Employing the Law to Provide 'Early Access' to Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA)

73 Pages Posted: 3 Sep 2013

See all articles by Lamont Edward Stallworth

Lamont Edward Stallworth

Loyola University of Chicago

Daniel J. Kaspar

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: 2012

Abstract

The first purpose of this article is to provide the reader with a “mini-primer” on the history and overview of the use of private conflict management systems and alternative dispute resolution (“ADR”) processes such as labor and employment arbitration and mediation within the context of resolving race- or ethnicity-based discrimination in the workplace.

The second purpose of this article is to introduce the relatively recent concepts of “modern racism or discrimination,” “unconscious,” and “subtle discrimination” in the workplace. The third purpose is to discuss a number of the realities related to the current way Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and Section 1981 of the Civil Rights Act of 1866 are being enforced, and how the various courts of appeal are reversing a disproportionately greater number of verdicts favorable to plaintiffs than appealed cases of respondent employers.

The fourth purpose is to provide the reader with the legal and ADR public policy context within which employment discrimination disputes have been and are currently being resolved, pursuant to relevant court decisions, policies, and protocols implemented by the EEOC, the federal courts, and private employers. This includes the Supreme Court’s decisions in Alexander v. Gardner-Denver, Gilmer v. Interstate Johnson/Lane, Circuit City, Inc. v. Adams, and 14 Penn Plaza LLC v. Pyett.

Lastly, with this background and through this experiential-based prism, the authors recommend the enactment of legislation entitled the “National Employment Dispute Resolution Act” (NEDRA). NEDRA would require certain covered federal contractors and recipients of federal funds to implement legitimate internal conflict management systems designed to afford EEO/employment disputants early access to ADR processes such as ombudspersons, private fact-finders, and mediators. Because NEDRA would apply to certain federal contractors and recipients of federal funds, the authors further propose that NEDRA be enacted as a Presidential Executive Order.

Keywords: dispute resolution, conflict resolution, ADR

JEL Classification: J52

Suggested Citation

Stallworth, Lamont Edward and Kaspar, Daniel J., Employing the Law to Provide 'Early Access' to Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA) (2012). Ohio State Journal on Dispute Resolution, Vol. 28, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2319698

Lamont Edward Stallworth

Loyola University of Chicago ( email )

Daniel J. Kaspar (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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