Should Contracts requiring "Christian Conciliation" be Enforceable?

Here is an interesting article I read in this week’s American Bar Association Journal.

I generally strongly support freedom of contract. As the article mentions, there are cultures where recourse to a panel of Rabbis or (as I read in the NYTimes yesterday) an Islamic Iman is traditional and efficient where all parties accept the authority of such tribunals (and where perhaps secular justice is slower or less attuned to local issues). Theoretically, I have no objection to parties binding themselves to have disputes resolved by the Delphic oracle. (I am also sympathetic to the desire to avoid the expense and pain of full-blown litigation through sensible arbitration/mediation provisions.)

Nonetheless, and as the article also notes, “contracts of adhesion,” where one party has significantly less bargaining power than the other, make such clauses problematic. One of the two cases apparently upholding these “Christian Conciliation” clauses involves a teacher at a Christian school. In that case, it was the teacher that used the clause as a shield–the school had fired the teacher without going through conciliation. Usually, the teacher would be in the situation of being forced to accept or reject the contract–if the school adopts a policy to include such a clause, the teacher will likely have very little leverage to remove it.

IAAL. I know that law is ultimately based on morality and that a system of law with no claim to morality cannot stand. In a tolerant secular society, however, the thrust of the law is away from using biblical principles (one asks: which ones–only NT verses are cited in the example) as laws. Can the US legal system tolerate Christian conciliation contract clauses? Would ruling them unenforceable diminish the law’s claim to a moral basis (and here by morality I mean freedom of contract as a guiding principle)?

Here is my thought on the subject…

Suppose I apply for a job in a secular role – perhaps not a teacher at a Christian school, but, say, a janitor. Suppose the job contract has a “Christian Conciliation” clause. Suppose I strike out that clause before I sign the contract. Suppose they refuse to hire me…

I’ve got a religious discrimination lawsuit ready-made and in-the-bag. They can no more insist on that clause than they can insist on my accepting any other religious principle.

I wish that the same were true for arbitration clauses; I don’t believe that it should be legal for someone to demand that I waive my constitutional rights in order to get a job.

(I believe that the escape clause here is that, when the dispute first goes to arbitration, I could simply refuse to accept anything the other side offers, thus forcing a stalemate, thus forcing the case to go to court, which is what I really want in the first place… This escape clause might also make “Christian Conciliation” clauses legitimate, by also making it possible to bypass them.)

Trinopus

I don’t necessarily disagree with this. OTOH, the argument will be made that requiring someone to agree to mediate/arbitrate a claim in accord with facially-neutral principles (you don’t automatically lose the dispute because you are not Christian) is not the same as refusing to hire someone who is not Christian. Nonetheless, I would lean toward agreeing that this violates Title VII. I am bothered that some people will prefer to sign the contract than buy the lawsuit up front, and that courts will be required to figure out whether there was room for negotiation on the issue–since the employee may have been afraid to request the deletion of the clause, we’ve allowed in a huge amount of uncertainty. This is of course an argument against the enforceability of any such clauses.

If the arbitration clause is well-written and the arbitration is binding, there may be no “escape” clause. The arbitrator will listen to both sides–there may not even be a requirement that either side “make an offer”–and will rule as his/her judgment prompts, following whatever procedural and other instructions are written into the arbitration language. Even if you refuse to participate in the arbitration, and refuse to comply with the decision, your opponent will be able to take that decision to court and have the court enforce the arbitrator’s decision (assuming that the arbitrator acted in accordance with the provisions of the arbitration clause). Once in court, you can argue that the contract was a contract of adhesion, but you will need to present evidence as to the fact that the other side would not negotiate on this point, and this may be hard to do. The courts have decided that arbitration is generally a good thing from a public policy perspective–arbitration clauses arise from the freedom to contract. Your argument is that all employment contracts represent “contracts of adhesion;” courts review each contract presented individually and will reach a decision on a case-by-case basis as to whether a particular contract was improperly non-negotiable. In some industries (securities brokerage) arbitration clauses with employees are routinely upheld.

I was operating under a fundamental misunderstanding… I had thought that arbitration clauses were merely “first resorts” to help relieve pressure on the courts… I didn’t realize that they could be made to be “binding.”

That, of course, immediately makes me wonder about accountability and neutrality… Who chooses the arbitrator? What if Big Bad Corporation, Inc., uses “Corporate Favoritism Arbitrators, Inc.,” whereas I might have preferred someone from the AFL/CIO instead? I mean, at least with judges, we get to vote for them (or for the people who appoint them…)

I’ve got some studying to do!

Trinopus

An arbitration clause will often specify how arbitrators are to be selected–a typical provision is that each party chooses an unaffiliated person and those two persons mutually selct the arbitrator. Or the contract may simply say that the rules of the American Arbitration Association apply, and the arbitrator (there may be more than one) is selected according to those rules (designed to be neutral). In some deals where there is something unusual or complicated going on, the arbitration clause may require that a neutral “industry executive with experience in x” be selected; some contracts even name an pre-agreed slate of arbitrators in advance. Freedom of contract–you can write it so that the arbitrators must be left-handed stone masons with degrees from Julliard if both parties agree.

“Christian conciliation” doesn’t appear to be binding–the passages from Matthew and Corinthians cited say that you should discuss disputes in private first, then privately bring a few witnesses to discuss it with your opponent, and then take the dispute to the church (again, one asks, which church?–but I would hope the language would specify). So, you would do this, and only if it failed would you go to court. But does this make it better or worse? If I really want that job, maybe I’m more likely to agree if it doesn’t look so binding–but this doesn’t make the contract any less “adhesive,” so to speak.

Of course almost all employment contracts are adhesive in nature. Most of us HAVE to work for a living. We get a choice about whether we pick cotton or hoe beans, and whether we do so in Marse DelMonte’s patch or Marse Delta’s patch, but we got no choice about whether or not we toil in the fields.

You gotta sign SOMEBODY’s employment to get a job, in an economy like this one, any contract offered will prolly get signed.

It’s like the law is saying slavery is OK because the slave can always kill him or herself to avoid it, hence it’s a matter of choice rather than duress.