U.S. Supreme Court Accepts Mandatory Arbitration of Discrimination Claims for Unionized Employees

The United States Supreme Court recently ruled that a union could contract away a union member’s rights to pursue a statutory discrimination claim in court. In 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court considered whether a union member with an age discrimination claim under the Age Discrimination Employment Act (“ADEA”) could be required to privately arbitrate the claim rather then pursue it in court. Surprisingly, a divided Supreme Court concluded that a union member could be mandated by a collective bargaining agreement (“CBA”) to arbitrate a statutory discrimination claim.

In order for the CBA to mandate such, however, it must be “clear and unmistakable.” Writing for the Court’s majority, Justice Clarence Thomas held that where the union and the employer have specifically agreed that employment discrimination claims be arbitrated, a union member employee will only be able to pursue the claim in arbitration, despite that federal anti-discrimination law provides for a right to pursue a civil action.
The Supreme Court’s decision reaffirms its preference for alternative dispute resolution, despite that in prior cases it had rejected mandatory arbitration as a meaningful substitute to secure rights under anti-discrimination laws.
CBAs generally set forth the terms and conditions of a union members employment. Nevertheless, it was widely accepted that although a union had the right and authority to bind its members to various terms and conditions of employment, a union could not waive its union members’ rights to enforce their civil rights in court actions. Consequently, most CBAs probably do not contain the clear and unmistakable language that the CBA in 14 Penn Plaza, L.L.C. contained.
The ramifications of the decision, if any, will be seen in the next few years, and will depend upon a union’s willingness to accept the responsiblity for pursuing discrimination claims on behalf of employees in the arbitral forum. Indeed, by agreeing to waive an employee’s right to pursue such claims in court, a union assumes greater responsibilities and potential liability for refusing to pursue a claim on a union member’s behalf. Indeed, if a union refuses to pursue a discrimination grievance on behalf of a member, the member could allege a breach of the duty of fair representation, although such claims are difficult to maintain because a union has substantial discretion in refusing to pursue a union member’s grievance. Time will tell.

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