B. Arbitration As A Forum For Discrimination Claims

• Jurisdiction: New York

B. Arbitration as a Forum for Discrimination Claims

Increasingly, discrimination claims are being determined in arbitration under the terms of collective bargaining agreements and individual employment agreements.

In Alexander v. Gardner-Denver Co.,²²⁷ the Supreme Court held that a grievance arbitration decision finding no discrimination would not bar a subsequent Title VII proceeding alleging the same claims. In 1998 the Supreme Court raised doubt as to the bright line rule established in Alexander. In Wright v. Universal Maritime Service Corp.,²²⁸ the Court suggested that an appropriately written collective bargaining agreement might be sufficient to waive an individual member's right to sue in federal court. The Court found it unnecessary to resolve the issue, since it found that even if a waiver were permissible, the particular waiver involved in the case was not sufficiently broad.

In 14 Penn Plaza LLC v. Pyett,²²⁹ the Supreme Court, without formally overruling Alexander, resolved the issue left open in Wright by concluding that the terms of a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate statutory discrimination claims is enforceable. In considering the scope and implications of the Pyett decision, the general practitioner should be aware of the explicit and comprehensive nature of the contract clause at issue:

§ 30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

In Collins v. New York City Transit Authority,²³⁰ the Second Circuit found that even though an adverse arbitration award will not be granted preclusive effect under Alexander, the award can be used as evidence to demonstrate that the plaintiff cannot demonstrate a causal link between the alleged discrimination and the adverse...