Mandatory Arbitration and Employment Discrimination: The Unfair Law

A Background Paper for the UNESCO World Press Day Conference in Geneva

By: Eric A. Hernandez

[*96]INTRODUCTION

Pre-dispute mandatory arbitration contracts benefit employers by providing an adjudicatory process for employment discrimination disputes that is efficient, confidential, and final. Ever since the Supreme Court ruled that mandatory arbitration agreements preclude employees from pursuing their discrimination claims in court,[1] employers across the country have inserted boilerplate mandatory arbitration clauses into their employment contracts.[2] Until recently, many employers, such as those in the securities industry, required the signing of a mandatory arbitration contract as a condition of employment. As a result, employers, who possess disproportionate bargaining power, are able to coerce employees to forfeit their civil rights through contracts of adhesion. Unfortunately, the coercive nature of mandated arbitration leaves aggrieved employees trapped in a private dispute resolution system that is overseen by the very employers who have allegedly violated their civil rights. The present mandatory arbitration system is partial and unfair, and achieves efficiency to the detriment of the employee. This note argues that this type of alternative dispute resolution (ADR) process conflicts with the ultimate goal of ending employment discrimination in the workplace. The present confusing and conflicting state of the law demands practical legislation that determines whether, and how, mandatory arbitration can be formulated to benefit all interested parties.

Part I will discuss the status of the law respecting the issue of mandatory arbitration of statutory employment discrimination claims. Part II will then examine the pros and cons of mandatory arbitration in the employment discrimination context. Part III will argue that the present form of mandatory arbitration of employment discrimination claims is unfair and at odds with federal policy toward ending discrimination in employment. Finally, Part IV will propose reforms that would make the arbitration of employment discrimination claims fairer, thus bringing the arbitration process into conformity with Congress’ express goal of ending discrimination in the work place. I. OVERVIEW OF THE LAW PERTAINING TO ARBITRATION OF DISCRIMINATION CLAIMS

A. Mandatory Arbitration Disfavored: Alexander v. Gardner-Denver Co.

In 1974, in Alexander v. Gardner-Denver Co.,[3] the Supreme Court held that an arbitration decision under a collective bargaining agreement could not stop a black employee from pursuing a claim of unlawful racial discrimination under Title VII of the 1964 Civil Rights Act (Title VII).[4] In reversing the dismissal of the plaintiff’s claim under Title VII, the Court reasoned that Title VII was enacted to expand remedies of discrimination plaintiffs and a “waiver of these rights would defeat [Title VII’s] paramount congressional purpose.”[5] It followed that the arbitrator could only render a decision upon the contractual issue of discrimination and not the statutory issue because a union could not bargain away an individual’s rights under Title VII.[6] [*97] Moreover, the Court suggested that arbitration does not afford discrimination plaintiffs appropriate procedures to safeguard their due process rights.[7]

B. Gilmer’s Restriction of Alexander

In 1991, in Gilmer v. Interstate/Johnson Lane Corp.,[8] the Supreme Court indirectly overruled Alexander. In Gilmer, the Court affirmed a Fourth Circuit decision which held that a stockbroker employee was contractually bound by the New York Stock Exchange’s (“NYSE”) registration application to arbitrate an age discrimination claim under the Age Discrimination in Employment Act of 1967 (“ADEA”).[9] The Court reasoned that as “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 function.”[10] Moreover, the Court opined that the Federal Arbitration Act (“FAA”)[11] promoted a “liberal policy favoring arbitration agreements, and thus imposed on employees the burden of proving that Congress intended to preclude the claim at issue from arbitration.”[12] Gilmer thus established that an arbitrator can be empowered to handle statutory employment discrimination issues.

C. The Appellate Circuits Treatment of Gilmer

Although Gilmer did not settle the question of whether mandatory arbitration contracts preclude the litigation of all statutory rights, a majority of the circuits have decided that mandatory arbitration agreements preclude employees from pursuing any of their statutory discrimination claims in court.[13] As a result, a necessary percentage of employers have cited Gilmer as justification for the inclusion of mandatory arbitration clauses in their employment contracts.[14]

In order to secure the due process rights of plaintiffs with discrimination claims, several courts have begun to narrow the applicability of Gilmer and impose more stringent procedural requirements.[15] In Cole v. Burns International Security Services,[16] the U.S. Circuit Court for the District of Columbia noted that endorsement of arbitration is premised on the availability of competent, conscientious, and impartial arbitrators.[17] In support of their decision the Court admonished arbitrators to (1) educate themselves about the law, (2) follow precedent and adopt an attitude of judicial restraint when entering undefined areas of the law, and (3) actively ensure that the record is sufficiently developed and procedural fairness is provided. The D.C. Circuit also directed appointing agencies, such as the American Arbitration Association (“AAA”) to ensure that only persons meeting these requirements are added to arbitrator or panel lists.[18] Although the Cole court premised its decision in favor of mandatory arbitration on the availability of competent, conscientious, and impartial arbitrators, it, like many other circuits, ultimately followed Gilmer and ignored or overlooked the argument that employees were being forced into arbitration by contracts of adhesion.[19]

The Second Circuit has also followed Gilmer by ruling in favor of mandatory arbitration.[20] In doing so however, the Second Circuit has focused on the deficiencies of the arbitration proceeding in resolving discrimination disputes in accordance with statutory goals.[21] In Halligan v. Piper Jaffray, Inc.[22] the Second Circuit overturned the decision of an arbitrator, who, in an ADEA case, found in favor of the employer despite overwhelming [*98] evidence establishing discrimination.[23] The Second Circuit ruled that the arbitrator’s decision was in “manifest disregard” of the law, and thus stripped the employee of substantive statutory rights.[24] The Second Circuit noted that Gilmer favored arbitration but indicated that signing a mandatory arbitration agreement was merely intended to change the forum and not compromise the enforcement of an employee’s substantive rights under the statute.[25] Since the employee’s facts in Halligan showed that substantive rights had been compromised, application of Gilmer required the judicial overturning of the arbitration proceeding.[26]

Only the Ninth Circuit has focused on the substance of an arbitration contract by holding that waiver of Title VII rights must be informed and voluntary.[27] In Prudential Insurance Company of America v. Lai[28] the court read Gilmer as stating that the statutory right to bring a discrimination claim to court may be waived in favor of arbitration, if the choice is informed and voluntary. In applying Gilmer, the Ninth Circuit held that a contract that does not inform employees of the specific statutory rights they are waiving, and is adhesive, cannot satisfy the knowing and voluntary standard.[29]

D. Gilmer Preempted The 1991 Civil Rights Act and Mandatory Arbitration

Several circuits have addressed the issue of whether Gilmer’s holding has been preempted by the Civil Rights Act of 1991[30] (“CRA”), which was passed as an amendment to Title VII.[31] The issue is whether section 118 of the CRA, which promotes alternative dispute resolution in Title VII and indirectly in ADEA cases “to the extent authorized by law,” was intended to endorse Gilmer, or the prior rule articulated in Alexander.[32] If section 118 of the CRA endorses Gilmer, then it approves mandatory agreements to arbitrate discrimination claims. An alternate view is that since Gilmer was rendered subsequent to the enactment of the CRA, the provisions of the Act apply only to voluntary agreements entered into after a dispute has arisen (the Alexander rule).[33]

In Duffield v. Robertson Stephens & Co.,[34] the Ninth Circuit again decided against pre-dispute mandatory arbitration by finding that compulsory arbitration did not comport with the CRA’s purpose of expanding employees’ rights and remedies.[35] The Ninth Circuit reasoned that to comply with congressional intent, section 118 should be interpreted to mean that “arbitration furthers the purpose and objective of the Act – by affording victims of discrimination an opportunity to present their claims in an alternative forum, a forum that they find desirable – not by forcing an unwanted forum upon them.”[36] The Ninth Circuit refused to endorse the notion that, in a statute designed to expand and strengthen employee rights and remedies, Congress intended to preclude discrimination plaintiffs’ access to the courts.[37]

Other circuits, however, have rejected this reading of the CRA.[38] The split in the circuits will persist at least for the short term because the Supreme Court recently denied certiorari in the Duffield case. A bill proposing to amend several discrimination statutes to prohibit mandatory arbitration had been introduced in the U.S. House of Representatives,[39] but it has not yet passed and does not appear to occupy a prominent place on the congressional agenda.[40]

[*99] II. PRACTICAL CONSIDERATIONS OF MANDATORY ARBITRATION OF EMPLOYMENT DISCRIMINATION CLAIMS

A. Pros and Cons of Mandatory Arbitration

1. Efficiency and Expanded Access to Remedies

Efficiency, measured in terms of the conservation of time and money, is one of the most persuasive arguments in favor of mandatory arbitration of statutory employment discrimination claims. Arbitration reduces the costs of pursuing discrimination actions for both the employer and the employee. In 1996, discrimination suits accounted for approximately twenty percent of the total number of cases pending in state and federal courts.[41] In federal court, the average time for resolution has been eight months, but approximately nine percent of active cases have been pending for a period of three years or more.[42] As the courts are overburdened, litigation expenses for the employer and the employee are reduced dramatically by arbitration. In the securities industry alone, it has been estimated that mandatory arbitration has reduced the costs of litigation by two-thirds.[43]

Mandatory arbitration also permits a greater number of aggrieved employees to seek redress for their discrimination claims.[44] Employees who seek vindication in court must first convince counsel that the potential recovery justifies the time and expense involved in litigating a discrimination case.[45] Claimants who secure counsel must also be prepared to bear the financial costs of litigation for as many as two or three years.[46] The 1994 report of the Dunlop Commission on the Future of Worker-Management Relations (“Dunlop Commission Report”) states that most claimants seeking employment discrimination redress tended to be white-collar employees as opposed to their poorer blue-collar counterparts.[47] This is further evidence that many claimants are not able to mount a statutory discrimination litigation.[48] The outcome, however, may be different in a voluntary arbitration system. Under a voluntary arbitration system, employers will likely try to arbitrate disputes that they believe they will lose in court, to avoid the possibility of large damage awards being rendered against them. In addition, employers, who are usually in a better financial position than employees to litigate discrimination claims, may force employees with weaker claims to litigate, not allowing employees to take advantage of the cheaper, faster arbitration option. The mandatory arbitration in place now, in contrast, may prevent employers from ignoring disputes or prevailing in them simply because they have greater financial resources.[49]

Furthermore, a number of claims filed with the Equal Employment Opportunity Commission (“EEOC”) has increased markedly (from 73,000 in 1993 to over 111,000 in 1995). This increase has established the average time of one year before an actual judicial proceeding is filed, and even at that point, the proceeding may lack a thorough investigation.[50] Therefore, because mandatory arbitration provides a relatively quick and inexpensive forum, a greater number of aggrieved employees may have their discrimination claims adjudicated and resolved.

The confidential and informal nature of mandatory arbitration also protects employers from potentially inconsistent jury awards, settlements, and punitive damages [*100] that carry large liability, as well as from public scrutiny and embarrassing criticism.[51] Because the costs of litigation and possible notoriety deepens mistrust between employers and employees, the confidential nature of the arbitration procedure creates a greater possibility of employee reinstatement during the pendency of the dispute.[52] However, confidentiality accompanied without some form of public scrutiny gives employers little incentive to end discrimination in the workplace rather than merely attempting to resolve the instant dispute.[53]

Despite the confidentiality and efficiency that mandatory arbitration affords, as presently structured, such proceedings are not truly efficient because they fail to realize the ultimate statutory goal of deterring discrimination in the workplace.[54] As a consequence, in many companies, unlawful discrimination will continueunchecked.[55]

2. Mandatory Arbitration: Is It Fair?

Advocates for mandatory arbitration claim that arbitration is an inherently fair process well suited to address discrimination claims.[56] They contend that an arbitrator’s expertise makes him a more “reasoned, predictable decision maker than most jurors.”[57] This saves employers the expense of explaining to a “judge or jury the business reasons for the employment action.”[58] In addition to lowering costs, there are other advantages to using a mandatory arbitration system. Advocates further argue that the arbitration process ensures procedural due process. To safeguard against potential due process violations, arbitration should include: (1) competent arbitrators with expertise; (2) diverse pools of arbitrators allowing fair selection; (3) fair and simple discovery procedures; (4) fair methods of cost sharing; (5) a range of remedies equal to those available in litigation; (6) written arbitrator explanations of awards; and (7) limited judicial review ensuring conformity with the law.[59] Most advocates contend that many employers have embraced these due process safeguards. They point to examples such as in the securities industry, where self-regulating organizations overseeing arbitration have instituted procedures and policies to ensure fairness and due process.[60]

These arguments are not persuasive because of the great power imbalance and lack of impartiality present in the mandatory arbitration system. Mandatory arbitration is forced upon employees by boilerplate language of contracts in which employment is offered on a “take-it-or-leave-it” basis.[61] The unequal bargaining position creates an imbalance of power in favor of the employer. Statistics and surveys on arbitration in the securities industry reveal that the average claim and punitive damages awarded by arbitration are significantly less than amounts awarded by juries.[62]

In addition, although there is a consensus regarding due process safeguards, the fact that employers themselves, as opposed to independent agencies such as the AAA oversee the very mandatory arbitration they themselves have imposed, raises additional questions concerning impartiality and fairness.[63] Furthermore, arbitrators are usually selected from a homogenous pool of white males associated with the employer’s industry.[64] This practice raises serious questions given that they most often arbitrate the claims of sexual and racial discrimination claimants.[65] Even if the arbitrators are not selected from homogenous pools drawn from the employers’ respective industries, they still have an inappropriate economic stake. The [*101] process, insofar as its ability to maintain an income stream, is dependent upon the receipt of favorable reviews from repeat user corporations.[66]

Limited discovery, a staple of many mandatory arbitration arrangements, may save time and money, but it typically works against claimants who bear the burden of proof and are typically the party with less information.[67] At present, judicial review of arbitration awards is minimal, and the circuits uniformly overturn arbitrations only if they are in “manifest disregard of the law”.[68] Many courts have refused to overturn arbitration decisions merely because the arbitrators involved misapplied the law or misinterpreted a contract.[69] This lax standard allows arbitrators to misapply and/or ignore the law while dodging the issuance of written opinions.[70] Moreover, confidentiality clauses are imposed and punitive damages are prohibited when filing in court for a judicial review of arbitration.[71] As a result, claimants cannot waive their rights knowingly and voluntarily. The above outlined problems make mandatory arbitration fundamentally unfair for claimants seeking redress of discrimination claims.

III. MANDATORY ARBITRATION DOES NOT PROTECT CIVIL RIGHTS PLAINTIFFS

A. The Position of the EEOC and Others Against Mandatory Arbitration

The EEOC, members of Congress and the commissioner of the Securities and Exchange Commission (“SEC”) have all publicly criticized mandatory arbitration.[72] The EEOC’s opposition to mandatory arbitration is based on: (1) the private nature of arbitration without public accountability is not in conformity with the “public values reflected in the anti-discrimination laws”;[73] (2) the structure of the present mandatory arbitration system favors employers, especially repeat users;[74] and (3) the EEOC’s legislative mandate of enforcing civil rights is impeded by employees’ inability to litigate in court.[75]

In June of 1998, the SEC approved the National Association of Securities Dealers (“NASD”) proposed rule change, which exempted discrimination and sexual harassment complaints from the mandatory arbitration requirement found in the NASD’s U-4 Dealer Registration Form.[76] The new rule, which allows NASD registrants to assert their right to have any claims of sexual harassment or racial discrimination presented to a court of law, took effect January 1, 1999.[77] In September of the same year, the NYSE also dropped its mandatory arbitration requirement for discrimination claims.[78]

B. Congressional Intent and Legislative History

Ultimately, the strongest argument against mandatory arbitration may be that it is not in compliance with the purpose and history of the CRA. As mentioned earlier, section 118, which supports arbitration “where appropriate and to the extent authorized by law,” cannot be interpreted to support Gilmer because the decision was rendered after the Act was enacted. Also, the CRA does not support the conclusion that mandatory arbitration conforms with either the purpose of expanding discrimination rights and remedies or with the voluntary nature of ADR processes.[79] It would be inconsistent for Congress to pass a self-contradictory bill.[80] Moreover, the legislative history of the ADA and the proposed Civil Rights Act of 1990 (“1990 CRA”) support precluding mandatory [*102] arbitration in the context of TitleVII.[81] Despite the fact that the 1990 CRA was ultimately vetoed, its language pertaining to ADR was incorporated into the CRA,[82] lending further support to the presumption that while arbitration was to be encouraged, its application should be knowing and voluntary. Finally, during the adoption of the ADA, the House Judiciary Report stated that use of ADR is “intended to supplement, not supplant, the remedies provided by this Act.”[83] It therefore seems evident that congressional intent is not consistent with the holding in Gilmer and the requirement of mandatory arbitration.

C. Women and Minorities Are Disadvantaged by the Present Mandatory Arbitration System

Minorities and women, as the primary victims of racial and sexual discrimination and harassment,[84] are all too often confronted with arbitrators who do not share similar life experiences and who do not understand the dynamics of sexual and racial discrimination.[85] At least in court discrimination plaintiffs get a cross section of the population as their finder of fact. In addition, mandatory arbitration does not provide employers with appropriate incentives to alleviate discrimination and harassment. This leads employers to attempt to resolve employment disputes without addressing their underlying causes.

IV. REFORM AND CONCLUSION

There are several possible reforms to mandatory arbitration that would benefit both employers and employees. However, in an entirely voluntary system, both employers and employees benefit from arbitration because of the efficient, private and final outcomes the voluntary system provides. The preservation of an employees’ option to litigate would give employers an incentive to seek out and implement the most efficient mix of fairness and efficiency. If an employee opts for arbitration, she is more aware of the rights forfeited after the dispute has arisen, and the competition for the best system of resolution provides the employee with a process that is better in terms of balancing fairness and efficiency than what the current mandatory arbitration system offers.

If mandatory arbitration continues to be incorporated in binding legal contracts, the arbitration process mandated must be made fair. Careful selection of arbitrators in terms of expertise, diversity, and non-industry affiliation will increase the fairness and validity of decisions. Also, arbitrator training in substantive areas of employment law together with more public scrutiny (judicial review or organizational review of mandatory written opinions), would promote fairness and impartiality of the process.[86]

Arbitration is inarguably economically efficient. The economic efficiency of the present mandatory arbitration system, however, is achieved at the cost of fairness to employees. Considering that the purpose behind employment-based civil rights legislation is to deter and end discrimination in the workplace, mandatory arbitration faces a difficult challenge. Private proceedings, which are shielded from public scrutiny and controlled and mandated by the party whose very behavior the law is trying to correct, cannot be in conformity with the goals of legislation. Added to this already overwhelming power imbalance that confronts employees, a conspicuous lack of due process safeguards and public scrutiny of awards leaves impartiality and bias largely unchecked. Further, the employees asserting the claims are judged by [*103] homogenous arbitration panels that may not even understand the claims asserted, thus decisions are likely to be biased. Consequently, the present system of mandatory arbitration deprives employees of their substantive statutory civil rights.

[*103] [1] Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Infra note 8

[2] See infra note 14.

[3] Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). Alexander was an African-American who had worked as a drill operator at the defendant’s plant. After the company fired him for allegedly producing defective parts, Alexander filed a grievance pursuant to the collective bargaining agreement in force between the company and Alexander’s union. The agreement included an arbitration clause, which required that the dispute, if not resolved through the grievance procedure, be remitted to arbitration, the result of which was to be “final and binding upon the Company, the Union, and any employee or employees involved.” Id. at 38-42. After the arbitrator ruled in the company’s favor. Alexander brought suit under Title VII. Id. at 43.

[4] 42 U.S.C. § 2000e (1994). Title VII prohibits employment discrimination on the basis of race, color, religion, sex or national origin.

[5] Alexander, 415 U.S. at 51.

[6] Id.

[7] Id. at 57-58. The Court further suggested that heightening procedural safeguards in arbitration was an unfeasible solution because this would rob arbitration of its most attractive characteristic, its informality. See id. at 58-59.

[8] Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Gilmer, who had been a financial services manager for Interstate, alleged that he was terminated because of his age (sixty-two at the time of suit) in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 (1994). See Gilmer, 500 U.S. at 23-24. Gilmer’s employment with Interstate had required him to file a “U-4” registration application with the New York Stock Exchange (“NYSE”) in which he agreed to arbitrate “any dispute, claim, or controversy” arising between him and Interstate “that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations” with which he registered. Id. at 23. One of those NYSE rules provided for arbitration of “any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative.” Id.

[9] 29 U.S.C. § 621 (1994). The ADEA prohibits employment discrimination against individuals 40 years of age and older.

[*104] [10]See Gilmer, 500 U.S. at 28.

[11] 9 U.S.C § 1 et seq (1994).

[12] Gilmer at 35. The Court distinguished Alexander in various ways. Mainly, emphasis was placed on the fact that the arbitrator only had authority to decide the contract claim. The Court also stated that Alexander was not decided under the FAA and, unlike here, arbitration was not favored. Realistically, however, these distinctions do not make a difference, because Gilmer established that an arbitrator can be empowered to handle statutory issues. Strangely, however, the Court barred the plaintiff’s court action, but in order not to curtail the Equal Employment Opportunity Commission’s (“EEOC”) enforcement role, the plaintiff maintained the right to file with the EEOC. The EEOC is a federal agency created by Title VII. The EEOC’s goal is to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws and through education and technical assistance.

[13] See generally, McWilliams v. Logicon, Inc., 143 F.3d 573 (10th Cir. 1998); Cole v. Burns Int’l Security Serv., 105 F.3d 1465 (D.C. Cir. 1997); Great Western Mortgage Corp. v. Peacock, 110 F.3d 222 (3d Cir. 1997), cert. denied, 118 S.Ct. 299 (1997); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997); Rojas v. TK Communications, 87 F.3d 745 (5th Cir. 1996); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50 (7th Cir. 1996).

[14] See Miriam A. Cherry, Not-So-Arbitrary Arbitration: Using Title VII Disparate Impact Analysis to Invalidate Employment Contracts That Discriminate, 21 Harv. Women’s L.J. 267, at 269 (1998). See also Pete Bucci, Pre-Employment Waivers Favored By Businesses, But Backlash May Be Brewing, Cap. Dist. Bus. Rev., Aug. 18, 1997, at 15 (noting that recent news reports have revealed that “last year 300 companies moved into mandatory arbitration, which breaks down to a rate of twelve to fifteen per month”); Justin M. Dean, Note, Going, Going, Almost Gone: The Loss of Employees’ Rights to Bring Statutory Discrimination Claims in Court, 63 Mo. L. Rev. 801, 809 (1998).

[15] See generally, Halligan v. Piper Jaffray, Inc., 148 F.3d 197 (2d Cir. 1998); Cole, 105 F.3d 1465 (setting forth minimum due process requirements for arbitration proceedings); Prudential Ins. Co. v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert. denied, 516 U.S. 812 (1995) (holding that an employee cannot be forced to arbitrate discrimination claims unless he or she knowingly agreed to submit such disputes to arbitration).

[16] 105 F.3d 1465 (D.C. Cir. 1997).

[17] Id. at 1476-77.

[18] Id. at 1488.

[19] See, e.g., O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50 (7th Cir. 1995); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698 (6th Cir. 1991); Willis v. [*105] Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991); Pitter v. Prudential Life Ins. Co., 906 F. Supp. 130 (E.D.N.Y. 1995) (Title VII & Section 1981).

[20] See Halligan, 148 F.3d 197.

[21] Id.

[22] Id.

[23] See id. at 198-200.

[24] See id. at 204.

[25] Id.

[26] Id.

[27] See Lai, 42 F.3d at 1305; Renteria v. Prudential Ins. Co. of Am., 113 F.3d 1104, 1106-07 (9th Cir. 1997).

[28] See Lai, 42 F.3d at 1301.

[29] Id.; see also Nelson v. Cyprus Bagdad Copper, 119 F.3d 756, 761 (9th Cir. 1997) (extending Lai’s knowing requirement for Title VII claims to claims under the ADA).

[30] 42 U.S.C. § 1981.

[31] 29 U.S.C. § 621 et seq.

[32] 42 U.S.C. § 1981.

[33] See Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), cert. denied, 525 U.S. 982 (1988).

[34] Id.

[35] Id. at 1192.

[36] Id. at 1194.

[37] Id. at 1192-93.

[38] See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1 (1st Cir. 1998) (The Court determined that the legislative history relied upon by the district court was “insufficient to overcome the presumption in favor of arbitration which Gilmerestablishes.” Id. at 7. In addition, the Court viewed Congress’s failure to pass legislation that would bar [*106] mandatory arbitration provisions as indicative of an intent to approve such agreements. See id.); Seus v. John Nuveen & Co., Inc., 146 F.3d 175, 182-83 (3d Cir. 1998) (States that the House Committee Report “cannot be ‘interpreted’ to mean that the [FAA] is impliedly repealed with respect to agreements to arbitrate Title VII and ADEA claims that will arise in the future”.) Id.; Austin v. Owens-Brockway Glass Container, 78 F.3d 875, 880-82 (4th Cir. 1996) .

[39] See Civil Rights Procedures Protection Act of 1996, H.R. 983, § 63, 105th Cong. (1997). The bill would also amend the FAA to prevent its application to discrimination claims, and would add language to a number of federal employment discrimination statutes, including the ADEA and ADA, making judicial recourse the exclusive procedure under each covered claim in the absence of a voluntary agreement to arbitrate entered into after such claim has arisen. See id.

[40] See 1997 US H.B. 983 (SN); 1997 US S.B. 63 (SN) (Westlaw Congressional Bill Tracking). The Act was introduced to the House Committee on Education and Labor and the Senate Committee on Labor and Human Resources, but lapsed in both committees at the adjournment of the 1998 regular session. See id.

[41] Martin J. Oppenheimer & Cameron Johnstone, A Management Perspective: Mandatory Arbitration Agreements Are An Effective Alternative to Employment Litigation, 52 Disp. Resol. J. 19, 22 (1997).

[42] See John W. R. Murray, Note, The Uncertain Legacy of Gilmer: Mandatory Arbitration of Federal Employment Discrimination Claims, 26 Fordham Urb. L. J. 281, 296 (1999).

[43] Roland Jones, To Arbitrate or Litigate? Employees May Fare Better in Court, But Arbitration May Prove to be the Better Forum As Panels Become More Diversified, On Wall St., Oct. 1, 1997, available in 1997 WL 8814281.

[44] See Oppenheimer & Johnstone supra note 41, at 22.

[45] See Theodore J. St. Antoine, Mandatory Arbitration of Employee Discrimination Claims: Unmitigated Evil or Blessing in Disguise?, 15 T.M. Cooley L. Rev. 1, 7-8 (1998).

[46] See, e.g., Susan A. FitzGibbon, Reflections on Gilmer and Cole, 1 Empl. Rts. & Employ. Pol’y J. 221, 247 (1997) and Jay S. Siegel, Changing Public Policy: Private Arbitration to Resolve Statutory Employment Disputes, 13 Lab. Law. 87, 89 (1997).

[47] Commission on the Future of Labor-Management Relations, U.S. Dept. of Labor and U.S. Dept. of Commerce, Report and Recommendations: Executive Summary 25-26 (1994).

[48] See FitzGibbon, supra note 46, at 247, 255.

[49] Id. at 248-249.

[50] Id. at 241.

[*107] [51] Id. at 245-255.

[52] Id.

[53] Id.

[54] Cherry, supra note 14, at 278.

[55] See Beth E. Sullivan, Note, The High Cost of Efficiency: Mandatory Arbitration in the Securities Industry, 26 Fordham Urb. L. J. 311, 335 (1999).

[56] Cherry, supra note 14, at 278.

[57] Id.

[58] Id.

[59] See Dunlop Commission Report, supra note 47, at 30-31.

[60] See Judith P. Vladeck, Validity of ADR for Job Disputes: ‘Yellow Dog Contracts’ Revisited, N.Y. L.J., July 24, 1995, at 7, col. 2.

[61] See David S. Schwartz, Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration, 1997 Wis. L. Rev. 33, 62-63 (1997) (noting that the behavior of the parties exemplifies this notion, given that it is at the employer’s insistence that a pre-dispute mandatory arbitration contract is signed by the employee); Leona Green, Mandatory Arbitration of Statutory Employment Disputes: A Public Policy Issue in Need of a Legislative Solution, 12 Notre Dame J.L. Ethics & Pub. Pol’y 173 (1998).

[62] See Sullivan, supra note 55, at 331 (noting that (1)”the average award granted in a case where the plaintiff prevailed on at least one claim was $125,000, compared to $703,600 in jury verdicts during the same time period,” and (2) “that the median arbitration award is a mere $49,400, compared to $264,700 in cases involving juries”) Id.

[63] See Vladeck, supra note 60, at 7.

[64] See Schwartz, supra note 61, at 60 (“Arbitrators may be more jaded, and hence make lower awards, particularly in more egregious cases where punitive damages are available.”) Id.

[65] Id. at 61.

[66] Id.

[67] Cherry, supra note 14, at 282; see also Green, supra note 61, at 220.

[*108] [68] See, Wilko v. Swan, 346 U.S. 427 (1953). In the 1953 Supreme Court decision, Justice Reed set forth the dictum that courts are authorized to set aside an arbitrator’s decision under a federal statute where the decision was handed down in “manifest disregard of the law.”

[69] Id. at 436-37.

[70] See Cherry, supra note 14, at 280.

[71] Id. at 288.

[72] See, e.g., Excerpts from the Text: EEOC Rejects Mandatory Binding Employment Arbitration, 52 Disp. Resol. J. 11, 12 (1997) (reprinting EEOC Notice No. 915.002, July 10, 1997); Isaac C. Hunt, Securities Arbitration: Issues of Interest, 40 Ariz. L. Rev. 1095, 1099-1100 (1998).

[73] See EEOC Rejects Mandatory Binding Employment Arbitration, supra note 72.

[74] Id.

[75] Id. at 13.

[76] The Form U-4 is used by the American Stock Exchange, the NASD and the NYSE for the registration of individuals dealing in securities http://www.nasdr.com/4700.htm#filing_u4 (description).

[77] See Administrative Office of the U.S. Courts, United States Courts: Selected Reports, Table C 2A, A1-58 (1994).

[78] See Oppenheimer & Johnstone, supra note 41, at 22.

[79] Cherry, supra note 14, at 287 (citing Pub. L. No. 102-166, 118, 105 Stat. 1071, 1081 (1991) and Pub. L. No. 102-166, 118, 105 Stat. 1071, 1081 (1991)).

[80] Id. at 287-288.

[81] Id. at 288.

[82] Id.

[83] Id. at 288-89 (quoting H.R. Rep. No. 101-485, pt. 3, at 76 (1990)).

[84] See Sullivan, supra note 55, at 344 (“noting that according to a survey of the percentages of people bringing racial discrimination claims to the EEOC in 1996, 84% were black, 9% were white, 2% were Asian, 1% were American Indian and 3% were other”). Id.

[*109] [85] See Vladeck, supra note 60, (Wall Street Journal “report on several cases of blatant sexual harassment in the securities industry resulted in minimal arbitration awards” citing Wall St. J., June 9, 1994, at A1).

[86] Kenneth R. Davis, A Model for Arbitration Law: Autonomy, Cooperation and Curtailment of State Power, 26 Fordham Urb. L. J. 168, 188 (1999) (“By reviewing awards for errors of law, the courts would meet party expectation and preserve guaranteed rights.”) Id.