Discrimination, Arbitration, Violation
Jones, Leigh, THE JOURNAL RECORD
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 disability. 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 refused 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 organization. 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 appealable. "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, she says society loses the benefit of policy-shaping conflicts resolved as a matter of public record. …