Originally from Dispute Resolution Journal

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Opposition and uncertainty continue to surround mandatory arbitration in statutory employment disputes. Evan Spelfogel provides an overview of the seminal cases and shows how the issues have yet to be answered and clarified by the Supreme Court.

Employment litigation has grown at a rate many times greater than litigation in general. Twenty-five times more employment discrimination cases were filed last year than in 1970, an increase almost 100% greater than all other types of civil litigation combined. There is currently a backlog of over 50,000 employment discrimination cases at the EEOC and thousands more at state and local governmental agencies. New cases of discrimination are being filed at a rate 23% greater than last year alone. Discrimination claims under the Americans with Disabilities Act1 have only now begun to impact these statistics. The Equal Employment Opportunity Commission is under tremendous congressional pressure to reduce its budgetand to cut back on investigators and support staff needed to handle the influx of new cases.

Currently, there are over 25,000 wrongful discharge and discrimination cases pending in state and federal courts nationwide. Nearly all of these cases involve jury trials with lengthy delays and unpredictable results. Studies indicate that plaintiffs win nearly 70% of these cases and that the average jury award for a wrongfully fired employee is now approximately $700,000 (with many in the millions of dollars), but that it takes three to
five years before the case goes to a jury and many jury verdicts are reduced or set aside by the courts.