Originally from: AAA Handbook on Labor Arbitration - 2nd Edition

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CHAPTER 5

JOB DISCRIMINATION CLAIMS UNDER COLLECTIVE BARGAINING

I. Introduction
This chapter deals with the effect of a mandatory arbitration clause in a collective-bargaining agreement. More specifically, the chapter investigates whether the presence of such a clause effectively compels an employee to arbitrate an alleged violation of an employment discrimination statute in lieu of the litigation of his/her claim. This issue has considerable current significance. In 1997 alone, it was presented to federal courts of appeals in six circuits. The first recent decision regarding the enforceability of a mandatory arbitration clause in a collective-bargaining agreement was Austin v. Owens-Brockway Glass Containers, Inc.,1 which was decided by the Fourth Circuit in 1996. The court held that the mandatory arbitration provision was enforceable and that the employee’s only option was to arbitrate the alleged violation of her rights under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). Five other circuits have rendered decisions after Austin. With the exception of one decision, which was withdrawn shortly after it was rendered, the decisions have uniformly rejected the conclusions reached in Austin. Those courts have held that the agreement to arbitrate was not binding because it was contained in a collective-bargaining agreement.