Supreme Court Upholds Mandatory Arbitration of Discrimination Claims Under Union Contracts

The following is a reprint of a client alert authored by EBG Attorneys Michael A. Levine, Evan J. Spelfogel, and Steven M. Swirsky.  It should be of interest to all private sector Florida employers with unionized employees.

On April 1, 2009, the United States Supreme Court issued its long-awaited decision in 14 Penn Plaza LLC, et al., v. Steven Pyett et al., No. 07-581, 556 U.S. ___ (2009), upholding mandatory arbitration of statutory employment discrimination disputes under union collective bargaining agreements. This decision is of potentially great significance to those employers who are currently defending employment discrimination claims brought by employees covered by such contracts. Under the Court’s 14 Penn Plaza decision, employers may now have a basis to move to dismiss such claims on the grounds that they must be grieved and arbitrated and may not be the basis of private discrimination litigation brought by the employees. The decision also offers a way to help ensure that future employment discrimination claims proceed through arbitration, rather than through burdensome and time-consuming litigation.

The Court’s Decision

The issue before the Court in this case was whether a provision in a collective bargaining agreement ("CBA") that clearly and unmistakably required employees covered by the CBA to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 ("ADEA") was enforceable. The Second Circuit United States Court of Appeals held the Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, forbade enforcement of such arbitration provisions, stating an employee could pursue such a claim in court notwithstanding the terms of the contract between the employee’s union and employer.

The CBA was between the Realty Advisory Board on Labor Relations, Inc. ("RAB"), a multi-employer bargaining association for employers in the New York City real estate industry, and Service Employees International Union, Local 32BJ ("Union"). The CBA required covered employees to submit all claims of employment discrimination to binding arbitration under specified dispute resolution procedures. After a change in business operations, a number of jobs were reassigned and the employees filed grievances challenging the reassignments. The grievances alleged that the job reassignments violated the CBA’s seniority provisions and the ADEA’s prohibition against age discrimination. During the arbitration proceedings, the Union withdrew the age discrimination claims but continued to pursue the employees’ claims that their contractual seniority and overtime rights had been violated, which claims were subsequently denied by the arbitrator. The employees then filed a complaint with the EEOC, alleging age discrimination under the ADEA. After the EEOC issued a right-to-sue letter, the employees filed suit in the United States District Court for the Southern District of New York, alleging the changes in their assignments violated the ADEA and applicable New York state and city laws prohibiting age discrimination. The employer responded by filing a motion to compel arbitration of the age discrimination claims, under the Federal Arbitration Act.

The District Court denied the motion because, it said, "Even a clear and unmistakable union negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable." It cited in support the decision of the United States Supreme Court in Gardner-Denver. The Court of Appeals for the Second Circuit affirmed, holding that Gardner-Denver remained the law and that a CBA could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.

In reaching its decision, the Second Circuit recognized that Gardner-Denver was "in tension" with the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), where the high court held that an individual employee who had agreed to waive rights to a federal forum could be compelled to arbitrate a federal age discrimination claim. The Second Circuit also noted the Supreme Court had previously declined to resolve this tension in its 1998 decision in Wright v. Universal Maritime Services Corp., 525 U.S. 70, 82 (1998), finding that the waiver at issue was not "clear and unmistakable."

In the Court’s 5 to 4 majority opinion in 14 Penn Plaza, Justice Thomas pointed out that the Union had negotiated on behalf of the employees and RAB had negotiated on behalf of 14 Penn Plaza, each had bargained in good faith and they had together agreed that all employment-related discrimination claims, including claims under the ADEA, would be resolved through arbitration. This, the majority found, was a freely negotiated term between the Union and RAB that readily qualified as a "condition of employment" that was subject to "mandatory bargaining" under the National Labor Relations Act ("NLRA"). Such contractual arbitration provisions, the Supreme Court said, must be honored unless Congress, in enacting the ADEA, had itself removed this particular class of grievances from the NLRA’s broad sweep in the field of labor-management relations. Since the ADEA did not preclude arbitration (and the Supreme Court had so held in Gilmer), the Court found the employees were bound to arbitrate their age discrimination claims. Arbitration, the Court noted, did not deprive the employees of any substantive statutory rights; rather, it merely was a substitute for a judicial forum.

In summarizing, the Supreme Court stated that its examination of the two federal statutes at issue in the case, the NLRA and the ADEA, yielded a straightforward answer to the question presented: the NLRA provides the Union and the RAB with the statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not limit that authority in the ADEA. Accordingly, the Court held, there was no legal basis for it to strike an arbitration clause that was freely negotiated and which clearly and unmistakably required the parties to arbitrate the age discrimination claims at issue.

In reaching its decision, the Supreme Court did not overturn Gardner-Denver but went to great lengths to narrow the holdings and invalidate dicta in Gardner-Denver and its progeny. The employees in 14 Penn Plaza argued that allowing a union to waive their right to a judicial forum in discrimination cases would substitute the union’s interests for the employees’ right to protection against discrimination, and that unions did not always represent the interests of certain of the employees as is their legal duty. The Court expressly rejected these arguments. The majority found that Gardner-Denver, Barrantine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) and McDonald v. West Branch, 446 U.S. 284 (1984) were all distinguishable from 14 Penn Plaza because, in each of those cases, the grievance and contractual arbitration provisions at issue did not expressly encompass statutory discrimination claims, as did the CBA between the RAB and the Union. In this regard, the Court noted that in 14 Penn Plaza, the Union-RAB CBA not only contained express anti-discrimination language referencing the ADEA specifically but, most significantly, it also identified as disputes that were required to be arbitrated under the CBA’s arbitration mechanism, all alleged violations of the enumerated anti-discrimination statutes.

Justice Thomas’ opinion, in which he was joined by Chief Justice Roberts and Justices Scalia, Kennedy and Alito, resolves, at least for the moment, the question of whether and in what circumstances contractual provisions calling for the mandatory arbitration of statutory discrimination claims that arise under collective bargaining agreements that expressly cover such claims and provide for arbitration of such claims, will be upheld. Further, the majority justices went to great lengths once again to emphasize their preference for arbitration and to reject judicial suspicion of arbitration’s desirability or arbitral tribunals’ competence to resolve statutory discrimination claims. Arbitral tribunals, the majority stated, are readily capable of handling the factual and legal complexities of statutory claims, and there is no reason to assume that arbitrators will not follow the law.

Addressing the concern that unions might not always rigorously pursue a bargaining unit employee’s discrimination claims, Justice Thomas highlighted the duty of fair representation imposed on labor unions by the NLRA, and the fact that an employee would have a claim against the union for breach of that duty if it were to be found to have discriminated or otherwise been guided by bad faith in addressing an employee’s grievance over discrimination. Thus, a union itself would be subject to liability under the NLRA if it illegally discriminated against older workers in either the negotiation or enforcement of a CBA or in deciding whether to pursue a grievance on behalf of an employee for discriminatory reasons. Further, notwithstanding 14 Penn Plaza, under the Supreme Court’s 2002 decision in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), employees covered by arbitration agreements retain the right to file age and other statutory discrimination claims with the EEOC, which may initiate court action and seek judicial intervention, although not financial remedies for the adversely affected employees. In sum, the Court noted, Congress has already provided remedies to employees if a union is less than vigorous in addressing its members’ discrimination claims.

Significant Impact for Employers

The 14 Penn Plaza v. Pyett decision has a number of significant and immediate practical implications for employers whose employees are covered by union contracts. These relate to any pending claims of discrimination and the defense of future claims, as well as future union contract negotiations.

First, employers with CBAs should examine their non-discrimination and arbitration provisions to determine if these provisions are within the scope of the 14 Penn Plaza decision and require arbitration of pending and future statutory discrimination claims without more expensive and time-consuming judicial proceedings. In those instances where contract language is either ambiguous or would not support arbitration under 14 Penn Plaza, employers should consider whether to seek to secure the inclusion of such terms in their contracts as they come up for renegotiation. Well-crafted revisions could potentially enable employers to limit dramatically the litigation of a significant number of discrimination cases and the potential for runaway jury verdicts.

Second, employers with existing union contracts prohibiting discrimination should review any pending discrimination litigation involving covered employees to determine whether there is a basis for motions to dismiss such claims under 14 Penn Plaza, and if so, to take timely and appropriate action based upon such analysis.

Of course, all of this may become moot if, as it did with Ledbetter, Congress ultimately moves to amend the ADEA and other federal anti-discrimination laws to expressly preclude the arbitration of such claims.

Eleventh Circuit Upholds "Open Door" Dispute Resolution Policy and Compels Arbitration

Eleventh Circuit Courthouse in AtlantaIn previous posts I've discussed cases that illustrate the judicial preference in Florida to uphold mandatory arbitration agreements. A recent decision by the Eleventh Circuit Court of Appeals, Lambert v. Austin, Ind., Case No. 07-10651 (11th Cir., October 7, 2008),  illustrates the same judicial preference at the federal level.

Austin Maintenance & Construction, Inc., a general contractor, has  a company-wide workplace dispute resolution program, which it calls “Open Door” policy. The Open Door policy has a three-step process for resolving workplace disputes—a conference with a supervisor higher up the chain of command, followed by mediation, and, as a last resort, arbitration. Austin requires that new employees agree to the Open Door policy as a condition of employment. In particular, Austin’s Application for Employment requires that newly-hired employees agree “to be bound by and accept as a condition of employment the terms of Open Door.” In addition, at orientation, Austin provides newly hired employees with a pamphlet which states that employees “agree to waive [their] right to a trial in a court of law, and [] agree instead to resolve all legal claims against Austin through Open Door.” The pamphlet also states that Austin also “waives its right to trial in a court of law and agrees to resolve such disputes through Open Door.”

William Lambert was hired by Austin in 2001. In 2005, Austin terminated Lambert’s employment because, according to Austin, Lambert threatened a supervisor during a meeting five days
earlier. Lambert claimed that he was terminated because of race and age, and in retaliation for his prior complaints of race discrimination, and brought suit in federal court.  Austin moved the district court to stay proceedings and compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., based upon the Open Door policy.  The district court denied the motion to compel arbitration.  On appeal, the Eleventh Circuit reversed.

In its decision, the court notes that in federal court, the validity of an arbitration agreement is governed by the Federal Arbitration Act. 

Under the FAA, a written agreement to arbitrate is "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Accordingly, the FAA requires a court to either stay or dismiss a lawsuit and to compel arbitration upon a showing that (a) the plaintiff entered into a written arbitration agreement that is enforceable “under ordinary state-law” contract principles and (b) the claims before the court fall within the scope of that agreement.

The court found that the Open Door policy was a valid and enforceable agreement under state law.  Turning to the second question -- whether Lambert's claims fell within the scope of the agreement -- the court noted “[t]he FAA creates a presumption in favor of arbitrability; so, parties must clearly express their intent to exclude categories of claims from their arbitration agreement.” The court found no such intent.  Instead, the court found that the language of the Open Door policy expresses "a broad, all-inclusive desire to arbitrate disputes, especially disputes based on age and race discrimination."

Clients occasionally ask me whether they should adopt a mandatory arbitration policy such as Austin's.  It's a difficult question to answer, but I generally disfavor mandatory arbitration.  One supposed advantage to arbitration is that it's faster and therefore less expensive.  That may be true if the employee doesn't challenge the arbitration agreement in court, as Lambert did.  If the employee challenges the agreement, you may find yourself in court before you even get to arbitration.  An arbitrator's decision may also be less favorable to an employer than what it might achieve in court, as Long John Silver's learned recently.  Also, it's difficult to get cases in arbitration dismissed on pretrial motions.  Arbitrators like to hear cases on the merits with live witnesses.  Federal judges have busy caseloads and are not reluctant to dismiss cases that clearly lack merit.  So my personal preference is to duke it out in court rather than in front of an arbitrator.  But I welcome your comments on this issue.  


Fourth DCA Upholds Unsigned Mandatory Arbitration Policy

Fourth District Court of AppealsLast month I reported on a decision from the Fourth District Court of Appeals, United Healthcare of Florida v. Brown, that evinced the judicial preference in Florida to enforce arbitration agreements. Another recent decision by the Fourth District Court of Appeals further illustrates this preference.

In Santos v. General Dynamics Aviation Service Corp., Case No. 4D07-5067 (Fla. 4th DCA, June 25, 2008), the employer had a Dispute Resolution Policy (DRP) which covered employment-related claims including employment discrimination and harassment. The DRP stated that arbitration was the “sole and exclusive forum and remedy for all Covered Claims,” and that the parties agreed to waive any right to jury trial for a covered claim. The DRP further provided that “the continuation of employment by an individual shall be deemed to be acceptance of the DRP. No signature shall be required for the Policy to be applicable.”

In September 2006, Santos filed an administrative complaint with the Palm Beach County Office of Equal Opportunity (OEO), which forwarded the complaint to the Florida Commission on Human Relations (FCHR). General Dynamics participated in the administrative process and defended itself against Santos’ claims.

The FCHR had not yet reached a determination when, in July 2007, Santos filed a complaint against General Dynamics in circuit court. Santos brought claims of employment discrimination and retaliation pursuant to the Florida Civil Rights Act (FCRA) alleging that he was “unjustly terminated . . . because of his national origin (Puerto Rican and Dominican) and because of his complaints of discrimination.”

When Santos filed his complaint in circuit court, General Dynamics filed a motion to compel arbitration and stay of judicial proceedings pursuant to the Federal Arbitration Act (FAA). General Dynamics alleged Santos' claims fell within the DRP and asked the court to compel arbitration as Santos did not voluntarily agree to submit his claims to arbitration.

The trial court granted General Dynamic's motion to compel arbitration. Santos appealed the trial court's order and argued on appeal: (1) by failing to raise the issue of arbitration during the OEO complaint process, General Dynamics waived its right to arbitration and was estopped from filing a motion to compel arbitration; (2) there was never a valid agreement between the parties to submit claims to arbitration because he never signed the policy and there was no consideration as General Dynamics imposed the DRP after he was employed; (3) claims brought under the Florida Civil Rights Act are not subject to arbitration because the legislature set up a statutory right for individuals to have their day in court; (4) the agreement did not apply to Santos because it stated that it was applicable to employees of “Gulfstream Aerospace Corporation” and “its direct and indirect subsidiaries” and did not identify General Dynamics as one of those direct or indirect subsidiaries.

In its decision, the Fourth DCA addressed only the validity of the arbitration agreement. As to Santos’ other arguments, the court simply opined that "they are not persuasive, and affirm without further discussion.”

Turning to the validity of the arbitration agreement, the court held that “the Federal Arbitration Act (FAA) applies to the agreement between General Dynamics and Santos because General Dynamics is engaged in interstate commerce and the term 'involving commerce' is to be interpreted broadly.” The court went on to cite its previous decision in BDO Seidman, LLP v. Bee, 970 So. 2d 869, 874 (Fla. 4th DCA 2007), for the proposition that an arbitration agreement does not need to be signed to satisfy the written agreement requirement of the FAA.  The court held that Santos's continued employment with General Dynamics after his receipt of the DRP demonstrated his assent to the agreement. Finally, the court held that there was sufficient consideration to support the DRP because the agreement created a mutual obligation to arbitrate. Accordingly, the court affirmed the trial court’s order granting the company’s motion to compel arbitration.

As the Santos and United Healthcare of Florida decisions illustrate, employers are likely to face little resistance from Florida courts in enforcing mandatory arbitration agreements for employment-related disputes. This is true even where the agreement is not signed by the employee.  A mandatory arbitration policy in an employee handbook can suffice to establish an enforceable policy. 

Fourth DCA Upholds Mandatory Arbitration Policy

Florida law generally favors agreements to arbitrate, and a recent decision by the Fourth District Court of Appeals illustrates this principle.  In United Healthcare of Florida v. Brown (Case No. 4D07-4539, 4th DCA, June 4, 2008) (which you can find here), the court held that an employee was bound to arbitrate her employment-related claim (the opinion does not state what her claim was), because in 2000 she had signed her employer's Internal Dispute Resolution/Employment Arbitration Policy.  The policy, which had been implemented in 1999, required the employee to "resolve all employment-related disputes which are based on a legal claim through final and binding arbitration."  Interestingly, in 2002 the employer implemented a new, but similar, arbitration policy, which the employee did not sign.  Nevertheless, the Fourth DCA, evincing the judicial preference to enforce arbitration agreements, held that, having signed a 2000 acknowledgment that incorporated the 1999 arbitration policy, the employee was estopped from denying the validity of the new agreement.

Whether mandatory arbitration of employment-related claims is a good thing for employers is a debatable issue which I will address in future posts.  In the meantime, be advised that employers cannot require employees to sign an arbitration policy that would cover a pending EEOC charge.  An employee's refusal to sign an arbitration policy under these facts is protected activity, according to a January 2008 decision by the Eleventh Circuit Court of Appeals, Goldsmith v. Bagby Elevator, Case No. 06-14440 (11th Cir., January 17, 2008).