Originally from Employment Arbitration - 2nd Edition

A Critical Political Assessment

Thomas E. Carbonneau

(i) The Civil Rights Procedures Protection Act

The Civil Rights Procedures Protection Act was the first and most significant national legislative attempt to curb the jurisdictional reach of arbitration and to counter the “forced” submission of civil rights claims to arbitration. Despite the numbers of co-sponsors and the intensity of the criticism of mandatory arbitration from some quarters, the attempt to reform the decisional law and current practices through legislation has failed, by and large. The perception that arbitration is both fair and effective has overcome the opposition.

On February 11, 2004, Senator Edward Kennedy (D-Mass.) and Representative John Lewis (D-Ga.) introduced legislation (H.R. 3809; S. 2088), entitled the “Fairness Act,” that would expand remedies under the 1964 Civil Rights Act, the Equal Pay Act, and the Age Discrimination in Employment Act. According to Representative Lewis, the “decisions of the U.S. Supreme Court and state courts have fundamentally altered the impact of civil rights legislation, [and the proposed legislation] would plug the loopholes formed by these decisions.” The legislation has not been enacted.

The provisions of the bill that address employment matters sought to amend the Federal Arbitration Act (FAA) by excluding employment contracts from the scope of the FAA and prohibiting employers from requiring employees to sign agreements for mandatory arbitration that barred them from bringing discrimination or other workplace claims to court. These amendments were meant specifically to respond to the U.S. Supreme Court’s decision in Circuit City Stores, Inc. v. Adams.