Should Unionized Employers Consider Mandatory Arbitration of Discrimination Claims Under Their Labor Agreements?
Earlier this year, the United States Supreme Court held that a provision in a collective bargaining agreement that requires workers to grieve and arbitrate claims based on anti-discrimination statutes, and thereby waive their rights to sue such claims in court, is enforceable, if it clearly and unmistakably requires union members to arbitrate such claims. 14 Penn Plaza LLC v. Pyett. Critical to the court's holding was the fact that the arbitration clause before it explicitly covered statutory discrimination claims and required the arbitrator to apply the relevant statutory and case law in resolving such claims
The Court's decision creates an opportunity for unionized employers to evaluate whether mandatory arbitration of discriminating claims is a prudent strategy given the conditions facing their businesses. This is not a simple analysis. It requires evaluation of the potential cost and time savings from arbitration, the advantages and disadvantages of having an arbitrator as opposed to a jury decide the case, and the vastly different standards of review on appeal from the two types of decisions.
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