§9.4 Judicial Enforcement
Library | Labor and Employment Law: Private Sector (OSBar) (2011 Ed.) |
§9.4-1 Suits by the EEOC
The Equal Employment Opportunity Commission (EEOC) is empowered to bring a civil action against any respondent that is not a governmental unit. Cases against governmental units are referred to the attorney general. The charging party has the right to intervene in a civil action brought by the EEOC or the attorney general. 42 USC §2000e-5(f)(1).
§9.4-2 Suits by Individuals
An individual charging party may file a civil action if the Equal Employment Opportunity Commission fails to file suit or if a conciliation agreement has not been entered into resolving the charge. 42 USC §2000e-5(f)(1).
§9.4-2(a) Administrative Preliminaries
To bring a civil suit under Title VII, a plaintiff must first have filed a timely administrative charge with the Equal Employment Opportunity Commission (EEOC). EEOC v. Dinuba Med. Clinic, 222 F3d 580, 585 (9th Cir 2000); see 42 USC §2000e-5(f)(1). A civil action by a charging party must be filed in court within 90 days after receiving notice that the EEOC has been unable to enter into a conciliation agreement, that the EEOC has issued a notice of no reasonable cause to believe that discrimination has occurred, or that the EEOC has issued a right-to-sue letter upon request of the complainant. 42 USC §2000e-5(f)(1). However, the running of the time period may be interrupted under the principle of equitable tolling. Zipes v. Trans World Airlines, 455 US 385, 393, 102 S Ct 1127, 71 L Ed2d 234 (1982); Valenzuela v. Kraft, Inc., 801 F2d 1170, 1174 (9th Cir 1986), amended, 815 F2d 570 (9th Cir 1987). The 90-day time period generally begins when the plaintiff or the plaintiff's lawyer receives the notice, whichever occurs first. Gonzalez v. Stanford Applied Engineering, Inc., 597 F2d 1298, 1299 (9th Cir 1979).
§9.4-2(b) Arbitration Issues
The Federal Arbitration Act (FAA) provides that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 USC §2. The purpose of the FAA was "to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts." Gilmer v Interstate/Johnson Lane Corp., 500 US 20, 24, 111 S Ct 1647, 114 L Ed2d 26 (1991).
A provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate claims is enforceable as a matter of federal law. 14 Penn Plaza LLC v. Pyett, 556 US 247, 129 S Ct 1456, 1474, 173 L Ed2d 398 (2009). Similarly, arbitration clauses in a nonunion setting (e.g., in securities registration forms, employee handbooks or applications, or individual employment agreements), have also been enforced. In Gilmer, the Supreme Court held that an employee could waive the right to bring an Age Discrimination in Employment Act suit in court via the compulsory arbitration provision in a securities registration form (commonly signed by brokers and others employed in the securities industry). Gilmer, 500 US at 23. The Court later held that the FAA applied to arbitration agreements signed by most employees (other than those in certain transportation jobs). Circuit City Stores, Inc. v. Adams, 532 US 105, 109, 121 S Ct 1302, 149 L Ed2d 234 (2001). In Circuit City, the plaintiff had signed an arbitration agreement when he applied for work with the employer. The Court held that this agreement could be enforced under the FAA when the employee later brought a suit against the employer for violation of a state antidiscrimination law.
PRACTICE TIP: Lawyers representing plaintiffs who have signed arbitration agreements in connection with their employment must research this issue carefully, and anticipate responding to a motion to compel enforcement of the arbitration agreement.
§9.4-2(c) Concurrent Jurisdiction
State and federal courts have concurrent authority to adjudicate claims under Title VII. Yellow Freight Sys., Inc. v. Donnelly, 494 US 820, 821, 110 S Ct 1566, 108 L Ed2d 834 (1990). The Court in Yellow Freight began with the text of Title VII, finding no language that expressly confined jurisdiction to the federal courts. Despite a showing that most legislators, judges, and administrators who have been involved in the enactment, amendment, enforcement, and interpretation of Title VII expected the federal courts to have exclusive jurisdiction, the Court found that expectation "does not overcome the presumption of concurrent jurisdiction that lies at the core of our federal system." Yellow Freight Sys., 494 US at 826.
§9.4-2(d) Jury Trial
Under the Civil Rights Act of 1991, any party may demand a jury trial in an intentional discrimination case in which the plaintiff seeks compensatory or punitive damages. 42 USC §1981a(c).
§9.4-2(e) Court-appointed Lawyer
Upon application by the complainant and in circumstances that the court deems just, the court may appoint a lawyer for the charging party and may authorize the action to commence without the payment of filing fees. 42 USC §2000e-5(f)(1).
§9.4-3 Class Actions
A plaintiff may maintain a class action on behalf of similarly situated employees or applicants upon...
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