State Action and the Enforcement of Compulsory Arbitration Agreements Against Employment Discrimination Claims

For the past few years, the federal courts of appeal have been struggling with the issue of whether employers may enforce compulsory arbitration clauses against employees who bring employment discrimination claims under Title VII or the Americans with Disabilities Act of 1990 ("ADA").Compulsory arbitration clauses require prospective employees, as a condition of obtaining employment, to sign a contract waiving their rights to a jury trial regarding all future causes of action.The debate in the federal courts thus far has focused on whether Congress intended in passing the Civil Rights Act of 1991 ("1991 Act"), which amended Title VII, and the ADA, to preclude the compulsory arbitration of Title VII and ADA claims.Section 118 of the 1991 Act and section 12212 of the ADA each state that "[w]here appropriate and to the extent authorized by law, the use of... arbitration, is encouraged to resolve disputes arising under..." these Acts. 1 Despite weighty indications in the Acts' legislative histories that Congress understood only employees' voluntary decisions to arbitrate existing claims-and not employers' imposition of contracts mandating compulsory arbitration of any prospective claimsto be "appropriate" and "authorized by law," '2 five of the six federal .