Arbitration of accommodation in US workplaces: employee, stakeholder and human resources characteristics

• DOI: http://doi.org/10.1111/irj.12308
• Published date: 01 September 2020
• Author: Ivana Zilic,Helen LaVan
• Date: 01 September 2020

Arbitration of accommodation in US

workplaces: employee, stakeholder and

human resources characteristics

Ivana Zilic and Helen LaVan

ABSTRACT

This research examines how arbitrators consider accommodations for employees with

physical and mental illnesses. Unlike other recent research on the subject, the authors

specifically and purposely draw their sample from recent US arbitration cases—2015

to 2018, n= 209. Additionally, using content analysis software, NVIVO, the case char-

acteristics were autocoded, and the case outcomes were manually coded. Using logis-

tic regression, the following model was developed to predict the odds of case

outcomes: disability, injury, discrimination, retaliation, absence and reinstatement.

The Cox and Snell and Nagelkerke analysis indicates that our model accounts for ap-

proximately 15.6 to 21.5 per cent of the variance, with 33.3 per cent of the individual

and split arbitration cases outcomes and 91.2 per cent for organisation arbitration

cases correctly predicted. The model predicts 71.2 per cent of the cases.

1 INTRODUCTION

At any one time, a significant number of employees are physically or mentally unable

to work. Under various federal and state laws, their employers are legally required to

make reasonable accommodation. In some cases, when this accommodation is not

made, individuals may pursue their rights through arbitration or litigation. The cur-

rent study explores how individuals who are physically or mentally unable to work

pursue their rights through arbitration. The requirement to arbitrate can exist even

if no union is present. It can be expected that arbitration will increasingly be used

as an alternative dispute resolution mechanism given that increasingly mandatory ar-

bitration is being required (Colvin, 2018). Mandatory arbitration is a practice in

which a business requires employees or consumers to agree to arbitrate disputes with

the employer rather than going to court.

The issue that this research seeks to address is how individuals are accommodated

in the workplace through arbitration under the Americans with Disabilities Act

(ADA). According to Kaminer (2016), the ADA in 1990 protects individuals from

disability based on discrimination. There are several goals of the ADA,

Kaminer (2016) states that one of those goals was to confirm ‘economic

❒Ivana Zilic, Department of Management and Entrepreneurship, Richard H. Driehaus College of

Business, DePaul University, Chicago, Illinois USA and Helen LaVan, Department of Management and

Entrepreneurship, Richard H. Driehaus College of Business, DePaul University, Chicago, Illinois USA.

Correspondence to Clinical ProfessorIvana Zilic,Departmentof Managementand Entrepreneurship, Richard

H. Driehaus College of Business, DePaul University, 1 E. Jackson Blvd., Suite 7100, Chicago, IL 60604, USA.

Email: izilic@depaul.edu

Industrial Relations Journal 51:5, 454–473

ISSN 0019-8692

© 2020 The Authors. Industrial Relations Journal published by Brian Towers (BRITOW) and John Wiley & Sons Ltd

This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial‐NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non‐commercial

and no modifications or adaptations are made.

self‐sufficiency for disabled individuals’. She also specified that the ADA was ineffec-

tive in prohibiting discrimination against individuals with disabilities. Because of this

ineffectiveness, an amendment, ADA Amendment Act, was passed. It expanded the

definition of disability. As a result, individuals with disabilities were more protected.

The timing of this research issue seems to be propitious in that alternative dispute

resolution mechanisms are under scrutiny for the impact they can have on the resolu-

tion of workplace disputes. Moreover, there is the aspect of court rulings that en-

dorsed arbitration for the resolution of statutory disputes. At the same time, the

25th anniversary of the passage of the ADA (2016) created additional attention on

the extent to which individuals with disabilities are protected.

This is a study to investigate how arbitrators accommodate in their decisions. A few

different aspects of accommodation are being explored in this research. First, what

accommodations are made for disabled (Foster and Scott, 2015; Nevala

et al., 2015; William, 2016; William et al., 2019)? How are employees with mental ill-

nesses accommodated (Hudson, 2016; Iannozzi, 2015; Kaminer, 2016; LaVan, 2019;

Link et al., 2018; Nardodkar et al., 2016)? How does accommodation differ when the

arbitration involves a discipline‐related issue (Allen and Lucero, 1998; Brand

et al., 2008; Cooper, 2011; LaVan, 2007; Saundry et al., 2011; Wood et al., 2017)?

Do the conditions of absence (Preece, 2019; Taylor et al., 2010) or the issue of rein-

statement (Skivington et al., 2016) change the nature of the accommodation? What

about those situations involving discrimination (Berrey et al., 2012; Cooney, 2003;

Lamare and Lipsky, 2019; Levinson, 2013) or retaliation (Cooney, 2003;

Green, 2014)?

2 LITERATURE REVIEW

2.1 Efficacy of arbitration as a mechanism for dispute resolution

There have been concerns raised in the past that ADR, in general, contributes to dis-

crimination (Bachar and Hensler, 2017; Lamare and Lipsky, 2019). According to

Lipsky (2015), when it comes to the arbitration, resolving violations of antidiscrimi-

nation statutes at work is a focus of ongoing policy debates. His research results are

indicating that discrimination claims largely fared worse in arbitration than did other

statutory or non‐statutory claims, but that arbitration systems are capable of mean-

ingful self‐reform. Hickox and Hall (2018) in their examination of arbitration claims

for accommodation included cases from 1993 to 2016. Their focus was on accommo-

dation requests for physical disability reasons. Lucero and Allen (2018) in their recent

study of arbitration cases focused on provocation, which they view as the precursor to

retaliation.

Many researchers are arguing about ‘modern’pressures of forced arbitration. In

terms of forced arbitration, Stempel (2007) mentioned that consumers, employees

and many legal scholars have criticised the use of mandatory arbitration. According

to him, the Federal Arbitration Act results in workers being forced to arbitrate

work‐related disputes. This result is inconsistent with at least the spirit of the law,

which includes a specific section that can reasonably be read as taking employment

matters outside the scope of the Act. Comsti (2014) reported that the general public

is beginning to recognise that forced arbitration prevents their ability to enforce their

statutory rights. He stated that in 2009, a public opinion poll commissioned by The

Employee Rights Advocacy Institute for Law & Policy and Public Citizen found that

455Accommodation in workplace arbitration

© 2020 The Authors. Industrial Relations Journal published by Brian Towers (BRITOW) and John Wiley & Sons Ltd