Ethics/Bias/Legislation: Mediator Phyllis Pollack Spoke About Implicit Bias To USDC Central District Mediators
And Provides Us With A Legislative Update . . .
Molecule Man. Edward R. Roybal Federal Building.
Implicit bias is a hot topic that is, or should be, of concern to mediators, arbitrators, judges, attorneys, and clients. Mediator Phyllis Pollack, who also lectures about ADR ethics at the USC Gould School of Law, spoke to United States District Court panel mediators about implicit bias at the Edward R. Roybal Federal Building & US Courthouse in Los Angeles on January 9, 2020, Pres. Richard Nixon's 107th birthday.
Pollack defined implicit bias as:
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- a preference for a group (positive or negative) often operating outside our awareness
- based on stereotypes and attitudes we hold
- tending to develop early in life and
- tending to strengthen over time
Pollack mentioned three legislative developments relevant to the subject of implicit bias:
1. The California CROWN (Create a Respectful and Open Workplace for Natural Hair) Act (SB 188), approved by the Governor on July 3, 2019. The purpose of this law is to prevent discrimination based on hairstyle, based on the belief that hairstyle can be a proxy for race. The new law explains the Legislature's intent: "Acting in accordance with the constitutional values of fairness, equity, and opportunity for all, the Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all."
Erich Honecker receives Angela Davis displaying influential hairstyle (1972). Wikimedia Commons. Peter Koard, photographer. German Federal Archives.
2. AB 242, approved by the Governor on October 2, 2019, will require implicit bias training for attorneys, as well as for all court staff who interact with the public. The new law will require attorneys to meet the requirements for each MCLE compliance period ending after January 31, 2023.
3. SB 41, approved by the Governor on July 30, 2019, will prohibit the estimation, measure, or calculation of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death from being reduced based on race, ethnicity, or gender.
Reviews: The Browns Of California
Your Blogger Has Reviewed Miriam Pawel's Book, The Browns of California, in California Litigation.
I've reviewed Miriam Pawel's book, The Browns of California: The Family Dynasty That Transformed a State and Shaped a Nation. The review appears in California Litigation, the journal of the California Lawyers Association, Vol. 32, No. 3, p. 46 (2019). With the permission of the California Lawyers Association and its publication California Litigation, I am republishing the article and making it available by clicking here.
Happy New Year !
To all my readers,
Thanks for following along in 2019. Onwards to 2020!
Legislation: Judge Halts California Law Banning Pre-Dispute Employment Arbitration Agreements
Governor Brown Earlier Vetoed Legislation Banning Mandatory Employment Arbitration Based On FAA Preemption Concerns.
Laurence Darmiento, Staff Writer for the LA Times, has authored an article dated December 30, 2019, and entitled: "Judge halts California law banning forced arbitration at the workplace." Darmiento writes, "U.S. District Judge Kimberly Mueller ruled that the California Chamber of Commerce and other business groups had raised 'serious questions' about AB51, which was signed by Gov. Gavin Newsom following outrage over arbitration agreements that hid allegations of sexual harassment and assault against Hollywood producer Harvey Weinstein and other prominent figures." Pushback against the law came from employers, the U.S. Chamber of Commerce, the California Chamber of Commerce, and the National Retail Federation.
Internet Commerce: Ninth Circuit Holds A Mobile App Failed To Provide Constructive Notice Of Arbitration Agreement
An Issue Of First Impression — Did A Smartphone App Impart Constructive Knowledge Of An Arbitration Agreement?
The Ninth Circuit has decided an issue of first impression for the court: "[U]nder what circumstances does the download or use of a mobile application ('app') by a smartphone user establish constructive notice of the app's terms and conditions?" Not under the circumstances here, holds the court in Wilson v. Huuuge, Inc., No. 18-36017 (9th Cir. 12/20/19) (McKeown, Bybee, Gaitan)..
What were those circumstances? Plaintiff Wilson brought a class action alleging Huuuge Casino, which allows online gambling with a smartphone app, had violated Washington law by charging users for chips in its app. Huuuge moved to compel arbitration. The district court denied the motion, and the Court of Appeal affirmed: "Because Huuge did not provide reasonable notice of its Terms of Use . . . Wilson did not unambiguously manifest assent to the terms and conditions or the imbedded arbitration provision."
Huuuge failed to establish actual knowledge of the terms and conditions, so the issue hinged on whether there was constructive knowledge. Unlike a "clickwrap agreement", requiring users to affirmatively assent to terms of use before accessing a website for its services, the agreement here at issue was a "browsewrap", not requiring "the user to take any affirmative action to assent to the website terms." And the hoops through which the user would have had to jump to obtain notice meant that a reasonably prudent user would not be "on constructive notice of the terms of the contract for a browsewrap agreement to be valid." If a picture is worth a thousand words, then the opinion is helpful, because it provides shots of the five screens a user would have had to follow through and read to find the arbitration agreement.
Judge McKeown colorfully writes, "the user would need Sherlock Holmes's instincts to discover the terms."
Sherlock Holmes Portrait By Sidney Paget. 1904. Wikipedia.
Judge McKeown adds: "When downloading the app, the Terms are not just submerged– they are buried twenty thousand leagues under the sea." The user is urged to read the Terms, but there isn't a link to the Terms: "This is the equivalent to admonishing a child to 'please eat your peas' only to then hide the peas. . . . Only curiosity or dumb luck might bring a user to discover the terms."
As the Judge sardonically concludes, "Huuuge chose to gamble on whether its users would have notice of its Terms" — a gamble the online casino lost.
Arbitration, Employment, Burden of Proof, Nonsignatories: Fourth District, Div. 1 Rules Employer Failed To Prove Employee Electronically Signed Arbitration Agreement
Authentication Of Electronic Signatures Continues To Generate Case Law And Stymie Employers.
We have blogged before about the problems employers have had authenticating employees' electronic signatures on arbitration agreement. On January 4, 2015, we blogged about Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal.App.4th 836 (2014), a leading case highlighting the pitfalls of electronic authentication, while at the same time providing a roadmap for proper authentication.
A California employer relying on DocuSign has once again tripped over the stumbling block of authenticating an electronic signature in an arbitration agreement. Fabian v. Renovate America, Inc., D075519 (4/3 12/4/19) (Irion, Haller, O'Rourke). First, the electronic document with the employee's initials was not self-authenticating. Here, the employer "did not provide any evidence from or about DocuSign in its petition, reply, or supplemental declaration." As to the employer's declaration, the employer "did not suggest how the electronic signature could only have been placed on the Contract" by the employee. The employer failed to provide "any specific details about the circumstances surrounding the Contract's execution." The employer failed to prove, by a preponderance of the evidence, that the employee electronically signed the Contract. The Devil is in the details.
Devils – a fresco detail from the Rila Monastery, Bulgaria. Wikipedia. Author: Edal Anton Lefterov.
Comment: If you want a roadmap for authenticating an electronic signature, read the Ruiz case, supra.