Law Commons^™

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock -- Assistant Professor Of Law, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics

Vanderbilt Law Review

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

A Business Alternative: Changing Employers' Perception Of The Eeoc Mediation Program, Mark Lim

Pepperdine Dispute Resolution Law Journal

This paper will reveal employers' perception of the EEOC Mediation Program and offer viable changes that may encourage more employer participation in the mediation program. Although the mediation program is supposed to be fair and neutral, the possibility of favoritism, bias, prejudice, or the perception thereof remains high because of the mediation program's structure. If the EEOC were to make changes to its program that also creates a perception of impartiality, then employers would be more willing to participate. To demonstrate this, Part II of this article will begin by discussing the history of the EEOC from its initiating mandate …

Discrimination Cases Of The 2002 Term, Eileen Kaufman

Touro Law Review

No abstract provided.

General Discussion, Third Comparative Labor Law Roundtable

Georgia Journal of International & Comparative Law

No abstract provided.

Sexual Harassment And Labor Arbitration, Susan A. Fitzgibbon

Georgia Journal of International & Comparative Law

No abstract provided.

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

University of Michigan Journal of Law Reform

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Faculty Scholarship

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Compulsory Employment Arbitration And The Eeoc, Richard A. Bales

Pepperdine Law Review

No abstract provided.

Quality Of Healthcare And The Role Of Relationships: Bridging The Medico-Legal Divide, Sagit Mor, Orna Rabinovich-Einy

Sagit Mor

This article focuses on an often overlooked barrier to efforts to enhance the quality of health care: the relationship crisis that currently exists between physicians and patients. This state of affairs has resulted from the divide between the medical and legal worlds. The medical arena has understandably tended to view the doctor-patient relationship as a purely medical issue, ignoring the law’s impact in generating and sustaining problematic relationship patterns. The legal world has yet to fully recognize this state of affairs, and the law’s role in its evolution and persistence. We offer a relational approach to healthcare law as a …

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Arbitral And Judicial Proceedings: Indistinguishable Justice Or Justice Denied?, Pat K. Chew

Articles

This is an exploratory study comparing the processes and outcomes in the arbitration and the litigation of workplace racial harassment cases. Drawing from an emerging large database of arbitral opinions, this article indicates that arbitration outcomes yield a lower percentage of employee successes than in litigation of these types of cases. At the same time, while arbitration proceedings have some of the same legal formalities (legal representation, legal briefs), they do not have other protective procedural safeguards.

Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

No Longer Just Company Men: The Flexible Workforce And Employment Discrimination, Review Essay On 'From Widgets To Digits Employment Regulation For The Changing Workplace', By Katherine V.W. Stone (2004), Miriam A. Cherry

All Faculty Scholarship

In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and …

Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin

Journal of Dispute Resolution

Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

Publications

No abstract provided.

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Use Of Mediation In Employment Discrimination Cases, The, Matt A. Mayer

Journal of Dispute Resolution

This Article will address the issues noted above. Part II discusses the realities for employers and employees created by the increased filing of employment discrimination claims. Part III encapsulates the procedural movement of a claim through the EEOC. Part IV summarizes the mediation process and notes why mediation is one of the methods used to deal with these claims. Part V highlights the pros and cons associated with the mediation of employment discrimination claims. Part VI discusses the inherent tensions between the goals of mediation and the goals of the anti-discrimination laws, as well as the inherent tensions that naturally …

Collective Bargaining Agreements, Arbitration Provisions And Employment Discrimination Claims: Compulsory Arbitration Or Judicial Remedy - Johnson V. Bodine Electric Co., Ann E. Ahrens

Journal of Dispute Resolution

This casenote addresses the effect of mandatory arbitration provisions in collective bargaining agreements (CBA) upon statutory anti-discrimination claims. Disputes in this area arise when an employee joins a union, thus becoming subject to a CBA negotiated between the union and the employees. What often happens is that the CBA will generally contain a clause calling for arbitration of all claims arising under the agreement. Later, if the employee believes he has been subjected to discriminatory practices on the part of the employer and seeks remedies under anti-discrimination laws, such as Title VII, the employer will move to compel arbitration. The …

Arbitration Of Workplace Discrimination Claims: Federal Law And Compulsory Arbitration, Norris Case

Touro Law Review

No abstract provided.

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Protecting Against Employment Discrimination: The Ninth Circuit's Interpretation Of Mandatory Arbitration Of Title Vii Claims - Renteria V. Prudential Ins. Co. Of America, Todd C. Stanton

Journal of Dispute Resolution

The growing trend toward reliance upon arbitration, rather than judicial adjudication, has resulted in a reformation regarding the resolution of disputes within the employment industry. It has become a standard practice of many employers to require that employees sign employment agreements before they are allowed to work. Recently, these types of agreements have begun to require that employees resolve any disputes or claims against their employers through arbitration rather than judicial adjudication. Unfortunately, the average employee is often unaware of the binding nature of these agreements until a dispute actually arises with his or her employer. The Ninth Circuit has …

Proceedings Of The 1997 Annual Meeting Association Of American Law School Sections On Employment Discrimination Law And Alternative Dispute Resolution, Theodore J. St. Antoine, Herbert Bernhardt, Catherine Hagen, Paul Tobias, Marion Zinman

Other Publications

The following is an edited transcript of the proceedings of the joint meeting of the Employment Discrimination Law and Alternative Dispute Resolution Sections at the AALS Annual Meeting, Washington, D.C., January 7, 1997.