The Courts and Arbitration of EEO Disputes Initial Judicial Hostility toward Arbitration Has Given Way to Acceptance: –Federal Arbitration Act: Legislative Policy Encouraging Private Arbitration Agreements –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. Gardner- Denver 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 (2002) 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 Procedures Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4 th 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 (6 th Cir. 2003): fee-splitting agt. unreasonable and unenforceable if it would deter substantial number of potential claimants from exerting their statutory rights