With about 200 discrimination lawsuits filed just last year
against employers in Oklahoma's Western District, mandatory
arbitration looks like the solution to jammed dockets.
But opponents argue it's a violation of constitutional rights and
an affront to public policy in the name of expediency.
Since the Gilmer decision by the U.S. Supreme Court in 1991,
employers have received the green light in binding employees to seek
redress for discrimination through arbitration, instead of filing
lawsuits in court. Those agreements generally cover all disputes
against employers, the most common being wage issues and allegations
of discrimination -- whether they are gender, race, age, religion or
Though courts typically enforce such agreements, a growing
movement of professional organizations are denouncing them as
undermining employees' rights. "There's a wide consensus that it's
unfair to the public, but the courts keep going the other way," says
Professor Sarah Cole with the University of Oklahoma College of Law.
Indeed, the National Association of Securities Dealers voted in
August to eliminate its policy of mandatory arbitration. Now,
brokers may choose to sign a mandatory arbitration agreement or
reserve the right to file a federal lawsuit when a dispute arises.
Too, the Equal Employment Opportunity Commission, the American Bar
Association and the American Arbitration Association have all
to support such agreements, though they still endorse alternative
dispute resolution as a viable option.
The constitutional issues arising in some mandatory arbitration
agreements, says employment lawyer Valerie K. Couch, relate to due
process. "What gives many people pause is the consequence of taking
courts out of the civil rights process."
For example, discovery in arbitration is generally more limited,
usually to what the parties
themselves decide or to guidelines established by the arbitrating
Moreover, the arbitrator is frequently hired by the employer,
prompting some employees to cry foul. In addition, arbitration
decisions are not based on court precedent and generally are not
"Arbitration is sometimes, well, arbitrary," says Annita Bridges,
president of Litigation Alternatives.
Cole asserts the larger issue is a public policy one. When
discrimination issues are relegated to the private dispute arena,
says society loses the benefit of policy-shaping conflicts resolved
as a matter of public record. …