First Amendment freedoms, it engages in "state action" under the Fourteenth Amendment. Id. at 668. Promissory estoppel is a "state law doctrine which, in the absence of a contract, creates obligations never explicitly assumed by the parties." Id. Because these obligations would be enforced using the state court's official power, a judgment for the plaintiff on this ground would constitute state action. Id. Claiming that the U-4 is a contract of adhesion, Cremin contends that enforcing it would similarly impose upon her obligations she "never assumed." The resulting "burden on [Cremin's] constitutional rights" would thus emanate directly from this Court. Pl. Resp. at 12.
What Cremin does not acknowledge is the fact that every court faced with the allegation that the U-4 is a contract of adhesion has rejected it. Nieminski v. John Nuveen & Co., 1997 U.S. Dist. LEXIS 764, 1997 WL 43241, at *3 (N.D. Ill. Jan. 23, 1997) (U-4 does not satisfy Illinois law definition of adhesion contract); In re Prudential Ins. Co., 924 F. Supp. 627, 643 (D.N.J. 1996) (U-4 arbitration provision is not a contract of adhesion); Lockhart v. A.G. Edwards & Sons, Inc., 1994 U.S. Dist. LEXIS 1201, 1994 WL 34870, at *2 (D. Kan. Jan. 25, 1994) (same); Rust v. Drexel Firestone, 352 F. Supp. 715, 718 (S.D.N.Y. 1972) (same); see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33-34, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991) ("Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context."); O'Brien, 64 F.3d at 261 (National Futures Association registration binding broker to arbitrate is not adhesion contract; choice to become exchange member is sufficient evidence of consent). Cremin cites nothing to contradict this imposing line of authority, and we see no reason to disregard it.
The upshot of holding that the U-4 is not an adhesion contract is that Cremin is the source of her own constitutional burdens. Her signature on the form, not the Court's hypothetical ruling, creates the obligation to arbitrate according to exchange rules. The only issue, which we address later, is whether Cremin's waiver of the right to a judicial forum was knowing. If her waiver is valid, we will enforce the contract because Cremin will have agreed to arbitrate. If the waiver is flawed, we will find that she did not consent to arbitration. But in no case would we restrict Cremin's constitutional rights by dredging up a state law doctrine to manufacture a compact that never existed.
Since all four of Cremin's state action theories uniformly fail, she cannot use the Fifth Amendment's due process clause to reach the defendants' actions. We therefore grant the defendants' motions to dismiss Cremin's Fifth Amendment claims.
B. Article III and Jury Trial Rights
Two constitutional claims remain: Cremin's alleged right, under Article III, to have a court host her discrimination case and, under the Seventh Amendment, to have a jury evaluate it. We hold that neither right risks violation in this case.
Cremin contends that Article III guarantees her the right to an in-court adjudication of her Title VII claims. By enforcing the U-4's arbitration clause, she claims, we would abrogate that right. However, rights to an Article III tribunal are waivable. CFTC v. Schor, 478 U.S. 833, 848, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986) ("As a personal right, Article III's guarantee of an impartial and independent federal adjudication is subject to waiver.") Assuming the truth of Cremin's premise about Article III's guarantees, two scenarios are possible. One is that she waived her rights to an Article III court by signing the U-4's arbitration clause, in which case she has voluntarily foregone a judicial forum. See Illyes, 949 F. Supp. 580, 584, 1996 U.S. Dist. LEXIS 17912, 1996 WL 699552, at *5 ("Because plaintiff has voluntarily consented to arbitration, he has waived any right he may have had to a full trial before an Article III court."). The other is that Cremin did not waive her Article III rights, in which case she would be entitled to a trial in an Article III forum. Either way, Cremin would only be denied her day in court if we found that she waived her rights to proceed here. The determining factor, therefore, is Cremin's action, not the Court's -- we cannot violate a right she waived. Accordingly, Cremin faces no threat of an Article III deprivation.
A similar analysis applies to Cremin's jury trial claim. The Seventh Amendment does not confer the right to a trial, but only the right to have a jury hear the case once it is determined that the litigation should proceed before a court. If the claims are properly before an arbitral forum pursuant to an arbitration agreement, the jury trial right vanishes: "In a non-Article III forum the Seventh Amendment simply does not apply." Geldermann, Inc. v. CFTC, 836 F.2d 310, 323 (7th Cir. 1987). The question is, therefore, whether Cremin consented to have her case arbitrated. Should we find consent, the Seventh Amendment is irrelevant. If, on the other hand, Cremin did not agree to arbitrate, then she will be permitted to present her case to a jury. The impetus is Cremin's -- either she consented to arbitration or she did not. Therefore, she has no Seventh Amendment claim because no one is forcing her to give up a jury trial.
To summarize, Cremin faces no threat that she will be deprived of either the right to an Article III court or to a jury trial. Rather, we will simply ask whether she agreed to arbitrate by knowingly forgoing a judicial forum. If the answer is yes, Cremin can hardly argue that her own valid waiver violates the Constitution. Having now examined all of Cremin's constitutional claims, laid out in Count III, we find them to be without merit. The defendants' motion to dismiss them is granted.
C. Claims Under the 1991 Civil Rights Act
We next turn to the statutory claims in Count III. Cremin alleges that the U-4's mandatory arbitration clause violates her rights under the 1991 Civil Rights Act, depriving her of such statutorily mandated benefits as the right to a jury trial, to an Article III court, and to have the civil rights laws enforced as written.
1. The Gilmer Decision -- Discrimination Claims Are Arbitrable
The Supreme Court addressed mandatory arbitration of discrimination claims under the securities industry's Form U-4 in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26, 111 S. Ct. 1647 (1991). The Court held that statutory claims are generally arbitrable unless the plaintiff proves that Congress intended to preclude waiver of a judicial forum. Id. at 26. Congress' intention "will be discoverable in the text of the [statute], its legislative history, or an 'inherent conflict' between arbitration and the [statute's] underlying purposes." Id. Applying this analysis to the statute before it, the Age Discrimination in Employment Act, the Court found no evidence that Congress intended to preclude arbitration of ADEA claims. Id. at 35. Before reaching this conclusion, the Court examined a host of alleged conflicts between the ADEA and mandatory arbitration: that arbitration deprives claimants of the judicial forum guaranteed by the ADEA, that the biased panels are inconsistent with the ADEA's objectives, that limited discovery inhibits proof of discrimination, that procedures are inadequate, and that the absence of written opinions prevents effective judicial review. Id. at 27-32. The Court rejected them all, finding that Gilmer had failed his burden of proof, and sent the ADEA claims to arbitration. Id. at 35.
Our inquiry under Gilmer is therefore whether Congress intended to preclude arbitration of claims brought under Title VII, as amended by the 1991 Civil Rights Act. Unfortunately for Cremin, every decision since Gilmer has held that Congress erected no statutory barrier to compulsory arbitration of Title VII claims. See, e.g., Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991) (decision after vacation and remand in light of Gilmer); Mago v. Shearson Lehman Hutton Inc., 956 F.2d 932 (9th Cir. 1992); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698 (11th Cir. 1992); see also Cole v. Burns Int'l Security Servs., 105 F.3d 1465, 1997 U.S. App. LEXIS 2223 (D.C Cir. Feb. 11, 1997) (enforcing pre-dispute arbitration clause requiring arbitration of Title VII disputes).
The last of these, the D.C. Circuit's just-issued opinion in Cole v. Burns Int'l Security Services, deserves special note because it furnishes the latest word on Gilmer's application to Title VII claims. Plaintiff Cole signed, as a condition of his employment as a security guard with defendant Burns, a pre-dispute arbitration agreement (not in a Form U-4) mandating arbitration of all employment disputes. 105 F.3d 1465, 1997 U.S. App. LEXIS 2223, at *8. Under the agreement, only the employer could compel arbitration. Id. at *6 n.1. Cole later filed a Title VII suit in federal court alleging he was the victim of discrimination and challenging the arbitration agreement's enforceability. He focused specifically on the agreement's alleged requirement that the employees pay the arbitrators' fees even though arbitration was imposed by the employer. In a thorough and well-reasoned opinion, Judge Edwards held that 1) the agreement to arbitrate statutory claims was enforceable; and 2) to preserve its validity, the agreement had to be construed to make the employer solely responsible for the arbitrators' fees. Id. at *4-5.
The opinion is notable not so much for its holding, but rather for its commentary on Gilmer and on mandatory arbitration. The court's decision to enforce the arbitration agreement rested largely on the fact that "the Supreme Court has made clear that, as a general rule, statutory claims are fully subject to binding arbitration, at least outside the context of collective bargaining." Id. at *42. Although Gilmer could not be read to permit arbitration agreements to waive just any right -- for example, to bring Title VII claims in some forum or to have access to a neutral forum -- concerns of that nature and magnitude were absent in both Gilmer and the case before the court. Id. at *56-57. Accordingly, Cole had to follow Gilmer's prescription that "an employee who is made to use arbitration as a condition of employment effectively may vindicate [his or her] statutory cause of action in the arbitral forum." Id. at 58 (quoting Gilmer, 500 U.S. at 28 (internal quotations omitted)). The court did not enforce the agreement without reservation, however:
We are . . . cognizant of the numerous concerns that have been voiced by arbitrators, legal commentators, and the Equal Employment Opportunity Commission ("EEOC"), and National Labor Relations Board ("NLRB") regarding the potential inequities and inadequacies of arbitration in individual employment cases, as well as their concerns about the competence of arbitrators and the arbitral forum to enforce effectively the myriad of public laws protecting workers and regulating the workplace. Nonetheless, in this case, we are constrained by Gilmer to find the arbitration agreement enforceable. We do not read Gilmer as mandating the enforcement of all mandatory agreements to arbitrate statutory claims; rather, we read Gilmer as requiring the enforcement of arbitration agreements that do not undermine the relevant statutory scheme. The agreement in this case meets this standard.
Id. at *4 (emphasis added). Thus, the Cole Court acknowledged that its hands were tied by Gilmer.10
As clarified by Cole, Gilmer stands for the proposition that courts must enforce arbitration agreements that are consistent with the statutory scheme of the claims they cover. The decisions between Gilmer and Cole concur with this basic proposition. Where courts have differed, however, is on an issue that neither Gilmer nor Cole addressed: whether Congress has established in Title VII a prerequisite to mandatory arbitration -- the claimant's knowing waiver of the right to press her Title VII claims in court. Compare Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1305 (9th Cir. 1994) with Beauchamp v. Great West Life Assurance Co., 918 F. Supp. 1091, 1098 (E.D. Mich. 1996). The Seventh Circuit has not yet dealt with this issue.
2. The Ninth Circuit's Formulation in Lai -- A Knowing Agreement
The Ninth Circuit in Lai held that "a Title VII plaintiff may only be forced to forgo her statutory remedies and arbitrate her claims if she has knowingly agreed to submit such disputes to arbitration." 42 F.3d at 1305. The Lai plaintiffs were securities industry employees who registered with the NASD, but not with the NYSE, by signing Forms U-4. They alleged they were told they were signing something entirely different and never given an opportunity to read the forms or the NASD manual on arbitration. The U-4s contained the same generic arbitration clause that Cremin signed, but the suit was filed long before the NASD promulgated rules specifically requiring arbitration of employment disputes. The plaintiffs thus contended that, even assuming they had agreed to arbitrate, nothing in the U-4 or the NASD arbitration rules mentioned employment disputes. Consequently, their signatures could not have possibly manifested consent to submit Title VII claims to arbitration.
The court agreed. While Gilmer and its progeny held that individuals may contract to arbitrate employment disputes, Congress mandated that this agreement be "knowing." Id. at 1304. The court gleaned Congress' intent from the legislative history to Title VII's post-Gilmer amendment, section 118 of the 1991 Civil Rights Act. Section 118 states that "where appropriate and to the extent authorized by law, the use of alternative dispute resolution, including . . . arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title." Civil Rights Act of 1991, Pub. L. No. 102-166, § 118 (set forth in the historical and statutory notes following 42 U.S.C. § 1981 (1994)). In attempt to clarify the "where appropriate" language, the court cited one House Report explaining:
The committee emphasizes . . . that the use of alternative dispute resolution mechanisms is intended to supplement, not supplant, the remedies provided by Title VII. Thus, for example, the committee believes that any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of Title VII.