The special panel was appointed after the Rembert panel expressed disagreement with a prior decision of the Court in Rushton v. Meijer, Inc., ___ Mich App ___, ___ NW2d ___ (Docket No. 199684 issued 8/19/97). The Rembert court followed Rushton in holding that plaintiff could not be required to arbitrate his claim for racial and handicap discrimination even though he had executed a prior agreement to arbitrate all employment disputes. The Rembert court determined that it was bound to follow the decision in Rushton that such agreements to prospectively waive a right to pursue Michigan civil rights claims in a judicial forum are void as against public policy.
The Rembert panel made it clear, however, that except for MCR 7.215(H), which required it to follow Rushton, it would hold that plaintiff's civil rights claims should be dismissed because of his failure to abide by the arbitration procedures established by defendant. The panel stated it would adopt the dissenting opinion in Rushton if it could because it saw no support for the conclusion that all employment contracts to arbitrate prospective civil rights claims violate public policy.
After the Rembert opinion was released, the Court issued an order convening a special panel to resolve the conflict between the positions expressed in Rembert and Rushton, and directing that the Rembert opinion of December 2, 1997 be vacated. The Court also granted the motions of several interested parties on both sides of the issue to file amicus briefs.
Thus, the question of whether employers may prospectively compel arbitration of discrimination and other civil rights claims in Michigan will shortly be definitively resolved at the Court of Appeals level. If the panel decides that such agreements are contrary to Michigan's public policy, it will then need to address the further important issue of whether the Federal Arbitration Act, which has been generally interpreted to favor arbitration in employment disputes, applies to the facts of this case so as to preempt Michigan law. Determination of the federal preemption question may lead to appeals beyond the Michigan courts.
The special panel consists of Court of Appeals Judges Gage, Hood, McDonald, Cavanagh, Saad, O'Connell and Young, Jr.