EDMC Facing New Arguments in Discrimination Lawsuit
http://diverseeducation.com/article/80077/
"A recent decision by the Pennsylvania Supreme Court has the two plaintiffs accusing the Art Institute of Pittsburgh of race and age discrimination in admissions and employment back in court with a new argument, according to documents filed last week.
Michael Scott and LaMont Jones are in a battle at the U.S. Court of Appeals for the Third Circuit in Philadelphia to reinstate the dismissed pair of lawsuits they filed in 2014 against the Art Institute’s parent company, Education Management Corporation (EDMC), one of the largest for-profit college companies in the country.
The men sued the school in April 2014 for wrongful termination, discrimination, and retaliation, but both cases were dismissed last year. Two U.S. District Court judges in Pittsburgh ruled that an arbitration policy that EDMC rolled out during two federal investigations of their discrimination complaints required the men to resolve their concerns in mandatory, binding arbitration rather than in court, pre-empting the federal Civil Rights Act of 1964’s provisions allowing them into court.
In their consolidated appeal, Scott and Jones argue for the reversal of those 2015 orders. They contend that, even if they had not rejected the arbitration policy as soon as it was offered, the new state supreme court ruling makes clear that the arbitration agreement remains unenforceable because the employees were given nothing in return for the purported agreement to it. EDMC has argued that, by continuing their employment, Scott and Jones automatically accepted the arbitration agreement.
Scott and Jones also argue that superimposing such a policy after they had already reserved their federal rights to sue by filing complaints at the U.S. Equal Employment Opportunity Commission (EEOC) embodied illegal retaliation under federal law—a charge they made in secondary complaints they filed reporting the arbitration policy to the EEOC the day after EDMC rolled out the policy in 2012.
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In its November 18, 2015, ruling in Socko v. Mid-Atlantic Systems of CPA, Inc., Pennsylvania’s highest court noted in a case of first impression, “Only when the novice has developed a certain expertise, which could possibly injure the employer if unleashed competitively, will the employer begin to think in terms of the protection of a restrictive covenant.” Thus, the court held, employers are required by law to supply an additional benefit beyond continued employment in order for any such agreement to be enforceable.
According to Amos Jones, a law professor who teaches contracts and represents the appellants, that reasoning develops what is known as the doctrine of “consideration”—the equitable requirement that a party who benefits from an agreement must give something up in return for the agreement to be enforceable. Jones and Scott apply the rule to “the superimposition of a mandatory binding arbitration agreement on current employees, especially those who had already availed the processes the policy disallows,” Amos Jones explained.
“Under the new rule of Socko, EDMC’s retroactive superimposition of the restriction on Appellants lacked consideration and the policy is therefore unenforceable,” according to the brief.
The court has ordered EDMC to file its opening brief in the coming weeks. EDMC’s lead counsel, Kim Watterson and Casey Ryan of Reed Smith LLP in Pittsburgh, did not return telephone calls seeking comment.
Plaintiff LaMont Jones, an ordained Baptist minister who is writing a book about his experiences working in the “diabolical” for-profit college sector, praised the Pennsylvania Supreme Court.
“But I am beyond disappointed that it is taking so long to apply the law as written and as enforced seemingly everywhere but in Pittsburgh,” Jones said. “Black lives matter, and so should black jobs.”"