UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------X MARCUS I. WASHINGTON, Plaintiff, v.

WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC; formerly known as the WILLIAM MORRIS AGENCY, JEFF MEADE and SARAH WINIARSKI, Defendants. : : : : : : : : : : : : Civil Action No. 10 CV 9647 (PKC)

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PLAINTIFFS MEMOMORANDUM OF LAW IN OPPOSITION OF DEFENDANTS MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR STAY PENDING ARBITRATION

Marcus Isaiah Washington 54 Boerum St. Apt. 6M Brooklyn, NY 11206 (646) 504-6497 humanrights.areamust@gmail.com

Pro Se Litigant

TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS

3 3

ARGUMENT
I SIGNED THE ARBITRATION AGREEMENT COMPLETELY OBLIVIOUS TO WILLIAM MORRIS 112 YEAR PATTERN AND PRACTICE OF DISCRIMINATION WHICH HAS RESULTED IN A PRE-EXISTING DISPARATE IMPACT AND SYSTEMIC DISPARATE TREATMENT TOWARDS AFRICAN AMERICANS.

THE ARBITRATION PROVISIONS REGARDING DISCRIMIANTION AND RETALIATION ARE UNCONSCIONABLE AND VIOLATE SECTION 1981AND TITLE VII GIVEN WILLIAM MORRIS STATISTICALLY SIGNIFICANT RACIAL IMBALANCE.

THE ARBITRATION AGREEMENTS WERE SIGNED BECAUSE OF UNDUE INFLUENCE & ECONOMIC DURESS AS A CONDITION OF EMPLOYMENT AND COERCION AS A CONDITION TO REMAIN EMPLOYMED.

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CONCLUSION

Plaintiff Marcus Isaiah Washington respectfully submits this memorandum of law in opposition of Defendants William Morris Endeavor Entertainment, LLC, Jeff Meade, and Sarah Winiarskis (collectively, William Morris or WME) (hereinafter Defendants) motion to dismiss, pursuant to the Federal Arbitration Act, seeking dismissal of Plaintiffs complaint or, in the alternative, a stay of this action pending arbitration. Plaintiff asks that the Court compel the Defendants to respond to the initial complaint so the case may proceed in federal court based on the reasons set forth below.
STATEMENT OF RELEVANT FACTS

After a rigorous three part interview to join the William Morris Agencys Agent Trainee program, I began working for the Defendants on September 2, 2008. In preparation for my interviews, I spent numerous hours researching the history of the company via various websites, which detailed the prestigious talent and literary agencys history of representing some of Americas biggest cultural and international icons of all races and ethnicities including Frank Sinatra, Bill Cosby, Jennifer Lopez, Jackie Chan and hundreds of others. However, none of my search results forewarned or alerted me to the companys history of racism, discrimination and diversity issues (not including the support and mailroom staff) in the workplace which has remained frozen since it was founded in 1898. I discovered the companys discriminatory practices shortly after relinquishing my civil and human rights by signing an arbitration agreement as a condition of employment with the intent of advancing my career.
ARGUMENT I SIGNED THE ARBITRATION AGREEMENT COMPLETELY OBLIVIOUS TO WILLIAM MORRIS 112 YEAR PATTERN AND PRACTICE OF DISCRIMINATION WHICH HAS RESULTED IN A PRE-EXISTING DISPARATE IMPACT AND SYSTEMIC DISPARATE TREATMENT TOWARDS AFRICAN AMERICANS.

According to the Civil Rights Act of 1964, employers are not to discriminate on the basis of a persons race, color, religion, sex or national origin. Additional classes protected under the New York State Human Rights Law (NYSHRL)1 and New York City Human Rights Law (NYCHRL)2 include, but are not limited to, age, disability and sexual orientation. William Morris agreements contained language stating that issues, even ones pertaining to discrimination, were to be resolved by and through arbitration. The arbitration agreements on its face appear reasonable. However, when scrutinized further one will notice that the terms of the agreement are
1 2

New York State Human Rights Law, New York Executive Law 291 New York City Human Rights Law, New York Administrative Code 8-101

unconscionable and are in direct violation of Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. 1981 (Section 1981) and Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. 2000e et seq. (Title VII). The agreement must not be viewed in and of itself. Instead, it must be analyzed and comprehended in its full context to realize that this language applies specifically to discrimination based on race, color and/or national origin. The gender and racial composition of Agents and decision makers is positively associated with that of those who are hired, and ultimately promoted at William Morris. As far as sex is concerned, women have made considerable gains and progress within the company throughout the decades. The first female Agent Shelly Baumstein was hired as an Agent Trainee in 1975.3 Thirty-three years later, at the start of my employment, women accounted for 20 out of the 50 Agents, and represented 50% of the Agent Trainees in my group ( 44). In addition, at the time of my leaving in April of 2010, women in the New York office also held top positions with Cara Stein serving as COO and Jennifer Rudolph Walsh being one of five members on the board of directors. Regarding age, two Agents went into retirement on their own accord while I was employed. Veteran theatrical Agent Biff Liff retired well past the age of 90 and film Agent Jeff Hunter was over the age of 80. As for disability, William Morris was accommodating and understanding, so much so that an Agent who suffered from serious medical complications Barbara Skydel never worked out of the office during the entire 18 months I was employed. She passed away in June of 2010. Because the company was racially homogenous at the decision making level and observed majority of the Jewish holidays, ones religious beliefs were not an issue. From September 2008 through April 2010, minorities were either underrepresented or non-existent at each level of the Agent track (e.g. Agent Trainee, Floater, Assistant, Coordinator and Agent), in the New York office, decreasing from 11.2% to 6.4% ( 55, Complaint Exhibit C). Upon closer inspection, each of the protected classes aside from race, color and national origin were well represented at all levels of William Morris Agent Trainee program or were historically accommodated for by the company, demonstrating through deeper analysis, that discrimination is actually applicable to race, color and/or national origin. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), a unanimous Court (absent participation from Justice Brennan) agreed that Congress' purpose in enacting Title VII was not just to root out overt discrimination, but to "achieve equality of employment opportunities." To do so, "practices, procedures, or tests neutral on their face, and

David Resin, The Mailroom, 143 (2003).

even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices. Int'l Bhd. of Teamsters v. United States, 431 U.S. 339 n.20 (1977) states: Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. (citations omitted) By hiring mostly on a who you know or referral basis, William Morris discriminatory practices have remained frozen over the course of 112 years. As a result, the past is just as relevant as the present. Due to this considerable span of time, intergenerational and longitudinal observations detailing an intentional pattern and practice of discrimination can be seen. What I experienced was not an episodic or isolated offense. In a city with a sizeable African American and minority population, the fact that there were zero African Americans hired into the Agent Trainee program at least two years before I began employment was a sign of my token status. In addition, there were more African American Agents employed in 1965 (one), than there have been in the last six years working in the New York office ( 61). The statistics for Hispanics and Asian Americans are no better. This is statistically significant and not due to chance, further indication of a company with an animus towards African Americans and other minorities. See NAACP v. Town of East Haven, 70 F.3d 219 (2d Cir. 1995). In an environment where advancement is based on access to networks and nepotism, this creates an additional barrier for minorities in their attempt to rise above the companys glass ceiling. An inexorable zero speaks volumes for itself, and for some district courts, no other statistics are necessary to support a prima facie inference of discrimination. See Barner v. City of Harvey, No. 95 C 3316, 1998 WL 664951, at *50 (N.D. Ill. Sept. 18, 1998) (In cases, such as this one, the inexorable zero speaks volumes and clearly supports an inference of discrimination.). In the case of women referees in the NBA, Ortiz-Del Valle v. National Basketball Ass'n, 42 F. Supp. 2d 33 (S.D.N.Y. 1999), the Southern District of New York recognized that evidence of an inexorable zero can support a jury's finding of discrimination against a motion for judgment as a matter of law. In Victory v. HewlettPackard Company, 34 F. Supp. 2d 809 (E.D.N.Y. 1999), the Eastern District of New York read Teamsters as holding that an inexorable zero standing alone could support a disparate impact claim of sex discrimination in promotions, asserting that [t]he Supreme Court has repeated countenanced the use of statistical evidence, and evidence of the

absence of a single minority employee being hired, labeled the inexorable zero, would in and of itself support an inference of discrimination. Likewise, in Ewing v. Coca Cola Bottling Co., No. 00 CIV. 7020(CM), 2001 WL 767070 (S.D.N.Y. June 25, 2001) a case of racial and ethnic discrimination at a New York bottling plant, the court found a claim noting that the inexorable zero was sufficient to defeat a motion to dismiss because a near-zero promotion rate of minorities into higher-skilled jobs reflected de facto segregation, and therefore supported an inference of intentional discrimination.4 This glaring absence of minorities was proven to be intentional, and not the result of a business necessity, when William Morris decided to hire five African Americans in July 2010, a month after they were notified by the EEOC that I filed a complaint for racial discrimination ( 165). In the first year of the newly merged companys existence, the New York office hired zero African Americans from April 2009 to June 2010. For a company that claimed no wrongdoing when I confronted senior management about the issue, why would the number of African Americans hired suddenly jump 500% between May and July? In one month, they hired more African Americans than they had in the last four years (and possibly longer). No matter how shocking the numbers are, the statistical data cannot be denied or disputed. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.) The intuition relies on the fact that zero is the lowest number or proportion of women or minorities that an employer can have. A court that views employment discrimination law as a means for society to root out employment practices based on prejudice (whether of workers, of customers, or of employers themselves) might rationally infer that the employers with the most egregious practices would be among those near this lower bound.5 Based on this reasoning, a prima facie inference and pretext for disparate impact and systemic disparate treatment towards non-Whites was already established before I signed the arbitration agreement, however, I was completely clueless to this highly relevant fact. Like many, I once believed the rhetoric that we live in a post-racial society, so when signing the arbitration agreement, I had no reason to be suspicious of the language regarding discrimination.

Id. at *5-6 (While this is not the case of the strict inexorable [z]ero, given [the promotion of one minority employee], the allegations of significant segregation of the production workforce [are] a sure sign of discrimination.). 5 The Inexorable Zero, Harvard Law Review, 117 Harv. L. Rev. 1215, (Feburary 2004).

Also, being that the company represented numerous high-profile African American entertainers, I never imagined that in 2008, I would be the only African American hired at any level of the Agent Trainee program in New York City. Over the last eight decades, there has been a substantial amount of documented evidence supporting the fact that William Morris has been aware of their issues of racism and discrimination, both internally and externally. The first 63 years included engaging in ostensibly race-neutral employment practices that were however, intentionally designed to exclude African Americans and minorities from employment, e.g. requiring a college degree during a period of time when schools were largely segregated and limited educational funding prevented Blacks from receiving an adequate education (see Complaint Exhibit B). As a result of protests from civil rights organizations like the NAACP,6 the company hired its first African American Wally Amos in 1961. After six years with the company and representing acts such as The Supremes, Simon & Garfunkel and Marvin Gaye, Amos was told he couldnt be promoted from a music Agent to a television or film Agent because the networks and studios werent ready for a black agent ( 57). In the 1980s, William Morris most lucrative client was African American comedian/actor Bill Cosby, whose NBC show The Cosby Show was the highest rated sitcom on primetime television and has raked in hundreds of millions of dollars for the company through packaging and syndication deals alone. Senior management knew that there was something wrong with there being little to no African Americans employed at the company given Cosbys history of social activism. In 1968, his Emmy Award winning documentary Black History: Lost, Stolen or Strayed, daringly challenge[d] the lies that the establishment ha[d] been indoctrinating millions of people with and specifically highlighted Hollywoods role throughout history in perpetuating stereotypes about African Americans, characterizing them in his words as typical negroes lazy, stupid and happy the way he was.7 In 1989, the company made superficial progress by starting a Black and Urban Contemporary Music division headed by veteran music executive Kevin Harewood ( 58). However, he left the company after one year. Since that time, there has not been another African American music Agent employed in William Morris U.S. offices. I was doomed from the beginning given that this was my initial area of interest upon joining the company.

6
7

Out of Focus, Out of Sync: Take 3, The National Association of Colored People, (2003). A Look At Militant Bill Cosby's Black History: Lost, Stolen or Strayed, (February 28, 2011) http://hiphopwired.com/2011/02/28/a-look-at-militant-bill-cosby%E2%80%99s-black-history-lost-stolen-or-strayed-video/.

There has also been numerous articles written throughout major media and trade publications, including one titled Jews, Blacks and Trouble in Hollywood,8 by the New York Times on September 2, 1990 detailing the very same issue at the heart of this case. In 112 years, there have been less than 20 African Americans who have worked as Agents at William Morris ( 60), and as of March 2011, less than 4 out of more than 200 Agents are African American. The last statistic becomes even more appalling when it becomes known that Dave Wirtschafter, former co-CEO of WME who stepped down in December of 2010 and is still on the board of directors, a Partner and Agent for the company, was married to an African American woman, yet did little to nothing in encouraging his workforce to become more inclusive. Whats troubling about this is that the company has profited immensely from African American entertainers and has had a complete monopoly along with other agencies, studios and networks in determining and creating how minorities are depicted through the media and viewed by society at large. The racial composition of the companys other businesses, which include an advertising agency, are just as atrocious. These are just a few examples to show the state of mind of William Morris, which continues to manifest through the private attitudes of its employees today. With few smoking gun examples of discrimination, this becomes problematic because the institutional dynamics legitimate and promote racist behavior in a systematic and subtle manner. Instead of truly correcting these problems by restructuring its organization to become more inclusive or giving qualified minorities an equal opportunity, they chose instead to compel minorities to waive their civil and human rights through mandatory arbitration agreements as conditions for employment. Their actions are highly deceptive and corrupt, and to any reasonable person with egalitarian beliefs and principles, the examples mentioned above would be enough to shock the conscience. The enactment of the Local Civil Rights Restoration Act (Restoration Act)9 in 2005 reflected the New York City Councils concern that the NYCHRL was being construed to[o] narrowly.10 It was designed to be more protective by viewing the provisions of state and federal civil rights statutes as a floor below which the Citys Human

Neal Gabler, Jews, Blacks and Trouble in Hollywood, New York Times, (September 2, 1990) http://www.nytimes.com/1990/09/02/movies/film-view-jews-blacks-and-trouble-in-hollywood.html. 9 N.Y.C. Local Law No. 85 of 2005 (Oct. 3, 2005) [hereinafter Restoration Act]. The Restoration Act is found in New York City, Legislative Annual (2005). The text of the Restoration Act was signed into law on October 3, 2005 and available at www.antibiaslaw.com/RestorationAct.pdf. Found in Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, Fordham Urban Law Journal, 255 (2006). 10 Restoration Act, supra note 7, 1.

Rights law cannot fall, rather than a ceiling above which the local law cannot rise.11 It is also to be interpreted on an independent and liberal basis with the goal of making it the most progressive in the nation. Farrugia v. North Shore University Hospital, 13 Misc 3d 740, 747, 820 N.Y.S.2d 718 (Sup Ct, NY County 2006) (quoting Jordan v. Bates Adv. Holdings, Inc., 11 Misc 3d 764, 816 N.Y.S.2d 310 (Sup Ct, NY County 2006)) The Restoration Act requires that provisions of the City's Human Rights Law be construed liberally to accomplish the uniquely broad and remedial purposes of the local law. In Craig Gurians A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, he states: What the phrases uniquely broad and remedial purposes and fundamental amendments reflect is the fact that, in 1991, the City Human Rights Law shifted decisively away from the let's see if we can conciliate and become friends philosophy that animated the first generation of modern civil rights statutes. The City Human Rights Law became instead a statute that had at its core traditional law enforcement values. These included the belief that deterrence was necessary to maximize compliance, and that deterrence could only be achieved: (a) under a regime that maximized responsibility for discriminatory acts and concurrently minimized the leeway accorded covered entities to evade such responsibility; and (b) where non-compliance was seen to have serious consequences.12 From civil rights protests to the threat of racial discrimination lawsuits, every possible option has been exhausted in trying to address and resolve this problem, yet William Morris has remained diligent in engaging in discriminatory practices. The courts in construing a statute should consider the mischief sought to be remedied by the new legislation, and they should construe the act in question so as to suppress the evil and advance the remedy.13 Litigation is the only solution that will effectively suppress the [societal] evil known as discrimination and deter William Morris and similar tortfeasors from continuing to engage in these unlawful practices.14
THE ARBITRATION PROVISIONS REGARDING DISCRIMIANTION AND RETALIATION ARE UNCONSCIONABLE AND VIOLATE SECTION 1981AND TITLE VII GIVEN WILLIAM MORRIS STATISTICALLY SIGNIFICANT RACIAL IMBALANCE.

Race is relentlessly relevant and continues to play an inevitable role in the allocation of societal benefits and burdens. Therefore, in America, matters dealing with the issue of race cannot be separated from its historical context. When the Federal Arbitration Act was enacted in 1925, African Americans didnt have civil, political or social rights

11 12

Id.
Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law,

Fordham Urban Law Journal, 283 (2006).

13 14

N.Y. Stat. Law 95. (McKinney 2005) Marc Bendick, Jr., Ph.D. and Mary Lou Egan, Ph.D, Research Perspectives on Race and Employment in the Advertising Industry, Bendick and Egan Economic Consultants, Inc. (2009).

and were explicitly barred from employment opportunities due to their deemed inferior status. Although Reconstruction Era Civil Rights Acts and the 13th, 14th and 15th Amendments were created to increase the rights of African Americans, it wasnt enough to defeat Jim Crow laws and overt forms of racism due to attitudes and beliefs of white supremacy. This is further supported by the fact that this country, after numerous attempts, has never been successful at passing federal anti-lynching legislation. Therefore, how could the drafters of the FAA, which originally started out as a tool for resolving disputes between businesspeople of semi-equal bargaining power, be able to foresee that four decades later, African Americans would be given civil and human rights to protect them from employment, housing and education discrimination? Nevertheless, the Federal Arbitration Act (FAA) 2 expresses a preference of arbitration over litigation in that contracts decided to be settled by arbitration shall be valid, irrevocable, and enforceable. There is a possibility however, that arbitration agreements can be subject to nullification if groundsexist at law or in equity for the revocation of any contract. Under New York law, a contract is unenforceable when it is unconscionable, and a contract is unconscionable in the absence of meaningful choice on part of one of the parties (procedural unconscionability) together with contract terms which are unreasonably favorable and oppressive to that party (substantive unconscionability). See Desiderio v. Nat'l Assoc. of Sec. Dealers, 191 F.3d 198, 207 (2d Cir.1999); Gillman v. Chase Manhattan Bank, N.A., 73 N.Y. 2d 1, 534 N.E.2d 824, 828 (1988). Given the historical and statistical evidence of a pattern and practice of discrimination in the last section, a closer inspection of this agreement demonstrates how unfair and one-sided this agreement is. Its without question that William Morris bargaining power is superior to that of its employees due the allure of working for a major entertainment company that represents some of the biggest celebrities throughout the world and the potential to earn income well into the seven figure range. Offered on a take-it-or-leave-it, non-negotiable basis, the employee has no choice between seeking redress through the federal courts because arbitration is mandatory. Terms such as determined exclusively by binding arbitration, exclusive authority to resolve disputeincluding but not limited to any claim that all or any part of this Agreement is void or voidable, and that the arbitration is final, leaves no room for judicial review of the decision and negates the Defendants request for stay, pending arbitration. Aviall v. Ryder System, Inc. 913 F.Supp.2d 826, 831 (S.D.N.Y.) (Typical contracts of adhesion are standard-form contracts offered by

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large economically powerful corporations to underrepresented, uneducated and needy individuals on a take it or leave it basis.) William Morris decision to consciously include specific language regarding discrimination racializes the standard contract as a result of the companys statistically significant racial imbalance at the level in which I was hired. Due to the race of the employee, the contract has a different benefits, privileges, terms and conditions. This violates specific language found in Section 1981 and Title VII. 42 U.S.C. 1981(a) states that all persons within the jurisdiction of the United States shall have the same right to make and enforce contractsas is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. In 42 U.S.C. 1981(b), make and enforce contracts is defined to include the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. [emphasis added] This language is also repeated in 42 U.S.C. 2000e-2(a)(1), which makes it an unlawful employment practice to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin. Regarding this specific set of circumstances and facts of the racial makeup of the company, its impossible for White employees at William Morris to be discriminated against on the basis of their race, color and/or national origin because Whites are significantly overrepresented at every level of the Agent Trainee program within the New York office. In both the policy manual and second arbitration agreement, there is language expressing William Morris belief that because employees are at-will, the employee or company can terminate the employment relationship at any time, with or without notice, and with or without cause. The flaw in their logic however, is that the rights of the employee and the employer are not equal because employers, whether public or private, are governed by specific laws against employment discrimination. Because of the companys forgetfulness and belief that they can do whatever they want, they also forgot to comply with their own open door, equal employment opportunity and/or reporting harassment, discrimination and retaliation policies when I began to confront senior management about being discriminated against. This further reflects the companys superior power, especially over its minority employees, because based on the language in their agreements, they are basically saying: As a condition of employment, you must waive your civil and human rights. And if you have a complaint of discrimination, we dont have to comply with our

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own policies to investigate the matter because we dont have to provide you an explanation for our adverse employment decisions because you are an at-will employee. It doesnt get more one-sided than that. I am naturally a positive person, so I gave William Morris the benefit of the doubt that my race, color and/or national origin was not a factor in why my White counterparts, who were considerably less qualified, all advanced above myself and the other African American Agent Trainee. However, after numerous questionable incidents, I decided to confront Human Resources and senior management, only for it to be suggested that I was the problem and that the company would never discriminate against its minority employees ( 145). They never attempted to investigate my complaints because they knew it would only expose their wrongdoing. In this industry, there are not an abundance of opportunities to discover and develop successful and profitable talent. Given the decline of the music and entertainment industries, it has become even harder to find the next generation of highly lucrative stars. Nor does success happen overnight. I consciously went above and beyond in my academic and professional achievements because Ive always had goals of making it at this level of the industry. My resume demonstrates my work ethic, ability and the dues I paid to make my dreams a reality (see Complaint 15-24). I spent two years helping co-manage a now 8x GRAMMY nominated singer/songwriter, Jazmine Sullivan, who has amassed millions of dollars cumulatively for various companies, including William Morris, only to find out when I joined the company, they viewed my achievements to be the equivalent of Whites with absolutely no experience. No Agent Trainee has ever done this. No matter how disrespected and insulted I felt, I humbled myself and did everything that was asked of me, in addition to bringing other profitable ideas to the company. However, none of these things seemed to matter because they were so focused on making sure I wouldnt succeed. I took the job because I was told by members of Human Resources that everybody starts in the mailroom, not knowing that the skills I acquired from working various jobs throughout the industry, were what Agent hopefuls were training to master. Once working inside the company, I realized that I was lied to in that the company hired numerous professionals during the course of my employment directly as Agents. By law, one must be licensed to become an Agent, so I thought there were unique skills that I had yet to acquire to perform the job. However, there were little to no differences between the responsibilities of a manager and that of an Agent and many of the Agents I worked with represented clients that were performing miserably in the marketplace. I also discovered that a large

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percentage of the business conducted with buyers occurred without ever having to meet face to face another indication that race is meaningless to the job. As a result of speaking out publicly against William Morris, I have yet to find employment since leaving the company in April of 2010. The headlines of these articles alone are enough to frighten potential employers even though I am the companys latest victim of discrimination. Former and current employees have also posted comments assassinating my character and slandering my name which will never be erased from the memory of the Internet. Not only have I suffered the indignity of discrimination while working at William Morris, my personal and professional reputation has been destroyed as a result of speaking out against these injustices. I continue to suffer from considerable mental anguish and emotional distress, including but not limited to stress which manifested in physical illness, harm to my earning capacity, loss of self-esteem and self-confidence, emotional pain and suffering, embarrassment and humiliation, disruption to my personal life and loss of enjoyment of the ordinary pleasures of everyday life. This is not my first job where Ive been the only African American on the team. This lawsuit is the result of people deliberately going out of their way to set me up to fail, so that others could believe their promotions were due to merit and not privilege. Since leaving the company, a few of my peers have been promoted to Coordinator and Agent without coming close to accomplishing what I have throughout this industry before working at William Morris. Had I been able to work in an environment free of discriminatory distractions and bias, I can demonstrate that more likely than not, I would be enjoying the success of my careers trajectory due to my unique understanding and experience in this business for my age.
THE ARBITRATION AGREEMENTS WERE SIGNED BECAUSE OF UNDUE INFLUENCE & ECONOMIC DURESS AS A CONDITION OF EMPLOYMENT AND COERCION AS A CONDITION TO REMAIN EMPLOYMED.

I signed two arbitration agreements throughout the course of my employment with William Morris. The first agreement was signed on September 2, 2008 in the first hour of employment while in the lobby of William Morris New York office. In order to advance my career, agreeing to the terms and conditions stated in these contracts was not up for debate. Despite my research efforts, the only information I knew about the company was that of the companys greatness and dominance throughout the entertainment industry. Upon entering the office, myself and two others were given a packet with various forms that were to be read and signed. I knew that if all the papers werent signed by the time Sarah Winiarski came back, I would not be able to start working at one of the most prestigious talent agencies in

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the world. The test for procedural unconscionability is whether, in light of all the facts and circumstances, a party lacked a meaningful choice in deciding whether to sign the contract. Brennan, 198 F.Supp.2d at 382 (quoting Desiderio v. National Assn' of Sec. Dealers, 191 F.3d 198, 207 (2d Cir. 1999)). William Morris attempt to take advantage of its undue leverage against me was further reflected by the fact that in the first hour of employment, the arbitration agreement which waived my civil and human rights was given to me to sign before I was able to realize that I was the only African American employed. See David L. Threlkeld v. Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir. 1991) (purpose of unconscionability doctrine is to prevent unfair surprise and undue oppression). None of my past employers made me sign an arbitration agreement, so although I read the agreement and my signature is there, there was no way I was fully able to comprehend the consequences of my actions being that I knew nothing about employment discrimination law. Due to William Morris superior bargaining power which resulted in no real or meaningful negotiation, the provisions dealing with discrimination and retaliation (as a result of discrimination) are oppressive and procedurally unconscionable.15 This is the very sort of undue surprise and oppression the unconscionability doctrine is intended to prevent. After the William Morris Agency and Endeavor merged to become WME Entertainment in April of 2010 a publicized process including a massive layoff in which a disproportionate number of women and minorities were let go I had no choice but to voluntar[ily] sign the second Mutual Arbitration Agreement ten months into my employment as a condition of remaining employed by WME. Being that I signed an arbitration agreement in September 2008, the only alternative would have been to re-enter the job market during a Recession, in which employment opportunities for minorities at this level of the industry are at a depressed state. By the time this agreement was signed, I was completely aware that I was being treated differently than my White peers. Sarah Winiarski and Jeff Meade played an integral role in making sure I was given a high frequency of dead-end assignments and Sisyphean tasks, while at the same time, giving me highly subjective evaluations and rating me low in areas that I wasnt given ample opportunity to perform well in. Due to their logical shortcomings, I became cognizant that they were plotting and looking for grounds to have me removed from the company. Not being viewed negatively or characterized as being difficult was another reason for signing the agreement.

15

Joan M. Brovins, J.D. & Thomas H. Oehmke, J.D., The Arbitration Contract Making It and Breaking It, American

Jurisprudence Proof of Facts 3d, (2010).

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Before and after the merger, Human Resources and other senior members of the company talked about Agent Trainees and Floaters being easily replaceable due to the high volume of applicants. For me, remaining employed was out of pure necessity because I reliant on the companys health insurance after experiencing extreme health problems. Throughout 2009-10, I made numerous visits with doctors and specialists in search of a diagnosis for my unexplainable gastrointestinal/urinary medical ailments. While employed with the company, my health deteriorated while all of my tests and results said I was extremely healthy. Since leaving the company, I have learned that bottling up my emotions due to the uncertainty surrounding my beliefs that I was being discriminated against led to extreme stress and mental anguish. Working 10 hours a day in William Morris toxic work environment played a significant role in the physical manifestation of my health problems, which I am still recovering from. The pressure to sign the arbitration agreement was further complicated due to the fact that I owed $100,000 in student loans to Sallie Mae and various lenders for pursing an advanced degree in Music Business and Entertainment Industries from the University of Miami. In order to meet my monthly payments, I couldnt stop working unless I found another job. Given my set of circumstances, remaining employed was my only choice, even at the expense of my mental and physical health.
CONCLUSION

In determining whether a contract is unconscionable, a court should take a flexible approach, examining all the facts and circumstances of a particular case. See Brennan, 198 F. Supp.2d at 383 (quoting In re. Estate of Friedman v. Egan, 64 A.D.2d 70 (2d Dept. 1978)). A case of this magnitude, in which William Morris has engaged in intentional and willful discrimination without ever being held accountable for their actions should not be decided by arbiter simply because the company and their legal defense team are savvy enough to compel their employees to waive their civil and human rights as a condition of employment. An arbitration agreement does not change the fact that William Morris has engaged in discriminatory practices, before, while and after my employment with the company and no matter whether an arbitration agreement was signed, they have still violated federal, state and city civil and human rights laws. Given the gross pattern and practice of individual and systemic discrimination against minorities, specifically African Americans, detailed in my 56 page complaint (not including exhibits) over the course of 112 years, my claims are wholly with merit, legally and factually. I have worked extremely hard and made a lot of sacrifices to make it throughout this industry only to have my dreams left unfulfilled, not because I didnt deliver results, but because of

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something that is scientifically proven to be irrelevant. Race is a social construct that doesnt determine ones abilities or capabilities, so to have a workforce with an extreme overrepresentation of Whites in the 21st century is not a natural occurrence. These ascriptive inequalities, including occupational segregation and racial stratification, are only the results of continued and intentional desire to exclude minorities from employment opportunities. The unemployment rate for African Americans in the United States before the passage of the Civil Rights Act of 1964 was double that of Whites. Almost fifty years later, the rate is still the same, although the number of African Americans who have graduated from college and received advanced degrees has increased. If minorities are intentionally being denied employment and advancement opportunities in a capitalistic society, then the disparities found in education, housing, healthcare and other areas of life are only natural. And as long as corporations and entire industries continue to act above the laws that govern a democracy, what will their incentive be to change? Had the EEOC complied with its own policies and made sure upper level companies like William Morris submitted EEO-1 data each year, they wouldve noticed a pattern and practice of discrimination decades ago. If these actions continue to go unpunished, we ultimately punish ourselves. Racism hurts not only the individual, but our nation. Since race has always been a decisive factor in William Morris employment decisions, there is a strong basis in evidence that the court needs to attack the root of the problem and mandate structural and institutional policy changes (e.g. affirmative action program), to rectify the blatant disparate impact and systemic disparate treatment towards non-Whites. See Ricci v. DeStefano, 129 S.Ct. 2658 (2009). In past rulings, the inexorable zero alone has been sufficient to establish an inference of discrimination and survive summary judgment and motions to dismiss. Therefore, it should also be enough to defeat an arbitration provision dealing with discrimination and retaliation given that it was offered by a hardcore discriminatory employer. I am asking that the Court invalidate these unconscionable provisions based upon the reasons set forth above and compel the Defendants to issue their responsive pleading so that the case can proceed to the General Pretrial phase under the supervision of Magistrate Judge James C. Francis, ultimately being decided by a jury that reflects the rich diversity of New York City.

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Dated: New York, New York March 21, 2011

Respectfully submitted,

By: ______________________________________ Marcus I. Washington 54 Boerum St. Apt. 6M Brooklyn, NY 11206 (646) 504-6497 humanrights.areamust@gmail.com

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