Amicus Curiae Brief — Wright v. Universal Maritime Service Corp.

| Supreme Court, U.S,

No. 97-889 FILED

MAY 7 1996

IN THE | CLERK

Supreme Court of the United States

OCTOBER TERM, 1997

>

CEASAR WRIGHT,

Petitioner,

al

UNIVERSAL MARITIME SERVICE CORP., et al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF SOUTH CAROLINA,

IN SUPPORT OF PETITIONER

Steven R. Shapiro Louis M. Bograd

Lewis Maltby (Counsel of Record)

American Civil Liberties Union American Civil Liberties Union

Foundation Foundation

125 Broad Street 1875 Connecticut Avenue, N.W.

New York, New York 10004 Washington, D.C. 20009

(212) 549-2500 (202) 234-1817

C. André Brummé III David S. Schwartz

ACLU of South Carolina ACLU Foundation of

Foundation Southern California

1338 Main Street 1616 Beverly Boulevard

Columbia, South Carolina 29201 Los Angeles, California 90026

(803) 799-5151 (213) 977-9500

' x

J

1.9 \

TABLE OF AUTHORITIES

INTEREST OF AMICI

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

A UNION’S AGREEMENT TO PREDISPUTE

ARBITRATION IN A COLLECTIVE BAR-

GAINING AGREEMENT DOES NOT OVER-

RIDE THE STATUTORY RIGHT OF INDI-

VIDUAL EMPLOYEES TO PURSUE THEIR

EMPLOYMENT DISCRIMINATION CLAIMS

IN FEDERAL COURT

A. The Decision To Arbitrate Statutory Dis-

crimination Claims Represents A Waiver

Of Important Federal Rights That Can

Only Be Upheld If It Is Knowing, Intelli-

gent, And Voluntary

. A Mandatory, Predispute Arbitration Pro-

vision In A Collective Bargaining Agree-

ment Does Not Constitute A Valid Individ-

ual Waiver Of Statutory Rights Against

Employment Discrimination

. The Court Below Erred In Construing

Gilmer To Mandate Enforcement Of Arbi-

tration Agreements That Are Not Knowing

Page

D. Contrary To The Fourth Circuit Ruling,

The Legislative History Of The Americans

With Disabilities Act (And Related Civil

Rights Statutes) Does Not Support Manda-

tory Arbitration Of Statutory Claims ....... 21

ES Sek ces ke ck pea 8 Mee es 68 28

TABLE OF AUTHORITIES

Page

Cases

Aetna Ins. Co. v. Kennedy,

a an. soe bb ke haa ee bea 8

Agostini v. Felton,

Bee Gee ne BNE Be BOOT CIDP) o ccccccecces 5, 16

Alexander v. Gardner-Denver Co.,

ee a oe ag teamed passim

Allis-Chalmers Corp. v. Lueck,

St be a op whee en see euin 13

Atchison, Topeka & Santa Fe

Ry. Co. v. Buell,

ee ood wks ok eis sic aie adee te wine 13

Austin v. Owens-Brockway

Glass Container, Inc..

78 F.3d 875 (4th Cir.),

cert. denied, __ U.S. __, 117 S.Ct. 432 (1996) ..... 3, 21

Barrentine v. Arkansas-Best Freight System,

RR ee ey ee 12, 13, 14

Cole v. Burns Int'l Security Services,

a ee nl 19

Connecticut Nat'l Bank v. Smith,

oe nn, DOU 6 <3 6.00 ws oe be 640 a 8

D.H. Overmyer Co. v. Frick,

I ha i ae lar ek a 8

Davis v. Passman,

rd ee le a ee a lial ial 7

iii

Page

Fuentes v. Shevin,

Gar UE: Ge Gee 8. i'n b cbwa ele b t2's eRe 8, 19

Gilmer v. Interstate/Johnson Lane Corp.,

FSD UD. Ay Ge ns nee bien cn cdma dete passim

Great Am. Fed. Sav. & Loan

Ass'n v. Novotny,

Gas Wes PED 6 6c come he odours 26

Great Western Mortgage Corporation

v. Michele Peacock,

110 F.3d 222 (3d Cir.),

cert. denied, __ U.S. __, 118 S.Ct. 299 (1997) ....... 20

Hetzel v. Prince William County, Virginia,

an WOE sg, GO Es. DE Fico bok e Ves we ke 7

Holley v. Seminole County School District,

Fae Cae Cee Cheee Gee CD oS ee cee ee RS 22

Hooters of America, Inc. v. Phillips,

1998 U.S. Dist. LEXIS 3962

Sa: le. ee EE ad baw os Oo o bard oe awe eee 19

Johnson v. Zerbst,

Fe Gs CE b's ve beawicnsdisetvescnounse 7,8

Livadas v. Bradshaw,

Fed Wah Cee GE cers wok Fa kn cb leva 14

Luis Acosta, Inc. v. Citibank, N.A..,

Ce Pa. Ce ra SED oe bs 0 ob cee oe.8 eee 8

Lyght v. Ford Motor Co.,

pe TF F Ls, Oe eS ree eee 22

Mago v. Shearson Lehman Hutton, Inc.,

Saw Fee Tae Ce SE iN ached ceeoueareh ane 20

iv

McCarthy v. United States,

ee oe ig Mae Puce eeee 8

McDonald v. City of West Branch,

cis See eA a 13, 14

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc.,

ee es rs 6s 6S BUS RA We Cote EEN 16

National Equipment Rental, Lid. v. Hendrix,

Sy et es ee EK e's & dk W's ea Pew sk oases 8

Nelson v. Cyprus Bagdad Copper Corp.,

Sr Peer Pee. yt Oe eae beck teen’ 4

Nicholson v. CPC Int'l, Inc.,

Se B.S OL owe deel weed owe 22

Ohio Bell Tel. Co. v. Public

Utilities Comm'n,

ne $5 begat. glkt, bongs ws bes @ aw 2 8

Patterson v. Tenet Healthcare, Inc.,

113 F.3d 832, 833 (8th Cir. 1997) ............... 19

Prudential Insurance Co. of America v. Lai,

42 F.3d 1299 (9th Cir. 1994),

cert. denied, 516 U.S. $812 (1995) .............. 9,19

Pryner v. Tractor Supply Co..,

en ee olla wo 8 27

Renteria v. Prudential Ins. Co. of America,

Cae anes Be Eg ob vec ctcecccuss 9,19

Rodrigues de Quijas v.Shearson/

American Express, Inc.,

a ee aah GaAs bee RE eS 25

Page

Rosenberg v. Merrill Lynch, Pierce,

Fenner & Smith, Inc.,

1998 U.S. Dist. LEXIS 877

i Cn, os eh an £ oe 4 by ab bikes kine ed 6, 23

Rosenfeld v. Dep't of the Army,

yp Je & 4 LO RA Pre es 22

Shearson/American Express Inc. v. McMahon,

Ge ee ED no piel. bass incnn 20

Swenson v. Management Resources Int'l, Inc.,

fF Ss nnn ee 22

Thompson v. Thompson,

GP ae WORE le he Gk doe Shika oon Kiba 25

Utley v. Goldman Sachs & Co.,

ee ae ee TALS od 00s. 0 0 ow bros ans 22

Whirlpool Financial Corp. v. Sevaux,

O66 F Sapp. 1162 CLD. TE GRE) wc ccc ee 8

Statutes and Regulations

Age Discrimination in Employment Act,

BP Cain Ue GEA Gin 4 a Lees CULE ccd ed Fed's 15

Americans with Disabilities Act,

Ge Wien EE Eg Hs HRS eee oh passim

Ge EE o-da'k'es be eea dbs Pawan 21

a IED, a o's 0 6 0 6.00 a « eich 21

Ce Ce hn 3 Uv ne Ab 4 EN Cad. conin 0 uh 21, 22

Civil Rights and Women’s Equity in

Employment Act of 1991,

Pub.L.No. 102-166, 105 Stat. 1071 (1991) ....... passim

vi

Fair Labor Standards Act,

eS IB SPECIE Eee ek oT 12

Title VII of the Civil Rights Act of 1964,

es, ons 6 5&4 the b.b.4e oh we passim

Legislative History

137 Cong.Rec. H9505-01

TS ED Sao S's ON a dwn oe CRF bw OEE 26

H.R. Rep. No. 485,

101st Cong., 2d Sess.,

reprinted in 1990 U.S.C.C.A.N. 445 .............. 23

H.R. Conf. Rep. No. 596,

101st Cong., 2d Sess.,

reprinted in 1990 U.S.C.C.A.N. 565 ...........44. 23

H.R. Rep. No. 40(1),

102d Cong., Ist Sess.,

reprinted in 1991 U.S.C.C.A.N. 549 ........... 24, 25

H.R. Rep. No. 40(ID),

102d Cong., Ist Sess.,

reprinted in 1991 U.S.C.C.AN. 694 ........... 24, 26

Vii

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to preserving the principles of

liberty and equality embodied in the Constitution and our

nation’s civil rights laws. The ACLU of South Carolina is

one of its state affiliates. Since its founding in 1920, the

AC™.U has vigorously supported the right of workers to or-

ganize collectively and to bargain through their union re-

garding the terms and conditions of employment. At the

same time, the ACLU has also vigorously supported the

enactment and enforcement of the major federal civil rights

statutes that are designed to end discrimination in

employment. Because the decision below purports to ad-

dress both of these interests, it involves issues of critical

importance to the ACLU and its members.

More specifically, amici believe that the decision below

fundamentally misconceives the relationship between statuto-

ry rights -- such as the protection against discrimination on

the basis of disability that is at issue in this case -- and the

role of collective bargaining in the workplace. The rights

and remedies provided by Congress in the Americans with

Disabilities Act (ADA), 42 U.S.C. §12101 ef seg., and other

similar statutes, belong to each individual worker. They are

not derived from the collective bargaining agreement and

cannot be altered or waived as part of the negotiation be-

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

tween the union and the employer. The decision to submit

to mandatory arbitration is most properly understood as a

waiver of the employee’s statutorily conferred right to a ju-

dicial forum and trial by jury. Such waivers can and should

be upheld only if they are knowing, intelligent and volunta-

ry, and are made by the individual rightholder. Amici’s po-

sition in this case is therefore consistent with the position

that we have taken in numerous other cases involving the

asserted waiver of individual rights. It is also an approach,

in our view, that would bring needed clarity to an area of

the law that remains quite confused.

STATEMENT OF THE CASE

Ceasar Wright is a longshoreman in the Port of Charles-

ton, South Carolina. He has worked for a number of ship-

ping companies through the hiring hall operated by Local

1422 of the International Longshoreman’s Association

(ILA). In 1992, he was injured on the job and, for a time,

was disabled and unable to work as a longshoreman. Mr.

Wright negotiated a settlement of his workers’ compensation

claims in 1994.

Mr. Wright’s condition eventually improved and his

physician determined that he was physically able to resume

work. In January 1995, he returned to the hiring hall for

work assignments and successfully performed work for four

of the respondent employers. Nevertheless, on January 11,

1995, the respondents agreed that they would refuse to hire

Mr. Wright on the ground that his ea’ er workers’ compen-

sation settlement meant that he was no longer qualified to

perform longshore work of any kind." Joint Appendix, at

35a.

Mr. Wright consulted with the president of his union

local. Although the union by letter protested the decision to

refuse to accept Mr. Wright for work as a violation of the

ADA and the collective bargaining agreement, the union did

not file a grievance on Mr. Wright’s behalf. Instead, the

union recommended that he retain private counsel to pursue

a statutory ADA claim.

Mr. Wright filed timely charges of discrimination with

the Equal Employment Opportunity Commission and, after

receiving a Notice of Right to Sue on each charge, filed the

present action. In a motion for summary judgment, the re-

spondents asserted that the district court could not hear Mr.

Wright’s claim because he had failed to invoke the griev-

ance procedure under the ILA’s collective bargaining agree-

ment.’ The district court dismissed the suit without preju-

dice for want of jurisdiction. The district court based its

ruling on the Fourth Circuit’s prior decision in Austin v.

Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th

Cir.), cert. denied, ___ U.S. __, 117 S.Ct. 432 (1996). In

Austin, the Fourth Circuit had ruled that an applicable labor

arbitration agreement "ousts a court of jurisdiction," id. at

878 n.1, to hear statutory claims of discrimination brought

by individual employees. The Fourth Circuit affirmed the

district court’s ruling in Mr. Wright’s case (also on the basis

of Austin), and Mr. Wright timely petitioned for a writ of

certiorari.

? The contract between the South Carolina Stevedores Association and

the International Longshoremen’s Association, Local #1422 provides:

"this Agreement is intended to cover all matters affecting wages, hours,

and other terms and conditions of employment ...." Joint Appendix,

at 45a-46a. The grievance and arbitration procedure set forth in the col-

lective bargaining agreement applies to “matters under dispute between

the parties.” Petition for Certiorari, at 5.

3

SUMMARY OF ARGUMENT

The issue before this Court is not whether arbitration is

a useful or desirable alternative in individual civil rights

cases. Depending on the nature of the claim and its value to

the parties, arbitration may well be an attractive option in

particular circumstances. The issue before this Court is an

earlier and more fundamental one. Who has the right to

make the decision whether a statutory civil rights claim must

be arbitrated?

Contrary to the court below, amici believe that a deci-

sion to submit all such claims to arbitration can only be

made by the individual employee whose rights are at issue

and not by the union as part of a collective bargaining

agreement. The decision to pursue arbitration is a decision

to forego a judicial forum and the right to trial by jury. °

Such important rights can be waived but here, as elsewhere,

personal rights can only be waived by the person affected.

Moreover, the burden is on those asserting the waiver to

establish that the waiver was knowing, intelligent, and

voluntary.

In a series of important federal statutes, Congress has

banned employment discrimination on the basis of race, gen-

der, national origin and disability. The right to be free from

discrimination is an individual right that belongs to each

worker regardless of whether or not there is a collective bar-

gaining agreement. Consequently, the collective bargaining

agreement cannot alter or modify the right of each individu-

al worker to pursue a federal employment discrimination

claim in federal court. What Congress has granted in this

regard, the union may not negotiate away. Indeed, that is

precisely what this Court unanimously held in Alexander v.

Gardner-Denver Co., 415 U.S. 36 (1974), when it ruled that

an individual employee’s right to take his claim to court

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e, could not be waived by his union through a manda-

tory arbitration agreement.

The decision below is irreconcilable with Alexander and

must be reversed on those grounds alone. The Fourth Cir-

cuit’s view that Alexander has been eroded by subsequent

developments misstates both its own authority and the pre-

vailing law. As the Court just recently reiterated in Agostini

v. Felton, 521 U.S. __, 117 S.Ct. 1997 (1997), the lower

courts are bound to follow this Court’s controlling prece-

dents unless and until this Court says otherwise. Moreover,

in the twenty-four years since it was written, Alexander has

in fact been reaffirmed by this Court on six different occa-

sions, twice cited approvingly by Congress, and faithfully

applied by every other circuit to address the issues raised by

this case.

The specific error committed by the Fourth Circuit is

thus easily corrected. But, unfortunately, the rationale

adopted by the Fourth Circuit reflects a more general confu-

sion among the lower courts about the meaning and signifi-

cance of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20 (1991). While the Fourth Circuit stands alone in con-

struing Gilmer to permit a union to waive the statutory

rights of its members, the view that Gilmer requires the

courts to uphold virtually any predispute arbitration agree-

ment signed by the individual employee is far more wide-

spread. This broader misunderstanding of Gilmer lies at the

heart of the Fourth Circuit’s erroneous decision in this case.

Accordingly, we urge this Court to use this opportunity to

address the underlying confusion surrounding Gilmer by

clearly holding that a predispute arbitration agreement will

only be upheld if it represents a knowing, intelligent, and

voluntary waiver by the individual employee of the right to

a judicial forum and jury trial. Unlike the Fourth Circuit,

we believe that Gilmer and Alexander are entirely consist-

ent. Unlike many of the lower courts, we also believe that

Gilmer and Alexander can both be read in a way that is con-

sistent with general waiver principles.

Finally, nothing in the legislative history of the ADA or

the 1991 Civil Rights Act’ even remotely suggests that gen-

eral waiver principles should not apply in this context. To

be sure, both acts authorize the use of arbitration and other

forms of alternative dispute resolution as a voluntary supple-

ment to judicial enforcement. For present purposes, how-

ever, it is more significant that Congress expressly rejected

an amendment to the 1991 Civil Rights Act that would have

encouraged arbitration "in place of judicial resolution.”

More generally, the legislative history of the 1991 Civil

Rights Act provides clear evidence that Congress opposed

“coercive attempts to force employees in advance to forego

statutory rights." See generally Rosenberg v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 1998 U.S. Dist. LEXIS 877

(D.Mass. 1998). Thus, contrary to the view of the court be-

low, these congressional enactments lend further support to

the proposition that any waiver of a right to a judicial forum

for adjudication of statutory civil rights claims must be

knowing, intelligent, and voluntary.

In short, the resolution of this case does not require the

articulation of a new legal theory. Properly understood, this

is a case about waiver that can be resolved by applying the

Court’s traditional waiver doctrine.

* The Civil Rights and Women’s Equity in Employment Act of 1991,

Pub.L.No. 102-166, 105 Stat. 1071 (1991).

6

ARGUMENT

A UNION’S AGREEMENT TO PREDISPUTE

ARBITRATION IN A COLLECTIVE BAR-

GAINING AGREEMENT DOES NOT OVER-

RIDE THE STATUTORY RIGHT OF INDI-

VIDUAL EMPLOYEES TO PURSUE THEIR

EMPLOYMENT DISCRIMINATION CLAIMS

IN FEDERAL COURT

A. The Decision To Arbitrate Statutory

Discrimination Claims Represents A

Waiver Of Important Federal Rights

That Can Only Be Upheld If It Is

Knowing, Intelligent, And Voluntary

The right of an individual employee to bring an em-

ployment discrimination case in court, and have any dam-

ages claim resolved by a jury, has both statutory and consti-

tutional dimensions. The plaintiff's cause of action obvious-

ly derives from statute,’ but the right to have that claim ad-

judicated pursuant to fair procedures and to have a jury find

the relevant facts is rooted in the Constitution. See Hetzel v.

Prince William County, Virginia, __ U.S. __, 118 S.Ct.

1210 (1998)(plaintiff has Seventh Amendment right to jury

trial for her Title VII claim).

These rights can, of course, be waived. But in compa-

rable settings, the Court has repeatedly stressed that a valid

waiver must rest on "an intentional relinquishment or aban-

donment of a known right or privilege." Johnson v. Zerbst,

304 U.S. 458, 463 (1938). Although the generally accepted

standard of knowing, intelligent, and voluntary waivers was

* If the plaintiff is a government employee, the right to be free from em-

ployment discrimination will also have a constitutional dimension under

the Fifth and/or Fourteenth Amendments. See, e.g, Davis v. Passman,

442 U.S. 228, 236 (1979).

originally developed in the context of criminal proceedings,

see, e.g., id. (waiver of right to counsel in criminal proceed-

ing); McCarthy v. United States, 394 U.S. 459 (1969)(waiv-

er of right to jury in criminal trial must be knowing and

voluntary), this Court has consistently applied the same test

to the waiver of fundamental rights in civil proceedings.

See Fuentes v. Shevin, 407 U.S. 67, 94-95 (1972)(finding no

waiver of procedural due process right to predeprivation

hearing); D.H. Overmyer Co. v. Frick, 405 U.S. 174, 187

(1972)(contractual waiver of due process rights must be

"voluntarily, intelligently, and knowingly" made). In the

civil arena, just as in the criminal, courts "‘do not presume

acquiescence in the loss of fundamental rights,’ .. . [and]

‘indulge every reasonable presumption against waiver.’”

Fuentes, 407 U.S. at 94, n.31 (quoting Ohio Bell Tel. Co. v.

Public Utilities Comm'n, 301 U.S. 292, 307 (1937), and

Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937)).’

* Of particular relevance to this case, a number of lower courts have ex-

pressly applied the knowing, intelligent, and voluntary standard to pur-

ported waivers of the right to jury trial in private contractual agree-

ments. See National Equipment Rental, Lid. v. Hendrix, 565 F.2d 255

(2d Cir. 1977\(provision of “equipment lease" agreement whereby lessee

waived trial by jury did not constitute knowing and intentional waiver

where it was buried in eleventh paragraph of fine print, 16-clause agree-

ment); Luis Acosta, Inc. v. Citibank, N.A., 920 F.Supp. 15 (D.P.R.

1996)(jury waiver clause in bank customer’s factor’s lien agreement was

not knowing and voluntary where waiver clause was not prominently set

forth but buried at end of contract and no evidence was presented that

waiver provision was specifically negotiated between parties), Whirlpool

Financial Corp. v. Sevaux, 866 F Supp. 1102 (N.D. Ill. 1994)(promisor’s

alleged waiver of right to jury trial in promissory note was not knowing

and voluntary where, inter alia, terms of note were drafted by promis-

ee’s counsel, parties never discussed waiver provision in note, provision

was not so conspicuous as to insure knowing and voluntary waiver, and

promisor was not represented by counsel with regard to execution of

note); Connecticut Nat'l Bank v. Smith, 826 F.Supp. 57 (D.R.1. 1993).

(continued...)

Therefore, the burden is on the party ing to assert a

waiver of rights to establish that the waiver was knowing,

intelligent, and voluntary.

Amici submit that precisely the same knowing, intelli-

gent, and voluntary standard should apply to purported pre-

dispute waivers of the right to a judicial forum for individu-

al statutory employment discrimination claims. Yet, with

the partial exception of the Ninth Circuit, the lower courts

have consistently failed to test purported arbitration agree-

ments against this well-established standard. Application of

the waiver standard would not only resolve the instant case,

but would provide much needed guidance to the lower

courts.

* (..continued)

If a contractual waiver of a right to trial by jury is only valid when

knowingly, intelligently, and voluntarily made then, a fortiori, a manda-

tory predispute arbitration provision must be subject to the same stand-

ards because it constitutes a waiver not only of the injured employee's

right to trial by jury, but also of the right to a judicial forum at all.

* Even the Ninth Circuit's reliance on the waiver doctrine has been lim-

ited. In a series of recent cases, the circuit has simply held that an em-

ployee must, at the very least, know that a contractual arbitration provi-

sion applies to statutory claims in order for the court to enforce the pro-

vision as a waiver of the right to a judicial forum. See Prudential Insur-

ance Co. of America v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert. denied,

516 U.S. 812 (1995); Renteria v. Prudential Ins. Co. of America, 113

F.3d 1104 (9th Cir. 1997); Nelson v. Cyprus Bagdad Copper Corp., 119

F.3d 756 (9th Cir. 1997).

” Without a meaningful waiver standard, courts will be obliged continu-

ally to police the particular arbitration procedures imposed by thousands

of different employment contracts in order, in each case, to determine

whether the procedures employed provide sufficient due process protec-

tions to the individual employee to further the national policies embod-

ied in the applicable substantive statute. By refusing to enforce pur-

ported arbitration provisions unless it can be demonstrated to the court's

(continued...)

B. A Mandatory, Predispute Arbitration

Provision In A Collective Bargaining

Agreement Does Not Constitute A Valid

Individual Waiver Of Statutory Rights

Against Employment Discrimination

This Court’s decision in Alexander v. Gardner-Denver

Co., 415 U.S. 36, and its progeny, can best be understood as

a particularized application of the requirement that a valid

waiver of the right to a judicial forum for the adjudication

of a statutory civil rights claim must be knowing, intelligent,

and voluntary. Collective bargaining agreements are negoti-

ated between employers and unions, not individual employ-

ees. Our national labor policy authorizes unions to act on

behalf of employees in furtherance of their collective inter-

ests, and generally requires employees to defer to the judg-

ment of the majority of the union’s members. However, as

this Court recognized in Alexander, that general rule does

not apply when Congress provides individual workers with

Unions are not free to negotiate away these statutory rights

because the right belongs to the individual employee. Many

collective bargaining agreements contain mandatory arbitra-

tion provisions, and those provisions are legally unobjection-

able if they are limited to disputes arising from the collec-

tive bargaining agreement itself. But the union has no

authority, in the collective bargaining agreement or else-

where, to waive the right of individual employees to pursue

their statutory civil rights claims in court. Any purported

” (..continued)

satisfaction that an individual employee waived his right to a judicial

forum voluntarily, and with full knowledge of the implications of that

decision, courts can avoid the necessity of embroiling themselves in the

myriad variety of private arbitration agreements currently extant.

10

waiver contained in the collective bargaining agreement can-

not be attributed to an individual employee who did not, in

fact, knowingly and voluntarily agree to it.

The principle that a union cannot waive an individual

employee’s statutory rights against employment discrimina-

tion was clearly central to the Court’s ruling in Alexander.

The unanimous opinion by Justice Powell stressed precisely

this point in explaining the relationship between Title VII

and the collective bargaining agreement:

To begin, we think it clear that there can be no

prospective waiver [through a collective bar-

gaining agreement] of an employee's rights

under Title VII. It is true, of course, that a

union may waive certain statutory rights related

to collective activity, such as the right to strike.

These rights are conferred on employees col-

lectively to foster the processes of collective

bargaining and properly may be exercised or

relinquished by the union as _ collective-

bargaining agent to obtain economic benefits

for union members. Title VII, on the other

hand, stands on plainly different ground; it

concerns not majoritarian processes, but an in-

dividual’s right to equal employment opportu-

nities. Title VII's strictures are absolute and

represent a congressional command that each

employee be free from discriminatory practices.

Of necessity, the rights conferred can form no

part of the collective-bargaining process since

waiver of these rights would defeat the para-

mount congressional purpose behind Title VII.

In these circumstances, an employee's rights

under Title VII are not susceptible of prospec-

tive waiver.

415 U.S. at 51 (citations omitted).

11

Several years later, the Court reiterated the same princi-

ple in Barrentine v. Arkansas-Best Freight System, 450 U.S.

728 (1981). The dispute there involved the application of

the Fair Labor Standards Act, 29 U.S.C. §201 ef seg. Once

again, the Court held that the individual employee could not

be precluded from raising his claim in court, notwithstand-

ing the existence of an arbitration provision in the collective

bargaining agreement:

Two aspects of national labor policy are in ten-

sion in this case. The first, reflected in statutes

governing relationships between employers and

unions, encourages the negotiation of terms and

conditions of employment through the collec-

tive bargaining process. The second, reflected

in statutes governing relationships between em-

ployers and their individual employees, guaran-

tees covered employees specific substantive

rights. A tension arises between these policies

when the parties to a collective bargaining

agreement make an employee’s entitlement to

substantive statutory rights subject to contractu-

al dispute-resolution procedures ... .

450 U.S. at 734-35. Elaborating on this "tension," the Court

explained:

Not all disputes between an employee and his

employer are suited for binding resolution in

accordance with the procedures established by

collective bargaining. While courts should

defer to an arbitral decision where the employ-

ee’s claim is based on rights arising out of the

collective-bargaining agreement, different con-

siderations apply where the employee’s claim

is based on rights arising out of a statute de-

signed to provide minimum substantive guaran-

tees to individual workers . .

12

Id. at 737. Ultimately, the Court concluded:

[The] rights petitioners seek to assert in this

action are independent of the collective-

bargaining process. They devolve on petition-

ers as individual workers, not as members of a

collective organization. They are not waivable.

Id. at 745.

Underlying the Court’s holding in Barrentine was the

recognition that "the FLSA was designed to give specific

minimum protections to individual workers and to ensure

that each employee covered by the Act would receive ‘[a]

fair day’s pay for a fair day’s work[.]’" Jd. at 739 (em-

phasis in original)(internal citation omitted). The signifi-

cance of the Court’s highlighting is clear. Because individu-

al employees are not parties to the collective bargaining

agreement, the collective bargaining agreement does not

(and cannot) waive the individual’s right to litigate statutory

claims in court.

In an unbroken line of rulings over the past two dec-

ades, this Court has reaffirmed the rulings in Alexander and

Barrentine, extended their reasoning to cover all individual

employee protective statutes, and reiterated this essential

rationale. See McDonald v. City of West Branch, 466 U.S.

284 (1984)(applying Alexander and Barrentine to causes of

action under 42 U.S.C. §1983); Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202, 213 n.8& (1985)(Alexander distin-

guished between National Labor Relations Act rights, con-

ferred on employees collectively, "which could be waived

by contract between the parties" and “an individual’s sub-

stantive right derived from an independent body of law that

could not be avoided by a contractual agreement");

Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S.

557, 564 (1987)("This Court has, on numerous occasions,

declined to hold that individual employees are, because of

13

the availability of arbitration, barred from bringing claims

under federal statutes .... [T]he theory running through

|Alexander, Barrentine, and McDonald] is that notwithstand-

ing the strong policies encouraging arbitration, ‘different

considerations apply where the employee’s claim is based on

rights arising out of a statute designed to provide minimum

substantive guarantees to individual workers’")(internal cita-

tion omitted); Gilmer, 500 U.S. at 35 (reaffirming Alex-

ander, Barrentine, and McDonald and noting that an “im-

portant concern" in those cases “was the tension between -

collective representation and individual statutory rights");

Livadas v. Bradshaw, 512 U.S. 107, 128 n.21 (1994)(noting

that one important distinction between Gilmer and Alex-

ander was the concern in Alexander that "in collective-

bargaining arbitration, ‘the interests of the individual em-

ployee may be subordinated to the collective interests of all

employees in the bargaining unit’")(internal citation omitted).*

* A secondary concern running through these decisions arises from the

fact that, under most collective bargaining agreements, a decision

whether to pursue a grievance to arbitration rests with the union, rather

than the injured employee. Therefore, unlike the situation in Gilmer,

there is no assurance that the employee’s case will ever be heard by an

arbitrator. Cf. Alexander, 415 U.S. at 58 n.19 ("A further concern is the

union's exclusive control over the manner and extent to which an indi-

vidual grievance is presented"); Barrentine, 450 U.S. at 742 ("Even if

the employee's claim were meritorious, his union might, without breach-

ing its duty of fair representation, reasonably and in good faith decide

not to support the claim vigorously in arbitration"); McDonald, 466 U.S.

at 291 ("The union’s interests and those of the individual employee are

not always identical or even compatible"). Discrimination claims are

particularly likely to present a conflict between the interests of the in-

jured employee and the union membership as a whole because remedies

for the employee may be perceived to come at the expense of other em-

ployees. Cf. Alexander, 415 U.S. at 58 n.19 ("harmony of interest... .

cannot always be presumed, especially where a claim of racial discrimi-

nation is made"). For these reasons, as well, the union cannot be seen

(continued...)

14

’

‘

:

Amici urge the Court to reaffirm this consistent line of

precedent. Specifically, this Court should hold that an arbi-

tration provision in a collective bargaining agreement cannot

waive an individual employee's right to a judicial forum to

litigate statutory civil rights claims because the adoption of

such a provision through the collective bargaining process

does not constitute a knowing, intelligent, and voluntary

waiver of the right to a judicial forum by the individual em-

ployee rightholder.

C. The Court Below Erred In Construing

Gilmer To Mandate Enforcement Of Ar-

bitration Agreements That Are Not

Knowing And Voluntary

In Gilmer, 500 U.S. 20, this Court enforced a provision

in a securities registration agreement that required the plain-

tiff to arbitrate his statutory claim under the Age Discrimi-

nation in Employment Act, 29 U.S.C. §621 ef seg. Many

lower courts, including the Fourth Circuit in this case, have

interpreted Gilmer as virtually requiring them to enforce

contractual arbitration provisions with regard to statutory

civil rights claims, regardless of the language of the provi-

sion or the circumstances under which it was adopted. The

position of the Fourth Circuit undeniably carries the error

farther than other lower courts by totally ignoring any possi-

ble distinction between individual employee contracts and

collective bargaining agreements, and thus treating Alex-

* (..continued)

as a proxy for the individual employee in deciding whether to pursue a

statutory discrimination claim through arbitration rather than litigation.

15

ander as though it had been overruled by Gilmer’ The de-

cision below nonetheless reflects a more broadly held mis-

conception about the meaning of Gilmer that this Court

should now correct.

Specifically, there is nothing in Gilmer that is incon-

sistent with the traditional waiver standard advocated in this

brief or that can fairly be read as holding that even nonne-

gotiable arbitration clauses imposed as a condition of em-

ployment must be enforced. The narrow facts of Gilmer

simply do not support such an expansive interpretation of

the Court’s language. Among other things, there does not

appear to have been any dispute in Gilmer that the arbitra-

tion provision at issue was applicable to Statutory discrim-

ination claims. The majority in Gilmer pointed to this as

one important factor distinguishing the case from Alexander

and its progeny: "[T]hose cases did not involve the issue of

the enforceability of an agreement to arbitrate statutory

claims." 500 U.S. at 35.

More importantly, this Court stressed that Gilmer, a

corporate manager of financial services, was an "experienced

businessman," who was capable of assessing the conse-

quences of his contractual commitments. /d. at 33. The

Court found no evidence that he had been "coerced or de-

frauded into agreeing to the arbitration clause in the registra-

tion application." Jd. In the Court’s view, Gilmer was

someone who had knowingly and voluntarily "‘made the

bargain to arbitrate,” . . . [and therefore] ‘should be held to

it."" Jd. at 26 (quoting Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).

* Just last Term, this Court cautioned the lower courts about assuming

that “our more recent cases have, by implication, overruled an earlier

precedent." Agostini v. Felton, 117 S.Ct. at 2017.

16

The Gilmer Court recognized that there would often be

unequal bargaining power between employers and employ-

ees, which might affect the validity of an arbitration agree-

ment. 500 U.S. at 33. But because the Court did not be-

lieve that Gilmer himself had suffered the effects of unequal

bargaining power, it had no occasion to consider what the

legal import of that inequality might be. Lacking an appro-

priate record, it is hardly surprising that the Court declined

to adopt a per se rule invalidating all contractual arbitration

provisions." That judicial restraint hardly justifies the

conclusion that the Court in Gilmer intended to give a green

light to employers who use their superior bargaining power

to impose mandatory arbitration provisions on their employ-

es as a nonnegotiable condition of employment. As dis-

cussed below, such agreements cannot be upheld without

stripping the waiver doctrine of all practical meaning. See

p.20, infra.

In applying Gilmer (and Alexander), lower courts

should be instructed to consider whether an agreement to ar-

bitrate employment disputes constituted a knowing, intelli-

gent, and voluntary waiver of the employee’s individual

right to a judicial forum and a jury trial for the adjudication

of statutory discrimination claims. Although the arbitration

agreement in Gilmer might have survived this scrutiny,

many other mandatory arbitration provisions will not.!'

‘° "Mere inequality in bargaining power, however, is not a sufficient

reason to hold that arbitration agreements are never enforceable in the

employment context.” /d. (emphasis added).

‘' One need not quarrel with Gilmer’s refusal to adopt a per se rule

against all arbitration agreements in the employment context to recog-

nize that there are a number of recurring fact patterns that may well jus-

tify a per se rule against the enforceability of arbitration agreements in

specified circumstances. Among the more troubling scenarios discussed

below are situations where the employee never agreed to the arbitration

(continued...)

17

This reminder is unfortunately necessary because the lower

courts have gone seriously astray in construing Gilmer to re-

quire enforcement of arbitration agreements even when im-

posed as an involuntary or unknowing condition of employ-

ment. Moreover, by misreading Gilmer, the lower courts

have felt free to ignore the undeniable fact that many em-

ployees confronted with a predispute arbitration agreement

are simply not in a position to know or understand the sig-

nificance of the right to a judicial forum that they are being

asked to waive: while the need for employment is tangible

and immediate, the value of a judicial forum for a potential

future dispute is hypothetical and remote.

In addition to this overriding issue, the post-Gilmer

cases reveal numerous other problems associated with predis-

pute arbitration agreements. For example, many predispute

arbitration provisions (such as the one at issue in this case)

are vague and unclear about whether they in fact apply to

statutory antidiscrimination claims.'’ They speak generally

about "disputes relating to the terms and conditions of <m-

ployment” or "disputes arising under this contract." “ere

it cannot be said with certainty that a contractual arbitration

provision applies to statutory employment discrimination

claims, the victimized employee cannot be held to have

made a “knowing” waiver of his right to a judicial

'' (continued)

provision (which was imposed by an employer through an employee

handbook or other document), as well as situations, like the present case,

in which the arbitration provision was negotiated between an employer

and a union as part of a collective bargaining agreement and, therefore,

could not constitute a valid waiver, by the employee, of his individual

statutory rights.

* See note 2, supra.

18

forum. See Prudential Insurance Cv. of America v. Lai, 42

F.3d at 1305 (where employment contract did not describe

the disputes the parties had agreed to arbitrate, plaintiffs

"did not knowingly contract to forego their Statutory reme-

dies in favor of arbitration"); Renteria v. Prudential In-

surance Co. of America, 113 F.3d 1104 (same); cf. Fuentes

v. Shevin, 407 U.S. at 95 (emphasis in original)("a waiver of

constitutional rights in any context must, at the very least,

be clear").'" Clarity may not be enough to save a predis-

pute arbitration agreement if the other requirements of a

valid waiver have not been met in any context. Ambiguity,

standing alone, should be enough to condemn it.'*

In other cases, courts have enforced mandatory arbitra-

tion provisions where employers have unilaterally imposed

them on employees already on the job. See, e. g., Patterson

v. Tenet Healthcare, Inc., 113 F.3d 832, 833 (8th Cir. 1997)

(enforcing arbitration clause contained in employee hand-

book issued four years after plaintiff began the job); Cole vy.

Burns Int'l Security Services, 105 F.3d 1465, 1469 (D.C.Cir.

1997\(enforcing arbitration agreement current employees

were required to sign "in consideration of" continued em-

ployment). In these circumstances, as in the collective bar-

gaining context, there has been no meaningful agreement by

the employee, and any purported waiver of Statutory rights

should not be deemed voluntary.

See note 6, supra

* In some cases, either the mandatory arbitration provision itself, or pro-

visions relevant to determining its scope, is not contained in the employ-

ment contract but instead may be found in some referenced documents.

Often, these supplemental documents are not even provided to the em-

ployee at the time the contract is signed. See, e.g., Prudential Ins. Co.

v. Lai, 42 F.3d at 1301; Hooters of America, Inc. v. Phillips, 1998 U.S.

Dist. LEXIS 3962 (D.S.C. Mar. 12, 1998), at *56-57.

19

Additionally, lower courts have enforced contractual ar-

bitration provisions imposed on employees by their employ-

ers under circumstances that leave no doubt that the arbitra-

tion “agreements” are in fact non-negotiable conditions of

employment. See, e.g., Great Western Mortgage Corpora-

tion v. Michele Peacock, 110 F.3d 222, 224 (3d Cir.), cert.

denied, _ U.S. __, 118 S.Ct. 299 (1997)(upholding arbitra-

tion provision where employee had been required to sign ar-

bitration agreement before employer would consider her job

application); Mago v. Shearson Lehman Hutton, Inc., 956

F.2d 932, 933 (9th Cir. 1992)(same where employment

application contained arbitration agreement).

Where an employee who lacks effective bargaining

power has been compelled to sign a contract containing a

nonnegotiable, boilerplate arbitration provision as a condi-

tion of employment, the acceptance of this provision by the

employee should not be deemed a voluntary waiver of statu-

tory rights. Otherwise, employers have been effectively

given the unilateral power to opt out of the judicial enforce-

ment scheme created by Congress to protect workers against

employment discrimination. This result is worse than illogi-

cal. It creates an “inherent conflict" with the underlying

purposes of both Title VII and the ADA, Shearson/American

Express Inc. v. McMahon, 482 U.S. 220, 227 (1989), which

provides a further reason to reject the broad reading of

Gilmer that is now so prevalent in the lower courts."

It is critical, therefore, that the lower courts carefully

scrutinize the facts surrounding alleged agreements to arbi-

* Congress has twice recognized the fundamentally involuntary nature of

such mandatory arbitration provisions in collective bargaining agree-

ments and individual employment contracts alike when it enacted statu-

tory provisions encouraging the voluntary use of alternative dispute reso-

lution for statutory discrimination claims. See pp.23-24, supra.

20

trate statutory claims. The burden of proof must fall square-

ly on the party asserting that the agreement constitutes a

valid prospective waiver of the right to go to court. In none

of the foregoing circumstances, and many more like them.

can the employees be said to have knowingly, intelligently,

and voluntarily relinquished their right to a judicial forum to

adjudicate their statutory employment discrimination claims.

D. Contrary To The Fourth Circuit Ruling,

The Legislative History Of The Ameri-

cans With Disabilities Act (And Related

Civil Rights Statutes) Does Not Support

Mandatory Arbitration Of Statutory

Claims

In both the decision below and its prior decision in

Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d at

881-82, the Fourth Circuit Court of Appeals claimed to find

support for mandatory arbitration of employment discrimina-

tion claims in the text and legislative history of the ADA

and the 1991 Civil Rights Act. See Pet.App., at 5a (finding

in ADA a "statutory preference for arbitration"); Austin, 78

F.3d at 881 ("The language of the statutes could not be any

more clear in showing Congressional favor toward arbitra-

tion”). This is a gross misreading of these Statutory provi-

sions. In §12212 of the ADA and §118 of the Civil Rights

Act, Congress endorsed voluntary agreements to submit em-

ployment disputes to arbitration, but only as a supplement to

the statutory enforcement scheme.

The ADA was enacted to provide a "clear and compre-

hensive national mandate" to eliminate “various forms of

discrimination," including employment discrimination.

against people with disabilities. 42 U.S.C. §§12101(a\(5),

(b1})(2). Section 513 of the ADA, 42 U.S.C. §12212.

provides:

21

Where appropriate and to the extent authorized

by law, the use of alternative means of dispute

resolution, including settlement negotiations,

conciliation, facilitation, mediation, factfinding,

minitrials, and arbitration, is encouraged to re-

solve disputes arising under this chapter.

Because the ADA was enacted in 1990, the phrase "to the

extent authorized by law" clearly refers to the law prevailing

before this Court’s 1991 decision in Gilmer. In that pre-

Gilmer era, most lower courts had interpreted Alexander to

bar any "prospective waiver" of the right to litigate a statu-

tory employment discrimination claim, whether in a collec-

tive bargaining agreement or an individual employment con-

tract. See, e.g., Swenson v. Management Resources Int l,

Inc., 858 F.2d 1304, 1308-09 (8th Cir. 1988), cert. denied,

493 U.S. 848 (1989)("Alexander — clear that ein

intended the right in employment discrimination cases

have access tay tins remedies to outbalance the federal

policy favoring arbitration); Nicholson v. CPC Int'l Inc.,

877 F.2d 221, 229 (3d Cir. 1989); Rosenfeld v. Dep t of the

Army, 769 F.2d 237, 239 (4th Cir. 1985)("The plain lessor

on Alexander ... is that Congress entrusted the ultimate

resolution of questions of discrimination to the federal

judiciary"); Lyght v. Ford Motor Co., 643 F.2d 435, 439

(6th Cir. 1981); Holley v. Seminole County School District,

755 F.2d 1492, 1503 (11th Cir. 1985); Utley v. Goldman

Sachs & Co., 883 F.2d 184, 186-87 (ist Cir. 1989).

The judicial history is echoed in the legislative history

of §12212, which further reinforces the conclusion that Con-

gress intended to preclude involuntary waivers of the right

to pursue ADA claims in court. The House Judiciary Com-

mittee report stated:

“any agreement to submit disputed issues to ar-

bitration, whether in the context of a collective

tv

tv

bargaining agreement or in an employment

contract, does not preclude the affected person

from seeking relief under the enforcement

provisions of this act .. . . [T]he approach ar-

ticulated by the Supreme Court in Alexander v.

Gardner-Denver Co. applies equally to the

ADA and [the Committee] does not intend that

the inclusion of [§12212] be used to preclude

rights and remedies that would otherwise be

available to persons with disabilities.”

H.R. Rep. No. 485, pt. 3, 101st Cong., 2d Sess. at 76-77,

reprinted in 1990 U.S.C.C_A.N. 445, 499-500. This state-

ment was expressly adopted in the House Conference report,

which added "[i}t is the intent of the conferees that the use

of these alternative dispute resolution procedures is com-

pletely voluntary. Under no condition would an arbitration

clause in a collective bargaining agreement or employment

contract prevent an individual from pursuing their rights

under the ADA." H.R. Conf. Rep. No. 596, 101st Cong.,

2d Sess. at 89, reprinted in 1990 U.S.C.C._AN. 565, 598

(emphasis added).

A similar legislative history can be found in the 1991

Civil Rights Act. The Act was overwhelmingly adopted by

Congress to promote two chief goals: to increase the reme-

dies available under Title VII so that plaintiffs could for the

first time be fully compensated for the injuries of discrim-

ination, and to make enforcement of the Act more effective

through substantive and procedural amendments that would

make discrimination suits easier to bring and to prove. See

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith. Inc..

1998 U.S. Dist. LEXIS 877, at *34 (thoroughly analyzing

legislative history of the 199) Civil Rights Act). The Act’s

legislative history reaffirms that "[iJn enacting Title VII,

Congress intended to vindicate the substantial public interest

in a discrimination-free workplace by encouraging private

23

citizens to enforce the statute’s guarantees." H.R. Rep. No.

40(1), at 75, 102d Cong., Ist Sess., reprinted in 1991

U.S.C.C.A.N. 549, 613.

Section 118 of the 1991 Civil Rights Act speaks direct-

ly to the issue of the arbitrability of Title VII claims, in

language almost identical to that in the ADA: arbitration "is

encouraged to resolve disputes . . . [w]here appropriate and

to the extent authorized by law." Pub.L.No. 102-166 §118,

105 Stat. 1071, 1081 (1991)(codified as a historical and stat-

utory note to 42 U.S.C. §1981). The House Reports on this

section, drafted before Gilmer, make clear that §118 was not

intended to encourage waivers of an injured employee's

right to a judicial forum. Rather, they stress that “any

agreement to submit disputed issues to arbitration, whether

in the context of a collective bargaining agreement or in an

_ employment contract, does not preclude the affected person

from seeking relief under the enforcement provisions of

Title VII." H.R. Rep. No. 40(1), at 97; H.R. Rep. No.

40(II), at 41, reprinted in 1991 U.S.C.C.A.N. 694, 735 (em-

phasis added). Section 118, the Reports explain, is intended

to be “consistent with the Supreme Court's interpretation of

Title VII in Alexander v. Gardner-Denver Co." Id. Echo-

ing words taken directly from Alexander, Congress stated

that the encouragement of alternative dispute resolution was

meant to “supplement, not supplant” existing procedures,

compare Alexander, 415 U.S. at 48, and should not be "used

to preclude rights and remedies that would otherwise be

available." H.R. Rep. No. 40(I), at 97; H.R. Rep. No.

40(I1), at 41."°

* Even before 1991, the civil rights laws were designed to facilitate em-

ployees’ private enforcement actions by giving employees a choice of

jurisdiction in federal or state court. See, eg, 29 U.S.C. §626(c\!)

(concurrent jurisdiction of federal and state courts for ADA claims).

This Court has recognized that such “provisions for concurrent jurisdic-

(continued...)

24

In addition to the express endorsement of Alexander,

Congress provided further evidence of its intent to preclude

mandatory arbitration by rej in an amendment that would

Committee explained, would have allowed employers to "re-

fuse to hire workers unless they signed a binding statement

waiving all rights to file Title VII complaints." H.R. Rep.

No. 40(I), at 104, reprinted in U.S.C.C.AN. 642. This

“would fly in the face of Supreme Court decisions holding

that workers have the right to go to court, rather than being

forced into compulsory arbitration, to resolve importan

Statutory and constitutional rights ..." /d “American

workers,” the Committee concluded, "should not be forced

to choose between their jobs and their civil rights.” Id. The

rejection of this amendment in favor of the final version of

§118 provides "strong evidence" of Congress’ intent. See

Thompson v. Thompson, 484 U.S. 174, 185 (1988).

* (...continued)

tion serve to advance the objective of allowing [claimants] a broader

right to select the forum for resolving disputes{ }" Gilmer, 500 U.S. at

29, quoting Rodrigues de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477, 483 (1989). To be sure, Gilmer stresses that arbitration

“1S Consistent” with the flexibility such a concurrent jurisdiction provi-

sion affords, id.; but that is only the case if the arbitration agreement is

posed on employees as a non-negotiable condition of employment are in

inherent conflict with the civil rights laws’ grant of jurisdictional choices

to the employee.

25

Nor can it be argued that this Court’s decision in

Gilmer, after committee consideration of the bill but before

final passage, affected congressional intent with regard to

§118. In the House debate immediately prior to the Act’s

passage on November 7, 1991, post-Gilmer, the chair of the

Judiciary Subcommittee on Civil and Constitutional Rights

reiterated that §118 was “intended to be consistent with .. .

Alexander v. Gardner-Denver," and added for good

measure:

This section contemplates the use of voluntary

arbitration to resolve specific disputes after

they have arisen, not coercive attempts to force

employees in advance to forego statutory

rights. No approval whatsoever is intended of

the Supreme Court’s recent decision in Gilmer

... OF any application or extension of it to

Title VII.

137 Cong.Rec. H9505-01, *H9530 (November 7, 1991).

Indeed, one of the major purposes of the 1991 Civil

Rights Act was to create a new jury trial right for Title VII

plaintiffs. Before passage of the 1991 Civil Rights Act,

most courts had concluded that Title VII plaintiffs had no

right to a jury trial. See, e.g., Great Am. Fed Sav. & Loan

Ass'n v. Novotny, 442 U.S. 366, 375 & n.19 (1979). In re-

sponse, the 1991 Civil Rights Act explicitly recognized a

right to a jury trial for victims of intentional discrimination

in order to “protect the rights of all persons under the

Seventh Amendment ...". H.R. Rep. 40(II), at 29. It

makes little sense to conclude, as the Fourth Circuit did, that

Congress would have finally recognized this right in one

section of the 1991 Act, only to empower employers in a

different section of the same act, to avoid trial by jury --

and a judicial forum altogether -- by requiring employees to

waive their rights and agree to arbitrate claims as a condi-

26

tion of employment. Cf. Pryner v. Tractor Supply Co.. 109

F.3d 354, 363 (7th Cir. 1997)(Posner, J.)("It would be at

least a mild paradox for Congress, having in another amend-

ment that it made to Title VII in 1991 conferred a right to

trial by jury for the first time ... to have empowered

unions, in those same amendments, to prevent workers from

obtaining jury trials in these cases").

Thus, the legislative history of the ADA and the 199]

Civil Rights Act support the position urged by amici. The

provisions in those acts concerning arbitration and other

forms of alternative dispute resolution were intended to sup-

plement employees’ rights to a judicial forum to adjudicate

their claims. No mandatory arbitration provision should be

construed to waive an employee's right to go to court,

unless the court can find that the provision constitutes a

knowing, intelligent, and voluntary waiver of that right by

the individual rightholder.

27

CONCLUSION

For the reasons stated above, this Court should reverse

the decision of the Fourth Circuit Court of Appeals dismiss-

ing this action and remand the case for further proceedings.

Respectfully submitted,

Louis M. Bograd

(Counsel of Record)

American Civil Liberties Union

Foundation

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

Steven R. Shapiro

Lewis Maltby

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

David S. Schwartz

ACLU Foundation of

Southern California

1616 Beverly Boulevard

Los Angeles, California 90026

(213) 977-9500

C. André Brummé III

ACLU of South Carolina Foundation

1338 Main Street

Columbia, South Carolina 29201

(803) 799-5151

Dated: May 7, 1998