Employment Discrimination, Labor and Employment Arbitration, and the Case Against Union Waiver of the Individual Worker's Statutory Right to a Judicial Forum

Abstract

This article focuses on a significant issue and development at the interface of employment discrimination law and labor law: the legality of mandating the litigation of an employee's statutory antidiscrimination claim in a collectively-bargained arbitral, and not a judicial, forum. I argue that a union-employer labor agreement's waiver of an individual employee's right to pursue his or her antidiscrimination lawsuit in court should not be enforceable absent the employee's independent, express, knowing, and voluntary relinquishment of that right. The issue addressed in this article is of particular interest given the United States Supreme Court's recent grant of certiorari in Pyett v. Pennsylvania Building Company, wherein the Court will review the United States Court of Appeals for the Second Circuit's holding that a mandatory arbitration clause in a collective bargaining agreement was unenforceable to the extent that the clause waived the rights of individual workers to a judicial forum for the litigation of their federal statutory causes of action.

Keywords: labor law, employment law, discrimination