Retaliatory Employment Arbitration

Michael Z. Green, Professor of Law at the Texas A&M University School of Law, has published an interesting article entitled, Retaliatory Employment Arbitration, Berkeley Journal of Employment and Labor Law, Vol. 35, 2014.  In his paper, Professor Green examines Supreme Court and other case law where an employer sought to compel arbitration while an Equal Employment Opportunity Commission administrative charge was pending.

Here is the abstract:     

Employer actions to resolve disputes with employees by requiring an agreement to arbitrate as a condition of employment has continued to increase at a rapid pace over the last twenty years. The Supreme Court’s wholesale endorsement of these arbitration agreements under the Federal Arbitration Act (FAA) as a process to resolve statutory employment claims has left employees with very few legal challenges to this so-called “forced” or “mandatory” arbitration. The only significant Supreme Court case to rebuff the employer’s attempt to compel arbitration of a statutory employment dispute, EEOC v. Waffle House, occurred in 2002. In Waffle House, the Court emphasized the importance of the EEOC as an administrative agency charged with enforcing Title VII and acknowledged the significance of allowing the EEOC to pursue court actions to vindicate the public interest in eradicating employment discrimination despite the presence of an agreement to arbitrate between the employee and the employer.

From reviewing lower court decisions since Waffle House, this paper identifies a number of cases where employers acted to compel arbitration while a charge was still pending with the EEOC. This paper explains how these employer actions to compel arbitration attempted to circumvent the Supreme Court’s holding in Waffle House by trying to force employees into a final arbitration decision that could operate as res judicata and a complete bar to recovery in any later court action that the EEOC might pursue. The paper also asserts that these efforts to compel arbitration while an EEOC charge is still pending establish a viable claim for retaliation that an employee may pursue under Title VII. When an unfair labor practice charge is still pending with the National Labor Relations Board (NLRB), employer attempts to compel arbitration also operate as illegal retaliation under the National Labor Relations Act (NLRA).

Retaliatory employment arbitration occurs whenever an employer attempts to force arbitration as a response to an employee’s agency charge while the matter charged is still pending with that agency. The action to compel arbitration would deter a reasonable employee from filing a charge with the EEOC if the employee knows that an immediate result from having filed the charge will be an attempt to compel arbitration and prevent the employee from receiving any of the benefits of having the EEOC pursue the matter. Likewise, when an employee files an unfair labor practice charge with the NLRB, an employer’s attempt to compel arbitration creates a chilling effect that dissuades employees from filing charges as a form of retaliation under the NLRA. The paper examines and defines the parameters of retaliatory employment arbitration as it reveals one of the few claims that employees may still have left to challenge forced or mandatory arbitration agreements.

This and other scholarly articles authored by Professor Green may be downloaded without charge from the Social Science Research Network.