Arbitration and the Goals of Employment Discrimination Law

By Moohr, Geraldine Szott | Washington and Lee Law Review, Spring 1999 | Go to article overview

Arbitration and the Goals of Employment Discrimination Law


Moohr, Geraldine Szott, Washington and Lee Law Review


I. Introduction

[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.1

With these words, the Supreme Court assumed that the public goal of ending workplace discrimination is achieved when individual employees arbitrate their claims in a fair and effective manner. This Article examines that assumption and reaches a contrary conclusion: arbitration is not an effective forum in which to satisfy the public policy goals of the employment discrimination statutes, even when employees are accorded a fair hearing.

In Gilmer v. Interstate/Johnson Lane Corp.,2 the Court ruled that an employment discrimination statute does not bar the enforcement of a contractual agreement to arbitrate claims brought under that statute.3 As a result, employees who have agreed to arbitrate workplace disputes may not file employment discrimination suits in court. This decision reallocates jurisdiction over employment discrimination claims from the public judicial system to a private forum.4 Resolving workplace discrimination claims in a private forum is problematic for at least two reasons. First, employees may find that arbitration is a less congenial forum than litigation in a public court. Second, the public goal of ending workplace discrimination may not be furthered when parties arbitrate these cases. This Article focuses on the second issue.

The public obviously does not realize its interest in ending discrimination if employees cannot enforce their statutory rights in the arbitration forum. The converse presents a more complicated question: Is the public goal met when arbitration vindicates individual rights? The question is of more than theoretical interest because the answer has a bearing on significant issues that Gilmer raised or left unanswered.5 A proper resolution of these and other issues is important also because a growing number of employers6 and businesses7 have signaled their intention to arbitrate, rather than to litigate, statutory claims. Moreover, in considering legislation that would limit arbitration of employment discrimination claims, Congress should be aware that arbitration may not effectively achieve the public goal of eliminating discrimination in the workplace.8

This Article considers whether achieving the public policy goal of ending employment discrimination requires a public forum. Part II distinguishes litigation from arbitration and reviews the history of commercial arbitration under the Federal Arbitration Act (FAA). Part III presents Supreme Court precedents that considered whether statutory claims could be arbitrated and provides an analysis of Gilmer in the context of those cases. Part IV examines the Supreme Court's assumption that vindication of employees' statutory rights also vindicates the public interest. For the purposes of this analysis, the discussion accepts the Court's premise that individuals may effectively resolve their statutory rights in the arbitration forum.9 The analysis begins by examining the dual purposes of workplace discrimination laws: to remedy instances of discrimination and to end workplace discrimination. To achieve these purposes, Congress authorized individuals, and later the Equal Employment Opportunity Commission (EEOC), to sue employers in court.

Litigation of employment discrimination claims generates several enforcement mechanisms that are integral to securing the end of workplace discrimination. First, judicial decisions, which speak with the authority of the state, provide general deterrence of future violators. Second, the courts develop and refine the law of employment discrimination, establish precedents, and define a uniform standard. Finally, the judicial process educates the community and forms public values, a crucial undertaking when a law seeks to change public sentiment. Arbitration, because it is a nongovernmental, confidential, and final forum, does not generate these enforcement mechanisms; thus, it is less effective in achieving the public policy objective. …

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

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 ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

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

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Arbitration and the Goals of Employment Discrimination Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
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.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, 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." (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

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.