 (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. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d 562, 571 (7th Cir.1995). However, as the Seventh Circuit Court of Appeals has noted, "[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 "rejected 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, 121 S.Ct. 513, 521, 148 L.Ed.2d 373, 383 (2000), quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 481, 109 S.Ct. 1917, 1920, 104 L.Ed.2d 526, 535-36 (1989). The Court has emphasized that "federal 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, 122 S.Ct. 754, 765 n. 10, 151 L.Ed.2d 755, 770 n. 10 (2002). According to the Court, "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the 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, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444, 456 (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:
"It 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 [105 S.Ct. 3346, 87 L.Ed.2d 444] (1985); Shearson/American Express Inc. v. McMahon, 482 U.S. 220 [107 S.Ct. 2332, 96 L.Ed.2d 185] (1987); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 [109 S.Ct. 1917, 104 L.Ed.2d 526] (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 *105 the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.'" Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652, 114 L.Ed.2d at 37, quoting Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354, 87 L.Ed.2d at 456.
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, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (holding arbitration agreement, contained within a union collective-bargaining agreement, invalid because the clause in question was too general in stating that "matters under dispute" would be subject to arbitration). The "clear and unmistakable" standard relates more to the language of the 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, 287 Ill.Dec. 859, 816 N.E.2d 826. 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: "The 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 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, "`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 *106 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, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147, 158 (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 "knowing and voluntary" standard. H.R.Rep. No. 102-40(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 "where 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 "garnered universal support." 352 Ill.App.3d at 705, 287 Ill.Dec. 859, 816 N.E.2d 826. 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,
"The nondrafting party * * * consents to arbitration by signing the form or by manifesting assent in another way, such as by 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 "to be arbitrated under the Rules." Although the employee in Seus executed this form, she contended that Congress, "in legislation subsequent to the FAA, has carved out an exception to its provisions for predispute 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, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), stating:
"The Supreme Court began its analysis by making it clear that exceptions to the FAA's rule requiring enforcement of *107 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 "knowing and voluntary" standard, the court went on to hold:
"By `knowing' and `voluntary', Seus means more than with an understanding that a binding agreement is being 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 "continued validity" of the Ninth Circuit's knowing and voluntary waiver standard in the wake of recent United States Supreme Court decisions, noting "it 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 Houses, Inc., 269 F.3d 753, 758 (7th Cir. 2001). The Seventh Circuit also has recognized that
"[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 Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (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, 107 S.Ct. 2520, 2527 n. 9, 96 L.Ed.2d 426, 437 n. 9 (1987) (no