Originally from Employment Arbitration - 2nd Edition

Aspects of the Continuing Debate on the Arbitrability of Title VII Claims

Thomas E. Carbonneau

In addition to the decisional law examined in the prior sections, other court opinions have contributed to the debate regarding the arbitrability of Title VII civil rights claims that arise in employment cases. While some courts follow the Gardner-Denver holding and allow plaintiffs to avoid arbitration, other courts deem Gardner-Denver to have been superceded by the Gilmer ruling that provides for the arbitrability of all employment disputes.

As noted in the foregoing discussion, the U.S. Court of Appeals for the Fourth Circuit has been the most vocal advocate for the unlimited arbitrability of statutory workplace disputes, while the U.S. Court of Appeals for the Ninth Circuit has made the most forceful case for the inarbitrability of Title VII disputes. The federal district court’s ruling in Rosenberg v. Merrill Lynch, criticizing NYSE arbitration as containing a “structural bias” and being generally an inadequate system for resolving civil rights claims, added to the division among the federal circuits on this question. To avoid further confrontations, perhaps even a reprimand from the U.S. Supreme Court, the First Circuit upheld the Rosenberg result on different grounds. The opinion in DeGaetano v. Smith Barney also provided some, albeit weaker, support for the special status of Title VII actions.

The opinions in the cases that follow address several aspects of the arbitrability question as it relates to civil rights legislation: the congressional intent underlying Title VII; the role of the “emphatic federal policy” supporting arbitration in the adjudication of civil rights matters; and the function of arbitration in resolving “politicized” disputes in the union and nonunion workplace.