A Funny Thing Happened on the Way to the (Alternative) Forum: Reexamining Alexander V. Gardner-Denver in the Wake of Gilmer V. Interstate/Johnson Lane Corp

By Cole, Sarah Rudolph | Brigham Young University Law Review, January 1, 1997 | Go to article overview

A Funny Thing Happened on the Way to the (Alternative) Forum: Reexamining Alexander V. Gardner-Denver in the Wake of Gilmer V. Interstate/Johnson Lane Corp


Cole, Sarah Rudolph, Brigham Young University Law Review


Sarah Rudolph Cole*

I. INTRODUCTION

In its landmark 1991 decision in Gilmer v. Interstate/Johnson Lane Corporation,1 the Supreme Court held that a predispute agreement to arbitrate statutory claims contained in a securities representative's registration application was enforceable.2 This decision triggered an exponential increase in the use of arbitration agreements3 as employers interpreted Gilmer to authorize the insertion of such agreements into contracts with existing employees and prospective hires.4 Employers have embraced these agreements, hoping that arbitration will deliver what it promises: inexpensive and speedy decisionmaking, finality, and confidentiality.5 Moreover, many employers are convinced that together with providing a more expeditious, less expensive system of justice, arbitration will improve their bottom line by lowering potential damage awards.6 Employers' enthusiasm for the perceived benefits of inserting arbitration clauses into employment agreements, together with the judicial approval of these clauses,7 ensures the continued use of such agreements in the nonunionized workplace.8

A certain inevitability surrounded the emergence of arbitration as a preferred method for resolving employment disputes in the nonunionized sector. After all, arbitration had long been the preferred means for resolving employment disputes in the unionized workplace.9 Perhaps it was the extraordinary success of arbitration in resolving disputes in the unionized sector that precipitated nonunionized employers' adoption of arbitration to resolve their own ever-increasing number of employment disputes. Whatever the reason for its increased use, arbitration of employment disputes in the nonunionized sector is here to stay.

Although arbitration originated in organized labor and commercial settings, in at least one respect, nonunionized arbitration has developed more rapidly than arbitration in the unionized sector.lo While Gilmer approved the use of predispute agreements to arbitrate discrimination claims in the nonunionized workplace, the use of such agreements is not permitted in the unionized world because of the 1974 Supreme Court decision in Alexander v. Gardner-Denver. 11 In GardnerDenver, the issue was whether an unionized employee, who, as required by his union's collective bargaining agreement, had submitted his claim under the agreement's nondiscrimination clause to final arbitration, retained the right to bring a Title VII claim in federal court following the arbitration. The Court determined that an unionized employee's right to a trial de novo on a Title VII claim is not precluded by prior submission of a claim to arbitration under a collective bargaining agreement's nondiscrimination clause.12

The continued viability of Gardner-Denver following Gilmer remains an open question, at least in cases where the parties expressly agree to abide by antidiscrimination laws. Gilmer superficially addressed Gardner-Denver's continuing validity in response to Gilmer's argument that statutory claims could not be the subject of a predispute arbitration agreement.13 While the Court concluded that Gilmer's reliance on Gardner-Denver was misplaced,l4 its willing acceptance of arbitration as a method for resolving statutory claims in the employment context seemed to cry for a re-evaluation of Gardner-Denver that the Court failed to provide. Thus, the question remained: what effect does the Gilmer decision have, if any, on the enforceability of predispute arbitration agreements between unions and employers?

Some commentators have suggested that Gilmer does not provide an opportunity for revisiting Gardner-Denver.l5 Yet at least one circuit court and several district courts have used Gilmer as the basis for enforcing an agreement to arbitrate statutory claims in a collective bargaining context.ls Rejecting the continued application of Gardner-Denver, the Fourth Circuit in Austin v. Owens-Brockway Glass Container, Inc.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Funny Thing Happened on the Way to the (Alternative) Forum: Reexamining Alexander V. Gardner-Denver in the Wake of Gilmer V. Interstate/Johnson Lane Corp
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.