Originally from Dispute Resolution Journal

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Ever since the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., courts have routinely enforced pre-dispute agreements between employers and individual employees to arbitrate various statutory employment claims, but have generally been less willing to enforce similar pre-dispute agreements between employers and labor organizations on behalf of the employees they represent. In light of the Supreme Court’s 1998 decision in Wright v. Universal Maritime Services to leave open the ultimate issue of the enforceability of such agreements in the union setting, practitioners and scholars who favor arbitration have been given renewed hope for the opportunity to vindicate the efficacy and value of arbitration as a means of resolving statutory employment claims for both union and nonunion employees. As two such practitioners, Martin Oppenheimer and John Fullerton argue that federal precedent, public policy, and sound labor and employment relations favor the enforcement of arbitration provisions that apply to employment discrimination claims, including when those provisions are contained in a collective bargaining agreement.

In Gilmer v. Interstate/Johnson Lane Corp.,1 the Supreme Court, in compelling the plaintiff to arbitrate his claim under the Age Discrimination in Employment Act (ADEA),2 changed the landscape of employment law by recognizing the public policy favoring the use of arbitration as a method of resolving statutory employment discrimination claims. Courts have, since Gilmer, routinely upheld pre-dispute agreements between employers and individual employees to arbitrate various statutory employment claims.3

The same cannot be said of pre-dispute agreements to arbitrate statutory employment claims between employers and labor organizations on behalf of the employees they represent. In the recent Wright v. Universal Maritime Service Corp.4 decision, however, the Supreme Court surprised many scholars and practitioners by expressly declining the invitation to hold that a union’s waiver of an employee’s right to a federal forum was never enforceable, and instead held that, before such a waiver could be enforced, it had to be “clear and unmistakable.” In so doing, the Court did not explicitly overrule its holding in Alexander v. Gardner-Denver Co.5 that an employee’s statutory discrimination claim was not precluded by an arbitration award in the employer’s favor under a contractual nondiscrimination clause in a collective bargaining agreement. Its decision to take the time and effort to establish a standard for determining when a union’s pre-dispute waiver is valid, however, opened the door to the possibility that, given the right case, the Supreme Court will ultimately hold that a properly framed waiver of the right to a federal judicial forum would be enforceable, thus negating Gardner-Denver. In this article, we advocate just such an outcome.