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Retaliatory Employment Arbitration, Michael Z. Green

Michael Z. Green

No abstract provided.

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Michael Z. Green

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Michael Z. Green

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Michael Z. Green

This paper explores the benefits of using mediation in addressing employment discrimination disputes. It highlights the difficulties for those who expect too much out of mediation by expecting it to transform relations while exposing concerns with those who limit mediation's potential by supporting mythical notions about mediators being neutral. The paper suggests that employers develop comprehensive conflict resolution systems and include mediation as a process that is case-specific and focused on the needs of all parties and not the needs of the mediator.

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Michael Z. Green

At such a crucial time in our history, major concerns exist regarding the viability of labor unions and the capability of employees to pursue racial justice in the workplace with any success. Continued improvement within both movements may depend upon finding a cohesive intersection between them. With the race and class divide affecting relations between organized labor and black workers (a dilemma which must be explored in more detail), this Article offers the thesis that there remains an area of opportunity for justice where interests of unions and black employees may coalesce: providing legal assistance to unrepresented black employees in …

"Just Another Little Black Boy From The South Side Of Chicago": Overcoming Obstacles And Breaking Down Barriers To Improve Diversity In The Law Professoriate, Michael Z. Green

Michael Z. Green

As I reflected on my personal experience to help address the persistence of discrimination in legal academia, I chose to focus on five areas of discussion for the open mic portion of the program held at the Association of American Law Schools Cross-Cutting Program, “The More Things Change ...: Exploring Solutions to Persistent Discrimination in Legal Academia,” held on January 4, 2015, in Washington, D.C. First, I decided to address my personal development as an only child and male in a family of mostly black women struggling through the socioeconomic challenges of being poor and black. To add to that …

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Michael Z. Green

Since the Gilmer decision in 1991, the vast potential from using arbitration to resolve statutory employment discrimination has expanded into a burgeoning reality. Although employers rushed in to adopt so-called mandatory pre-dispute agreements to arbitrate statutory discrimination claims, advocates for employees criticized these agreements as being unfair and primarily because the agreements were made before any dispute arose. Employers could use their bargaining power to require as a condition of employment that employees opt out of the jury trial system allowing compensatory and punitive damage awards by requiring arbitration before knowing anything about an actual dispute. Because of continuing criticism …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Michael Z. Green

No abstract provided.

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Michael Z. Green

With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with …

Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green

Michael Z. Green

When you review the modern employment relationship and the role of contract, you have to start with the default position of employment-at-will, which allows an employer, in general, to terminate an employee for good reason, bad reason, or no reason at all. A number of exceptions to the employment-at-will rule exist, including tort and statutory employment discrimination claims that allow employees to seek legal remedies and punitive damage awards from juries. As these exceptions have developed outside of contract law, employers have responded by a major contractual effort to shift these disputes away from the courts and into arbitration. The …

Retaliatory Employment Arbitration, Michael Z. Green

Michael Z. Green

In 2014, we reach a key milestone with the fiftieth anniversary of the passage of Title VII of the Civil Rights Act of 1964 ("Title VII"). This landmark federal legislation, which prohibits discrimination in the workplace, also created the Equal Employment Opportunity Commission ("EEOC"). This Article focuses on the use of arbitration, a form of alternative dispute resolution ("ADR"), to decide federal employment discrimination claims brought under that and related statutes. Specifically, this Article addresses the use of so-called "mandatory," "forced," "employer-mandated," or "pre-dispute" or "compelled" agreements to arbitrate that have garnered much attention and criticism over the past twenty …

Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green

Michael Z. Green

Given the difficulties for employees in finding a lawyer to handle an employment dispute and with the growth of ADR, this article asserts that employers should adopt legal service plans as an employee benefit. It might seem counterintuitive for employers to provide their employees with a legal service benefit that may be used against them in employment disputes. However, comprehensive dispute resolution systems employ fair mechanisms that allow employees to resolve their disputes as soon as possible. Having sound legal counsel can become a major component of an employer's dispute resolution system because it offers a distinct human resource advantage …

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Michael Z. Green

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

Debunking The Myth Of Employer Advantage From Using Mandatory Arbitration For Discrimination Claims, Michael Z. Green

Michael Z. Green

As a matter of general practice, the use of mandatory arbitration as a dispute resolution mechanism for employment discrimination claims has failed to give employers an overall advantage. Instead, this Article will show that the use of mandatory arbitration to resolve statutory employment discrimination disputes presents a significant number of disadvantages for employers, especially large corporations that operate as repeat players in employment litigation.

First, despite purported cost benefits from using alternative dispute resolution ("ADR"), arbitration can be just as expensive as litigation if not more costly. Second, the reluctance of the Supreme Court to clarify the problems with mandatory …

Proposing A New Paradigm For Eeoc Enforcement After 35 Years: Outsourcing Charge Processing By Mandatory Mediation, Michael Z. Green

Michael Z. Green

After more than thirty-five years of existence and the quickly approaching thirty year anniversary of the amendment that was intended to transform the EEOC from being a "toothless tiger" of an enforcement agency, the EEOC must now adopt new paradigms for enforcement. Those new paradigms must concentrate on limiting or removing any ongoing focus on charge processing and switching the focus to long-term enforcement initiatives. To accomplish that objective, this Article proposes that the EEOC outsource a significant portion of its charge processing responsibilities to private mediation, an informal process by which a neutral party works with the interested parties …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Michael Z. Green

No abstract provided.

Addressing Race Discrimination Under Title Vii After Forty Years: The Promise Of Adr As Interest-Convergence, Michael Z. Green

Michael Z. Green

The thesis of this Essay is that litigation and legal enforcement strategies, including any new legislation that would force employers to address discrimination in the workplace, should no longer be the focus of civil rights activists. Instead, those seeking to root out race discrimination in the workplace must focus on including non-legal options such as alternative dispute resolution (ADR) activities. Any new strategies must address the concerns of workplace discrimination and the use of ADR in a way that merges those issues with the interests and incentives of employers. Derrick Bell has referred to the merger that forms when the …

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Michael Z. Green

No abstract provided.

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Michael Z. Green

No abstract provided.

No Strict Evidence Rules In Labor And Employment Arbitration, Michael Z. Green

Michael Z. Green

Since arbitrators are not bound by the strict rules of evidence applicable in court, there originally developed a practice of admitting hearsay 'for what it is worth.' As various texts and many arbitrators have stated, 'Rarely do the parties know what it is worth, at least not at the hearing.' I would add, nor in the preparation of their briefs. As far back as 1967 a prominent group of arbitrators concluded: 'Unless corroborated by truth-tending circumstances in the environment in which it is uttered, it (hearsay) is unreliable evidence and should be received with mounting skepticism of its probative value …

Proposing A New Paradigm For Eeoc Enforcement After 35 Years: Outsourcing Charge Processing By Mandatory Mediation, Michael Z. Green

Michael Z. Green

No abstract provided.