Jay Waks Comments on U.S. Supreme Court Decision on Enforcement of Contract Requiring Employees to Arbitrate Bias Claims

April 2, 2009

Jay W. Waks, Partner, Litigation and Chair, Employment & Labor Law Practice, was quoted in the April 2, 2009 BNA Daily Labor Report in the article titled “Justices 5-4 Back Enforcement of Contract Requiring Employees to Arbitrate Bias Claims,” and the April 2, 2009 Workforce Management article titled “Agreements Can Force Discrimination Arbitration, High Court Rules.” The articles discuss the U.S. Supreme Court’s 5-4 decision that a collective bargaining agreement that “clearly and unmistakably” requires employees to arbitrate claims of Age Discrimination is enforceable as a matter of federal law (14 Penn Plaza LLC v. Pyett, U.S., No. 07-581).  Mr. Waks called the ruling a “landmark decision that arbitration is hospitable to statutory claims of employees covered by collective bargaining agreements as long as the arbitration provision is clear and unmistakable.”  Mr. Waks added “the court was careful to make its decision on the law, and the decision leaves to lower courts the task of determining whether an arbitration provision clearly and unmistakably covers statutory claims.”

Though Mr. Waks questioned the practical impact of the court's decision, predicting that a limited number of employers and unions will actually choose to negotiate arbitration provisions that cover statutory bias claims, the Supreme Court decision at least “closes the loop” on a legal controversy by holding that a clear provision in a collective bargaining agreement can be an enforceable mechanism for resolving statutory claims of discrimination.  “The ruling gives employers the ability to raise with unions in collective bargaining the concept of channeling discrimination claims to arbitration,” Mr. Waks said.

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