The Uncertain Legacy of Gilmer: Mandatory Arbitration of Federal Employment Discrimination Claims

The United States Supreme Court in Alexander v. Gardner-Denver Co. held that an employee could not be forced to arbitrate his discrimination claim against an employer pursuant to his union's collective bargaining agreement. Subsequent cases viewed Gardner-Denver as prohibiting mandatory arbitration in employment discrimination claims, until the Supreme Court upheld an agreement to submit all statutory discrimination claims to arbitration in Gilmer v. Interstate/Johnson Lane Corp. Gilmer seems to have limited the prohibition of mandatory arbitration in Gardner-Denver to collective bargaining agreements. Subsequently, many lower courts interpret Gilmer as an approval of arbitration clauses in employment agreements, and as such, employers have increasingly included these compulsory arbitration clauses in employment contracts and applications. However, there is still varied treatment of mandatory arbitration clauses by courts. The note explores court decisions which treated subsequent congressional legislation as barring such agreements, additional safeguards imposed by some circuit courts regarding mandatory arbitration agreements, the principal arguments in favor of such agreements, and the countervailing arguments, most represented by the stance of the Equal Employment Opportunity Commission (EEOC). The note concludes by arguing that the United States Supreme Court should clarify the issue in favor of mandatory arbitration agreements, but require that arbitration proceedings from such agreements incorporate fundamental procedural protections for employees, as opposed to the present scheme in which arbitrators do so only on a voluntary basis.