Employee Rights and Employment Policy Journal

 In 1991, the U.S. Supreme Court decided, in Gilmer v. Interstate/Johnson Lane Corp., that an employee's federal age discrimination claim against his employer was subject to arbitration under the Federal Arbitration Act (FAA) on the ground that nothing in the Age Discrimination in Employment Act reflects a congressional intent to preclude arbitration of such claims. Since then, federal courts have applied Gilmer to conclude that a variety of statutory employment discrimination claims are arbitrable under the FAA. However, circuits are divided on questions of whether Secion 118 of the Civil Rights Act of 1991 either limits or prohibits mandatory arbitration of Title VII claims. The author finds that Section 118 does not restrict or bar such arbitration, but suggests that there are alternatives to Sections 118 for plaintiffs who seek to avoid mandatory arbitration of employment discrimination claims. He argues that many pre-dispute arbitration clauses in employment contracts are invalid under reasonable expectations doctrine of adhesion contract law. He also argues that, as applied to employment discrimination claims for damages brought in federal court, most such agreements are unenforceable under judicial doctrine concerning contractual waivers of the Seventh Amendment right to jury trial. The author concludes that each proposed challenge provides a method of evaluating the enforceability of pre-dispute agreements to arbitrate statutory employment discrimination claims that is on sounder legal ground than reliance on Section 118 and that responds more directly to the concerns raised by critics of mandatory arbitration.