Job Discrimination: Claims under Collective Bargaining
R, Harvey, J, Donald, Dispute Resolution Journal
This article deals with the effect of a mandatory arbitration clause in a collective-bargaining agreement. More specifically, the article investigates whether the presence of such a clause effectively compels an employee to arbitrate an alleged violation of an employment discrimination statute in lieu of the litigation of his/her claim. This issue has considerable current significance. In 1997 alone, it was presented to federal courts of appeals in six circuits.
The first recent decision regarding the enforceability of a mandatory arbitration clause in a collective-bargaining agreement was Austin v. Owens-Brockway Glass Containers, Inc.,' which was decided by the 4th Circuit in 1996. The court held that the mandatory arbitration provision was enforceable and that the employee's only option was to arbitrate the alleged violation of her rights under Title VII of the Civil Rights Act of 1964 (Title VI) and the Americans with Disabilities Act (ADA). Five other circuits have rendered decisions after Austin. With the exception of one decision, which was withdrawn shortly after it was rendered, the decisions have uniformly rejected the conclusions reached in Austin. Those courts have held that the agreement to arbitrate was not binding because it was contained in a collective-bargaining agreement.
This article reviews Austin and the other recent circuit court decisions. Although some of the issues presented by the cases are not yet resolved, certain principles do emerge from those cases. The discussion of the cases focuses, in part, on the drafting of the mandatory arbitration provisions contained in the collective-bargaining agreements. Employers are motivated to include such provisions to avoid the expense and delay involved in the litigation of employment discrimination claims. In addition, since the enactment of the Civil Rights Act of 1991, employers have the additional incentive of attempting to avoid jury trials in discrimination cases.
In order to understand the issues presented, it is necessary to first consider two genuinely landmark Supreme Court decisions concerning the arbitration of discrimination claims: Alexander v. GardnerDenver Co.2 and Gilmer v. Interstate/Johnson Lane Corp.3
Alexander v. Gardner-Denver Co. The seminal decision on the relationship of arbitration and the litigation of employment discrimination claims is Gardner-Denver. In that case, the plaintiff was a black, who alleged that he had been terminated by the defendant because of his race in violation of Title VII.4 His claims of discrimination were arbitrated pursuant to a collective-bargaining agreement. The arbitrator concluded that the plaintiff had been terminated for "just cause."5 Thereafter, the plaintiff sued his former employer alleging a violation of Title VII. The employer moved for summary judgment on the grounds that the plaintiff was bound by the arbitrator's adverse decision. The district court stated that the issue before it was to "decide just how many chances plaintiff should be afforded to try to establish his claim of discrimination."6 The court noted that there were two diametrically opposed lines of authority on this question and it ultimately resolved the issue in the employer's favor. The district court reasoned that when an employee:
submits a claim of discrimination to arbitration under a union contract grievance procedurea submission which is binding on the employer no matter what the result-the employee is bound by the arbitration award just as is the employer. We cannot accept a philosophy which gives the employee two strings to his bow when the employer has only one.' The court of appeals affirmed the district court's judgment but a unanimous Supreme Court reversed. There are two principal thrusts to the opinion in Gardner-Denver. The first responds to the argument, asserted by both the district court and the court of appeals, that it is unfair to bind the employer, but not the employee, by an arbitrator's decision. …