IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KESTER PHILLIPS, No. 86422-0-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SWEDISH HEALTH SERVICES, a Washington nonprofit corporation,
Appellant.
HAZELRIGG, A.C.J. — Dr. Kester Phillips sued his former employer, Swedish
Health Services, for constructive discharge and racial discrimination under the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. Swedish
appeals the trial court’s denial of its motion to compel arbitration. Because the
arbitration provision in Phillips’ employment agreement with Swedish is valid and
enforceable, we reverse and remand with instruction to compel arbitration.
FACTS
On June 23, 2020, Kester Phillips, a Black physician, signed a written offer
of employment with Swedish Health Services to become a second neuro-oncologist
at the Ivy Brain Tumor Center. As part of his employment terms, Phillips agreed to
Swedish’s dispute resolution agreement (DRA), which included an arbitration
provision. The provision contained the following terms:
1. Policy. The parties hope there will be no disputes arising from their relationship. If a dispute arises, the parties shall first try to No. 86422-0-I/2
negotiate a fair and prompt resolution. If they are unsuccessful, the dispute shall be resolved by binding arbitration. The parties acknowledge that they intend to give up their right to have any dispute decided in court by a judge or jury. The provisions of the Washington arbitration statute, Chapter 7.04A RCW, are incorporated herein to the extent not inconsistent with the other terms of this Agreement.
2. Binding Arbitration. Any controversy or claim between the parties arising from or relating to this Agreement shall be resolved by an arbitration to be commenced in the manner provided in RCW 7.04A.090, provided, however, that all statutes of limitations that would otherwise apply shall apply to disputes submitted to arbitration. This process applies regardless of when the dispute arises and will remain in effect after this Agreement terminates, regardless of the reason it terminates.
....
2.3. Arbitration Procedures. Whether a controversy or claim is covered by this Agreement shall be determined by the arbitrator. The arbitration shall be conducted under the American Arbitration Association rules in effect on the date the arbitrator is selected, to the extent consistent with this Exhibit. There shall be no discovery or dispositive motions (such as motions for summary judgment or to dismiss or the like), but the arbitrator may authorize such discovery as is necessary for a fair hearing of the dispute. . . . The parties wish to minimize the cost of the dispute resolution process. To that end, the arbitrator shall limit live testimony and cross-examination and shall require the parties to submit some or all of their case by written declaration, to the extent he/she determines that can be done without jeopardizing a fair hearing of the dispute.
(Emphasis added.) Phillips began working on August 24, 2020 and Swedish
promoted him to medical director of the Ivy Brain Tumor Center in January 2021.
On June 1, 2023, Phillips resigned. Six months later, on December 11, he filed a
lawsuit against Swedish, alleging constructive discharge and race discrimination
under WLAD, chapter 49.60 RCW. Phillips argued that RCW 49.44.085 rendered
the arbitration provision unenforceable.
-2- No. 86422-0-I/3
On January 19, 2024, Swedish moved to compel arbitration pursuant to the
DRA Phillips entered into with Swedish. It argued that both the Federal Arbitration
Act (FAA), 9 U.S.C. sections 1 to 16, and Washington’s Uniform Arbitration Act
(WUAA), chapter 7.04A RCW, favor arbitration and that upon a motion by a party
showing an agreement to arbitrate, the court must order the parties to do so.
Swedish further averred that the arbitration provision expressly and unambiguously
delegated the issue of arbitrability to the arbitrator. It contended that because
Phillips’ claims “arose from or related to” his employment, they fell squarely within
the scope of the arbitration agreement.
Phillips opposed the motion on January 26, asserting that the arbitration
provision did not cover Swedish’s discriminatory conduct and was substantively
unconscionable. He argued that RCW 49.44.085 voided any arbitration agreement
requiring employees to arbitrate discrimination claims. Phillips also claimed the FAA
did not apply because the arbitration provision of the DRA failed to invoke and was
silent on the jurisdiction of the FAA. He further averred that his local Seattle-based
role did not involve interstate commerce. Phillips also contended the DRA did not
apply to his claim because he brought a statutory claim, not one for breach of
contract. He additionally argued that the DRA was substantively unconscionable
because it limited damages, discovery, required confidentiality, and forced
negotiation before legal action.
In its January 30 reply, Swedish argued that Phillips conceded the DRA’s
existence by not disputing its execution. It maintained that the FAA applied
automatically to employment agreements involving interstate commerce and
-3- No. 86422-0-I/4
preempted RCW 49.44.085. As evidence of interstate commerce, Swedish pointed
to its operation of five hospitals and approximately 200 clinics in the Puget Sound
region, and its service to out-of-state patients. Swedish next argued that RCW
49.44.085, even if applicable, voids agreements only “if it requires an employee to
resolve claims of discrimination in a dispute resolution process that is confidential,”
while Swedish’s arbitration provision did not mandate confidentiality. (Emphasis
added.) Lastly, it argued that the DRA was not unconscionable, but even if certain
terms of the arbitration provision were unconscionable, the court could sever those
terms and enforce the remainder of the DRA.
On February 13, the trial court denied Swedish’s motion to compel arbitration.
Swedish timely appealed.
ANALYSIS
We review a trial court’s decision to compel or deny arbitration de novo.
Saleemi v. Doctor’s Assocs., 176 Wn.2d 368, 375, 292 P.3d 108 (2013). The party
opposing the arbitration bears the burden of proving the agreement is
unenforceable. Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 46-47, 470 P.3d 486
(2020). Washington policy favors arbitration. Id. at 46; see also RCW 7.04A.060.
We must indulge every presumption in favor of arbitration, including in the contract
language itself. 1 Adler v. Fred Lind Manor, 153 Wn.2d 331, 342, 103 P.3d 773
(2004).
1 Swedish notes this presumption in its opening brief. However, recent case law calls into
question whether such a presumption in favor of arbitration under the FAA remains. See Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014 (9th Cir. 2023) (“[C]ourts ‘must hold a party to its arbitration contract just as the court would to any other kind’” and “‘may not devise novel rules to favor arbitration over litigation.’”) (quoting Morgan v. Sundance, Inc., 596 U.S. 411, 418, 142 S. Ct.
-4- No. 86422-0-I/5
Here, the parties do not dispute the existence of the arbitration agreement
that expressly delegates the question of arbitrability to the arbitrator. Phillips admits
that the arbitration provision is a valid and binding contract between the parties to
resolve certain disputes arising from his employment before the American
Arbitration Association (AAA). Phillips, however, avers that he “did not consent to
be discriminated against on the basis of his race when he took the job at Swedish,
did not consent to arbitrating discrimination claims, and his Employment Agreement
did not require him to do so.”
I. Grounds for Invalidating Arbitration Agreement
Throughout his briefing, Phillips avers that the DRA is void ab initio. He first
argues that the trial court correctly denied Swedish’s motion to compel arbitration
because RCW 49.44.085 prohibits mandatory arbitration of discrimination claims
under the WLAD. Second, he argues that the DRA is substantively unconscionable.
A. WLAD
Phillips contends that RCW 49.44.085 renders void and unenforceable any
arbitration agreement that mandates an employee arbitrate discrimination claims.
Swedish counters that RCW 49.44.085, on its face, does not apply to Phillips’ claims
because the arbitration provision does not mandate confidentiality. Swedish asserts
that even if it did, the FAA preempts RCW 49.44.085.
RCW 49.44.085 reads as follows:
1708, 212 L. Ed. 2d 753 (2022)). Because we determine that the agreement here is unambiguous and, more critically, as neither party has presented argument challenging this presumption, we do not reach this issue.
-5- No. 86422-0-I/6
A provision of an employment contract or agreement is against public policy and is void and unenforceable if it requires an employee to waive the employee’s right to publicly pursue a cause of action arising under chapter 49.60 RCW or federal antidiscrimination laws or to publicly file a complaint with the appropriate state or federal agencies, or if it requires an employee to resolve claims of discrimination in a dispute resolution process that is confidential.
(Emphasis added.) In his response brief, Phillips reiterates that the arbitration
provision is void and unenforceable under RCW 49.44.085 because it compels
arbitration of his discrimination claims. However, later in that same brief, while
discussing the anti-waiver provision of RCW 49.44.085, Phillips concedes that
WLAD claims can be arbitrated so long as arbitration does not impose
confidentiality. He further acknowledges that RCW 49.44.085 does not specifically
target arbitration or any fundamental aspect of arbitration, and an employee may not
waive the right to bring a WLAD claim in either court or in arbitration.
Here, Phillips did not give up his right to publicly pursue a WLAD claim by
signing the DRA, only the ability to raise the issue in court. Given his concession,
we hold that his WLAD claim is arbitrable and remand with instruction to compel
arbitration. Furthermore, our Supreme Court in Adler rejected the argument that
WLAD requires a judicial forum for discrimination claims. 153 Wn.2d at 342-43. The
court held that when a “valid individual employee-employer arbitration agreement
exists, the FAA requires that employees arbitrate federal and state law
discrimination claims.” Id. at 343-44 (first citing Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 27-28, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991); and then citing
Perry v. Thomas, 482 U.S. 483, 491, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987)).
-6- No. 86422-0-I/7
Adler is controlling and Phillips neither cites Adler nor provides authority to
distinguish it.
B. FAA Preemption
Philips asserts that the FAA does not apply because the arbitration provision
of the DRA invokes the WUAA.2 He next contends that the FAA requires explicit
invocation, and his role as a local physician does not involve interstate commerce
for purposes of the FAA. He avers that the FAA cannot preempt RCW 49.44.085
unless directly applied to the specific claims at issue. He argues that preemption is
a claim-driven defense and applies solely when federal and state laws conflict on a
specific claim. He maintains that the DRA invoked chapter 7.04A RCW and Swedish
elected a Washington statute in its arbitration provision with its employees, so it must
be governed by Washington law.
Swedish, however, avers the FAA preempts RCW 49.44.085 even when the
DRA expressly provides for arbitration only pursuant to Washington law. It cites
Mastrobuono v. Shearson Lehman Hutton, Inc. 3 to argue the statute need not be
mentioned in an arbitration provision to apply. In Mastrobuono, the Supreme Court
discussed enactment of the FAA and how in Allied-Bruce Terminix Cos. v. Dobson, 4
2 During oral argument before this court, Phillips’ counsel referenced an unpublished case,
Coleman v. Impact Public Schools, which was not cited in his response brief. No. 84421-1-I (Wash. Ct. App. Feb. 12, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/844211.pdf. Counsel argued that the FAA applied in Coleman because the arbitration agreement at issue in that case was silent on whether the FAA or WUAA should govern. Wash. Court of Appeals oral arg., Phillips v. Swedish Health Servs., No. 86422-0-I (Jan. 22, 2025), 12 min., 28 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1- court-of-appeals-2025011478/?eventID=2025011478. But we made no such determination in Coleman. In that case, the parties did not dispute whether the FAA applied to their employment agreement. 3 514 U.S. 52, 55, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995). 4 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995).
-7- No. 86422-0-I/8
after determining that the FAA applied to the parties’ arbitration agreement, the court
concluded that the federal statute preempted Alabama’s statutory prohibition on
written, predispute arbitration agreements. 514 U.S. at 56. Swedish also reiterates
that Phillips’ employment implicates interstate commerce because it purchases
goods from out-of-state suppliers and provides services to out-of-state patients. It
relies on Capriole v. Uber Technologies, Inc. in its argument that the FAA applies
broadly to any contract “involving commerce.” 460 F. Supp. 3d 919, 929 (N.D. Cal.
2020), aff’d, 7 F.4th 854 (9th Cir. 2021). We agree with Swedish.
Our Supreme Court and this court have held numerous times that the FAA
applies to all employment contracts except those involving certain transportation
workers. See, e.g., Adler, 153 Wn.2d at 341; Zuver v. Airtouch Commc’ns, Inc., 153
Wn.2d 293, 301, 103 P.3d 753 (2004); Oakley v. Domino’s Pizza LLC, 23 Wn. App.
2d 218, 226, 516 P.3d 1237 (2022), review denied, 200 Wn.2d 1028 (2023); Tjart v.
Smith Barney, Inc., 107 Wn. App. 885, 893, 28 P.3d 823 (2001); Brundridge v. Fluor
Fed. Servs., Inc., 109 Wn. App. 347, 353, 35 P.3d 389 (2001). Section 2 of the FAA
provides that written arbitration agreements “‘shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation
of any contract.’” Adler, 153 Wn.2d at 341 (emphasis omitted) (quoting 9 U.S.C. §
2). The FAA creates a substantive body of federal law on arbitration that state and
federal courts must apply. Romney v. Franciscan Med. Grp., 186 Wn. App. 728,
734, 349 P.3d 32 (2015). “‘[T]he FAA does not require parties to arbitrate when they
have not agreed to do so, . . . [i]t simply requires courts to enforce privately
negotiated agreements to arbitrate, like other contracts, in accordance with their
-8- No. 86422-0-I/9
terms.’” Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 798, 225 P.3d 213
(2009) (alterations in original) (quoting Volt Info. Scis., Inc. v. Bd. of Trustees, 489
U.S. 468, 478, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989)).
Moreover, when tasked with determining whether the FAA applied to an
employment contract in Walters v. A.A.A. Waterproofing, Inc., this court relied on
dicta from Harrison v. Nissan Motor Corp. in U.S.A., that noted “‘as a threshold
matter . . . for the FAA to apply, the party seeking to compel FAA arbitration must
show the existence of a written agreement that contains an arbitration clause and
affects interstate commerce.’” 120 Wn. App. 354, 358, 85 P.3d 389 (2004)
(alteration in original) (quoting Harrison v. Nissan Motor Corp. in U.S.A., 111 F.3d
343, 348 n.8 (3rd Cir. 1997), modified on remand, noted at 128 Wn. App. 1070
(2005). Because Swedish demonstrated the existence of a written agreement that
contains an arbitration clause and that its operations involve commerce across state
lines, we conclude that the FAA applies to the arbitration provision.
Phillips next argues that the arbitration provision does not apply because he
is bringing a statutory claim to be free from discrimination, not a “breach of contract”
claim. He cites a Ninth Circuit case, Mundi v. Union Security Life Insurance Co., 5 to
argue that an employment contract cannot be stretched to include statutory relief
from discrimination, even if the discrimination occurred in the context of
employment. There, Mundi signed a credit agreement with an arbitration clause.
Mundi, 555 F.3d at 1043. After his death, Mundi’s insurer, who was not a party to
the arbitration agreement, tried to compel arbitration of his widow’s claims. Id. The
5 555 F.3d 1042, 1045 (9th Cir. 2009).
-9- No. 86422-0-I/10
court declined, holding that the dispute was not within the scope of the arbitration
provision. Id. at 1045. Mundi provides no support for Phillips’ position.
This court already examined whether the FAA applies to statutory
discrimination claims in Tjart and held that state discrimination claims are arbitrable
to the same extent as Title VII claims because “‘[p]arallel state anti-discrimination
laws are explicitly made part of Title VII’s enforcement scheme.’” 107 Wn. App. at
894 (alteration in original) (quoting Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1303 n.1
(9th Cir. 1994)). The court in Tjart also relied on Circuit City Stores, Inc. v. Adams, 6
where the “Supreme Court held that arbitration agreements can be enforced under
the FAA without contravening the policies of congressional enactments giving
employees specific protection against discrimination, and that ‘by agreeing to
arbitrate a statutory claim, a party does not forgo the substantive rights afforded by
the statute; it only submits to their resolution in an arbitral, rather than a judicial,
forum.’” Id. at 899 (internal quotation marks omitted) (quoting Circuit City, 532 U.S.
at 123). Under this framework, Phillips’ WLAD claim is arbitrable. Phillips cites no
authority distinguishing Tjart. Accordingly, we conclude that the FAA applies to the
DRA.
C. Unconscionability
Arbitration is a matter of contract, and parties may only be compelled to
arbitrate disputes they agreed to submit to arbitration. Hill v. Garda CL Nw., Inc.,
179 Wn.2d 47, 53, 308 P.3d 635 (2013). When the validity of an arbitration
agreement is challenged, ordinary contract defenses such as unconscionability may
6 532 U.S. 105, 121 S. Ct. 1302 149 L. Ed. 2d 234 (2001).
- 10 - No. 86422-0-I/11
render the agreement unenforceable. McKee v. AT&T Corp., 164 Wn.2d 372, 383,
191 P.3d 845 (2008). Determining unconscionability is a decision for the court and
not the arbitrator. Brown v. MHN Gov’t Servs., Inc., 178 Wn.2d 258, 264, 306 P.3d
948 (2013). “Substantive unconscionability exists when a provision in the contract
is one-sided.” Burnett, 196 Wn.2d at 57. The provision is one-sided or overly harsh
if it is “shocking to the conscience, monstrously harsh, and exceedingly calloused.”
Id.
Here, Phillips avers that provisions limiting monetary remedies, the statutory
remedy, confidentiality, and discovery render the arbitration agreement here
substantively unconscionable.
1. Remedies Limitation
The arbitration agreement provides, in part, “If a court, applying applicable
substantive law, would be authorized to award punitive or exemplary damages, the
arbitrator(s) shall have the same power, but the arbitrator(s) otherwise shall not
award punitive or exemplary damages.” Phillips argues this provision is
substantively unconscionable because it preemptively restricts the types of
damages available to the claimant, regardless of what the law provides. He,
however, concedes that his WLAD claim, which does not provide for punitive
damages, is unaffected. Because this remedies limitation applies to claims for
punitive or exemplary damages under common law, it has no present impact here.
2. Confidentiality
Phillips next argues that the arbitration provision is unconscionable because
the AAA rules incorporated into the DRA mandate confidentiality. He relies on Zuver
- 11 - No. 86422-0-I/12
and McKee to argue that our Supreme Court has regularly invalidated attempts to
require confidential arbitrations as substantively unconscionable. Phillips also
contends that confidentiality requirements for discrimination claims are
unconstitutional under article I, section 10 of the Washington Constitution.
Swedish counters that Phillips mischaracterizes the AAA rules and notes that
their DRA does not have a confidentiality provision. It further argues that rule 23 of
the AAA does not mandate blanket confidentiality, so the arbitrator has to follow the
law. In full, rule 23 states the following:
The arbitrator shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the parties agree otherwise or the law provides to the contrary.
(Emphasis added.) Swedish also contends that this court has previously rejected
this same argument in Romney where the parties incorporated the AAA rules for the
resolution of employment disputes. 186 Wn. App. at 744-45. In Romney, we held
that reliance on Zuver and McKee for this contention is misplaced. Id. at 745. In
Zuver, we concluded that the confidentiality provision in the employment contract
was substantively unconscionable because it excessively favored the employer and
gave the employer significant legal recourse. Id. We further explained that McKee
involved an adhesion contract and held that the policy of confidentiality was in direct
conflict with public policy, specifically one that is particularly important when dealing
with consumers. Id.
Here, the confidentiality clause is not inherently one-sided or harsh. It strikes
a balance by allowing disclosure where the law requires it. We agree with Swedish
and conclude that the confidentiality provision is not substantively unconscionable.
- 12 - No. 86422-0-I/13
3. Discovery Limitation
Section 2.3 of the DRA provides the following:
There shall be no discovery or dispositive motions (such as motions for summary judgment or to dismiss or the like), but the arbitrator may authorize such discovery as is necessary for a fair hearing of the dispute. . . . The arbitrator shall limit live testimony and cross- examination and shall require the parties to submit some or all of their case by written declaration, to the extent he/she determines that can be done without jeopardizing a fair hearing of the dispute.
Phillips asserts that this limitation on discovery favors Swedish and prevents him
from adequately presenting his claims. He cites a number of state and federal
cases, including Division Two’s opinion in Woodward v. Emeritus Corp. 7 and the
D.C. Circuit Court opinion Booker v. Robert Half International, Inc., 8 to argue that
courts have refused to enforce arbitration provisions when they hinder the ability to
present a claim. He also argues that this provision is contrary to RCW 7.04A.170(2)
because it does not allow depositions.
Swedish avers that discovery limitations are a well-recognized feature of
arbitration, and the U.S. Supreme Court in Gilmer v. Interstate/Johnson Lane Corp. 9
noted that reduced discovery is to be expected in an arbitration agreement as one
of the justifications for the comparatively lower cost of arbitration. It then argues that
this court upheld this specific discovery provision in Newell v. Providence Health &
Services 10 because the parties agreed that discovery would be substantially limited.
7 192 Wn. App. 584, 610, 368 P.3d 487 (2016). 8 315 F. Supp. 2d 94, 103 (D.D.C. 2004), aff’d, 413 F.3d 77 (D.C. Cir. 2005). 9 500 U.S. 20, 31, 111 S. Ct. 1647, 114 L. Ed .2d 26 (1991). 10 9 Wn. App. 2d 1038, 2019 WL 2578679, at 6 (2019). This case is unpublished. Under GR 14.1(c), we may discuss unpublished opinions as necessary for a well-reasoned opinion. It is included here only because it was offered as authority by Swedish.
- 13 - No. 86422-0-I/14
It also argues that Phillips fails to explain how the DRA provisions related to
discovery are insufficient for him be able to effectively prove his claims and the cases
he relies on either involved situations entirely dissimilar to his own or actually support
Swedish’s position. We agree with Swedish.
Division Three of this court noted in Schuster v. Prestige Senior
Management, LLC that it is well-recognized that discovery generally is more limited
in arbitration than in litigation. 193 Wn. App. 616, 644, 376 P.3d 412 (2016). Since
case law is clear that a WLAD claim can be subject to arbitration and the parties
agreed to arbitrate any controversy or claim, we hold that the limited discovery is
simply one aspect of the trade-off between the “procedures and opportunity for
review of the courtroom [and] the simplicity, informality, and expedition of arbitration”
that is inherent in every agreement to arbitrate. Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444
(1985). Here, the provision allows the arbitrator to authorize discovery “as is
necessary for a fair hearing.” Phillips fails to demonstrate how this provision hinders
his ability to present his claims. We hold that the discovery limitation provision is not
4. Statutory Remedies
Phillips next avers that the arbitration provision is unconscionable because it
requires employees to “first try to negotiate a fair and prompt resolution” before
pursuing arbitration. He argues that this provision precludes employees from
seeking support from federal, state, or local authorities and is therefore substantively
unconscionable. Relying on Burnett, he contends that it is substantively
- 14 - No. 86422-0-I/15
unconscionable to “force employees facing discrimination, harassment, or a hostile
work environment to first negotiate with their harasser.”
Swedish distinguishes Burnett, noting that the policy there barred terminated
employees from seeking redress, shortened the statute of limitations, and provided
no exception for supervisor review. 196 Wn.2d at 58. It avers that Phillips has not
identified any comparable provisions in the arbitration provision. We agree with
Swedish.
In Burnett, Pagliacci Pizza had a mandatory arbitration policy, “F.A.I.R.,” that
acted as a complete bar to arbitration unless an employee has fully complied with
the steps and procedures in the F.A.I.R. policy, which included reporting the matter
and all details to one’s supervisor. Id. at 57-58. This policy effectively barred claims
for terminated employees and shortened the statute of limitations, so the court held
that this arbitration provision was one-sided and harsh and therefore substantively
unconscionable. Id. at 57.
Here, while the negotiation process may introduce a minor delay, it is not
“shocking to the conscience, monstrously harsh, or exceedingly calloused.” Id. The
provision does not impose an unreasonable burden on Phillips, nor does it function
as a bar to arbitration or from seeking support from a federal, state, or local authority.
We conclude that the arbitration provision is enforceable and is not substantively
unconscionable.
II. Arbitrability
The issue of who decides arbitrability is a question of contract. Henry Schein,
Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 67, 139 S. Ct. 524, 202 L. Ed. 2d
- 15 - No. 86422-0-I/16
480 (2019). The Supreme Court held that when parties delegate the question of
arbitrability to an arbitrator, courts lack the power to decide that issue, even if the
arbitration claim seems meritless. Id. at 68.
Here, the DRA expressly states that “[w]hether a controversy or claim is
covered by this Agreement shall be determined by the arbitrator.” This language is
broad, mandatory, and unambiguous; it delegates the threshold question of
arbitrability to the arbitrator. The arbitrator must decide whether Phillips’ WLAD
claims fall within the scope of the arbitration agreement. We do not reach the
question of arbitrability, and remand for the entry of an order compelling arbitration.
Reversed and remanded for further proceedings.
WE CONCUR:
- 16 -