The United States Supreme Court has held that mandatory arbitration clauses in employment agreement and collective bargaining agreements are valid. As such, more and more employees who allege discrimination are finding that they must prove discrimination and their right to be protected from it through contractual language rather than relying on the antiquated process of litigating a public lawsuit.
Collective bargaining agreements may provide for a specific venue to resolve discrimination claims. They may also indicate the mechanism that must be used to resolve such disputes, such as bringing the claim through an arbitration panel. A valid collective bargaining agreement can often serve to trump an employee’s general right to pursue a claim in court.
Supreme Court precedence requires the employee to submit to mandatory arbitration pursuant to a collective bargaining agreement if the agreement “clearly and unmistakably” requires the employee to resolve his or her discrimination claim through this process. For an employer to ensure that the collective bargaining agreement language and mandatory arbitration clause will apply, it may wish to include the specific discrimination statutes that may otherwise apply. The goal is for the employer to provide great specificity so the employee fully understands the rights that he or she is waiving. This may include a long list of federal statutes and other laws to explain the extent of the agreement.