Arbitration of Discrimination Claims After 14 Penn Plaza v. Pyett

On April 1, 2009, the U.S. Supreme Court decided the landmark case 14 Penn Plaza v. Pyett (find our case summary here and additional comments here). Then, in May, a U.S. District Court in Colorado decided the first case post-Pyett (blogged here).

Recently, we came across yet another Pyett progeny. This time, it was the U.S. District Court for the Eastern District of New York‘s turn in Shipkevich v. Staten Island Univ. Hosp. & Aramark, 2009 U.S. Dist. LEXIS 51011 (E.D.N.Y. June 16, 2009) to decide the “clearly and unmistakable” requirement. Check out New York attorney Philip J. Loree, Jr. excellent analysis of this opinion in: Shipkevich v. Staten Island Univ. Hosp., 14 Penn Plaza LLC v. Pyett, and the “Clear and Unmistakable” Rule.

Also, following are Professor Mitchell H. Rubinstein’s comments:

Shipkevich v. Staten Island Univ. Hosp. & Aramark, 2009 U.S. Dist. LEXIS 51011 (E.D.N.Y. June 16, 2009), is an interesting case. A lower court held that a CBA did not mandate arbitration of the plaintiff’s statutory anti-discrimination claims because the language of the CBA did not “clearly and unmistakably” require arbitration. The plaintiff alleged discrimination in violation of Title VII and related New York state laws. On its motion to dismiss, the defendant argued that the following arbitration provision in the CBA, which also prohibited discrimination, required arbitration of the plaintiff’s claims: “A grievance…which has not been resolved [under the grievance procedure] may…be referred for arbitration by the Employer or the Union[.]” The court reasoned that the CBA at issue was more like the CBA in Gardner-Denver than the one in Pyett: “Nowhere in the CBA is there an explicit statement that such claims are subject to mandatory arbitration.”

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arbitration, ADR, law, U.S. Supreme Court, ADE waiver, Age Discrimination in Employment Act of 1967, National Labor Relations Act of 1935, 14 Penn Plaza LLC v. Pyett