Originally from Dispute Resolution Journal

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The intent of this note is to explore some of the more common evidentiary issues presented in the arbitration of employment discrimination cases within both a prehearing and hearing context. However, this note is not exhaustive, and advocates should conduct traditional research for a more comprehensive discussion. Historically, the goals of employment arbitration are significantly different than in a courtroom. While both are adjudicatory forums, parties who choose arbitration prefer to select the Arbitrator mutually based on qualifications, agree to a private forum, prefer an expedited process, desire an informal proceeding, and elect a binding award. 

I.    HYPOTHETICAL CASE

Last year, a new thirty-eight-year-old President was hired into the company. He openly criticized the pre-existing culture and praised his own ability to build a new “team of innovators.” In the past two years, several Department Managers openly referred to employees over fifty as “retirees.” Recently, management implemented a performance management process and identified the bottom twenty percent of performers to be “blockers.” Two weeks after the meeting, twenty professionals were laid off, of which twelve were over forty years of age, and seven were over fifty. One supervisor stated the reason for conducting the lay-off was the need for “new blood” in the company. Each of the ex-employees had a “satisfactory” performance evaluation. After the layoffs, all former employees were retroactively given a “not acceptable” performance evaluation. The ex-employees were rated as lacking in creativity. The company had recently sold a product line and contends the layoffs were objectively due to this change of direction. One year after the layoffs, the President distributed a memo to his staff concerning the elimination of “dead wood” engineers.