Give 'Em Their Day in Court:
The Argument Against Collective Bargaining
Agreements Mandating Arbitration to Resolve
Employee Statutory Claims

by Michael P. Wolf¹

I. Introduction

The explosion of employment litigation is a well-documented fact.² This explosion has increasingly led to the use of alternative dispute resolution (ADR) processes in an attempt to resolve employer-employee disputes.³ Judicial acceptance of ADR in addressing these types of claims has grown over time, with the recent trend favoring the use of ADR, particularly arbitration, for resolution of these conflicts.⁴ Many view the rise in judicial acceptance of ADR as intrinsically related to our increasingly litigious society and the corresponding rise in caseloads that courts must now endure.⁵ One scholar has even called ADR a form of "junior varsity justice system," a system that "now handles hundreds of thousands of private disputes each year."⁶ However, even with this trend toward judicial acceptance of the use of ADR, many actors, both employers and employees, still are hesitant to fully accept ADR as their exclusive resolution forum.⁷ At least concerning employee-claimants, this hesitation is well founded.

This article will focus on one particular aspect of the use of ADR in the employment context. A major question is, in the context of collective bargaining agreements between an employer and a union, whether these parties should be allowed to require that arbitration be the exclusive dispute resolution forum of employee statutory claims. Several third parties, including various courts, governmental agencies, and arbitral organizations have found mandatory arbitration can be used by employers not only to disadvantage their employees, but also to even evade various legal requirements.⁸ In fact, when an employee agrees to this kind of arbitral resolution (if he or she ever knowingly does so), the agreement is often the result of a wise employer whose actions have led the employee to effectively waive numerous procedural rights afforded him under both state and federal law.⁹ One scholar noted the following:

[Employers have begun] using binding arbitration agreements to skirt the public law, and public juries, with increasing intensity . . . [a]s a result, a number of companies have forced their new or even current employees to sign documents in which they give up their rights to resolve disputes in courts – and typically before juries— as a condition of their future or continued employment. Then, when such employees seek to resolve contractual, statutory, or even civil rights claims against their employers, they are told that the suits can only be brought in arbitration, from which there is effectively no appeal.¹⁰

II. Historical Background

In 1925, the United States Congress enacted the Federal Arbitration Act (FAA). The FAA's purpose was to reverse a longstanding hostility toward arbitration and to place arbitration agreements upon the same footing as other contracts.¹¹ Essentially, the FAA provides for the arbitration of claims arising under any contract involving interstate commerce.¹² Soon after the FAA's creation, courts began to apply the legislation to contractual controversies arising under various statutory provisions.¹³ Later, in 1960, in three cases known as the Steelworkers Trilogy, the United States Supreme Court "established the boundaries of labor arbitration in disputes over the interpretation of collective bargaining agreements."¹⁴ Through these cases, the Court essentially stated "it would enforce agreements to arbitrate employment disputes covered by collective bargaining agreements, that it would enforce the resultant awards, and give [those awards] great deference."¹⁵ These cases illustrated the Court's endorsement of labor arbitration.¹⁶ The Court's endorsement of arbitration in the context of collective bargaining agreements (CBA), however, initially did not extend to the resolution of statutory claims through arbitration.¹⁷ Indeed, during the next decade, the Court "developed a more suspicious attitude" toward the use of arbitration and its applicability toward statutory claims.¹⁸ This attitude change was evident in the Court's decision in Alexander v. Gardner Denver Co., issued in 1974.¹⁹

In Alexander, the Court ruled a union could not waive its members' right to litigate their statutory discrimination claims. This was so even if the collective bargaining agreement's arbitration clause covered those issues and even if the individual member had already lost before an arbitrator.²⁰ The Court found a "submission of a claim to one forum does not preclude a later submission to another." ²¹ It realized that "the private right of action remain[ed] an essential means of obtaining judicial enforcement of Title VII," even though the Equal Employment Opportunity Commission (EEOC) could file its own actions under Title VII.²² The Court found that in such cases "the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices." ²³

The Court clearly stated in Alexander there could be "no prospective waiver of an employee's rights under Title VII." ²⁴ It recognized an essential distinction between statutory rights relating to an individual employee and to union activity. It found that "a union may waive certain statutory rights related to collective activity, such as the right to strike." ²⁵ The Court, however, saw that Title VII rights were not concerned with "majoritarian processes, but an individual's right to equal employment opportunities. Title VII's strictures are absolute and represent a congressional command that each employee be free from discriminatory practices." ²⁶ In sum, not only did the Court find "an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective bargaining-agreement," ²⁷ but also that "arbitral processes [were] comparatively inferior to judicial processes in the protection of Title VII rights." ²⁸

The Court's attitude toward the use of arbitration in this context substantially changed in its second major case on this area, Gilmer v. Interstate Johnson/Lane Corp., decided 17 years after Alexander in 1991.²⁹ Gilmer concerned a nonunion employee who signed a contractual securities registration agreement containing an employment-related arbitration clause. The Gilmer Court bound him to that clause, finding that an employee must submit to arbitration of all employment-related claims, including those involving statutory discrimination claims.³⁰ In construing the FAA to indicate a "liberal federal policy favoring arbitration agreements," as well as finding that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration," the Gilmer Court undertook a dramatic shift away from its previous arbitration views espoused in Alexander.³¹ The Court found, in contrast to Alexander, that it was "clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA . . . . Although all statutory claims may not be appropriate for arbitration, 'having made the bargain to arbitrate, the party should be held to it.'" ³² It also found 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. . . . [S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.

Unfortunately, in deciding Gilmer, the Court did not state exactly how much, if any, of Alexander it wanted to leave intact.³⁴ The Gilmer Court did distinguish its holding from Alexander, however, in the following ways: (1) Alexander did not address the issue of enforceability of an arbitration clause but rather the "quite different issue [of] whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims"; (2) Alexander involved a mandatory arbitration provision in a CBA; in Gilmer, the clause appeared in an individual employment agreement; and (3) Gilmer, unlike Alexander, fell under the FAA.³⁵

The Court's ruling in Gilmer had a profound effect in many sectors of society. The Court's decision led lower courts to similarly embrace arbitration and, thereby, compel arbitration in a variety of statutory claim cases.³⁶ However, lower courts have split their application of Gilmer into two parts, tending to enforce arbitration clauses in individual employment contracts, but not similar clauses found in collective bargaining agreements.³⁷ In other words, employees on the same level in different companies receive different remedies dependent upon whether or not they have union representation. Lower courts after Gilmer have generally "upheld an employer's right to enforce such [arbitration] agreements, at least in a nonunion setting, as a valid term and condition of employment." Nevertheless, the clause must meet certain requirements.³⁸ These requirements include that the arbitration clause be "fair, meet minimal standards of due process, [is] voluntarily entered into and do not impose any undue financial hardships upon the employee." ³⁹

In the wake of Gilmer, employers have begun to negotiate "increasingly sophisticated arbitration language apparently designed to respond to Gilmer" as well as get around Alexander.⁴⁰ Employers have seen Gilmer as giving them a green light to mandate arbitration "as the mechanism for dispute resolution in the employment context." ⁴¹ Thus, numerous employers have forced their employees, either new or current, "to sign documents in which they give up their rights to resolve disputes in courts . . . as a condition of their future or continued employment." ⁴² Consequently, "when such employees seek to resolve contractual, statutory, or even civil rights claims against their employers, they are told the suits can only be brought in arbitration." ⁴³

This conflict between the use of mandatory arbitration agreements in both collective bargaining agreements and non-unionized employee contracts remains unresolved. The Supreme Court recently had an opportunity to address this conflict in Wright v. Universal Maritime Service Corp., but ultimately declined to do so. Instead, it decided the Wright case on narrower grounds.⁴⁴ The Court recognized there was "obviously some tension between" Alexander and Gilmer, but it found it "unnecessary to resolve the question of the validity of a union-negotiated waiver" in the context of the Wright case.⁴⁵

III. Assessing the Use of Arbitration

Having provided a historical background concerning the use of arbitration in the employment dispute resolution context, it is beneficial now to review the use of arbitration generally as an ADR mechanism. Particularly relevant to this article are the various advantages and disadvantages of using arbitration in the employment settling. There will always be disputes between employers and employees in the workplace. Many courts, however, have expressed open frustration in having to police such disputes.⁴⁶ At least one court has noted that it must now act as "almost a super personnel department."⁴⁷ Judge Stanley Sporkin of the U.S. District Court for the District of Columbia echoed similar sentiments in criticizing what he thought to be the growing number of frivolous employment-related lawsuits.⁴⁸ Judge Sporkin went so far as to state he "hoped that at some point Congress would review the law in this area and make the necessary adjustments to eliminate these meritless, lottery-types cases." ⁴⁹

Statistics on case backloads support some of the concerns the judiciary has expressed in recent years. Courts and government agencies are besieged by more than 200,000 employment discrimination filings each year, and that number is increasing at a rate of about 23 percent a year.⁵⁰ Overall, "[t]he number of employment discrimination claims increased by 2,200" percent between 1969 to 1994, and employment law cases now account for 20 to 25 percent of federal court docket[s]."⁵¹ No end to this overload is near, as employment litigation continues its prevalence into the new millennium. "[T]he passage of the Civil Rights Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave Act", as well as a vastly increased national "sensitivity to sexual harassment" in the workplace will all serve to ensure this continued prevalence.⁵² Simply put, employment cases are overwhelming judicial dockets, and judges know it.⁵³

Economic costs of employment lawsuits to the parties themselves are large as well. The legal bills for these types of cases now average more than $100,000 for each side.⁵⁴ The costs increase dramatically as the claims move out from administrative agency review and into state or federal court.⁵⁵ In fact, many employers eventually decide to simply settle these claims, since the costs of litigating the case often exceed the value of the relief sought by the employee.⁵⁶

So what do many judges and attorneys do with the above knowledge? The answer is simple. With more and more frequency they support the use of arbitration, not only in an attempt to lessen their docket loads, but also in an attempt to resolve some of these employment disputes. Why choose arbitration? There are various answers. One answer looks at the nature of these claims and tries to determine the best approach toward resolution. Arbitration advocates see a litigation-based resolution system as "being distanced from the world of work, exhalting generic legalisms over workplace realities and fostering a win-lose, adversarial process that exacerbates workplace conflict." ⁵⁷ They theorize litigation procedures produce hostility and mistrust in an environment in which people must continue to work together. These same advocates see arbitration as a process that can better recognize "the unique environment and relationships that characterize a particular workplace." ⁵⁸ They see arbitration as an "informal and adaptable" dispute resolution mechanism that lessens disruption to both employer and employee while also maintaining "sensitivity to workplace relationships, operating requirements and market concerns." ⁵⁹

What are other cited advantages to using arbitration? One is the speed of ultimate dispute resolution. An arbitration case can typically reach complete resolution in less than six months, or at a time similar to when judicial discovery processes are often just beginning.⁶⁰ How does arbitration get results so quickly? The answer lies in the process itself. By taking the dispute out of the courtroom, the parties are no longer subject to judicial docket backlogs that can stretch into years. Arbitral hearing dates are generally set well before the parties would ever be able to set foot in a court of law.⁶¹ The time savings arbitration can provide often translates directly into cost savings.⁶²

In addition, arbitration maintains much less formal general procedures than those seen in litigation. Examples of this informality are the limited discovery, motion practice, and appeals processes seen with arbitration.⁶³ The parties maintain much more control of the process itself in arbitration than they ever would have the opportunity to do during litigation. They can mutually name the arbitrator, choose the time and place of the actual proceeding, and each devise flexible and creative procedures and solutions to the dispute itself.⁶⁴ Another major procedural concept closely related to the use of arbitration in this context is confidentiality. Both parties can be protected "from unwarranted public disclosures."⁶⁵ Arbitration's ability to keep the dispute confidential may even help to facilitate more reasonable settlements, as "the parties are less apt to feel pressure to vindicate their position to the outside world." ⁶⁶

Another advantage, mentioned briefly above, lies in the reduction of costs. "[T]he average cost of arbitration is $4,000 to $6,000," far less than the legal costs of an employment dispute that goes to trial.⁶⁷ In addition, the arbitrator, typically an expert in the subject matter of the dispute, is less likely than a jury "to be swayed by corporate antipathy or the employee's personality." ⁶⁸ Thus, both parties "are better able to predict the outcome [and costs] of any given claim."⁶⁹ Research shows claimants will more likely obtain awards in arbitration than through litigation, but that there are less likely to be large financial awards against the employer.⁷⁰ The lower cost involved with arbitration is also important on a far more basic level, as arbitration provides employees with a greater ability to have their claim addressed.⁷¹ Many employees do not have the capability to retain legal counsel and, in many employment disputes it can become difficult for an employee to retain an attorney who will take their case on a contingency fee basis.⁷² Lower costs help to alleviate these obstacles.

However, just like any dispute resolution process, there are disadvantages to the use of arbitration. Ironically, many of the features listed above as positive can be viewed as negative features in the eyes of different parties. For example, for those employees who wish their case to have precedential value, taking their claim out of the courtroom and subjecting it to an arbitral confidentiality agreement is undesirable. The lack of a binding precedent on future arbitral proceedings can also harm employers if they are ultimately successful in defeating the employee's claim.

There are other reasons why arbitration may not be totally advantageous to employers. While it may be true that having a single case decided through arbitration is usually less expensive than through litigation, such a low-cost resolution process may actually encourage employees to bring more claims.⁷³ In addition, while employers may be thankful claims are no longer being heard in front of a potentially pro-employee jury, some employers fear "runaway arbitrators" as well. They note arbitrators can render verdicts contrary to law just as easily as juries can.⁷⁴ Because arbitrators are not required, as part of their informal processes, to issue a written decision that explains the basis for their ruling, employers' fears may have some merit.⁷⁵

IV. Arbitration, Statutory Employment Claims and CBA's

While the above dealt with basic pros and cons of using arbitration in employment disputes, there are still other factors to consider when arbitration becomes mandatory due to a collective bargaining agreement reached between an employer and a union. For example, while the Supreme Court has accepted the validity of the FAA and Congress' "clear preference for arbitration" as an employment dispute resolution mechanism, the Court has never discussed whether the FAA was an illegal congressional encroachment on the Court's traditional Article III jurisdiction.⁷⁶ Similarly, the Court has failed to explain how employees can constitutionally "remove their claims to an alternative forum . . . simply because it is convenient to do so."⁷⁷ Still another important question connected to the above is whether a union has, or even should have, the power to collectively bargain the employee's claim out of the courts and into arbitration. The answer, at least to the last question, should be no. As Alexander suggested, an employee's right to sue under employment discrimination statutes is not under a grant given to the employee through the union's collective bargaining, but rather is a right given by Congress in support of important public policies.⁷⁸ These statutory rights are independent of the collective bargaining processes.⁷⁹ Indeed, it is far from clear that Congress has ever authorized unions, in their collective bargaining capacity, to waive these statutory rights.⁸⁰ What is clear, however, is that the courts are better suited than arbitrators to consider the public interest and determine violations of law and/or public policies.⁸¹

The practical concerns in collective bargaining agreements mandating arbitration to resolve employee statutory claims are even more numerous than the theoretical concerns. In Gilmer, the Court addressed and ultimately dismissed some of these concerns. The Gilmer court held that: (1) arbitration of ADEA claims would not be contrary to legislative intent or the statute's remedial and deterrent purposes; (2) arbitration would not undermine the enforcement powers of the EEOC because claimants would still be free to file a charge with the EEOC, which has independent authority to investigate age discrimination claims; (3) arbitration can provide a fair forum for hearing claims and can afford broad relief to claimants; and (4) inequality of bargaining power between employees is not a sufficient reason to reject arbitration agreements, absent evidence of coercion or fraud.⁸² The discussion that follows will address and attempt to rebut some of these points.

Problems for the claimant can start even before the employee's claim is filed. To begin with, the employee may not even be aware the union, through its collective bargaining agreement negotiations with the employer, has negotiated away the employee's right to litigate their statutory discrimination claim.⁸³ When employees who are bound by their CBA ultimately bring employment claims to the union for redress, they are unaware the union faces "an inherent tension between individual and collective interests."⁸⁴ A union is under no obligation to pursue the employees' claims, and can decide to arbitrate but not address the employees' discrimination claim, or even choose not to arbitrate at all. To do so does not violate the union's duty of fair representation toward the claimant employee.⁸⁵ This "duty" does not require the union to arbitrate every case a member brings before it.⁸⁶ Unions are empowered to determine which cases it will ultimately pursue, so long as they exercise their decision-making power "without hostility, discrimination or arbitrariness."⁸⁷

Why might a union decide not to pursue the claim? One example may be if the claim involves conflicts between two or more union-represented employees, such as one employee making a sexual harassment claim against another employee.⁸⁸ There, the union's conflict is self-evident.⁸⁹ Moreover, the union may see its financial resources as limited and decide the arbitral costs involved in the employee's claim are too cost-prohibitive.⁹⁰ The union may also simply question the validity of the employee's claim.⁹¹

Once the employee brings the claim before the union, the CBA may make it impossible for either the employee or the union to choose to litigate the dispute since the claim is bound solely to arbitration. Traditionally, courts regarded the right to trial by jury as very dear and "watched with great jealousy" any encroachment upon the right.⁹² Today, many courts hold a far different view on the claimant's right to a jury trial in light of arbitration. Courts now find congressional encouragement of the use of arbitration precludes a finding that a substantive right has been lost.⁹³ Not only may the employee lose the right to a jury trial, the period allowed for bringing a claim before waiver may be much shorter than that proscribed in employment statutes.⁹⁴ For example, in Wright the applicable provision in the CBA at issue (similar to many other such labor agreements) mandated that a formal grievance must be filed "no later than 48 hours" after first discussing the claim with the employer.⁹⁵ Under federal statute, Wright had up to 300 days to bring such a claim.⁹⁶ This type of time restriction conflicts with congressional intent, which mandates courts are to construe statutory time limitations "so as to give the aggrieved person the maximum benefit of the law." ⁹⁷

Another area of concern arises if the union decides to pursue the employee's claim. Only the union and employer are parties to the actual arbitral process; the employee is not a party.⁹⁸ In addition, the employee may also not be able to choose an attorney. Under the duty of fair representation:

[T]he union can use a lay representative, rather than an attorney to represent a grievant in arbitration, although the representative may have little or no expertise in statutory discrimination issues. The duty of fair representation does not require the union to provide the employee with an attorney for the arbitration, even in complex cases, nor does it prevent the union from excluding the employee's private attorney from the arbitration. Furthermore, the union's lay representatives will not be held to the same professional standards as an attorney.⁹⁹

The choice of representative is not the only issue for the employee in terms of who exactly will participate in the arbitration. Another problem can arise in choosing the arbitrator. One assumes an arbitrator will be impartial, but that is not always the case. Employers have taken various approaches to ensure the arbitration will be heard by someone who is more likely to be sympathetic to their views.¹⁰² One such example, ultimately decided against the employer, occurred when the employer acted as the "sole gatekeeper" to the list of approved arbitrators.¹⁰³ The court said the case amounted to "a spectacle of Gilmer gone mad." ¹⁰⁴ An additional concern is whether the arbitrator will have a proper background to properly decide the dispute. The problem here is that while the arbitrator the employer and union ultimately chooses will likely be competent in contractual interpretation, he or she may be far less-versed on employment law, which deals more with statutory interpretation and application.¹⁰⁵

As discussed previously, one of the unique features of arbitration lies in its informal procedural requirements. This feature may develop into a vital problem for an employee bringing a discrimination claim. Informal arbitral procedures often limit discovery. This fact alone may dictate the ultimate failure of the employee's claim. Without discovery, an employee may have "virtually no chance of proving the statutory violation." ¹⁰⁶ In fact, not only should the arbitral procedures available to both parties place each on a level playing field, they should replicate those available to the parties under the statute(s) at issue.¹⁰⁷ Unfortunately for the employee, this is seldom the case. Another arbitral procedural issue is the availability of remedies for the claimant. Federal discrimination statutes usually provide for compensatory and punitive damages, as well as attorney's fees, to a successful claimant.¹⁰⁸ If the arbitral agreement in the CBA does not allow the arbitrator to award similar remedies, such an agreement would result in a waiver of the employee's statutory rights.¹⁰⁹ Because these provisions violate public policy, courts in at least three federal districts have held such provisions as unenforceable.¹¹⁰

Finally, judicial review of arbitration is far more limited than if the claimant had been allowed to litigate their claim. The Federal Arbitration Act provides that arbitral awards can be vacated only for procedural reasons, such as fraud, corruption or misconduct.¹¹¹ The Supreme Court, in turn, has held that arbitral awards can be vacated where there is "manifest disregard" of the law¹¹² or when the award violates explicit, well-defined public policy,¹¹³ – both difficult standards to meet. However, as one author has found, with the "exception of the statutory bases for review set forth in the FAA and the very limited judicially-legitimized standards," arbitration awards are generally given complete deference.¹¹⁴

V. Conclusion

[B]y 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. . . . [S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.¹¹⁵

Endnotes

¹ Mr. Wolf is an associate in Hinshaw & Culbertson, in St. Louis, concentrating in litigation. He joined Hinshaw & Culbertson after serving as the final judicial law clerk for the Hon. Kent E. Karohl, Missouri Court of Appeals, Eastern District. Mr. Wolf is a 1999 graduate of the University of Missouri-Columbia School of Law and gratefully acknowledges the assistance of his colleagues, Melissa Jackson and Patrick O'Leary, in the preparation of this article.

² Joshua M. Javits & Francis T. Coleman, High Court to Revisit Issue of Mandatory Arbitration, The National Law Journal, October 5, 1998, at B5.

³ Id.

⁴ Id. See Vicki Zick, Reshaping the Constitution to Meet the Practical Needs of the Day: The Judicial Preference for Binding Arbitration, 82 Marq. L. Rev. 247 (1998). "ADR has been transformed . . . into a major mechanism resolving private disputes. ADR . . . now exists as a parallel system of justice to our civil justice system."

⁵ See Albert Y. Kim, Arbitrating Statutory Rights in the Union Setting: Breaking the Collective Interest Problem Without Damaging Labor Relations, 65 U. Chi. L. Rev. 225 (1998).

⁶ Zick, note 4, at 247.

⁷ Javits, note 2, at B05.

⁸ Jean R. Sternlight, Steps Need to be Taken to Prevent Unfairness to Employees, Consumers, 5 Disp. Resol. Mag., Fall 1998, at 5.

⁹ Id.

¹⁰ Id.

¹¹ Today, the Federal Arbitration Act is found under 9 U.S.C. §§ 1-16 (1994).

¹² Zick, note 4, at 251.

¹³ Id.

¹⁴ Charles J. Coleman & Jose A. Vazquez, Mandatory Arbitration of Statutory Issues Under Collective Bargaining: Austin and its Progeny, 48 Lab. L. J. 703, 704 (1997). The cases collectively referred to as the Steelworkers Trilogy include: United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 745 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

¹⁵ Id.

¹⁶ Kim, note 5, at 228.

¹⁷ Boyd A. Byers, Mandatory Arbitration of Employment Disputes, 67 J. Kan. B.A. 18, 20.

¹⁸ Kim, note 5, at 228.

¹⁹ 415 U.S. 36 (1974).

²⁰ Id. See Robert B. Fitzpatrick, Is Wright v. Universal Maritime Service Corp. the Death Knell for Alexander v. Gardner-Denver?, ALI-ABA 85, 89, SD06 (1998) (citing Alexander as being "the decisive case concerning the 'proper relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements in the resolution and enforcement of an individual's rights to equal employment opportunities under Title VII.'")

²¹ Id. at 47-48. Moreover, the Court observed, "the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." It found that "[t]he clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Id. at 47-48.

²² Id. at 45.

²³ Id.

²⁴ Id. at 51.

²⁵ Id.

²⁶ Id.

²⁷ Id. at 49.

²⁸ Id. at 57. See David E. Feller, Compulsory Arbitration of Statutory Discrimination Claims Under a Collective Bargaining Agreement: The Odd Case of Caesar Wright, 16 Hofstra Lab. & Emp. L. J. 53, 57 (1998).

²⁹ Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

³⁰ Id.

³¹ Id. at 25-26.

³² Id. at 26.

³³ Zick, note 4, at 248.

³⁴ Paul Salvatore & John F. Fullerton, III, Arbitration of Discrimination Claims in the Union Setting: Revisiting the Tension Between Individual Rights and Collective Representation, 14 Lab. Law. 129 (1998).

³⁵ Gilmer, 500 U.S. at 35. See John-Paul Motley, Compulsory Arbitration Agreements in Employment Contracts From Gardner-Denver to Austin: The Legal Uncertainty and Why Employers Should Choose Not to Use Preemployment Arbitration Agreements, 51 Vand. L. Rev. 687, 688 (1998).

³⁶ Zick, note 4, at 253. See also Javits, note 4, at B8 (stating that "several circuit courts have expanded [the Gilmer] holding" (which dealt with a claim based on the Age Discrimination in Employment Act) to federal statutory employment claims "under Title VII, the Americans With Disabilities Act, the Employee Polygraph Protection Act and the Fair Labor Standards Act.").

³⁷ Motley, note 35, at 688.

³⁸ Javits, note 2, at B8.

³⁹ Id.

⁴⁰ Salvatore, note 34, at 132-33.

⁴¹ Mary E. Bruno & Lawrence J. Rosenfeld, 'Duffield' Puts Compulsory Arbitration in Doubt, National Law Journal, October 5, 1998 at B6.

⁴² Sternlight, note 8, at 5.

⁴³ Id.

⁴⁴ 525 U.S. 70 (1998).

⁴⁵ Id. at 74.

⁴⁶ Javits, note 2, at B8.

⁴⁷ Skouby v. Prudential Ins. Co. of America, 130 F.3d 794, 695 (7th Cir. 1997).

⁴⁸ King v. Georgetown Univ. Hosp., 9 F. Supp. 2d 4, 7-8 (D.D.C. 1998).

⁴⁹ Id.

⁵⁰ Javits, note 2, at B8.

⁵¹ Byers, note 17, at 18.

⁵² Id.

⁵³ Byers, note 17, at 20.

⁵⁴ Javits, note 2, at B8.

⁵⁵ Robert K. Sholl & Christian A. Jenkins, Agreements to Arbitrate Statutory Employment Claims, Wis. Law (1998) at 15-16.

⁵⁶ Id. at 16.

⁵⁷ Javits, note 2, at B8.

⁵⁸ Id.

⁵⁹ Id.

⁶⁰ Byers, note 17, at 20.

⁶¹ Michael Delikat, The Siege Continues: Mandatory Arbitration of Employment Claims (1998).

⁶² Byers, note 17, at 20.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Javits, note 2, at B8.

⁶⁸ Byers, note 17, at 20.

⁶⁹ Id.

⁷⁰ Delikat, note 61, at 564.

⁷¹ Id. See Coleman, note 14, at 720.

⁷² Id.

⁷³ Byers, note 17, at 20. The author notes, however, that "a number of employers using ADR processes report they have not experienced an increase in employee complaints." Id.

⁷⁴ Delikat, note 61, at 564. For example, at least one arbitration panel has awarded more than $38 million dollars to a claimant. Id. The author claims that a mitigating factor to this possibility is the fact there "is an institutional pressure for arbitrators to render only reasonable decisions. . . [since] if an arbitrator is known to render extreme decisions without any basis, it is unlikely that the arbitrator will be selected by similarly situated parties in the future." Id. at 565. This fear of securing repeat business as in turn led to charges of arbitral bias in favor institutional clients, namely, employers. Id. at 565.

⁷⁵ Id.

⁷⁶ Zick, note 4, at 261.

⁷⁷ Id. at 261-62.

⁷⁸ Joseph R. Grodin, On the Interface Between Labor and Employment Law, 19 Berkeley J. Emp. & Lab. L. 307, 312 (1998).

⁷⁹ Id.

⁸⁰ Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998).

⁸¹ Id.

⁸² Gilmer, 500 U.S. at 27-33.

⁸³ Ann C. Hodges, Protecting Unionized Employees Against Discrimination: The Fourth Circuit's Misinterpretation of Supreme Court Precedent, 2 Employee Rights & Employment Policy J. 123, 150 (1998).

⁸⁴ Id. at 143-44.

⁸⁵ Id. at 144.

⁸⁶ Id. at 145, 149.

⁸⁷ Id. Therefore, "the union can determine not to arbitrate a discrimination claim because, in good faith, it doubts the merits of the claim, although the union officers making that decision may have no expertise in statutory discrimination law." Id.

⁸⁸ Id. at 144.

⁸⁹ Grodin, note 78, at 312. (referring to situations "where the individual's claim may conflict with others toward whom the union also owes a duty of fair representation."). Id.

⁹⁰ Hodges, note 83, at 149-50.

⁹¹ Grodin, note 78, at 312.

⁹² Zick, note 4, at 271.

⁹³ Delikat, note 61, at *22.

⁹⁴ Petitioners' Brief, Wright.

⁹⁵ Id. at 72.

⁹⁶ Id.

⁹⁷ Id.

⁹⁸ Id.

⁹⁹ Hodges, note 83, at 145-46.

¹⁰⁰ Dennis R. Nolan, Labor and Employment Arbitration: What's Justice Got to do With it?, 53 Disp. Resol. J. 40, 48 (Nov. 1998).

¹⁰¹ Id. The case is Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997).

¹⁰² Id. at 46.

¹⁰³ Id. The case is Hooters of Am., Inc. v. Phillips, 39 F. Supp. 2d 582 (D. S.C. 1998), aff'd 173 F.3d 933 (4th Cir. 1999).

¹⁰⁴ Id.

¹⁰⁵ Id.

¹⁰⁶ Id. at 47.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Id.

¹¹⁰ Delikat, note 61, at 506.

¹¹¹ 9 U.S.C. § 10 (1994).

¹¹² Wilko v. Swan, 346 U.S. 427 (1953).

¹¹³ United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29 (1987).

¹¹⁴ Michael Delikat & Rene Kathawala, Arbitration of Employment Discrimination Claims Under Pre-Dispute Agreements: Will Gilmer Survive?, 16 Hofstra Lab. & Employment L. J. 83, 109 (1998).

¹¹⁵ Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).