Originally from Dispute Resolution Journal

The securities industry has often found itself at the forefront of the employment arbitration conversation, particularly when studying the changing availability and usage of arbitration over the past several decades. In 1991, the Supreme Court heard a securities case involving an age discrimination claim, using the dispute (Gilmer v. Interstate/Johnson Lane Corp.) as an opportunity to expand the enforcement of arbitration clauses to include some employment cases (this decision was initially limited to the securities industry only, but was further expanded ten years later to encompass a wide spectrum of employment contracts). The effects of Gilmer and subsequent court decisions on workplace rights has engendered extensive coverage amongst academics and practitioners alike. The Supreme Court made its position on arbitration’s role in resolving discrimination cases clear when stating, in its 2009 14 Penn Plaza v. Pyett opinion, that "…objections centered on the nature of arbitration do not offer a credible basis for discrediting the choice of that forum to resolve statutory antidiscrimination claims" (129 S. Ct. 1456).

Although the Supreme Court has established its stance on the issue, many questions remain unanswered regarding the effects of using private arbitration systems to resolve employment disputes. One question, explored in this article, focuses on the type of dispute being arbitrated. Do securities arbitration outcomes differ depending on the allegation brought forth by the employee? In particular, are employees treated differently if they take statutory discrimination claims, protected under Title VII of the Civil Rights Act of 1964, to arbitration when compared against other types of allegations?