In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing Out the Bath Water, and Constructing a New Sink In the Process
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Sherwyn, David S.; Tracey, J. Bruce; Eigen, Zev J.
[Excerpt] In its 1991 Gilmer v. Interstate/Johnson Lane Corp.decision, the Supreme Court held that employers could require as a condition of employment that employees agree to arbitrate their Age Discrimination in Employment Act ("ADEA") claims unless the employees could prove that Congress had "evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Subsequently, lower courts extended Gilmer to cover other discrimination claims, including those arising under Title VII of the Civil Rights Act of 1964("Title VII") and the Americans with Disabilities Act("ADA"). In its 1998 Duffield v. Robertson Stephens & Co. decision, the Ninth Circuit held that the Civil Rights Act of 1991 (the "1991 Act") prohibits mandatory arbitration agreements. Several district courts have also held that the 1991 Act and the ADA prohibit mandatory arbitration.However, in Seus v. John Nuveen & Co., the Third Circuit rejected Duffield and held that the 1991 Act does not prohibit and, in fact, endorses mandatory arbitration. The Fifth Circuit has followed the Seus holding.
discrimination; Age Discrimination in Employment Act; Title VII of the Civil Rights Act; dispute resolution; employment discrimination adjudication
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