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Employee Rights and Employment Policy Journal


Volume 1 1997 Number 1

REFLECTIONS ON GILMER* AND COLE**

SUSAN A. FITZGIBBON***

I. INTRODUCTION

[P.221]On May 21, 1997, during the Fiftieth Annual Meeting of the Na-tional Academy of Arbitrators the following statement, approved by the Board of Governors was distributed to the members:

    STATEMENT OF THE NATIONAL ACADEMY OF ARBITRATORS ON INDIVIDUAL CONTRACTS OF EMPLOYMENT

    The National Academy of Arbitrators opposes mandatory em-ployment arbitration as a condition of employment when it requires waiver of direct access to either a judicial or administrative forum for the pursuit of statutory rights.

    The Academy recognizes that, given current case law, Acad-emy members may serve as arbitrators in such cases. However, members should consider and evaluate the fairness of any employ-ment arbitration procedures in light of the Academy's "Guidelines on Arbitration of Statutory Claims Under Employer-Promulgated Systems."

    GUIDELINES ON ARBITRATION OF STATUTORY CLAIMS UNDER EMPLOYER-PROMULGATED SYSTEMS

    In view of the Supreme Court's decision in Gilmer v. Interstate/ Johnson Lane Corp., these guidelines provide information for mem-bers appointed to hear individual claims alleging violation of federal or state statutes prohibiting discrimination or statutes providing other employee protections. The guidelines are in addition to the requirements of the Code of Professional Responsibility for Arbi-trators of Labor Management Disputes. Members should recognize that in adjudicating a statutory claim they are in some respects acting as substitutes for a court [P.222] rather than serving as the final step of a grievance procedure under a collective bargaining agreement. 1

The theme of the meeting was "The Next Fifty Years" and in view of the developments in employment arbitration over the last fifty years, the statement was understandable. The National Academy of Arbitrators was established in 1947 in part to further labor arbitration as an integral part of the collective bargaining process and it has been devoted to collective bargaining. In 1960 the U. S. Supreme Court sig-nificantly endorsed labor arbitration as practically an essential part of collective bargaining in the Steelworkers Trilogy. 2 At that time and for the next three decades, arbitration pursuant to arbitration clauses in individual employment contracts was relatively rare with cases lim-ited to the negotiated contracts of, for example, top executives, stock-brokers or artists and resolved by commercial arbitrators under the Federal Arbitration Act (FAA) 3 or state statutes. 4 In 1974 the Supreme Court's decision in Alexander v. Gardner-Denver Co. 5 ap-peared to signal a shift of resolutions of certain employment disputes from labor arbitration to administrative and judicial fora.

Today it is undeniable that collective bargaining, as it has existed, is under a broad attack. The technological revolution is one of many causes of the declining numbers of unionized employees. Replace-ment of strikers is the most visible demonstration of anti-union senti-ment of a number of employers. Federal legislation restoring the equilibrium between unions and employers appears to be out of the question. In addition, some federal courts seem disposed to transform labor arbitration into a process of legalistic and sometimes questiona-ble contract interpretation, devoid of its relationship to collective bargaining. 6 [P.223]

Since the mid-1980's there have been some attempts to provide an arbitral forum for the resolution of disputes between non-union employees and employers, prompted in part by the tort and contract causes of action 7 of employees in California and elsewhere. 8 These attempts certainly reflected a recognition of the limited ability of courts to handle increased caseloads but, significantly, they also repre-sented an attitude favoring greater employment security. For exam-ple, the Model Employment Termination Act requires proof of "good cause" for discharge. 9 In other words, if realized, these attempts would have resulted in increased protection of at will employees with-out depriving them of the protection of courts and administrative agencies in cases of statutory rights claims.

The Supreme Court decision in Gilmer v. Interstate/ Johnson Lane Corp. 10 introduced a new reality and with it, a groundswell of opposi-tion to "mandatory arbitration" -- i. e. opposition not only to arbitra-tion of statutory rights but also to "take it or leave it" arbitration clauses offered as a condition of obtaining or retaining a job.

The arbitration clause in a collective bargaining agreement may also appear to lack the true consent of a particular grievant. 11 But [P.224] quite apart from the fact that labor arbitration has been prompted and authorized by law, the labor arbitration process offers unionized em-ployees certain features which are not part of non-union employment arbitration. For example, labor arbitration involves time-tested proce-dures and due process safeguards. Moreover, unions have the experi-ence and the means to select an impartial arbitrator and to represent the employee. The duty of fair representation safeguards the em-ployee's right to be fairly represented in the arbitration process. 12

The obvious differences between labor arbitration and the arbi-tration of statutory claims of non-union employees makes the first paragraph -opposing mandatory arbitration -of the quoted statement of the National Academy of Arbitrators understandable and, perhaps, self-evident. The second paragraph represents a recognition of real-ity. If not for the next fifty years, at least in the foreseeable future, arbitrators experienced in resolving employment disputes will likely face a decrease in the number of grievance arbitration cases and an increase in the number of other employment cases, particularly those involving statutory claims.

It makes no sense to lament reality or the constant changes in society. The purpose of this article is to suggest that the prospect of arbitration of statutory claims of unrepresented employees will not necessarily have a detrimental effect on employees. It may, in fact, provide them some benefits, even though the concept is and remains open to theoretical objections and even though efforts to develop it may present a bumpy road.

II. BACKGROUND

The Supreme Court's decision in Gilmer v. Interstate/ Johnson Lane Corp. 13 that statutory employment discrimination claims could be resolved in arbitration has produced numerous cases testing the limits of the ruling 14 and has prompted a wealth of scholarly articles [P.225] assessing the scope and impact of the decision. 15 The Supreme Court handed down the Gilmer decision in 1991 -the same year in which Congress passed the 1991 Civil Rights Act 16 which, for the first time, provided individuals claiming employment discrimination the right to a jury trial and to punitive damages in suits alleging discrimination under Title VII 17 and one year after Congress passed the Americans with Disabilities Act (ADA) prohibiting discrimination against indi-viduals with disabilities. 18 The 1991 Civil Rights Act and the ADA contain similar provisions encouraging the use of alternative dispute [P.226] resolution including arbitration to resolve discrimination claims 19 but the legislative history suggests that Congressional intent to encourage mandatory, binding arbitration of such claims was at least unclear. 20

All of this prompted some employers to implement mandatory arbitration agreements. 21 Under these agreements, as a condition of hiring or a condition of continued employment or for other considera-tion, 22 employees "agreed" to resolve in arbitration employment dis-putes including, in some cases, claims of employment discrimination. Promulgation of these broad mandatory arbitration agreements prompted widespread scrutiny of the legality and structure of these agreements. For example, the EEOC has taken the position that these agreements cannot be legal, i. e., that such agreements are con-trary to the policy of the statutes which the EEOC administers. 23 The Ninth Circuit imposed a judicial requirement that such agreements were enforceable only if employees entered them knowingly. 24 The National Employment Lawyers Association threatened to boycott some of the major providers of arbitration services including JAMS/ ENDISPUTE and the American Arbitration Association (AAA) for continuing to work with employers which imposed these mandatory arbitration clauses. 25 In response, JAMS/ ENDISPUTE adopted a policy guaranteeing that it would provide arbitration services only if [P.227] certain minimum fair process standards were met. 26 In 1996 AAA adopted a new set of rules for arbitration of employment disputes which incorporate due process standards 27 (after testing them in Cali-fornia 28 ) and which have been recognized as meeting minimum fair process standards. 29 AAA revised these rules effective June 1, 1997. 30

In 1995, a set of due process protocols for arbitration were writ-ten by representatives of the National Academy of Arbitrators, American Bar Association, Society of Professionals in Dispute Reso-lution, National Employment Lawyers Association, Federal Media-tion and Conciliation Service, American Civil Liberties Union and American Arbitration Association. 31 In February 1997 the American Bar Association essentially adopted this due process protocol. 32 The protocol describes minimum standards for fair process in arbitration and essentially reflects a consensus of not only the signatories but also of scholarly commentators as to a number of issues. The protocol, however, like the ADR provisions of the ADA and the 1991 Civil Rights Act, fails to resolve the related questions of the appropriate-ness of mandatory arbitration, 33 what constitutes a knowing agree-ment to arbitrate and the proper level of judicial review of these arbitration awards. 34

The foregoing reinforces the ideas raised in the introduction. The Gilmer decision has created a new reality which has prompted actions and reactions. [P.228]

III. OVERVIEW OF ARBITRATION OF EMPLOYMENT DISCRIMINATION CLAIMS THROUGH THE GILMER DECISION

In 1925 Congress passed the FAA 35 making written agreements to arbitrate future disputes valid and enforceable "save upon such grounds as exist at law or in equity for the revocation of any con-tract." 36 Judicial hostility to arbitration and the refusal of courts to enforce agreements to arbitrate future disputes prompted passage of the FAA. 37 Commercial business persons sought passage of the FAA based on a preference to resolve disputes outside of courts in arbitra-tion, inter alia, because the arbitration process is private, faster and less expensive than court, because the parties may choose a deci-sionmaker with special expertise and because the parties have more control of the process. 38 The FAA also provides very limited grounds on which a court may vacate or modify an award, thus making finality a defining feature and a benefit of the process. 39

In the 1930's governmental encouragement of and the wide-spread negotiation of grievance arbitration clauses in collective bar-gaining agreements in mass production industries significantly contributed to the growth of labor arbitration. 40 During World War II, the War Labor Board, established to resolve labor disputes which might affect the war effort, began to require arbitration clauses in la-bor agreements. 41 The Congressional preference for grievance arbi-tration expressed in the 1947 Labor Management Relations Act (LMRA) 42 ultimately prompted judicial acceptance of labor arbitra-tion. In the Lincoln Mills 43 and Steelworkers Trilogy 44 cases, the Supreme Court interpreted Section 301 of the LMRA 45 and ruled that under a broad arbitration clause doubts as to the scope of an arbitra-tion clause are to be resolved in favor of coverage, 46 and that "[ t] he [P.229] processing of even frivolous claims may have therapeutic value," 47 so even seemingly meritless claims must be resolved in arbitration. The Supreme Court also established that courts may not review the merits of an arbitration award "so long as it draws its essence from the collec-tive bargaining agreement" because otherwise "[ t] he federal policy of settling labor disputes by arbitration would be undermined." 48 The Court thus established as strict a standard of finality for labor awards as Congress and the state and federal courts afforded commercial awards under the FAA and under so-called modern state arbitration statutes. 49

In the Steelworkers Trilogy, the Supreme Court discouraged ap-plying the judicial hostility commonly leveled at commercial arbitra-tion to labor arbitration noting, inter alia, that labor arbitration is a strike substitute rather than a litigation substitute. 50 In the 1953 Wilko v. Swan 51 decision, the Supreme Court cataloged a number of reasons for the judicial hostility to arbitration in the course of ruling that com-mercial arbitration was inappropriate to resolve a statutory claim. 52 In Wilko the Court concluded that Congress intended to preclude final resolution in arbitration of a statutory misrepresentation claim under the Securities Act of 1933. 53

Congress passed Title VII of the Civil Rights Act 54 prohibiting employment discrimination and discharge on the basis of "race, color, religion, sex or national origin" 55 in 1964 and passed the Age Discrim-ination in Employment Act (ADEA) 56 prohibiting employment dis-crimination against older workers in 1967.

As noted in the introduction, the Supreme Court first addressed arbitration of statutory employment discrimination claims in 1974 in Alexander v. Gardner-Denver Co. 57 In Gardner-Denver, the Court [P.230] ruled that an adverse arbitration award rendered pursuant to the grievance procedure of a collective bargaining agreement did not pre-clude an employee from suing his employer for racial discrimination. Although in addition to requiring "just cause" for discharge, the col-lective bargaining agreement in issue prohibited racial discrimina-tion, 58 the Court essentially concluded that deferral to arbitration was inappropriate because "Congress intended federal courts to exercise final responsibility for enforcement of Title VII" 59 and because the arbitration process was deemed to be generally inferior to the judicial process. 60

This recognition of the right of a union employee covered by a collective bargaining agreement to avoid the finality of an arbitration award and to have a "second bite of the apple" prompted concerns for the disruption or demise of the "golden age of labor arbitration." 61 A number of studies of the results, reasoning and relitigation of labor arbitration awards involving statutory claims have allayed these con-cerns. 62 One study of the resolution of discrimination claims in arbi-tration demonstrated that very few cases were relitigated, and less than 7 percent of those were overturned by courts. 63 Studies have also demonstrated that labor arbitrators consider and properly apply fed-eral and state anti-discrimination statutes and regulations. 64 [P.231]

In 1987 the Supreme Court strongly reiterated the very limited scope of judicial review of labor arbitration awards but at the same time reasserted the judiciary's authority to refuse to enforce an award under a collective bargaining agreement on the ground that it violated public policy. 65 Many commentators have criticized the judicial ten-dency to exceed the bounds of judicial review established by the Supreme Court and to overturn labor arbitration awards, destroying the finality of the process so necessary to the peaceful, productive la-bor relations which Congress intended. 66 Judicial interference is pos-sible -some would say, invited -by the existence of a reasoned opinion supporting the labor arbitration award. Courts can hardly re-sist the temptation to consider the merits and to overturn what is viewed as a wrong result (usually an arbitral result which favors the employee) on the ground that the award fails to draw its essence from the collective bargaining agreement or that the award violates public policy. 67

Starting in the late 1960's the Supreme Court began to expand the scope of commercial arbitration under the FAA on a number of fronts ruling, inter alia, that a claim of fraud in the inducement of the entire contact was to be resolved in arbitration if the arbitration clause was broad enough to encompass such a claim, absent evidence of fraud in the inducement of the arbitration clause; 68 declaring a [P.232] pre-sumption that "doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration" based on recognition of the FAA's liberal policy favoring arbitration agreements, 69 and ruling that Section 2 of the FAA creates federal substantive rights which state courts must enforce. 70 Not surprisingly, the Court's development of renewed respect for the commercial arbitration process coincided with overcrowded court dockets and serious concerns for delays in process-ing court cases. 71

The Supreme Court also began to reexamine the question of the arbitrability of statutory claims. In a series of cases which culminated in the overruling of Wilko v. Swan, 72 the Court concluded that statu-tory claims arising under the Sherman Act, 73 the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), Sec-tion 10( b) of the Securities Exchange Act of 1934 74 and Section 12( 2) of the Securities Act of 1933 75 were arbitrable.

Following the analysis of these cases, the Supreme Court then concluded in Gilmer that an individual employee's claim under the ADEA was subject to a pre-dispute arbitration agreement contained in a securities registration application. 76 Writing for the majority, Jus-tice White observed that "[ b] y agreeing to arbitrate a statutory claim a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum." 77

While the plaintiff, Gilmer, conceded that neither the text nor the legislative history of the ADEA expressly precluded the arbitration of age discrimination claims, he sought to show that arbitration was "in-consistent with the statutory framework and purposes of the [P.233] ADEA." 78 The Court addressed Gilmer's contention that Congress designed the ADEA "to further important social policies" as well as to resolve individual claims by noting that this was also true of previ-ous statutory claims deemed arbitrable and that the statute would serve its remedial and deterrent functions as long as claimants could effectively vindicate statutory claims in arbitration. 79 The Court also rejected Gilmer's argument that the EEOC's responsibility to enforce the ADEA would be undermined by final resolution of the claim in arbitration because: (1) claimants could still file charges with the EEOC, (2) under the ADEA the EEOC has independent authority to investigate all discrimination claims even without a formal charge 80 and (3) Congress did not intend EEOC involvement in every age dis-crimination claim. 81

The Court rejected Gilmer's challenges to the adequacy of the arbitration process which was governed by the NYSE arbitration rules noting, inter alia, that the NYSE rules and Section 10 of the FAA pro-tected against arbitral bias and that the NYSE rules provided for suffi-cient discovery, relief and brief written opinions available to the public. 82 Noting that Gilmer was an experienced businessperson and that no evidence of fraud or coercion existed, the Court rejected Gil-mer's assertion that the agreement should not be enforced on grounds of unequal bargaining power in the employment context. 83 The Court also reiterated that "although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitra-tors comply with the requirements of the statute." 84

Finally, the Court distinguished its decision in Alexander v. Gard-ner-Denver on a number of grounds. Because the arbitration clause in Gardner-Denver was part of a collective bargaining agreement, unlike Gilmer, Gardner-Denver did not arise under the FAA. 85 In Gardner-Denver the arbitrator was authorized to resolve contractual rights but lacked authority to resolve statutory claims. 86 Moreover, the parties [P.234] to the agreement to arbitrate in Gardner-Denver were the union and the company and in view of the possible tension between vindication of the individual statutory right and collective representation, the union could not waive and the labor arbitration award did not pre-clude the grievant's right to pursue the statutory claim in court. 87

In sum it is noteworthy that the Congressional preference for pri-vate resolution of labor disputes rests in part on the recognition that a peaceful productive workplace depends upon a healthy working rela-tionship in which the parties can resolve problems expeditiously and finally. While there are great and many differences between a union and a non-union workplace, there still are similarities in working envi-ronments, in the types of disputes which arise and in the fact that em-ployers and employees share an on-going relationship regardless of whether the employees are represented or not.

It is also worth repeating that in Gilmer, the Supreme Court con-cluded that a claimant does not waive a statutory right by agreeing to resolve it in arbitration and that the effective vindication of the statu-tory right in arbitration would serve the remedial and deterrent func-tions of the statute in issue. Effective vindication of a statutory right in arbitration assumes a fair arbitral process 88 and, in the employment discrimination context, an effective remedy should make the individ-ual claimant whole and send an anti-discrimination message to the workplace.

IV. POST GILMER DEVELOPMENTS

Since the Gilmer decision, lower courts have required arbitration of other statutory employment claims including Title VII claims, 89 ADA claims, 90 and Employee Polygraph Protection Act 91 claims among others. 92 While the issue of the justice of resolving these claims in a private arbitration process has been widely scrutinized and [P.235] criticized, 93 it is fair to say that a mandatory arbitration agreement unilaterally imposed by the employer on non-union employees raises the greatest concerns. 94

At the outset, it is noteworthy that currently the use of arbitra-tion to resolve non-union employment disputes is not widespread. 95 A July 1995 study of employers with more than 100 employees con-ducted by the U. S. General Accounting Office (GAO study) revealed that only approximately 10 percent of employers surveyed use arbitra-tion and that only one-fourth to one-half of those programs make ar-bitration mandatory for all covered employees. 96 The GAO study found that the surveyed employers often had arbitration as a final step of a policy which included other alternative dispute resolution meth-ods. 97 While the GAO study found no difference in the use of arbitra-tion based on business size, the survey revealed that businesses with some union workers were three times as likely to use arbitration than businesses with non-union workers. 98 From this it appears that em-ployers who have had experience with labor arbitration have devel-oped sufficient confidence in the arbitration process to adopt it to resolve disputes with non-union employees. 99

Whether increasing numbers of employers will offer or mandate arbitration to resolve these disputes is an open question: the GAO study found that only 8.4 percent of the surveyed employers were [P.236] con-sidering implementing a mandatory arbitration policy for employee discrimination complaints. 100

Results of a more recent survey published in January of 1997 re-veal that nationwide, very few employers have employment arbitra-tion plans for unrepresented employees: the authors found only 68 such employers and of those, 36 participated in the survey. 101 The survey respondents indicated that 75 percent of these plans provided for mandatory arbitration for new employees and 50 percent of the plans required current employers to participate in the arbitration plan. 102 While these percentages of mandatory arbitration plans are much higher than those of the GAO study, the 1997 survey was not designed as a scientific, random sampling and these percentages are based on plans of only 36 employers. This survey also found that the vast majority of these plans cover all unrepresented employees 103 and that most of the plans provide a number of preliminary steps prior to arbitration. 104

Clearly, the Supreme Court's willingness to enforce pre-dispute agreements to arbitrate statutory employment claims and the amend-ments to the Civil Rights Act of 1991 providing a right to jury trial and to punitive damages 105 influenced non-union employers to imple-ment or consider implementing a mandatory arbitration program to resolve employment, including discrimination, claims. 106 Obviously employers fear that juries will be overly sympathetic to employees, will render unpredictable results and will lack the sophistication to handle employment issues. 107 Employer respondents to the 1997 sur-vey most often cited the large and rising costs in time and money con-sumed by litigation of employment claims as the reason for implementing a mandatory arbitration scheme. 108 Related and fre-quently cited additional benefits of arbitration are the opportunity to have an expert (and more predictable) decisionmaker, the privacy of [P.237] the process 109 and the ability to have more control of the process. Of course these may be benefits to employees as well.

At the same time, a number of non-union employers have de-cided to defer adoption of any arbitration plan until the legal ques-tions surrounding the process are resolved. 110 The major unresolved legal issues surrounding these mandatory pre-dispute arbitration agreements to resolve employment claims include: whether Congress will legislate these plans out of existence; whether these agreements are covered by the FAA; to what extent courts will scrutinize and re-fuse to enforce these agreements for lack of knowing employee assent to the process; and the effect of EEOC opposition to resolution of employment discrimination claims in mandatory arbitration. 111

As to the first issue, in the last few sessions of Congress, legisla-tion has been introduced to overturn the Gilmer decision by making unenforceable pre-dispute arbitration clauses pertaining to claims arising under federal anti-discrimination statutes. 112 To date, this leg-islation has not been enacted and it does not appear to be a Congres-sional priority.

In Gilmer, the Supreme Court majority concluded that the arbi-tration clause was part of a securities registration application and thereby side-stepped analysis of the scope of the FAA Section 1 exclu-sion from coverage of "contracts of seamen, railroad employees, or any other class of workers engaged in foreign or interstate com-merce." 113 To date, all circuit courts which have addressed this issue in the non-union context have ruled that the FAA Section 1 exclusion does not cover all contracts of employment which affect commerce. 114 Recent analysis of this issue by Chief Judge Harry T. Edwards of the District of Columbia Circuit is exemplary. In Cole v. Burns, Judge Edwards concluded that FAA Section 1 should be read to exempt from coverage "only the employment contracts of workers actually [P.238] engaged in the movement of goods in interstate commerce" 115 based in part on well-established canons of statutory interpretation and on the Supreme Court's expansive interpretation of the language of FAA Section 2 concerning the FAA's application to agreements "involving commerce." 116

Section 2 of the FAA provides that written agreements to arbi-trate claims arising out of contracts "evidencing a transaction involv-ing commerce . . . shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract." 117 Consequently, under the FAA whether parties have agreed to arbitrate is a question governed by ordinary contract princi-ples. In Prudential Ins. Co. of Am. v. Lai, 118 the Ninth Circuit con-cluded that Congress intended that enforcement of an agreement to arbitrate a Title VII employment discrimination claim requires proof that the employee knowingly entered the arbitration agreement. 119 In Prudential, the court refused to compel arbitration under a securities registration application because NASD rules requiring arbitration did not expressly state that employment disputes were covered 120 and be-cause the employer led the employee to believe she was only applying for a required test, she was given no opportunity to read the form and arbitration was not mentioned. 121 Subsequently the Ninth Circuit and the Sixth Circuit have enforced "knowing" agreements to arbitrate employment claims. 122 The District of Columbia Circuit similarly has enforced an arbitration agreement which emphasized that the em-ployee was relinquishing the right to trial and suggested that the em-ployee consult an attorney before signing. 123 In light of the analysis [P.239] and concerns of these cases, which recognize that arbitration depends on the agreement of the parties, 124 for mandatory arbitration provi-sions to be enforceable, employers should either personally notify em-ployees of the existence of the arbitration clause in the agreement or provide the employee with a sufficient opportunity to read and under-stand the arbitration provision.

Another cloud on the adoption of a mandatory arbitration plan is the EEOC's strong opposition to mandatory arbitration agreements imposed as a condition of initial or continued employment. 125 In a 1995 policy on ADR, the EEOC declared that any ADR program de-veloped or used under EEOC's auspices must further the mission of the agency and be fair, and that fairness requires that parties "know-ingly, willingly and voluntarily enter into an ADR proceeding" and "that a federal forum always be available to an aggrieved individ-ual." 126 The EEOC also has taken the position that mandatory arbi-tration plans are unenforceable in a number of cases. 127 In April 1997, the EEOC released a notice on waivers which provides that "promises not to file a charge or participate in an EEOC proceeding are null and void as a matter of public policy" and that such promises may also constitute separate violations of the anti-retaliation provisions. 128 The EEOC notice states that "individuals possess a non-waivable right to file charges with the EEOC" and that this does not conflict with the public interest in voluntary settlements because, although an individ-ual who has signed a valid waiver may still file a charge with the EEOC, the waiver will still bar the individual's right to recover in his or her own lawsuit or a lawsuit brought on his or her behalf by the EEOC. 129 In July 1997 the EEOC issued a policy statement explain-ing in further detail the Commission's strong opposition to mandatory arbitration agreements imposed as a condition of employment. 130 [P.240]

While the employer's motive may be efficiency, to mandate arbi-tration of employment discrimination claims with no employee re-course to the EEOC allows for allegations of bad faith, and gives the impression of an effort to avoid agency scrutiny because there is some-thing to hide and/ or to skew the results by dictating the process. 131 To be enforceable, mandatory arbitration plans should not limit the em-ployee's right to file charges or cooperate with the EEOC. It is possi-ble that some employers will choose not to implement an arbitration plan because if charges may still be filed with the EEOC, there is no guarantee of complete resolution in arbitration. On the other hand, most charges filed with the EEOC result in the issuance of an individ-ual right to sue letter 132 and an agreement to arbitrate will operate to waive the right to sue in court.

Neither should a mandatory arbitration plan or agreement limit an employee's right to file a charge with the National Labor Relations Board (NLRB). The General Counsel of the NLRB issued an unfair labor practice complaint against a company that terminated a non-union employee for his refusal to sign an agreement to arbitrate any legal actions regarding employment. 133 The general counsel con-cluded that Section 10( a) of the NLRA evinced congressional interest to preclude waiver of access to the NLRB because NLRB jurisdiction depends on employee unfair labor practice charges. Subsequently, in February 1997 the NLRB's General Counsel took the position that a mandatory arbitration procedure which does not limit the employee's access to the NLRB or the right to engage in collective action or col-lective bargaining does not constitute an unfair labor practice. 134

Thus mandatory pre-dispute arbitration agreements should place no limits on the employee's right to file charges with the EEOC and/ or the NLRB and, as previously noted, employees should knowingly agree to mandatory arbitration of discrimination claims. Further, ar-bitration agreements should incorporate the additional fair process re-quirements (which will be discussed infra) articulated by the Dunlop [P.241] Commission and the Task Force on ADR in Employment which have gained wide support and acceptance.

In December 1994 the Commission on the Future of Worker-Management Relations headed by Chairman John T. Dunlop, former Secretary of Labor, released its final Report and Recommendations, popularly known as the Dunlop Commission and Report. The report listed as one of ten goals for the twenty-first century, "improve resolu-tion of disputes about violations of workplace rights." 135

The Dunlop Commission found that in the last twenty years there has been a spiraling explosion of employment claims, due in great part to federal and state expansion of anti-discrimination laws, and that employment litigation is very costly to employers and to employees in terms of time, money and emotion. 136 While these litigation costs serve to deter employers from future violations, "the costs and time involved in enforcing public employment rights through the court sys-tem are increasingly denying a broader slice of American workers meaningful access to employment law protection." 137 The system also fails to offer equal protection to all employees. For example, plaintiffs tend to be professional and managerial employees rather than lower level employees and most individuals who bring employment discrimi-nation suits have completely left the workplace where the discrimina-tion occurred. 138

Based on its findings, the Dunlop Commission recommended de-velopment of in-house dispute resolution procedures comprised of voluntary, non-binding steps including mediation and culminating in binding arbitration, if necessary. 139 In recommending arbitration, the Commission reiterated that the "litigation system is less useful to em-ployees who need redress for legitimate complaints, but also wish to remain in their current jobs." 140 The Commission emphasized the ne-cessity of certain quality standards to assure fair and accurate results and noted a "high degree of consensus" among employers and em-ployees on the following points:

    [I] f private arbitration is to serve as a legitimate form of private enforcement of public employment law, these systems must provide: [P.242]
      a neutral arbitrator who knows the laws in question and under-stands the concerns of the parties;
      a fair and simple method by which the employee can secure the necessary information to present his or her claim;
      a fair method of cost-sharing between the employer and em-ployee to ensure affordable access to the system for all employees;
      the right to independent representation if the employee wants it;
      a range of remedies equal to those available through litigation;
      a written opinion by the arbitrator explaining the rationale for the result;
      and sufficient judicial review to ensure that the result is consis-tent with the governing laws. 141

The Commission, however, concluded that an employee must not be forced to make the choice of giving up the right to go to court, or giving up his or her job. 142 Accordingly, the Commission recom-mended that mandatory arbitration agreements as a condition of em-ployment should not be enforceable, that courts should interpret the FAA accordingly and, if courts do not, then Congress should pass leg-islation ensuring employee choice of the forum for resolution of em-ployment claims. 143

As previously noted, in May 1995, a Task Force on Alternative Dispute Resolution in Employment wrote a Due Process Protocol for Mediation and Arbitration of Statutory Disputes arising out of the Em-ployment Relationship. 144 The protocol represents the views of the in-dividual signatories who were designated by their respective organizations and while the protocol does not reflect the policy of these organizations, it reflects, at least, a consensus of opinion by indi-viduals from diverse organizations including: the ABA Labor and Em-ployment Section, the National Academy of Arbitrators, AAA, Federal Mediation and Conciliation Services, American Civil Liber-ties Union, Society of Professionals in Dispute Resolution, and Na-tional Employment Lawyers Association (NELA). 145

Unlike the members of the Dunlop Commission, the Due Process Protocol signatories reached no consensus and made no recommenda-tion concerning mandatory pre-dispute arbitration agreements condi-tioned on employment, except to say that such agreements must be [P.243] "knowingly made." 146 Focusing on standards of exemplary due pro-cess, the Due Process Protocol signatories agreed that employees must have the choice of a representative and some employer reim-bursement of the employee's attorney fees; adequate access to infor-mation; that the parties should engage in mutual selection of an arbitrator from a diverse list of skilled knowledgeable, unbiased arbi-trators, and, to ensure an impartial decisionmaker, the parties should share the compensation of the arbitrator. 147 The Protocol further pro-vides that the arbitrator should be required to decide according to applicable agreements and statutes and "should be empowered to award whatever relief would be available in court under the law." 148 Further, the arbitrator should issue a written opinion and award in-cluding "a statement regarding the disposition of any statutory claim( s)." 149 Finally, the Protocol calls for awards to be final and binding with only a limited scope of judicial review.

Obviously the Due Process Protocol and the recommendation of the Dunlop Commission are almost identical on the requirements of fair process. The point of detailing them is to demonstrate that since the Gilmer decision, some consensus has evolved as to the elements and standards of fair process for the binding arbitration of discrimina-tion claims. Employee challenges of mandatory arbitration agree-ments and procedures, in and out of court, will continue to contribute to the evolution of fair process. For example, in 1995 the threat by NELA to boycott the mediation and arbitration services of AAA and JAMS/ ENDISPUTE unless these providers refused to accept mandatory employment dispute cases, among other things, apparently prompted JAMS/ ENDISPUTE to adopt a general policy to defer while a contesting party seeks judicial ruling on the arbitrability of an arbitration clause. 150 AAA recently revised its National Rules for Resolution of Employment Disputes to include a similar provision for a reasonable period of time for a party to seek a court ruling on a pending arbitration. 151 [P.244]

Chief Judge Edwards' decision in Cole v. Burns also contributed to the discussion of fair process by ruling that employers are solely responsible for the arbitrator's fee when the employer has unilaterally imposed arbitration on the employee 152 and by noting that courts must afford a level of judicial review sufficient "to ensure that arbitra-tors comply with the requirements of the statute in issue" 153 and to ensure a correct resolution of public law issues. 154 The analysis of these issues in Cole v. Burns will not only fuel employee challenges of mandatory arbitration procedures and awards, but will also inform employer consideration of implementation or redesign of a mandatory arbitration procedure.

Again, employee challenges of unilaterally imposed, pre-dispute, mandatory arbitration agreements will shape the definition of a fair arbitration process for non-union employment disputes. At the same time, the cost considerations of litigation including: the time it takes to get to trial; the expense of attorney representation; for employers, the unpredictability of jury verdicts; and for employees, the difficulty of obtaining representation especially for employees in lower paying jobs provide an incentive to employers and to employees to devise an al-ternative and an improved employment dispute resolution procedure. As the Dunlop Commission recognized, the current litigation system denies employees meaningful access to resolve employment disputes and it fails to resolve claims effectively within the framework and con-text of the workplace. Additional generally recognized benefits to employees of an arbitration procedure are increased employee access to a dispute resolution process and the ability to participate more in the arbitration process than in court. 155

In view of these possible benefits and assuming the arbitration procedure is a fair one, the question remains whether even a mandatory arbitration procedure can sufficiently compensate the ag-grieved individual and serve the goals of the anti-discrimination law by making reinstatement a more viable remedy. [P.245]

V. ARBITRATION, DISCRIMINATION AND THE REINSTATEMENT REMEDY

Title VII, the ADEA and the ADA provide for reinstatement to remedy statutory violations. 156 Reinstatement serves the Congres-sional purposes of "making whole" individual victims of illegal dis-crimination and of eradicating discrimination from the workplace. 157

Congress has made the EEOC initially responsible for processing discrimination charges under Title VII, the ADEA and the ADA. 158 In requiring individuals to file employment discrimination charges first with the EEOC and in a relatively short period of time, Congress intended to achieve quick resolutions and to resolve charges without trials. 159 The current reality is that due to the lack of additional fund-ing, increased responsibility and the overwhelming and rising number of charges filed annually -87,942 in fiscal 1993 and 91,189 in fiscal 1994 -the EEOC cannot begin to process all the charges filed thor-oughly, much less quickly. 160 For example in 1994 the average length of an EEOC case investigation was one year. 161 While the EEOC re-solved a total of 71,563 charges in 1994, approximately 50 percent of the resolutions were "no cause" determinations (under which EEOC involvement ends but the charging party has the right to sue), approxi-mately 36 percent of the charges were resolved by administrative clo-sure (e. g. closed due to litigation, lack of jurisdiction, or failure of charging party to respond or cooperate) and approximately 15 percent of the charges were "merit resolutions" which included negotiated set-tlements, withdrawals with benefits, successful and unsuccessful con-ciliations. 162 It is noteworthy that in 1994 the EEOC achieved a total of 607 conciliations which represented the highest number of concilia-tions in five years and that the EEOC filed suit on the merits in 357 cases. 163 [P.246]

The pending inventory of EEOC charges increased from 73,124 in 1993 to 96,945 in 1994 164 to approximately 111,345 in 1995. 165 To reduce this increasing backlog and handle charges more expeditiously, the EEOC adopted new charge handling procedures in June, 1995. 166 Under the new procedure, the Agency screens charges based on likeli-hood of merit, quickly dismisses meritless claim and offers the parties an opportunity to mediate on a completely voluntary basis. 167 By March, 1997, the EEOC backlog of charges had fallen to approxi-mately 78,000. 168 In a related effort to focus and maximize use of agency resources, in February 1996, the EEOC formally adopted a national enforcement plan which delegated authority from the Com-mission to the General Counsel and through the General Counsel to the Regional Attorneys to pursue and to intervene in some cases. 169 One result of adoption of this plan has been a steady decrease in the number of court actions filed by the EEOC in recent years, from ap-proximately 357 filed in fiscal year 1994 170 to 324 in fiscal 1995 to 160 in fiscal 1996, 171 although the General Counsel recently projected that EEOC attorneys would be handling a caseload of 300-350 cases. 172

As these figures demonstrate, even with the adoption of these new procedures to streamline the operation, the EEOC still has a staggering number of pending charges and of new charges being filed, and the Agency can handle only a limited number of conciliations and court cases. This means that the majority of individual charging par-ties must attempt to resolve these charges through the courts or other means.

As the Dunlop Commission recognized, since the late 1960's, there has been a litigation explosion in the employment discrimination field. 173 In this decade alone, federal court filings in employment civil [P.247] rights suits increased 93 percent, from 8,727 cases in 1990 to 15,965 in 1994. 174 The median time to resolve federal suits from case filing to disposition is eight months, 175 although in 1993 and 1994 over 9 per-cent of the employment civil rights cases had been awaiting resolution for three years. 176 In 1994 the federal courts terminated 12,833 em-ployment civil rights cases and of those only approximately 8.2 per-cent 177 ended during or after trial. The median time to resolution by trial in federal court from case filing to trial is nineteen months. 178 A significant number of employment civil rights cases also are appealed, further delaying a final resolution. 179

From the previous discussion it is clear that the volume of dis-crimination claims is substantial and not likely to subside soon. In the current political climate, Congress will not measurably increase the budget of the EEOC. Thus the EEOC will continue to be unable to resolve by conciliation or litigation more than a small percentage of charges in which an investigator found reasonable cause to believe discrimination occurred. Consequently, the vast majority of claimants will be left to file suit individually. Many of those claimants will not sue because they will be unable to retain an attorney to press the claim, particularly if the employee held a lower paying position and recovery would be small compared to the expense of a lawsuit. For those claimants who resolve their discrimination claims after filing suit, the average minimum time involved is likely to be two years.

Of all the discrimination claims annually filed with the EEOC, discharge is the triggering event which accounts for nearly half of the charges. 180 As previously noted, the federal anti-discrimination laws contemplate a "make whole" remedy for victims of illegal discrimina-tion. Now consider the effects of a pre-dispute mandatory arbitration agreement on a non-union employee who claims that illegal discrimi-nation led to his or her discharge. It is noteworthy that a recent sur-vey of companies that adopted such an arbitration procedure found that the vast majority of plans covered terminations and "claims otherwise litigated in court." 181 A unilaterally-imposed mandatory [P.248] ar-bitration procedure may offer individual employees a real benefit by making reinstatement a viable remedy. Moreover, the process will also serve the goals of anti-discrimination legislation. The underlying assumption of these assertions is that the arbitration procedure meets the aforementioned basic standards of fairness, including the elements of mutual selection of unbiased 182 and expert arbitrators, sufficient employee access to necessary information, opportunity for attorney or other representation, equitable cost-sharing of arbitration costs and, ideally, a written opinion explaining the rationale at least for the stat-utory claims as well as the opportunity for the full range of legal remedies. 183

As will be developed below, these advantages flow from the na-ture of the arbitration process. The question arises, why must the ar-bitration be mandatory for both employer and employees. In the author's view, if arbitration is not mandatory for both sides, employ-ers will agree to arbitrate only those cases that are litigation worthy and will refuse to arbitrate those cases where the likelihood of recov-ery or potential amount of recovery make the litigation process un-realistic. Furthermore, employers are not likely to agree to a system in which resort to arbitration is voluntary for employees while mandatory for employers.

To achieve the benefits of the resolution of employment discrimi-nation claims in arbitration the employee must have access to the arbi-tration procedure. A great incentive for an employer to adopt a mandatory arbitration program is the assurance that employee claims will be resolved finally in arbitration and not in the courts. Absent this assurance, employers faced with employment discrimination claims may decide to take the chance that the claim will disappear in [P.249] the administrative or court processes. In more general terms, it is al-ways more difficult for disputing parties to agree to arbitrate (or even to mediate) after the dispute arises and the parties become fixed in their respective positions. Accordingly, a real value of a pre-dispute mandatory arbitration agreement is that it requires employers to re-solve the dispute in arbitration and thus affords employees access to a dispute resolution procedure and a better chance for reinstatement. Even if a mandatory arbitration procedure requires exhaustion of pre-liminary steps, such as, a discussion with management and mediation, the claim will certainly be resolved much faster under the arbitration procedure than it would be in court. One of the main reasons for em-ployer implementation of a mandatory arbitration procedure is to achieve expeditious resolutions. 184 Also compare, for example, griev-ance arbitration claims under collective bargaining agreements which are resolved on average in eleven months, from the filing of the griev-ance to the date the award is issued. 185 Arguably employee claims could be resolved more quickly in the non-union setting because the employee can demand arbitration and avoid delay of awaiting the union decision of whether or not to proceed to arbitration.

Timing is crucial to the effectiveness of the reinstatement remedy. The likelihood that the aggrieved employee will accept reinstatement increases dramatically if the order comes quickly. 186 One obvious rea-son for this is that with the passage of time the parties will drift or be driven further apart and likely be more hostile to each other, particu-larly if they are engaged in the adversary process of litigation. In a 1992 study of effective remedies for employment rights, Professor Clyde Summers criticized the remedy of reinstatement under the Na-tional Labor Relations Act as impractical because, unless reinstate-ment comes very quickly, many employees "will have found another job which they will be reluctant to leave." 187 Two studies of the [P.250] rein-statement remedy under the NLRA found that employees declined reinstatement for three reasons: first and ranked as most important, employees expressed concern for retaliation; second, some had found other jobs; and third, some employees preferred monetary compensa-tion to reinstatement. 188 Demonstrating that the fear of retaliation was not completely unfounded, one study found that a majority of the workers reinstated under the NLRA left within a year because of un-fair treatment or dismissal. 189 Accordingly, the possibility of retalia-tion must be considered if reinstatement is ordered. At the same time, the reinstatement remedy should not be rejected simply because the potential for hostile relations exists as this could favor employers who wish not to deal further with an employee against whom they have discriminated. 190 Timing is also significant to this concern be-cause the parties may be less hostile if the process (from dispute to resolution) has not lasted too long.

In contrast to these concerns for the reinstatement remedy under the NLRA, reinstatement has proven to be a very effective remedy in the context of labor arbitration. According to one study, labor arbi-trators ordered reinstatement in approximately one-half of all dis-charge cases and only 10-14 percent of employees declined reinstatement. 191 Moreover, roughly a majority of these reinstated [P.251] employees remained on the job two years after reinstatement. 192 Rea-sons accounting for these successful reinstatements included the speed of the process, the presence of the union to protect against retalia-tion 193 and the collectively bargained benefits of seniority, pension, wages, etc. Based on the projected speed of the process and on proce-dural similarities, the reinstatement remedy should prove to be as ef-fective in the non-union arbitration setting as it is in the collective bargaining context. It is likely to be particularly so if the job to which the employee is reinstated is a desirable one in today's job market.

Professor St. Antoine has observed, "A large monetary award . . . may give momentary satisfaction, but in the long run, an employee is likely to benefit more from a restored opportunity to exercise aquired skills." 194 The severe psychological and emotional stress associated with job loss is well documented. Reinstatement effectively addresses these concerns because it clears the employee's name and record and it restores some measure of self-esteem to the employee, regardless of how long the employee remains on the job after reinstatement. 195

Arbitration of employment discrimination claims could thus pro-vide a real benefit to the discharged employee and to the entire work-place by providing an accessible, affordable forum with fast results and a real possibility of reinstatement while litigation of these claims would take an inordinate amount of time, cost a lot of money and would force individuals claiming discrimination essentially to put their lives on hold while they fight the matter in the litigation process.

To shift the focus from the individual employee to the broader context of the workplace, reinstatement in these cases will not be overlooked or underestimated by other employees. Co-workers and managers will see that the employer did not "get away" with illegal conduct. Under an arbitration scheme which provides expeditious re-sults, the reinstatement will be more closely related in time to the dis-criminatory conduct and the aggrieved employee will be more likely to return to the workplace. Such a process which can offer reinstate-ment as a realistic remedy may exert as strong a conduct regulating effect on the employer and the workplace as a large jury verdict handed down years after the illegal conduct occurred, when the [P.252] em-ployee is far removed from the workplace. This effect will be stronger if there is increased employee access resulting in a higher number of reinstatements. This broader message to the workplace may be lost, even if the employee and employer agree to settle an employment discrimination claim, 196 because it is most likely that the settlement agreement will not contain an employer admission of liability and/ or it will contain a confidentiality clause. Consequently, if illegal conduct produced the discharge, coworkers who were aware of the violation will not know of the resolution and may be chilled in the exercise of their statutory rights. 197

A recent survey of employers who have implemented mandatory, pre-dispute arbitration procedures found that almost all of the respon-dents either required or expected a written explanation of the arbitral award. 198 An award which has a written explanation of the reasons for reinstatement obviously will send a clearer signal about the statu-tory protection of employees and the limits of management conduct. The written award also may exert a stronger and clearer conduct-regu-lating effect than a large jury verdict against the employer. 199 Un-doubtedly, a large jury verdict against an employer certainly sends a message to an employer who has engaged in illegal conduct, but with-out an explanation for the verdict the employer may not understand precisely how to change to avoid similar problems in the future. 200 There also is the problem of the mixed message sent by large jury verdicts which subsequently are overturned or substantially reduced. These stir the anger and resentment of employers and may encourage some employees either to harbor unrealistic expectations of hitting the jury jackpot or, at least, to overvalue a discrimination claim. 201

One commentator has argued that courts that refuse to order re-instatement in employment discrimination cases because, for example, too much hostility exists for the aggrieved employee to return or the [P.253] necessary relationship of confidence and trust can no longer be main-tained, are showing more concern for the offending employers than for the employees who suffered discrimination. 202 In such cases not only does the employee lose the opportunity to be made whole, but the anti-discrimination message to the workplace may be diluted. Re-instatement forces employers to confront the situation. When rein-statement is ordered, the employer will be responsible for assuring that the discriminatory conduct stops which means, inter alia, that the employer will have to deal with the offending supervisor( s) or co-worker( s). 203 The process may be uncomfortable but all of those in-volved are likely to learn to avoid future workplace discrimination which serves the statutory goal.

Unilaterally imposed mandatory arbitration procedures which produce awards of reinstatement will also build employee confidence in the fairness of the employer promulgated arbitration process. 204 Employee confidence in the process will contribute to expeditious dis-pute resolution because employees will not resist the process by vari-ous legal maneuvers. Ideally employee confidence in a fair, though unilaterally imposed, mandatory arbitration procedure to resolve em-ployment discrimination and other claims would make these arbitra-tions a routine part of business and employment, a predictable, relatively time and cost effective procedure for both parties. 205 As-suming a fair process, the ready availability of such a process would lead to an increase in the number of employee demands for arbitra-tion 206 and the increased employee complaints would produce the benefit of continuous monitoring of the workplace. 207 The increased volume of complaints and multiple arbitral determinations, which, again, are more intimately related to the workplace in time and in remedy, will send a message which is at least as strong as the message of a jury verdict after trial and may in fact produce a clearer and [P.254] stronger anti-discrimination conduct regulating effect on the employer.

To return to the issue of retaliation against a reinstated employee, obviously increased concern for retaliation exists in the non-union set-ting. Employers appreciate the fact that retaliation against reinstated workers will destroy the credibility of and confidence in the fairness of any arbitration process. 208 To combat this problem, some companies have implemented or reiterated strong policies which proscribe and severely punish retaliation. 209 It also is possible that if widespread use of arbitration developed, reinstatement would become more routine, employers would develop experience avoiding and curbing retaliation and less reason to fear retaliation would exist.

A complete analysis of the benefit of reinstatement under an ar-bitration scheme to effectuate the purposes of anti-discrimination leg-islation requires consideration of the broader remedies available to plaintiffs under the Civil Rights Act of 1991. 210 Generally, a major concern for and criticism of mandatory arbitration plans is that com-panies will design plans which exclude punitive damages and thus limit the amount that employee victims of discrimination may recover. First it is noteworthy that the recent survey of companies with mandatory arbitration plans revealed that arbitrators were specifically authorized to award punitive damages under approximately one-half of the plans and that, overall, two-thirds of the plans did not specifi-cally limit arbitral remedial authority. 211 Similarly the AAA National Rules for the Resolution of Employment Disputes expressly provide for "any remedy or relief that would have been available to the parties had the matter been heard in court." 212 Employer promulgated arbi-tration policies which provide for the full range of statutory remedies are likely to be more acceptable to employees. Such policies offer one less ground for attack on the procedure and will arouse less judicial suspicion or hostility when challenged. But even an employer-promulgated arbitration plan which excludes recovery of punitive damages, if it is otherwise a fair procedure, may benefit employees and serve the statutory purpose by offering a more accessible process with the opportunity for reinstatement. The fact that Congress did not provide for punitive damages, or for jury trials, in Title VII cases [P.255] until 1991 supports this assertion, i. e. for over 25 years the statutory purpose of Title VII were served by other procedures. 213

In sum, the reinstatement remedy is likely to be more accessible under an employer-promulgated arbitration plan. The realistic oppor-tunity to obtain reinstatement in a fair arbitration procedure will ben-efit the employee who suffered discrimination and will exert a conduct-regulating effect on the workplace. Criticisms of employer promulgated mandatory arbitration plans -assuming that the plan meets the standards of fair process -must be considered in the context of the limits of the current system. The reality is that a great number of individuals claiming employment discrimination have no forum be-cause the EEOC cannot pursue their claims and because of the obsta-cles in getting to court and to trial, such as the costs and need to find an attorney representative.

VI. WHAT'S IN A NAME?

Invocation of the pre-eminence of courts which follow rules of law and authoritatively interpret governmental policy allows for easy criticism of any private decisionmaking which is final and enforceable in court. An ideological criticism of private dispute resolution is exem-plified by Professor Owen Fiss' famous statement that the function of courts is "to bring a recalcitrant reality closer to our chosen ideals." 214

It bears repeating that the Supreme Court put to rest the general criticism of arbitration in a number of decisions culminating in Gilmer, noting that the FAA "provisions manifest a 'liberal federal policy favoring arbitration agreements' " 215 and that " 'question of arbi-trability must be addressed with a healthy regard for the federal policy favoring arbitration. ' " 216 In Gilmer the Supreme Court reiterated that " '[ b] y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. ' " 217 The Court also explicitly rejected "generalized attacks on arbitration" 218 as being [P.256] " 'far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes'" 219 and rejected the proposition that arbitrators will lack competence or impartiality. 220

The Supreme Court also specifically addressed the question of inequality of bargaining power between "employers and employ-ees" 221 stating:

    Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context. . . . [T] he FAA's purpose was to place ar-bitration agreements on the same footing as other contracts. Thus, arbitration agreements are enforceable "save as upon such grounds as exist at law or in equity for the revocation of any contract." . . . Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds for rev-ocation of any contract. . . [T] his claim of unequal bargaining power is best left for resolution in specific cases. 222

This is strong language particularly in view of the fact that these holdings appear to be general ones. Of course the Court allows for a case by case examination of inequality of power. Yet it is hard to im-agine a more unequal bargaining relationship than one between an employer and an ordinary job applicant or job holder whose employ-ment is conditional on the signing of an arbitration clause. It must then be concluded that mandatory arbitration agreements are pre-sumptively enforceable in the employment context.

The Supreme Court also left another narrow opening for lower federal courts to deal with mandatory arbitration of statutory claims by reiterating that " 'so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent func-tion. ' " 223 As previously noted, the Supreme Court also distinguished Gardner-Denver which allowed Chief Judge Edwards to build on that distinction in Cole.

It is noteworthy that Judge Edwards has been an experienced ar-bitrator and a member of the National Academy of Arbitrators, as well as a prominent law professor and author in the labor and employ-ment law field. In Cole, Judge Edwards analyzed labor arbitration, [P.257] contrasting the authority of labor arbitrators and the judicial defer-ence to labor arbitration awards with employment arbitration of statu-tory claims. 224 In a sense, within the framework of Gilmer, the Cole decision established a set of rules applicable to the arbitration of stat-utory claims. After scrutinizing the arbitration clause in Cole, Judge Edwards concluded:

    In particular, we note that the arbitration arrangement (1) provides for neutral arbitrators, (2) provides for more than minimal discov-ery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitra-tor's fees or expenses as a condition of access to the arbitration fo-rum. Thus, an employee who is made to use arbitration as a condition of employment "effectively may vindicate [his or her] statutory cause of action in the arbitral forum." 225

In Cole, the majority opinion also notes that the FAA grounds for vacation of awards are not exclusive and cites violation of "public pol-icy" and "manifest disregard of the law" as grounds for vacation of awards to ensure arbitral compliance with statutory requirements. 226 In this context, Judge Edwards observes that "[ m] ost employment dis-crimination claims are entirely factual in nature" 227 and consequently that "focused review of arbitral legal determinations" will not "under-mine" the finality of such awards. 228 Judge Edwards also cites with approval the remarks of Professor Estreicher:

    [T] he premise of the [Supreme] Court's rulings . . . is that arbitra-tion entails only a waiver of a procedural right to a judicial forum rather than a waiver of any substantive right accorded by the stat-ute. Consistent with that premise, the arbitrator is obligated to de-cide the dispute in conformity with the substantive standards of the statute and should have the authority to award whatever injunctive or monetary relief is necessary to remedy a proven statutory viola-tion. The court should review the award for conformity with appli-cable legal standards and to ensure that findings of fact are not clearly erroneous. Moreover, in order to permit meaningful review by the court, a transcript of the hearings should be kept and the award should be accompanied by an opinion containing findings of [P.258] fact and reasons for the manner of disposition of the statutory claim. 229

As previously noted, in Cole the D. C. Circuit Court also requires em-ployers to pay the arbitrator's fees and expenses on the grounds that employees protected by federal statutes do not have to pay for the services of a judge and the obligation to pay the arbitrator's fees could discourage pursuit of statutory claims in arbitration. 230

These then are the D. C. Circuit rules for arbitration of statutory claims. It is noteworthy that in Cole, Judge Edwards cited and quoted extensively from scholarly literature and from rules and recommenda-tions of private organizations. The question arises whether the em-ployment dispute resolution process conducted according to these D. C. Circuit rules would be "arbitration" or something else. If arbi-tration is considered in traditional terms as a private decisionmaking process controlled by the parties, then the system endorsed by the D. C. Circuit in Cole is not "arbitration." If arbitration is viewed only as an alternative forum, then this system is arbitration. The D. C. Cir-cuit system resembles a sort of quasi-court, financed by employers and subject to heightened judicial review which is not too far from de novo review. But the name of the process is not important. The key, in this author's view, is to have a continuing discussion on creating a mean-ingful opportunity for employees to have accessible review of some employers' decisions.

Of course, in view of such decisions as Bruce Hardwood Floors 231 a legitimate fear arises that heightened judicial scrutiny could, by judi-cial fiat, "spread" to judicial review of labor arbitration awards. In other words, it can be feared that federal courts might treat collective bargaining agreements as they may treat statutes and, thus, destroy the law of the Steelworkers Trilogy. In that sense, it is hoped that the Supreme Court will maintain a clear dividing line between the law of labor arbitration and the developing law of employment arbitration involving statutory rights.

It may be speculated that the apprehension about blurring that dividing line may have been one of the motivating factors for the above quoted statement of the National Academy of Arbitrators and for Judge Edwards' extensive treatment of labor arbitration in Cole. The key point is that as far as substantive rights are concerned, there is, of course, a principled difference between permissible self-regula-tion, [P.259] such as self-regulation through collective bargaining, and regula-tion by mandatory rules of law embodied in a statute or emanating from a statute through court decisions. In a system of self-regulation, the arbitration process and the arbitrator's decision may be an integral part of that system. When a statutory right is involved, the arbitrator, as private decisionmaker, must apply mandatory rules of law, i. e. eval-uate the evidence under such rules. While the theoretical distinction is clear, the dividing line may be blurred in practice. Consider, for instance, a termination of employment for substandard work, in which the employee contests the managerial conclusion of substandard work and also claims that he or she was not fully trained because he or she is a member of a protected minority. In connection with this example, it is interesting to compare the well-known footnotes 20 and 21 of Alexander v. Gardner-Denver 232 with Judge Edwards' discussion of enforcement of mandatory arbitration clauses in statutory rights cases in Cole. [P.260]

It would appear that the judge writing separately 233 in Cole did not fully appreciate the need to draw the lines between labor arbitra-tion under section 301 of the LMRA, "commercial" arbitration under the FAA, and the area of this "commercial" arbitration involving stat-utory rights. An important point is that there is no evidence that arbi-trators are unable or unwilling to draw the line and apply mandatory rules and that employment arbitration involving statutory rights may include, perhaps in most cases, an important by-product of access of an employee to a meaningful forum for resolution of standard em-ployment disputes, and therefore, may contribute to greater security of non-unionized employees.

VII. CONCLUSION 234

Judge Edwards' "Conclusion" in Cole reads in part:

    We acknowledge the concerns that have been raised regarding arbitration's ability to vindicate employees' statutory rights. How-ever, for all of arbitration's shortcomings, the process, if fairly con-ducted, is not necessarily inferior to litigation as a mechanism for the resolution of employment disputes. As the Dunlop Commission recognized:
      [L] itigation has become a less-than-ideal method of resolving employees' public law claims. As spelled out in the Fact Find-ing Report, employees bringing public law claims in court must endure long waiting periods as governing agencies and the overburdened court system struggle to find time to properly in-vestigate and hear the complaint. Moreover, the average pro-file of employee litigants . . . indicates that lower-wage workers may not fare as well as higher-wage professionals in the litiga-tion system; lower-wage workers are less able to afford the time required to pursue a court complaint, and are less likely to re-ceive large monetary relief from juries. Finally, the litigation model of dispute resolution seems to be dominated by "ex-em-ployee" complaints, indicating that the litigation system is less useful to employees who need redress for legitimate com-plaints, but also wish to remain in their current jobs.
    COMMISSION ON THE FUTURE OF WORKER-MANAGMENT RELA-TIONS, REPORT AND RECOMMENDATONS at 30. Arbitration also of-fers employees a guarantee that there will be a hearing on the merits of their claims; no such guarantee exists in litigation where [P.261] relatively few employees survive the procedural hurdles necessary to take a case to trial in the federal courts.
    As a result, it is perhaps misguided to mourn the Supreme Court's endorsement of the arbitration of complex and important public law claims. Arbitrators, however, must be mindful that the Court's endorsement has been based on the assumption that "com-petent, conscientious, and impartial arbitrators" will be available to decide these cases. Mitsubishi Motors, 473 U. S. at 634. Therefore, arbitrators must step up to the challenges presented by the resolu-tion of statutory issues and must be vigilant to protect the important rights embodied in the laws entrusted to their care. 235

Judge Edwards' previously noted conclusion that most claims as-serting violations of statutory rights present factual disputes is unas-sailable. Faced with a claim of violation of statutory rights, employers must necessarily show that the adverse employment decision had a legitimate basis and was not pretextual. This proposition is borne out by experience in litigation as well as in labor arbitration.

In reality, even in labor arbitration, labor arbitrators are faced with interpretation of a variety of statutes and with discrimination claims and, as suggested above, experience does not support the prop-osition that arbitrators are unable to competently and impartially de-cide such cases.

No one would assert that, today, American society or the Ameri-can workplace is free from discrimination. But it should be recog-nized that substantial progress has been made and that, more often than not, discrimination occurs in the context of an employment prob-lem rather than in the situation of a clear-cut, single motive case. Whenever possible, the decisions in employment cases should also be viewed as a problem solving device. Broad accessibility to a forum which will provide a decision reasonably related in time to the conflict is more likely to influence the behavior of individuals than damages issued against an impersonal corporation. It is in this sense that this author views the arbitration of statutory claims as an extension of the promise of e. g. the Model Employment Termination Act. Although, of course, today an arbitration system affecting at will employees de-pends upon the willingness of the employer to promulgate it and em-ployers may well decide that it is preferable to allow statutory claims to die in the EEOC process or in the courts than to adopt plans giving employees a real opportunity for review of adverse employment decisions. [P.262]

The fate of the D. C. Circuit rules for mandatory arbitration is uncertain. They are a part of the ongoing discussion of the resolution of employment disputes. This discussion represents progress -a con-tinuum which began with the earliest legislation protecting employees. It represents a recognition of the problems of employee security in employment and of employment working conditions. It also repre-sents a recognition that courts are unable to deal with current caseloads and would be inundated if they offered a truly accessible system of decisionmaking. This discussion should continue and con-tribute to the evolution of an effective system to resolve employment disputes. In a sense, this discussion is a manifestation of ingenious realism of American problem solving.

In light of Gilmer, the most urgent task for various private orga-nizations engaged in dispute resolution is to provide training and lists of arbitrators who should have sufficient knowledge, expertise, and reputations that their awards will withstand potential judicial scrutiny. If a sufficient number of employers avail themselves of the opportu-nity presented by the Gilmer decision, we may yet witness a system which functions as well as labor arbitration does today.

FOOTNOTES

* Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20 (1991).

** Cole v. Burns Int'l Sec. Serv., 105 F. 3d 1465 (D. C. Cir. 1997).

*** Professor of Law and Director of the William C. Wefel Center for Employment Law, St. Louis University School of Law. The author is also an arbitrator and mediator. I wish to acknowledge excellent research assistance from Jane Annunziata and Ken Graham.

1. NATIONAL ACADEMY OF ARBITRATORS, STATEMENT OF THE NATIONAL ACADEMY OF ARBITRATORS ON INDIVIDUAL CONTRACTS OF EMPLOYMENT AND GUIDELINES ON ARBITRA-TION OF STATUTORY CLAIMS UNDER EMPLOYER-PROMULGATED SYSTEMS, May 21, 1997. The Guidelines are a short checklist of issues to be considered in accepting the selection as arbitrator, in pre-hearing consultations, in the hearing and in writing the opinion and award. See National Academy of Arbitrators' Statement and Guidelines adopted May 21, 1997, Daily Lab. Rep., May 29, 1997, available in LEXIS, 1997 DLR 103 d23 (citation omitted).

2. United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); United Steelworkers of Am. v. American Mfg. Co., 363 U. S. 564 (1960).

3. 9 U. S. C. 1-14 (1994).

4. See, e. g., Arbitration, NY CLS CPLR 7501-7514 (1996).

5. 415 U. S. 36 (1974).

6. See, e. g., Bruce Hardwood Floors v. UBC, Southern Council of Industrial Workers, 103 F. 3d 449 (5 th Cir. 1997), pet. for cert. filed, 66 U. S. L. W. 3017 (May 21, 1997). The Fifth Circuit majority vacated an award which reinstated a grievant whom the company discharged for ob-taining 45 minutes of unpaid time off under false pretenses. The arbitrator found that the griev-ant invented a story concerning her daughter needing a ride to the doctor when in fact the grievant left to pay her overdue electricity bill to avoid losing power. The Fifth Circuit majority engaged in a cramped, literal interpretation of the collective bargaining agreement language to overturn the reinstatement. As the opinion of the dissenting judge made clear, the award drew its essence from the contract.

The Union is seeking certiorari from the Supreme Court in this matter and the National Academy of Arbitrators (NAA) has authorized its former President, Professor David E. Feller, to submit an amicus curiae brief in support of enforcement of the award on behalf of the NAA. NAA President George Nicolau discussed this case in a speech during the NAA meeting. Nico-lau characterized the opinion as "particularly outrageous" and concluded that most circuit courts (excluding the D. C., the Seventh and the Ninth Circuits) have "overturned awards in one way or the other on the flimsiest of grounds." Nicolau, The Challenge and the Prize at 9, 13 to be published in PROCEEDINGS OF THE FIFTIETH ANNUAL MEETING, NATIONAL ACADEMY OF ARBI-TRATORS. It is noteworthy that decisions such as Bruce Hardwood Floors may call into question the sentiments of various federal courts on the protection of employees.

7. See, e. g., Foley v. Interactive Data Corp., 765 P. 2d 373 (Cal. 1988) (covenant of good faith and fair dealing); Tameny v. Atlantic Richfield Co., 610 P. 2d 1330 (Cal. 1980) (tort theory); Pugh v. See's Candies, Inc., 171 Cal. Rptr. 917 (Ct. App. 1981) (contract theory).

8. See, e. g., Model Employment Termination Act, 9A Individual Employment Rts. Manual (BNA) 540: 21 (1991); William B. Gould IV, Stemming the Wrongful Discharge Tide: A Case for Arbitration, 13 EMPLOYEE RELATIONS L. J. 404 (Winter 1987/ 88); Theodore J. St. Antoine, The Making of the Model Employment Termination Act, 69 WASH. L. REV. 361 (1994); Cal. A. B. 3017 (1984) (legislation proposing resolution of disputes of at-will employees by binding arbitration if mediation fails).

9. Model Employment Termination Act 3 (1991).

10. 500 U. S. 20 (1991).

11. In Gilmer, the Supreme Court distinguished the Alexander v. Gardner-Denver case noting, inter alia, that the individual "employees there had not agreed to arbitrate their statutory claims . . . " 500 U. S. at 35.

12. See, e. g., Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976) (recognizing griev-ant's right to sue employer for breach of labor contract if grievance procedure tainted by union violation of duty of fair representation); Vaca v. Sipes, 386 U. S. 171 (1967) (duty of fair represen-tation in deciding whether to arbitrate grievance).

13. 500 U. S. 20 (1991).

14. See, e. g., O'Neil v. Hilton Head Hospital, 115 F. 3d 272 (4th Cir. 1997) (FMLA claims arbitrable because employee signed form acknowledging receipt of employee handbook and agreeing to submit all employment disputes to arbitration); Patterson v. Tenet Healthcare, Inc., 113 F. 3d 832 (8th Cir. 1997) (Title VII claims subject to arbitration; agreement to arbitrate en-forceable because signed page of employment handbook containing binding arbitration clause represented a separate binding contract); Zandford v. Prudential-Bache Securities, Inc., 112 F. 3d 723 (4th Cir. 1997) (settlement agreement concerning employment contract did not release em-ployee from obligation to arbitrate under U-4 form); Pryner v. Tractor Supply Co., 109 F. 3d 354, (7th Cir. 1997) (union employee not required to exhaust collective bargaining agreement arbitra-tion before filing Title VII and ADA claims in federal court); Cole v. Burns Int'l Sec. Serv., 105 F. 3d 1465 (D. C. Cir. 1997) (enforcing agreement to arbitrate ruling, inter alia, employer must pay fees of arbitrator and discussed in more detail in Section VI infra); Austin v. Owens -Brock-way Glass Container, Inc., 78 F. 3d 875 (4th Cir), cert. denied, 117 S. Ct. 432 (1996) (requiring exhaustion of collective bargaining agreement arbitration for union employee to retain right to file Title VII and ADA claims); Prudential Ins. Co. of Am. v. Lai, 42 F. 3d 1299 (9 th Cir. 1994), cert. denied, 116 S. Ct. 61 (1995) (arbitration agreement not binding because employee did not knowingly forego statutory remedies); Alcaraz v. Avnet, Inc., 933 F. Supp. 1025 (D. N. M. 1996) (employee's Title VII and ADEA claims not subject to arbitration because so-called arbitration agreement did not provide for full range of statutory damages); Cheng-Canindin v. Renaissance Hotel Associates, 57 Cal. Rptr. 2d 867 (Cal. App. 1 st Dist. 1996), rev. den., 1997 Cal. LEXIS 817 (Cal. 1997) (finding under California law that internal problem solving procedure of company handbook did not constitute an agreement to arbitrate, in part, because the process did not provide for an impartial decision maker).

15. Some of the more recent articles on the subject include, e. g., Richard A. Bales, Compul-sory Arbitration of Employment Claims: A Practical Guide to Designing and Implementing En-forceable Agreements, 47 BAYLOR L. REV. 591 (1995); Mei L. Bickner, et al., Developments in Employment Arbitration, DISP. RESOL. J., Jan. 1997, at 8; Stuart H. Bompey and Andrea H. Stempel, Four Years Later: A Look at Compulsory Arbitration of Employment Discrimination Claims after Gilmer v. Interstate/ Johnson Lane Corp., 21 EMPLOYEE REL. L. J. 21 (1995); Samuel Estreicher, Arbitration of Employment Disputes Without Unions, 66 CHI.-KENT L. REV. 753 (1990); Hon. Frank Evans & Shadow Sloan, Resolving Employment Disputes Through ADR Processes, 37 S. TEX. L. REV. 745 (1996); Matthew W. Finkin, "Worker's Contracts" Under the United States Arbitration Act: An Essay in Historical Clarification, 17 BERKELEY J. OF EMPLOY-MENT & LAB. L. 282 (1996); Robert A. Gorman, The Gilmer Decision & the Private Arbitration of Public Law Disputes, 1995 U. ILL. L. REV. 635 (1995); Patrick O. Gudridge, Title VII Arbitra-tion, 16 BERKELEY J. OF EMPLOYMENT & LAB. L. 209 (1995); Stephen Hayford & Ralph Peep-les, Commercial Arbitration in Evolution: An Assessment and Call for Dialogue, 10 OHIO ST. J. DISP. RESOL. 343 (1995); Martin H. Malin, Arbitrating Statutory Employment Claims in the Af-termath of Gilmer, 40 ST. LOUIS U. L. J. 77 (1996); Lewis Maltby, Paradise Lost-How the Gilmer Court Lost the Opportunity For Alternative Dispute Resolution to Improve Civil Rights, 12 N. Y. L. SCH. J. HUM. RTS. 1 (1994); R. Gaull Silberman, et al., Alternative Dispute Resolution of Em-ployment Discrimination Claims, 54 LA. L. REV. 1533 (1994); Development in the Law -Employ-ment Discrimination, 109 Harv. L. Rev. 1670 (1996); Brian K. Van Engen, Note, Post-Gilmer Developments in Mandatory Arbitration: The Expansion of Mandatory Arbitration for Statutory Claims and the Congressional Effort to Reverse the Trend, 21 J. CORP. L. 391 (1996).

16. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended at 42 U. S. C. 1981, 1988, 200e, 2000e-1 -2000e-2, 2000e-4 -2000e-5, 2000e-16, 12111, 12112, and 12209 (1994)).

17. The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U. S. C. 2000e -2000e-17 (1994)).

18. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U. S. C. 12101 -12212 (1994)).

19. The Civil Rights Act of 1991, provides that "[ w] here appropriate and to the extent au-thorized by law, the use of alternative means of dispute resolution, including settlement negotia-tions, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under" these acts. Pub. L. No. 102-166, 118, 105 Stat. 1081 (codified at 42 U. S. C. 2000g (1994)); see also, ADA 513, 104 Stat. 377-78 (codified as amended at 42 U. S. C. 12212 (1994)).

20. A House report states that use of ADR "is intended to supplement, not supplant, the remedies provided by Title VII" and that discriminatees retain the right to "relief under the enforcement provisions of Title VII" despite any agreement to arbitrate these disputes in an individual employment agreement or in a collective bargaining agreement. H. R. Rep. No. 102- 40( I), at 2 (1991), reprinted in U. S. C. C. A. N. 549, 635. There is identical language in the ADA's legislation history. H. R. Rep. No. 101-485 at 4 (1990) reprinted in U. S. C. C. A. N. 445, 499-500.

21. See Bickner, supra note 15, at 8-9.

22. Sources of arbitration clauses include: individual contracts, employee handbooks, em-ployment applications and, as in Gilmer, securities registration agreements.

23. See EEOC Policy Statement on Mandatory Arbitration, II EEOC Compl. Man. (BNA) at 915.002 (July 10, 1997) cited in EEOC Policy Statement on Mandatory Arbitration, Daily Lab. Rep., July 11, 1997, available in LEXIS, 1997 DLR 133 d30. See also, Motion 4 of Motions on Alternative Dispute Resolution Adopted by EEOC April 25, 1995 in EEOC: EEOC Votes to Offer Voluntary Mediation as Option in Job Discrimination Claims, Daily Lab. Rep., Apr. 26, 1995, available in LEXIS, 1995 DLR 80 d28.

24. See Prudential Ins. Co. of Am. v. Lai, 42 F. 3d 1299 (9 th Cir. 1994), cert. denied, 116 S. Ct. 61 (1995).

25. See Arbitration: ADR Services Will Maintain Practice of Hearing Compulsory Arbitra-tion Cases, Daily Lab. Rep., Nov 6, 1995, available in LEXIS, 1995 DLR 214 d10.

26. See JAMS/ ENDISPUTE Issues Minimum Standards for Employment Arbitration, 6 World Arb & Mediation Rep. 50 (1995).

27. American Arbitration Association, National Rules for the Resolution of Employment Disputes, effective June 1, 1996 at 3-4.

28. Id.

29. Cf. Cole v. Burns, 105 F. 3d at 1480-1487, in which the AAA rules providing for some discovery, an award with written reasons and any relief available in court were considered in the court's conclusion that the agreement to arbitrate was enforceable.

30. See American Arbitration Rules for Resolution of Employment Disputes, Daily Lab. Rep., May 28, 1997, available in LEXIS, 1997 DLR 102 d29 (highlights revisions and lists new rules including in the introductory section AAA's adoption of the Due Process Protocol see, infra note 31).

31. See Christopher A. Barreca, et al., Document, A Due Process Protocol For Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship, DISP. RESOL. J., Oct-Dec 1995, at 37-39 (hereinafter Due Process Protocol).

32. ABA adoption of protocol, 65 U. S. L. W. 2519 (Feb. 11, 1997).

33. See, Due Process Protocol, supra note 31, at 37-38.

34. The Due Process Protocol provides: "D. Scope of Review. The arbitrator's award should be final and binding and the scope of review should be limited." Id. at 39.

35. 9 U. S. C. 1 -14 (1994).

36. 9 U. S. C. 2 (1994).

37. See, e. g., Gilmer, 500 U. S. at 24. Tobey v. County of Bristol, 23 F. Cas 1313 (No. 14,065) (C. C. D. Mass. 1845) is a classic example of this hostility.

38. Cf. Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846, 850 (1961).

39. 9 U. S. C. 10-11 (1994).

40. Dennis R. Nolan & Roger I. Abrams, American Labor Arbitration: The Early Years, 35 U. FLA. L. REV. 373, 418 (1983).

41. LAURA J. COOPER & DENNIS R. NOLAN, LABOR ARBITRATION: A COURSEBOOK 7 (1994).

42. Labor Management Relations Act of 1947, 29 U. S. C. 141 -97 (1994).

43. Textile Workers Union Am. v. Lincoln Mills of Ala., 353 U. S. 448, 455 (1957).

44. See note 2, supra.

45. 29 U. S. C. 185 (1994).

46. See Warrior & Gulf, 363 U. S. at 582-83.

47. American Mfg., 363 U. S. at 568.

48. Enterprise Wheel & Car, 363 U. S. at 596-97.

49. Compare, United Paper Workers Int'l Union v. Misco, Inc., 484 U. S. 29, 36-45 (1987) (reiterating in strong language the limited judicial review of labor awards) with 9 U. S. C. 10 (1994)( FAA standard of finality).

50. Warrior & Gulf, 363 U. S. at 578.

51. 346 U. S. 427 (1953) overruled by Rodriguez de Quijas v. Shearson/ Am. Express, Inc., 490 U. S. 477 (1987).

52. Id. at 435-37.

53. See Id.

54. The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 253 (codified as amended at 42 U. S. C. 2000e -2000e-17 (1994)).

55. 42 U. S. C. 2000e-2 (1994).

56. ADEA, Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 USC 621-634 (1994)).

57. 415 U. S. 36 (1974).

58. Id. at 39.

59. Id. at 56.

60. Id. at 57. Following Gardner-Denver, the Supreme Court similarly concluded that an adverse arbitration award under a collective bargaining agreement did not preclude either a subsequent employee suit alleging a wage claim under the Fair Labor Standards Act, Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U. S. 728 (1981)), or a subsequent police officer's suit under 42 U. S. C. 1983 alleging discharge for exercising First Amendment rights, McDonald v. City of West Branch, 466 U. S. 284 (1984).

61. David E. Feller, The Coming End of Arbitration's Golden Age, in ARBITRATION -1976: PROCEEDINGS OF THE TWENTY-NINTH ANNUAL MEETING, NATIONAL ACADEMY OF ARBITRA-TORS 97, 121 (Barbara D. Dennis and Gerald G. Somers, eds. 1976).

62. See, e. g., Susan A. FitzGibbon, Sexual Harassment and Labor Arbitration, 20 GEORGIA J. INT'L & COMP. L. 71 (1990); See also Deborah R. Willig, Arbitration of Discrimination Griev-ances: Arbitral and Judicial Competence Compared, in ARBITRATION 1986: CURRENT AND EX-PANDING ROLES; PROCEEDINGS OF THE THIRTY-NINTH ANNUAL MEETING, NATIONAL ACADEMY OF ARBITRATORS 101 (Walter J. Gershenfeld ed., 1987)

63. See Michele Hoyman & Lamont E. Stallworth, The Arbitration of Discrimination Griev-ances in the Aftermath of Gardner-Denver, 39 ARB. J. Sept. 1984 at 49, 55 (Survey results demon-strated that only 17% of the 1,761 arbitration cases were relitigated and of those only 6.8% were reversed -that is, only 1.2% of all the cases were reversed. Only 27% of 1,761 arbitration cases were reviewed by the EEOC or a state anti-discrimination agency and less than 16% of those were reversed).

64. See, e. g., FitzGibbon, supra note 62, (citing studies and noting, inter alia, that on the "novel" claim of sexual harassment, labor arbitrators employed the analysis formulated by the Supreme Court in Meritor Savings Bank v. Vinson, 477 U. S. 57 (1986) prior to the Supreme Court's decision in that case.) See, also Helen Elkiss, Why Do Arbitrators Uphold Discipline? Examples from Sexual Harassment Grievances, 5 J. INDIV. EMP. RTS. 101, 107-08 (1996-97). Jonathan S. Monat & Angel Gomez, Sexual Harassment: The Impact Of Meritor Savings Bank v. Vinson on Grievances and Arbitration Decisions, 41 Arb. J., Dec. 1986 at 24, 26-27 (survey found that most labor arbitrators resolved issues raised in Meritor and applied EEOC Guideline stan-dards); Margaret Oppenheimer & Helen LaVan, Arbitration Awards in Discrimination Disputes: An Empirical Analysis, 34 Arb. J., Mar. 1979 at 12, 13-14 (review of eighty-six awards revealed that in at least 60% of the cases, labor arbitrators cited federal or state law or EEOC Guide-lines); Willig, supra note 62, at 120, (" Arbitrators are considering federal and state anti-discrimi-nation statutes and regulations and are applying them accurately."); A more recent study of 83 sexual harassment arbitration cases found that the arbitrator referred to Title VII or EEOC Guidelines in 37% of cases.

In Cole, Judge Edwards notes that "the competence of arbitrators to analyze and decide purely legal issues in connection with statutory claims has been questioned" citing, inter alia, Alexander v. Gardner-Denver, but further notes that the Supreme Court has subsequently en-dorsed the arbitration of statutory claims. 105 F. 3d at 1477-78.

65. See United Paperworkers Int'l Union v. Misco, Inc., 484 U. S. 29, 42-43 (1987).

66. See, e. g., John E. Dunsford, The Judicial Doctrine of Public Policy: MISCO Reviewed, 4 LAB. LAW 669 (1988); Harry T. Edwards, Judicial Review of Labor Arbitration Awards: The Clash Between the Public Policy Exception and the Duty to Bargain, 64 CHI-KENT L. REV. 3 (1988); Edgar A. Jones, Jr., His Own Brand of Justice: The Stalking Horse of Judicial Review of Labor Arbitration, 30 U. C. L. A. L. REV. 881 (1983); Theodore J. St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel and its Progency, 75 MICH. L. REV. 1137 (1977).

67. See, e. g., Susan A. FitzGibbon, The Judicial Itch, 34 ST. L. U. L. J. 485, 516-49 (1990).

68. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-04 (1967) (establish-ing the doctrine of "separability" of the arbitration clause).

69. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983).

70. Southland Corp. v. Keating, 465 U. S. 1, 10-11 (1984). See, also Mastrobuono v. Shear-son Lehman Hutton, Inc., 514 U. S. 52 (1995) (contractual choice of law provision did not pre-clude otherwise proper arbitral award of punitive damages).

71. See, e. g., Warren E. Burger, Isn't There a Better Way? 68 A. B. A. J. 274 (1982).

72. 346 U. S. 427 (1953), overruled by Rodriguez de Quijas v. Shearson/ Am. Express, Inc., 490 U. S. 477 (1987)( holding claims under Securities Act of 1933 arbitrable under pre-dispute arbitration agreement).

73. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 632-40 (1985).

74. See Shearson/ Am. Express, Inc. v. McMahon, 428 U. S. 220 (1987).

75. See Rodriguez de Quijas, supra note 72.

76. Gilmer, 500 U. S. at 23. Because the arbitration clause was part of a securities registra-tion application, the majority did not address the employment contract exclusion of 1 of the FAA. Id. at 25 n. 2. Interpretation of the exclusion will be discussed at note 114, infra, and accompanying text.

77. Id. at 26 (quoting Mitsubishi, 473 U. S. at 628).

78. Id. at 26-27.

79. Id. at 27-28 (quoting Mitsubishi, 473 U. S. at 637).

80. Id. at 28, 32 ("[ A] rbitration agreements will not preclude the EEOC from bringing ac-tions seeking class-wide and equitable relief.")

81. Id. at 28 (noting that ADEA claims may be settled without any EEOC involvement).

82. Id. at 30-31; 9 U. S. C. 10( b)( 1994).

83. Id. at 33. The court reiterated that arbitration agreements would be unenforceable if procured by "fraud and overwhelming economic power" or if grounds for revocation of any contract existed (quoting Mitsubishi, 473 U. S. at 627).

84. Id. at 32 n. 4 (quoting Shearson/ American Express Inc. v. McMahon, 482 U. S. 220, 232 (1987)).

85. Gilmer, 500 U. S. at 35.

86. Id. at 34.

87. Id. at 33-35. But, as previously noted, although union employees have had the opportu-nity to relitigate these claims, by and large, they have not and studies have found that labor arbitrators have analyzed these claims as courts do. See notes 62 & 63, supra.

88. See Cole, 105 F. 3d at 1482.

89. See, e. g., Rojas v. TK Communications, Inc., 87 F. 3d 745, 747-49 (5th Cir. 1996); Bender v. A. G. Edwards & Sons, Inc., 971 F. 2d 698, 700-01 (11th Cir. 1992); Alford v. Dean Witter Reynolds, Inc., 939 F. 2d 229, 230 (5th Cir. 1991); Willis v. Dean Witter Reynolds, Inc., 948 F. 2d 305, 312 (6th Cir. 1991).

90. See, e. g., Solomon v. Duke Univ., 850 F. Supp. 372, 373 (M. D. N. C. 1993).

91. Saari v. Smith Barney, Harris Upham & Co., Inc., 968 F. 2d 877, 882-84 (9th Cir.), cert. denied, 506 U. S. 986 (1992).

92. See O'Neil v. Hilton Head Hospital, 115 F. 3d 272 (4th Cir. 1997) (Family and Medical Leave Act); Kuehner v. Dickinson & Co., 84 F. 3d 316 (9th Cir. 1996) (Fair Labor Standards Act); Pritzker v. Merrill Lynch, Pierce Fenner & Smith, Inc., 7 F. 3d 1110 (3d Cir. 1993) (ERISA); Kinnebrew v. Gulf Ins. Co., 67 Fair Empl. Prac. Cas. (BNA) 189, 190 (N. D. Tex. 1994) (Equal Pay Act).

93. See note 15, supra.

94. See notes 23-25, supra, and accompanying text.

95. Bickner, supra note 15, at 15 (noting, in explanation of survey methodology, that "only a small minority of employers have employment arbitration plans for their unrepresented employees").

96. UNITED STATES GEN'L ACC'TING OFFICE, HEALTH, EDUCATION & HUMAN SERVICES DIVISION, EMPLOYMENT DISCRIMINATION: MOST PRIVATE SECTOR EMPLOYERS USE ALTERNA-TIVE DISPUTE RESOLUTION 7 (July 1995) (hereinafter GAO/ HEHS). A different 1995 survey of 92 companies similarly found that 10 of the 92 had used binding arbitration to resolve employ-ment disputes. E. Patrick McDermott, Survey of 92 Key Companies: Using ADR to Settle Em-ployment Disputes, DISP. RES. J., Jan. 1995, at 8. A study of non-union grievance procedures conducted in the 1980's found that approximately 20% of the responding businesses had an arbitration procedure. David Lewin, Grievance Procedures in NonUnion Workplaces: An Em-pirical Analysis of Usage, Dynamics, and Outcomes, 66 CHI.-KENT L. REV. 823, 824-25 (1990).

97. GAO/ HEHS, supra note 96, at 8.

98. Id. at 11.

99. By contrast a few employers in the 1997 survey admitted that one reason behind the adoption of a mandatory arbitration plan was to avoid unionization, however most of the sur-veyed employers reported that this was not a factor because the white collar workers covered by the plans were not likely to seek union representation. See, Bickner, supra note 15, at 79.

100. GAO/ HEHS, supra note 96, at 7-8. A different 1995 survey of 92 companies reported that more than three-fourths of those surveyed would consider using arbitration to resolve com-plaints, and only 13 opposed considering using binding arbitration. McDermott, supra note 96, at 12.

101. Bickner, supra note 15, at 15 and n. 34. The authors noted that of 80 employers identi-fied, 12 did not yet use outside arbitrators, but the selected employers did not represent a scien-tific random sample.

102. Id. at 78.

103. See Id. at 78.

104. See Id. at 79.

105. See note 17, supra.

106. See e. g., Bickner, supra note 15, at 13, 78-79; McDermott, supra note 96, at 12.

107. See, e. g., Bickner, supra note 15, at 79.

108. Bickner, supra note 15, at 78-79.

109. See Id. at 10-11.

110. See Id. at 15.

111. The finality of employment arbitration awards will be addressed in Section VI infra.

112. See, e. g., Civil Rights Procedures Protection Act of 1996, H. R. 983, 105th Cong. (1997); Civil Rights Procedures Protection Act of 1996, H. R. 3748, 104th Cong. (1996); Arbitration: Schroeder Bill Would Bar Enforcement of Mandatory Arbitration Contracts, Daily Lab. Rep., July 3, 1996, available in LEXIS, 1996 DLR 128 d6.

113. Gilmer, 500 U. S. at 25 n. 2.

114. See Patterson v. Tenet Healthcare, Inc., 113 F. 3d 832 (8th Cir. 1997); Cole, 105 F. 3d at 1471; Great W. Mortgage Corp. v. Peacock, 110 F. 3d 222, 226-27 (3th Cir. 1997); Rojas v. TK Communications, Inc., 87 F. 3d 745, 747-48 (5th Cir. 1996); Asplundh Tree Expert Co. v. Bates, 71 F. 3d 592, 596-602 (6th Cir. 1995).

115. Cole, 105 F. 3d at 1471.

116. Id. at 1471-72.

117. 9 U. S. C. 2 (1994).

118. 42 F. 3d 1229 (9th Cir. 1994), cert denied, 116 S. Ct. 61 (1995).

119. Id. at 1304-05; See also, Renteria v. Prudential Ins. Co. of Am., 113 F. 3d 1104 (9th Cir. 1997).

120. Lai, 42 F. 3d at 1302, 1305. The NASD Rules have since been amended to cover ex-pressly employment disputes. NASD, Code of Arbitration Procedure, Administrative Provision 10101. However, in August of 1997 the NASD voted to eliminate mandatory arbitration of stat-utory employment discrimination claims for registered brokers pending approval of the Securi-ties and Exchange Commission. See Arbitration: Elimination of Mandatory Arbitration of Discrimination Claims Proposed by NASD, Daily Lab. Rep., August 8, 1997, available in LEXIS 1997 DLR 153 d6.

121. Lai, 42 F. 3d at 1301, 1301-05.

122. Cosgrove v. Shearson Lehman Bros., No. 95-3432, 1997 U. S. App. LEXIS 392 (6th Cir. Jan 6, 1997) (clear from plain contract language that all employment disputes will be subject to arbitration); Continental Airlines, Inc. v. Mason, No. 95-55343, 1996 U. S. App. LEXIS 31398 (June 19, 1996), aff'd, 87 F. 3d 1318 (9th Cir. 1996).

See Cole, 105 F. 3d at 1469.

124. First Options of Chicago v. Kaplan, 514 U. S. 938, 943 (1995) ("[ A] rbitration is simply a matter of contract between the parties; it is a way to resolve those disputes -but only those disputes -that the parties have agreed to submit to arbitration.").

125. See Motions on Alternative Dispute Resolution Adopted By EEOC Apr. 25, 1995 in EEOC: EEOC Votes to Offer Voluntary Mediation as Option in Job Discrimination Claims, Daily Lab. Rep., April 26, 1995, available in LEXIS, 1995 DLR 80 d28.

126. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 2 EEOC COMPLIANCE MANUAL 132 (Aug. 17, 1995).

127. See, e. g., Cosgrove, supra note 122 at *1, *2; Johnson v. Hubbard Broadcasting, Inc., 940 F. Supp. 1447 (adopting magistrate report & recommendation reported at 73 Fair Empl. Prac. Cas. (BNA) 8 (D. Minn. 1996)).

128. See EEOC Guidance On Waivers Under Civil Rights Laws, Daily Lab. Rep., Apr. 14, 1997, available in LEXIS 1997 DLR 71 d26.

129. Id.

130. See EEOC Policy Statement on Mandatory Arbitration, supra note 23.

131. A post-dispute agreement to arbitrate does not raise similar concerns because employ-ees are free to settle discrimination claims. See, e. g., Estreicher, supra note 15, at 787 & n. 104 (citing the Older Workers Benefit Protection Act of 1990).

132. See, infra notes 155-169 and accompanying text.

133. See Bentley's Luggage Corp., NLRB, Case No. 12-CA-16658, August 21,1995, available in LEXIS, 1995 NLRB GMC LEXIS 92.

134. See Raytheon, E-Systems Greenville Div., NLRB, Case No. 16-CA-17970, cited in Arbi-tration: NLRB General Counsel Approves Settlement Charges on Arbitration Pact, Daily Lab. Rep. Feb 27, 1997, available in LEXIS 1997 DLR 39 d 18.

135. COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, U. S. DEPT. OF LABOR AND U. S. DEPT. OF COMMERCE, REPORT & RECOMMENDATIONS: EXECUTIVE SUMMARY 4 (Dec. 1994).

136. Id. at 25.

137. Id. at 25-26, 33.

138. Id. at 25-26.

139. Id. at 27-30.

140. Id. at 30.

141. Id. at 30-31.

142. Id. at 32.

143. Id. at 32-33.

144. See supra note 31.

145. See Id. at 37, 39.

146. Id. at 37-38.

147. See Id. at 38-39.

148. Id. at 39.

149. Id.

150. See supra note 25 and JAMS/ ENDISPUTE Clarifies Position on Mandatory Employ-ment Arbitration, 7 WORLD ARB. & MEDIATION REP. 51 (1996).

151. Section 1 of AAA National Employment Rules now provide that AAA "will suspend administration for sixty (60) days to permit the party to obtain a stay of arbitration from the court." See American Arbitration Rules for Resolution of Employment Disputes, Daily Lab. Rep., May 28, 1997, available in LEXIS, 1997 DLR 102 d29.

152. Cole, 103 F. 3d at 1483-85. There is, on the other hand, a concern that the employer may dominate the process if employees do not have some financial stake in the process. See, e. g., the remarks of NLRB Chairman William B. Gould in Arbitration: NLRB Chairman Outlines Grow-ing Use of Arbitration Among Nonunion Employers, Daily Lab. Rep., Apr. 10, 1997 available in LEXIS 1997 DLR 69 d29.

153. Cole, 105 F. 3d at 1487 (quoting Gilmer, 500 U. S. at 32 n. 4).

154. Id.

155. See, e. g., Silberman, supra note 15, at 1537.

156. Title VII, 42 U. S. C. 2000e-5( g) (1994); ADEA, 29 U. S. C. 626( b) (1994); ADA, 42 U. S. C. 12117 (1994).

157. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 418-19 (1975).

158. Title VII, 42 U. S. C. 2000e-5 (1994); ADEA, 29 U. S. C. 626( b) (1994); ADA, 42 U. S. C. 12117( a) (1994).

159. See, e. g., Mohasco Corp. v. Silver, 447 U. S. 807, 825 (1980). For a complete description, analysis and critique of the effectiveness of the EEOC see Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law, 57 OHIO ST. L. J. 1 (1996).

160. U. S. Equal Employment Opportunity Commission, ANNUAL REPORT 8, table 1 (1994).

161. See Selmi, supra note 159, at 8.

162. U. S. EEOC, supra note 160, at 11-12, table 5.

163. Id. at 11, 20 table 12.

164. Id. at 12, table 7.

165. EEOC: Commissioners Question General Counsel About Drop in Number of Cases Liti-gated, Daily Lab. Rep., Oct. 23, 1996, available in LEXIS 1996 DLR 205 d19.

166. Id.

167. See EEOC: Employer's Participation Key to Success of ADR Program, EEOC Official Says, Daily Lab. Rep., Dec. 6, 1996, available in LEXIS, 1996 DLR 235 d18; EEOC: EEOC's Miller Says Enforcement Plan Puts Focus on High Impact Litigation, Daily Lab. Rep., Mar. 21, 1997, available in LEXIS, 1997 DLR 55 d20.

168. See EEOC: EEOC's Miller Says Enforcement Plan Puts Focus on High Impact Litiga-tion, Daily Lab. Rep., Mar. 21, 1997, available in LEXIS, 1997 DLR 55 d20.

169. EEOC: EEOC Sets Charge, Litigation Priorities; Delegates Authority to General Coun-sel, Daily Lab. Rep., Feb. 9, 1996, available in LEXIS, 1996 DLR 27 d3.

170. U. S. EEOC, supra note 160, at 6.

171. See, supra note 165.

172. EEOC: EEOC's Reduced Docket Reflects Agency Refocus of Litigation Efforts, Daily Lab. Rep., Mar. 21, 1997, available in LEXIS 1997 DLR 55 d26.

173. Dunlop Report, supra note 135, at 25.

174. ADMINISTRATIVE OFFICE OF THE U. S. COURTS, UNITED STATES COURTS: SELECTED REPORTS, Table C 2A, A1-58 (1994).

175. Id. at A1-84.

176. Id. at A1-58 table C-2A and 45, table S-11.

177. Id. at A1-78, A1-79 table C4.

178. Id. at table C-5 A1-84.

179. Id. at A1-7 table B-1A.

180. U. S. EEOC, supra note 160, at 33 App. D.

181. Bickner, supra note 15, at 79.

182. The author is assuming an arbitration procedure with impartial and unbiased arbitra-tors. In Gilmer, the Supreme Court rejected a presumption of arbitral bias and noted that the "FAA also protect against bias, by providing that courts may overturn arbitration decisions '[ w] here there was evident partiality or corruption in the arbitrators. '" Gilmer, 500 U. S. at 30- 31, citing 9 U. S. C. 10b (1994).

Various concerns for arbitral bias and partiality exist. For some, the troubling issue is the limited demographic make-up of some arbitration pools. See, e. g., UNITED STATES GEN'L ACC'TING OFFICE, HEALTH, EDUC. AND HUMAN SERVS. DIV. EMPLOYMENT DISCRIMINATION-HOW REGISTERED REPRESENTATIVES FARE IN DISCRIMINATION DISPUTES (May 1994). Others have suggested that to increase their business, arbitrators are likely to rule in favor of employers because employers will be repeat players who subsequently will select arbitrators who have ruled in their favor. See, e. g., Cole, 105 F. 3d at 1485 nn. 16, 17 (discussing this concern). While assess-ment of the validity of this claim is beyond the scope of this article, the author suggests that an arbitrator who gains a reputation for favoring management runs the risk that word will spread and employee representatives will refuse to agree to that arbitrator's selection. See Id. at 1485.

183. See supra notes 135-149 and accompanying text (discussing the Due Process Protocol and the Dunlop Commission Recommendations).

184. Bickner, supra note 15, at 78; McDermott, supra note 96 at 11.

185. See, e. g., FEDERAL MEDIATION AND CONCILIATION SERVICES, NATIONAL OFFICE MAN-AGEMENT, FORTY-EIGHTH ANNUAL REPORT 37 (1995).

186. See, e. g., Martha S. West, The Case Against Reinstatement in Wrongful Discharge, 1988 U. ILL. L. REV. 1, 30 (noting speed of the reinstatement remedy as "one of the most important factors" in an employee's decision to accept reinstatement after discharge for union activity under the NLRA).

187. Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals, 141 U. PA. L. REV. 456, 477 (1992) (citing a 1974 study involving 217 employees discharged for union activity under the NLRA which found that 93% of employees accepted reinstatement if offered within two weeks but that only 5% of employees accepted reinstatement after six months; see Elvis C. Stephens & Warren Chaney, A Study of the Reinstatement Remedy Under the National Labor Relations Act, 25 LAB. L. J. 31, 33, 40 (1974)). In 1988, Professor West reported that review of NLRB official figures demonstrated that between 1970 and 1979, "the NLRB or the federal courts offered 45,671 employees reinstatement under the NLRA" and that 68% (31,111) of those employees accepted reinstatement and only 32% declined reinstatement. West, supra note 186, at 28 and n. 132.

188. See Warren H. Chaney, The Reinstatement Remedy Revisited, 32 LAB. L. J. 357 (1981). Chaney studied NLRB cases in which 217 employees were offered reinstatement under the NLRA. Id. at 359. Of the 129 employees who declined reinstatement, 114 cited "fear of com-pany backlash," 51 cited a better job and 21 cited acceptance of backpay settlement. Id. at 359, table II and 361. Similar results were obtained in an earlier study, see Les Aspin, Legal Reme-dies Under the NLRA, Remedies under 8( a)( 3), 23 INDUS. REL. Res. A. 264 (1970), cited in West, supra note 186 at 28-30 and nn. 135, 136, 137.

189. Chaney, supra note 188, at 360 (86.9% of reinstated employees left the company within a year, Id. table IV; 65.3% listed "unfair company treatment" and 8.7% listed discharge as the reasons for leaving, Id. table V.)

190. Benjamin W. Wolkinson &Victor W. Nichol, The Illusion of Make Whole Relief: The Exclusion of the Reinstatement Remedy in Hostility-Based Discrimination Cases, 8 LAB. LAW. 157, 170 & 177 (1992).

191. West, supra note 186, at 38. In support of these conclusions, West cites and summarizes a number of studies including, Ken Jennings, et al., The Arbitration of Discharge Cases: A Forty-Year Perspective, 38 LAB. L. J. 33 (1987) (study found that arbitration upheld 50% of discharge decisions in the 1983-84 period. Id. at 35 table 1, 36); William E. Simkin, Some Results of Rein-statement by Arbitration, 41 ARB. J., Sept. 1986, at 53 (Simkin's study of cases he decided from 1970-1982 as permanent arbitrator for one "sizeable" company demonstrated that he upheld the discharge in 171 of 294 (58.2%) of discharge cases. Id. at 54); Arthur A. Malinowski, An Empiri-cal Analysis of Discharge Cases and the Work History of Employees Reinstated by Labor Arbitra-tors, 36 ARB. J., Mar. 1981, at 31 (study reported that 10 of 73 (13.7%) of grievants never returned to work after reinstatement. Id. at 37, table 6).

192. West, supra note 186, at 36 citing studies including the Malinowski study which found that 47 of 73 (64.4%) of reinstated grievants remained employed, see Malinowski, supra note 191, at 37, table 6, and Simpkin who reported that 57 of 119 reinstated employees were still with the company, see Simkin supra note 191, at 55, 56, table 4.

193. West, supra note 186, at 39-40.

194. St. Antoine, supra note 8, at 375.

195. Wolkinson, supra note 190, at 169-70.

196. For example, in 1994 less than 9% of federal employment discrimination cases went to trial. Admin. Office of U. S. Courts, supra note 174, table C-4 at A1-78 & 79.

197. Cf. Wolkinson, supra note 190, at 171.

198. Bickner, supra note 15, at 81. Also see American Arbitration Association, National Rules for the Resolution of Employment Disputes: Arbitration and Mediation Rules, supra note 30, Rule 32b.

199. Cf. Stephen W. Skrainka, The Utility of Arbitration Agreements in Employment Manuals and Collective Bargaining Agreements for Resolving Civil Rights, Age and ADA Claims, 37 ST. L. U. L. J. 985, 992-93 (1993).

200. Id.

201. Some commentators believe that erratic jury verdicts serve as good deterrents, i. e., that unpredictable results may prompt higher settlement figures. See, e. g., West, supra note 186, at 49. While this may be true, employers may in response develop a disdain for the jury system rather than a clearer appreciation for a non-discriminatory workplace.

202. Wolkinson, supra note 190, at 168.

203. Cf. Id. at 170.

204. Cf. Lewin, supra note 96, at 833 (study of non-union grievance procedures found posi-tive relation between belief in impartiality of grievance procedure and the perception of the effectiveness of the procedure).

205. See, e. g., Hayford & Peoples, supra note 15, at 381-82 (suggesting adoption of arbitra-tion plans which offer a consistent process which is effective in terms of cost, time and fair results and which will become a routine part of business).

206. See, e. g., Bickner, supra note 15, at 8. Although it also must be noted that the costs of attorney representation will still deter many employees. See, Milind Shah ACLU, The Private Arbitration of Employment Disputes (1994) (on file with the author).

207. Cf. Summers, supra note 187, at 528 (noting in labor arbitration the benefit of "the continuous policing of the employer's actions and the ready availability of remedial action" as affording an efficient, acceptable remedy and deterrent).

208. Shah, supra note 206 at 7.

209. Id.

210. 42 U. S. C. 1981a (1994).

211. Bickner, supra note 15, at 81.

212. AAA Rule 32 c. American Arbitration Association, supra note 30.

213. Professor Estreicher noted that "[ m] ajor strides were made in the discrimination field for 25 years without resort to juries" but also asserted that mandatory arbitration should not exclude access to punitive damages. Statement by Professor Samuel Estreicher to the Commis-sion on the Future of Worker-Management Relations Panel on Private Dispute Alternatives, 29, 1994 Daily Lab. Rep. Sept. 30, 1994 available in LEXIS at 1994 DLR 188 d33.

214. Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073, 1089 (1984).

215. Gilmer, 500 U. S. at 25 (quoting Moses H. Cone Mem'l Hosp., 460 U. S. at 24).

216. Gilmer, 500 U. S. at 26 (quoting Moses Cone Mem'l Hosp., 460 U. S. at 24).

217. Gilmer, 500 U. S. at 26 (quoting Mitsubishi Motors Corp., 473 U. S. at 628).

218. Gilmer, 500 U. S. at 30.

219. Gilmer, 500 U. S. at 30 (quoting Rodriguez de Quijas, 490 U. S. at 481).

220. Gilmer, 500 U. S. at 30.

221. Gilmer, 500 U. S. at 33.

222. Gilmer, 500 U. S. at 33 (internal quotation and citations omitted).

223. Gilmer, 500 U. S. at 28, (quoting Mitsubishi, 473 U. S. at 637) (emphasis added).

224. Cole, 105 F. 3d at 1473-80.

225. Cole, 105 F. 3d at 1482-83 (citing Gilmer, 500 U. S. at 28); Gorman, supra note 15 at 645.

226. Cole, 105 F. 3d at 1487.

227. Cole, 105 F. 3d at 1487 citing, inter alia, Martin H. Malin, Arbitrating Statutory Employ-ment Claims In the Aftermath of Gilmer, 40 ST. LOUIS U. L. J. 77, 104 (1996) (" Most employment disputes are fact-based and not likely to raise the kind of legal issues that would call for signifi-cant judicial review.").

228. Cole, 105 F. 3d at 1487.

229. Cole, 105 F. 3d at 1483 n. 11.

230. Cole, 105 F. 3d at 1483-85.

231. See supra note 6.

232. In Gardner-Denver the Court stated:

    Nor are we convinced that the solution lies in applying a more demanding deferral standard, such as that adopted by the Fifth Circuit in Rios v. Reynolds Metals Co., 467 F. 2d 54 (1972). In Rios, the court set forth the following deferral standard: "First, there may be no deference to the decision of the arbitrator unless the contractual right coin-cides with rights under Title VII. Second, it must be plain that the arbitrator's decision is in no way violative of the private rights guaranteed by Title VII, nor of the public policy which inheres in Title VII. In addition, before deferring, the district court must be satisfied that (1) the factual issues before it are identical to those decided by the arbitrator; (2) the arbitrator had power under the collective agreement to decide the ultimate issue of discrimination; (3) the evidence presented at the arbitral hearing dealt adequately with all factual issues; (4) the arbitrator actually decided the factual issues presented to the court; (5) the arbitration proceeding was fair and regular and free of procedural infirmities. The burden of proof in establishing these conditions of limita-tion will be upon the respondent as distinguished from the claimant." 467 F. 2d at 58. For a discussion of the problems posed by application of the Rios standard, see Note, Judicial Deference to Arbitrators' Decisions in Title VII Cases, 26 STAN. L. REV. 421 (1974).
415 U. S. at 58-59 & n. 20. The Court further noted:
    We adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's discretion with regard to the facts and circumstances of each case. Relevant factors include the existence of provisions in the collective-bargaining agreement that conform substantially with Title VII, the degree of proce-dural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee's Title VII rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record. But courts should ever be mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of dis-criminatory employment claims. It is the duty of courts to assure the full availability of this forum.
Id. at 60 n. 21.

233. Cole, 105 F. 3d at 1488-91 (Henderson, J., concurring in part and dissenting in part).

234. The subject discussed herein has been addressed prior to the Cole decision by a number of authors. Generally speaking, the literature demonstrates opposition to mandatory arbitration of statutory rights. It appears that Professor Summers is inclined to support arbitration as the most likely practical forum for vindication of employee rights, although he bases the gist of his proposals on the need for concerted action. Summers, supra note 187 at 546.

235. Cole, 105 F. 3d at 1487-88.

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