The Courts and Arbitration of EEO
• Initial Judicial Hostility toward Arbitration
Has Given Way to Acceptance:
– Federal Arbitration Act: Legislative Policy
Encouraging Private Arbitration
– Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 1 (1991): Individual Arbitration
Agreements for Employment Disputes Are
Legally Enforceable
– Circuit City Stores, Inc. v. Adams, 532 U.S.
105 (2001): Employees Can Be Required to
“Agree” to Arbitrate Disputes as a
Condition of Employment
The Courts and Arbitration of EEO
Disputes (Cont.)
• Supreme Court held that arbitration clause in
collective agreement specifically including EEO claims
requires arbitration of ADEA claim – 14 Penn Plaza
LLC v. Pyett, (2009)
– 14 Penn Plaza overruled Alexander v. GardnerDenver Co., 415 U.S. 36 (1974) -- Alexander held
that grievance arbitration under collective
agreement did not preclude individual Title VII suit
to vindicate statutory rights
– But 14 Penn Plaza decision left open the question of
whether employees must arbitrate EEO claims when
union controls access to arbitration
– “Tension Between Collective and Individual Rights”
EEOC v. Waffle House, 534 U.S. 279
• U.S. Supreme Court Holds Individual Agreement to
Arbitrate Does Not Preclude EEOC Enforcement
Action on Behalf of Individual Employee
– EEOC Protects Public Interest by Litigating
– Individual Arbitration Agreement Can Only Affect
Private Rights
• Consistent with Alexander v. Gardner-Denver: EEOC
Seeks to Vindicate Public Interest While Individual
Agreement Addresses Private Interest
Court Review of Arbitration
• Armendariz v. Foundation Health Psychcare Services,
Inc., 24 Cal.4th 83 (Cal. Sup. Ct. 2000)
Neutral Arbitrator
Provide Discovery Process
Written Decision for Award
Remedies Similar to Statutory Remedies
No Unreasonable Fees for Employees
• Costs of Arbitration
– Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000): party
seeking to invalidate arb. agt. because of costs has burden of
demonstrating likelihood of incurring such costs
– Morrison v. Circuit City Stores, 371 F.3d 646 (6th Cir. 2003):
fee-splitting agt. unreasonable and unenforceable if it would
deter substantial number of potential claimants from exerting
their statutory rights

similar documents