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

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No. 97-889

In The

Supreme Court of the United States—--——-~

October Term, 1997

CEASAR WRIGHT,

Petitioner,

UNIVERSAL MARITIME SERVICE CORP., et al.,

Respondents.

On Writ Of Certiorari :

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF FOR

CHAMBER OF COMMERCE OF THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

Of Counsel:

STEPHEN A. BoxatT Steven B. Berwin

Rosin S. Conrap ' Counsel of record

SussSAN MAHALLATI KYSELA Mark A. pe BERNARDO

NATIONAL CHAMBER Garry G. MATHIASON

LimiGaTION CentER, INC. Josep P. Harkins

1615 H Street, N.W. LittLER MENDELSON

Washington, D.C. 20062 A Professional Corporation

Telephone: 202-463-5337 1225 I Street, N.W.,

Suite 1000

Washington, D.C. 20005

Telephone: 202-842-3400

Attorneys for Amicus

Curiae Chamber of

Commerce of the United

States

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TABLE OF CONTENTS

Page

INTEREST AND CONCERN OF THE AMICUS..... 1

DEPRES GE COMED 56 cis dewtcsdbeddvcsesdasces 2

SIE PTR nbc cces voncveseebebectadedates 2

SUMMARY OF ARGUMENT..................0005. 3

RETO 6 5 Xp 6 any Vatbekokgrcédeercahentssenbsec 5

Il. THE COURT SHOULD ADOPT GILMER AS

THE BRIGHT-LINE RULE FOR THE ARBI-

TRATION OF STATUTORY DISCRIMINATION

CLAIMS OF EMPLOYEES IN COLLECTIVE

DARAZATPGRIWGS GOPUEED 2s cccvcccdcnveticeatoes 5

A. Congress Has Liberally Extended The Pol-

icy Favoring Arbitration To Include Statu-

tory Discrimination Claims .............. 6

1) The Civil Rights Act of 1991 ........ 6

2) The Federal Arbitration Act (“FAA”)... 9

3) National labor policy strongly sup-

OCU. GUMUITIGE <6 6 cc ccdcnsevisece 12

B. Unions’ Majoritarian Interests Provide No

Basis To Deprive Bargaining Unit

Employees Of The Option To Arbitrate

Statutory Discrimination Claims.......... 13

1) The employment laws rely on unions

to perform representative functions

and provide remedies for unions’ dis-

crimination or failures to represent

CN vencncsutcvncnases caubadesb esas 13

TABLE OF CONTENTS - Continued

Page

2) Labor unions have the need and incen-

tives to address their members’ claims

of employment discrimination, and are

appropriate representatives on such

EG een bi euch a con we cl cusiwes 15

3) Driving workers to the EEOC and pri-

vate attorneys does not and will not

decrease employment discrimination

or better protect workers’ rights ..... 17

C. Parties To Collective Bargaining Agree-

ments Can And Do Agree To Arbitrate

Statutory Discrimination Claims ......... 25

Il. IF GARDNER-DENVER HAS CONTINUED

VITALITY, THE POLICY FAVORING ARBI-

TRATION REQUIRES THAT UNION

EMPLOYEES ARBITRATE STATUTORY DIS-

CRIMINATION CLAIMS IN APPROPRIATE

TT 624 ch neh dios 4's 0:0.4 086 $e066 ceeetcees 26

RE 29

iii

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Gardner-Denver, 415 U.S. 36 (1974)... .passim

Asplundh Tree Expert Co. v. Bates, 71 F.3d 592

Se GN Pec dnicccccgavéccscssvesivsechessenss 10

AT&T Technologies v. Communications Workers

of America, 475 U.S. 643 (1986)............. > >

Austin v. Owens-Brockway Glass Container, Inc.,

78 F.3d 875 (4th Cir. 1996) cert. denied 117 S.Ct.

GEE SBME s oe vee ewscecccccqueccacsswescsdecdee passim

Barrentine v. Arkansas-Best Freight System, Inc.,

GD Dk ae Gee bd a aie Sh co Secs ctsbisieeessesii. 28

Bercovitch v. Baldwin School, Inc., 133 F.3d 141

fe | PRCT TTL TLS T TTT ESET LETT 6

Brisentine v. Stone & Webster Engineering Corp.,

BEF RES SOD CABG Coe BT pec. cc ccsvsvccesecsees. 27

Brown v. Trans World Airlines, 127 F.3d 337 (4th

Ge GR bhi cb dei cbcedsctkdwacesccccsdbantesctcces 27

—ole v. Burns Int'l Security Services, 105 F.3d 1465

es GE DN a ovcsweccbeccvagcusetessdbdccecnees 9

Covington v. District of Columbia, 57 F.3d 1101

Gee SE GIES 5 cuaivncene sacecesceceteatipscassense 23

Del Costello v. Teamsters, 462 U.S. 151 (1983)....... 14

Dickstein v. duPont, 443 F.2d 783 (ist Cir. 1971)..... 11

Duffield v. Robertson Stephens & Co., 1998 U.S.

App. LEXIS 9284 (9th Cir, May 9, 1998)........... 7

EEOC v. Frank’s Nursery & Crafts, Inc., 966

F.Supp. 500 (E.D. Mich. 1997).... 2.2.6.6... ccc eeeee 6

TABLE OF AUTHORITIES - Continued

Page

EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976)...... 16

EEOC v. Local 638, 565 F.2d 31 (2d Cir. 1977)....... 16

EEOC v. Local 638, 753 F.2d 1172 (2d Cir. 1985)..... 16

EEOC v. Sears, Roebuck & Co., 1992 U.S.Dist.

LEXIS 20046 at °7 (N.D. Ill. 1992)................. 21

EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th

GER GRD c cnccaisinwtdvasevastusducessausl 20, 21, 25

EEOC v. Shopmen’s Local 832, 1997 U.S. App.

Sy Se Ne SA PE nancccencesavewsacetocce 14

Emporium Capwell Co. v. Western Addition Com-

munity Organization, 420 U.S. 50 (1975) .......... 29

Erving v. Virginia Squires Basketball Club, 468

ee SD Se GE. CONE bebdbnndhccsunctavcsccens 11

Farrar v. Hobby, 506 U.S. 103 (1992) ................ 22

First Options of Chicago, Inc. v. Kaplan, 514 U.S.

GED GeO ccs cd cvenseiwescconcusibanpancentianest 25

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)..... 13

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

BD CUDUED 6 00s cncccdcccasecced ceatedeuvesaeddes passim

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

CREED 0.0 cvitintsnthb cccnpe bls ctadédecds 54ctdbdeciees 7

Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th

CO. GEOR ont ceevendsecsabehauvecntunsaneeaeset 27, 28

Hubbard v. United States, 115 S.Ct. 1754 (1995) ...... 7

Johnson v. Hubbard Broadcasting, Inc., 940

PS. BOG CORR. BGG) ons ccccccccccvcccccidecs 6

TABLE OF AUTHORITIES - Continued

Page

Jurgens v. EEOC, 660 F.Supp. 1097 (N.D. Tex.

DT De bald Rich dedanatikd vbddgeddbuGibecddveccivss 21

Local 28 of Sheet Metal Workers, 753 F.2d 1172 (2d

Cir. 1985) aff’d, 478 U.S. 421 (1986)............... 16

Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693

PD chai S oncees vwkndsctaveducvassasetcegsoect 13, 27

Miller v. Public Storage Management, Inc., 121

Se ee Ey Dns pct sevdvidscevsideoececes 6

O’Connor v. Consolidated Coin Caterers Corp.,

Br eer Be EE nk caer nnns Uae Rckesisiivccsccons 1

Oncale v. Sundowner Offshore Services, Inc., 523

SR. ieee Pe > SOD CURED ccc ccecccccccccuces 7, 23

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) overruled on other grounds................. 8

Pennsylvania v. Delaware Valley Citizens’ Coun-

DD eT Teer eee 22

Penny v. United Parcel Service, 128 F.3d 408 (6th

I ek a al ee ee le on igs 28

Pritzker v. Merrill, Lynch, Pierce, Fenner & Smith,

ee: § OF Be re 11

Pryner v. Tractor Supply Co., 109 F.3d 354 (7th Cir.

1997) (Posner, J.) cert. denied, 118 S.Ct. 295

Gs ck Weatediecucucccesccccetscencenseve 3, 9, 10, 28

Rojas v. TK Communications, Inc., 87 F.3d 745 (5th

BN PE phd eddie cudldedd vatbbedeveccduredcsescur 10

Romer v. Evans, 517 U.S. 620 (1996) ................ 23

Seus v. John Nuveen Co., 1997 U.S.Dist.LEXIS

Be Ge TE Se occcscesccccccsccvcsncccss 6

TABLE OF AUTHORITIES ~— Continued

Page

Signal-Stat Corp. v. Local 475, 235 F.2d 298 (2d Cir.

1956) cert. denied, 354 U.S. 911 and reh’g

GEA Gee Was Gen GE on cnndsScdcoundseceeete 10

Tenney Engineering, Inc. v. United Elec., Radio &

Machine Workers, Local 437, 207 F.2d 450 (2d

Rae FER be cuccsndcdsus atpecndadsbaveenseienteane 10

Textile Workers v. Lincoln Mills, 353 U.S. 448

RU anes cp ccasdepscncdstgudddavemscntie dubectea 12

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

GOO, Pe GUID oo o's conde cuccecdstevctsccec 8

Tran v. Tran, 54 F.3d 115 (2d Cir. 1995) ............. 28

United Paperworkers Intern. Union v. Misco, Inc.,

GEO Eb A G6: nroncascnosabe suchiodancsdinds 12

United States v. Local Union 212, 472 F.2d 634 (6th

GMM GEUSe 0 cesuexionssctpsananbehsdsseasbanedeesi’ 16

United Steelworkers of America v. American Mfg.

Cin FED TB Bae QUIN 00 raswenccevccsres shbsesds 12

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) .......... 12

United Steelworkers v. Warrior & Gulf Navigation

Cig Ge Be OD CUED acc ccseveccnccsesscennnns 12

Varner v. National Super Markets, Inc., 94 F.3d

1209 (8th Cir. 1996), cert. denied, 117 S.Ct. 946

GROUP obs icdbednccdsed bedded cbaes Kens cedacedeaveds 29

Walters v. Metropolitan Educ. Centers, Inc., 117

Sar GHP QOMNOD dns Ce sveuctondecctsiderkeedtsvcncen 1

vii

TABLE OF AUTHORITIES - Continued

Page

Wards Cove Packing Co., Inc. v. Atonio, 490 U.S.

GE Sn 6a bn cavern dann sascha dacaneckic cadesecss 8

Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510

TOM. CE AMD. BOGE) ono cov ccccccccccccscccvcccscens 23

STATUTES

D UGK. GEE G0 COB c cece ccccccnsccccccccscccescvss 5,9

DP UB , Ciiiccedtaccnaseecedvevevdesccivssscsadeneees 9

BD Wes BID bianco ccccpincc ence desccsnavscnyess 29

BD oes ccccpccendvcccensbacacssasars 12, 14

BD UB, Be GE GUE, oo bee bereiscscsescsccscceces 28

TD Ke. CD hic viieie tint dvncs es cesecccvsistesecds 14

Ge BE, Os dees cevescisiesecansceccvecconnceteas 6

Ge TR, Be von ech cocncaed cvcnceveconcesecssees 22

42 U.S.C. §§1988(b), 2000e-5(k)........ eee eee eee 22

GE UBL. CRIBB. 600 ccccccccsnsccccvcvccvcccsecs 14

42 USC. GEIZIGL, GF COG... orc cccccccccvcccsceccsecs 2

GR ERD, GUS EIED cc ccccrccseessncccccccsesnscsose 14

GD WGK Bs obs eos hb ec cede vsisceccocavieerevests 6

Cal. Gov’t Code §68600..............ccceeeeceeeeeee 25

or and Harbor Workers’ Compensation .

Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat.

NS ee a a lal 6, 8

viii

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

1983 Litigation Plan published as Resolution Mod-

ifying Rapid Charge Processing System (Dec.

12, 1983) reprinted in 239 Daily Lab. Rep.

Geeeeen Gree.. Bay DOWUe 6006000x6hbdnecsscencceess se 19

BNA, Union Membership and Earnings Data

Book, 1997 (1996 figures as cited in AFL-CIO

website (http://www.aflcio.org/union-

difference /uniondiff12.htm).)...............000000- 15

BLS Handbook of Labor Statistics: 1997, Table 137 .... 15

EEOC, 1982 Annual Report, at 59 (April 19, 1983),

reprinted in 212 Lab. L. Rep.: Employment Prac-

tices (CCH) Issue No. 1323 (Jan. 25, 1984) ... 16, 18, 19

EEOC, 1994 Annual Report ................2000- 16, 20

EEOC, 1995 Annual Report .................2+65. 20, 22

EEOC, 1996 National Enforcement Plan reprinted

in EEOC Compliance Manual (BNA), No. 209,

PERSE GUD. ©, DOG vce ccccvesccevvece sev 16, 19, 20

EEOC, Budget and Staffing, posted at EEOC web-

site (http:/ /www.eeoc.gov/budget.html.).......... 18

EEOC, Charge Processing Procedures Adopted

reprinted in EEOC Compliance Manual (BNA)

No. 199, N:3067 at 115 (Apr. 19, 1995)............ 18

EEOC, Enforcement Activities (“Enforcement

Activities”) posted at EEOC website (http://

www.eeoc.gov/enforce.html) ............666.e2eee. 18

TABLE OF AUTHORITIES - Continued

Page

EEOC, Summary of Enforcement Data and Budget

and Staffing Information for the EEOC: FY 1991

through FY 1997, prepared by EEOC Office of

Communications and Legislative Affairs (Dec.

Dp A SORE sams ereeOban ed 42h bhdoeungedec $e ce 18, 20

SOUP bh besdvessebededcodntecdsescdbedeviondcecece 14

Kilburn, Peter T., Backlog of Cases Is Overwhelm-

ing Job-Bias Agency N.Y. Times Abstracts, Nov.

Se Ee SG. 6s hao tevdseverrnss cud necsveccessees 18

Lewis, Diane E., Women’s Membership in Unions

Up to 39.4% The Boston Globe (Mar. 20, 1998) .... 15

Miller, Richard E. & Austin Sarat, Grievances,

Claims and Disputes, 15 Law & Sec’y Rev. 525

SE as VuctataGds uetub veWb dbs beSbdwees diotecess 23

O’Connell, Lenahan Investigations Are Work:

How Bureaucratic and Legal Constraints Influ-

ence the Enforcement of Discrimination Law, 51

Pub. Admin. Rev. 123 (March/April 1991)......... 20

Schafran, Lynn Hecht, Is the Law Male?: Let Me

Count the Ways, 69 Chi.-Kent L. Rev. 397 (1993) .... 24

Scheiber, Harry N., Innovation, Resistance And

Change: A History of Judicial Reform and the

California Courts, 1960-1990, 66 Cal. L. Rev.

BOE GU BOGE ob vv cvccccccrcdtcvcccccvccevcccece 25

Schnapper, Eric, Advocates Deterred by Fee

Issues, Nat’] Law J., March 28, 1994.............. 23

Selmi, Michael, The Value of the EEOC, 57 Ohio

nh ee ee se ha ddesbekbohteesecass 19, 20, 23

TABLE OF AUTHORITIES — Continued

Silver, Charles, Incoherence and Irrationality in

the Law of Attorneys’ Fees, 12 Rev. Litig. 301

Gerling, TORE). oo ic vetecccnveretveiceresevveese

U.S. Dept. of Commerce, Bureau of the Census

Statistical Abstract of the United States 1997

table 691, at 332 (117th ed. Washington, D.C.

PO Piaccoctsdiddotacccckegvevtytedtancedaceeree

U.S. Dep’t of Labor, Bureau of Labor Statistics

(“BLS”) Employment and Earnings, Vol. 44, No.

1, at 211-214 (1/97), January 1998..............

Page

INTEREST AND CONCERN OF THE AMICUS!

The Chamber of Commerce of the United States (“the

Chamber”) is the world’s largest business federation.

With substantial membership in each of the 50 States, it

represents more than 3,000,000 businesses and profes-

sional organizations of every size and in every sector of

the economy. The Chamber thus serves as the principal

voice for American employers.

Among its activities, the Chamber represents the

interests of its members on important matters pending

before the courts and the other branches of government.

The Chamber has participated as an amicus curiae in

numerous cases before the U.S. Supreme Court (“the

Court”), frequently on issues involving employment dis-

crimination.?

Many of the Chamber’s members have employees in

collective bargaining units, and the resolution of this case

will affect the manner in which these members will

resolve statutory employment discrimination claims.

Depending on its scope, the Court’s decision could affect

virtually all of the Chamber’s members.

' Pursuant to Supreme Court Rule 37.6, Amicus states that

no counsel for a party authored this brief in whole or in part,

and no person or entity other than the Chamber of Commerce of

the United States, its members, or its counsel has made a

monetary contribution to the preparation or submission of this

brief. Letters of consent are filed with this brief.

2 See, e.g., Walters v. Metropolitan Educ. Centers, Inc., 117

S.Ct. 660 (1997); O'Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308 (1996); Gilmer v. Interstate/Johnsons Lane Corp., 500 U.S.

20 (1991); AT&T Technologies, Inc. v. Communications Workers of

America, 475 U.S. 643 (1986).

STATEMENT OF FACTS

This is an action brought under the Americans with

Disabilities Act, 42 U.S.C. §§12101, et seq. (“ADA”). Peti-

tioner is a former union longshoreman in the Port of

Charleston, S.C. In February 1992, he fell at work and

fractured his heel. He brought a claim under the Long-

shore and Harbor Workers’ Compensation Act, and

asserted that he was permanently disabled. Petitioner's

doctor and a three-physician panel confirmed that the

disability was permanent. The workers’ compensation

claim was settled for $250,000, and the U.S. Department

of Labor approved the settlement in June 1994.

Seven months later, Petitioner appeared at the hiring

hall, presented a doctor’s release to return to work, and

began working for four stevedoring contractors. When

the companies discovered that Petitioner was working,

they and their multi-employer collective bargaining rep-

resentative notified Petitioner’s union that Petitioner

would no longer be accepted for employment referrals

because it had been determined that his disability was

permanent. The union advised Petitioner to get counsel.

Petitioner then exhausted his administrative

remedies with the EEOC and filed this action. On

Respondents’ motion, the district court granted summary

judgment to the employers, holding that Petitioner was

required to arbitrate his statutory ADA claim under the

collective bargaining agreement. The Fourth Circuit

affirmed in a unanimous, unpublished decision. When

Petitioner turned to arbitration, his disability discrimina-

tion claim was foreclosed there as stale. This Court then

granted certiorari.

ISSUES PRESENTED

1. Should the Court overrule Alexander v. Gardner-

Denver, 415 U.S. 36 (1974), and adopt a bright-line

rule, by which employees and employers may collec-

tively bargain for enforceable arbitration provisions

that extend to statutory discrimination claims?

2. Absent a bright-line rule, should employees and

employers be permitted to bargain collectively for

enforceable arbitration provisions extending to statu-

tory discrimination claims, where the arbitration pro-

visions explicitly include such claims, full statutory

remedies are available, and appropriate steps are pre-

sent to safeguard against unions that improperly fail

to pursue such claims on their members’ behalf?

SUMMARY OF ARGUMENT

It is time for the Court to overrule Alexander v. Gard-

ner-Denver, 415 U.S. 36 (1974). Petitioner argues that Gard-

ner-Denver establishes a bright-line rule. Whatever it

stood for at the time it was decided, after years of juris-

prudence increasingly favoring arbitration, Gardner-

Denver has left litigants uncertain and the lower courts in

conflict. Some lower courts have observed that Gardner-

Denver might have no remaining currency. See, e.g., Pryner

v. Tractor Supply Co., 109 F.3d 354, 365 (7th Cir. 1997)

(Posner, J.), cert. denied, 118 S. Ct. 295 (1997). The present

case is an example of how confusion about Gardner-

Denver ultimately resulted in an employer burdened with

litigation and a grievant with no forum.

In the 24 years since Gardner-Denver, Congress and

the Court have increasingly favored the arbitration of

statutory claims, including employment discrimination

claims. What is needed is an up-to-date, bright-line rule,

extending to such claims for union employees the same

rule as for all other employees, as stated in Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

In Gilmer, the Court departed from many of Gardner-

Denver's underpinnings:

The Court in Alexander v. Gardner-Denver Co.

also expressed the view that arbitration was

inferior to the judicial process for resolving stat-

utory claims. That “mistrust of the arbitral pro-

cess,” however, has been undermined by our

recent arbitration decisions. “[W]e are well past

the time when judicial suspicion of the desir-

ability of arbitration and of the competence of

arbitral tribunals inhibited the development of

arbitration as an alternative means of dispute

resolution.”

500 U.S. at 34 n.5 (citations omitted). The Court also

rejected a variety of other arguments that questioned

arbitration as a forum. See id. at 30-33.

Nevertheless, in Gilmer, the Court chose to distin-

guish Gardner-Denver, rather than overrule it. As the

Court stated:

There are several important distinctions

between the Gardner-Denver line or cases and

the case before us. First, those cases did not

involve the issue of the enforceability of an

agreement to arbitrate statutory claims. . . .

Since the employees there had not agreed to

arbitrate their statutory claims, and the labor

arbitrators were not authorized to resolve such

claims, the arbitration in those cases under-

standably was held not to preclude subsequent

statutory actions. Second, because the arbitra-

tion in those cases occurred in the context of a

collective-bargaining agreement, the claimants

there were represented by their unions in the

arbitration proceedings. An important concern

therefore was the tension between collective

representation and individual statutory rights, a

concern not applicable to the present case.

Finally, those cases were not decided under the

FAA [the Federal Arbitration Act], which, as

discussed above, reflects a “liberal federal pol-

icy favoring arbitration agreements.”

Id. at 35 (citation omitted).

Changed circumstances now address these distinc-

tions and permit the Court to extend to unionized work-

places the choice of arbitration as a forum for resolving

statutory discrimination claims. The Court should there-

fore extend Gilmer to collective bargaining unit

employees. At the least, on a case-by-case basis, the Court

should enforce collectively bargained agreements to arbi-

trate such claims, when the facts meet Gilmer’s concerns.

ARGUMENT

I. THE COURT SHOULD ADOPT GILMER AS THE

BRIGHT-LINE RULE FOR THE ARBITRATION OF

STATUTORY DISCRIMINATION CLAIMS OF

EMPLOYEES IN COLLECTIVE BARGAINING

UNITS.

Taking in reverse order Gilmer’s concerns with arbi-

tration for collective bargaining unit employees, each of

those concerns now has been addressed. First, Congress

has gone beyond the Federal Arbitration Act, 9 U.S.C.

§§1, et seq., to state in subsequent legislation its support

for the arbitration of statutory discrimination claims. Sec-

ond, the skepticism about collective representation does

not take into account significant protections afforded

employees, changes in union demographics since Gard-

ner-Denver, and the increasing delays and inadequacies of

traditional litigation. Third, it has always been up to the

courts to determine the scope of a given arbitration

agreement: courts need require the arbitration of statu-

tory claims only where the parties have agreed to it.

Thus, the concerns stated in Gilmer have been addressed,

and the Court should extend Gilmer as a bright-line rule

for union workers.

A. Congress Has Liberally Extended The Policy

Favoring Arbitration To Include Statutory Dis-

crimination Claims.

1) The Civil Rights Act of 1991.

In the Civil Rights Act of 1991 (“CRA”), enacted only

five months after the Court decided Gilmer, Congress

endorsed the arbitration of Title VII cases. Pub.L. 102-166,

105 Stat. 1071 (1991). Section 118 of the CRA provides

that “where appropriate and to the extent authorized by

law, the use of alternate dispute resolution, including .. .

arbitration, is encouraged to resolve disputes arising

under [Title VII].” 105 Stat. at 1081, reprinted in notes to 42

U.S.C. §1981. Not long before, Congress had adopted

virtually identical language in the ADA, 42 U.S.C. §12212.

As the majority of lower courts have recognized, the

plain language of these provisions endorses alternative

dispute resolution methods such as arbitration.* Indeed,

3 See Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 150 (1st Cir.

1998) (“In light of the language in the ADA text itself, this legislative

history is not sufficient to rebut the presumption in favor of

arbitration . . . [W]e do not find any ‘inherent conflict’ between

mandatory arbitration of ADA claims and the policies behind the

ADA”); Miller v. Public Storage Management, Inc., 121 F.3d 215, 218

(Sth Cir. 1997) (given the express language encouraging arbitration,

court rejects argument that the legislative history of the alternate

dispute resolution provision in the ADA takes that statute out of the

FAA's arbitration requirements); Seus v. John Nuveen Co., 1997

U.S.Dist.LEXIS 8209 at *16 (E.D.Pa.1997) (despite legislative history

of section 118, that section encourages arbitration based on a U-4

form, and therefore arbitration is compelled); EEOC v. Frank's

Nursery & Crafts, Inc., 966 F.Supp. 500, 503-04 (E.D. Mich. 1997)

(applying Gilmer to require arbitration, finding support in the plain

language of section 118); Johnson v. Hubbard Broadcasting, Inc., 940

F.Supp. 1447, 1457-58 (D. Minn.1996) (legislative history of section

118 does not affect its express language, which encourages

arbitration).

the Fourth Circuit relied on this language to support its

extension of Gilmer to a union setting. See Austin v.

Owens-Brockway Glass Container, Inc., 78 F.3d 875, 881 (4th

Cir. 1996), cert. denied, 117 S.Ct. 432 (1996) (legislative

history of section 118 supports arbitration under a collec-

tive bargaining agreement). A minority view relies on a

misreading of the legislative history to defeat the stat-

ute’s plain language.*

* See Duffield v. Robertson Stephens & Co., 1998 U.S. App.

LEXIS 9284 (9th Cir, May 9, 1998). In Duffield, the Ninth

Circuit turns section 118 on its head. The court seizes on the

words, “where appropriate and to the extent authorized by

law,” analyzes portions of the legislative history written prior

to Gilmer, and holds that Congress impliedly overruled Gilmer

and adopted Gardner-Denver. Duffield therefore declines to

apply Gilmer on facts indistinguishable from that case.

The plain language of section 118, when endorsing arbitra-

tion “to the extent authorized by law,” could only be endorsing

Gilmer. See Hubbard v. United States, 115 S.Ct. 1754 (1995) (“In

the ordinary case, absent any ‘indication that doing so would

frustrate Congress's clear intention or yield patent absurdity,

our obligation is to apply the statute as Congress wrote it’ ”);

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. __, 118

S.Ct. 998, 1002 (1998) (“[I]}t is ultimately the provisions of our

laws rather than the principal concerns of our legislators by

which we are governed.”).

The Court announced Gilmer on May 13, 1991; the Senate

passed the CRA more than five months later, on October 30,

1991; the House passed it on November 7, 1991; and the

President signed it into law on November 21, 1991. Congress is

presumed to know existing law pertinent to legislation that it

enacts. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85

(1988). Moreover, on the floor in each house, Members

expressly referred to Gilmer. See, e.g., 137 Cong. Rec. $15472,

15478 (Oct. 30, 1991); 137 Cong. Rec. H9505, 9548 (Nov. 7,

1991). Thus, the words, “to the extent authorized by law,”

endorsed Gilmer.

Searching for an implied enactment overruling Gilmer, as in

looking for any legislation by implication, neglects that it

is at best dangerous to assume that all the necessary

participants in the law-enactment process are acting

upon the same unexpressed assumptions. And like-

wise dangerous to assume that, even with the utmost

self-discipline, judges can prevent the implications

they see from mirroring the policies they favor.

Thompson v. Thompson, 484 U.S. 174, 192 (1988) (Scalia, J.,

concurring).

The Ninth Circuit reached its result by relying on two

committee reports that regarded Gardner-Denver as the law that

would control arbitration. The reports were issued respectively

on April 24, and May 17, 1991. H.R.Rep. No. 40 (I), 102d Cong.,

Ist Sess. 15-16 (1991), reprinted in 1991 U.S.C.C.A.N. 549;

H.R.Rep. No. 40(I1), 102d Cong., Ist Sess. 78 (1991), reprinted in

1991 U.S.C.C.A.N. 694. Given that one report was published

before Gilmer and the other just four days after, it is not surpris-

ing that both assume that Gardner-Denver states the law - after

all, Gardner-Denver did state the law at the time the reports

were written. What this neglects is that over the next several

months, and well before the CRA’s enactment, the Court

decided Gilmer and Congress referred to it expressly in debate

on the CRA. By the time of enactment, Gilmer also stated the

law.

Finally, Congress knows how to overrule the Court's deci-

sions; indeed, it did so in other respects in the CRA itself. The

statute expressly overrules Wards Cove Packing Co., Inc. v.

Atonio, 490 U.S. 642 (1989), and states as one of its purposes “to

respond to [other] recent decisions of the Supreme Court... . ”

CRA, §3(2), Pub. L. No. 102-166, 1991 U.S.C.C.A.N. (195 Stat.)

1071, at 1071. The House Committee on the Judiciary report

specified the other cases being addressed. If Congress wanted

to overrule Gilmer, it would have amended the CRA prior to

passage or in subsequent legislation. See Patterson v. McLean

Credit Union, 491 U.S. 164, 172-73 (1989), overruled on other

grounds in the CRA (in cases of statutory interpretation, stare

2) The Federal Arbitration Act (“FAA”).

Congress’ strong policy in the FAA, favoring arbitra-

tion, applies to the vast majority of union employees, and

therefore any bright-line rule applying to all union

employees must reflect that policy. “The arbitration act

covers almost the whole field of arbitrable disputes, only

a subset of which (and a small one in 1925) grows out of

collective bargaining agreements.” Pryner, supra, 109 F.3d

at 359. The Act extends to any “contract evidencing a

transaction involving commerce to settle by arbitration a

controversy thereafter arising out of such contract or

transaction. ...” 9 U.S.C. §2.

However, the statute contains the following exclu-

sion: “but nothing herein contained shall apply to con-

tracts of employment of seamen, railroad employees, or

any other class of workers engaged in foreign or inter-

state commerce.” 9 U.S.C. §1. The Court declined to inter-

pret this language in Gilmer and has not done so since.

500 U.S. at 25 n.2. The prevailing view has been that this

exclusion applies narrowly to seamen, railroad

employees, and other transport workers who are directly

engaged in moving passengers or goods in foreign or

interstate commerce. An alternative view — clearly in the

minority — has developed that reads this language to

exclude from the FAA virtually all employment contracts.

The majority rule is correct. The District of Columbia

Circuit recently wrote a cogent opinion typical of this

view, based on traditional principles of statutory con-

struction. See Cole v. Burns Int'l Security Services, 105 F.3d

1465, 1470-71 (D.C. Cir. 1997) (“every circuit to consider

decisis has special force, for “unlike in the context of constitu-

tional interpretation, the legislative power is implicated, and

Congress remains free to alter what [the Court] has done”).

Congress did not do so with respect to Gilmer.

this issue squarely has found that section 1 of the FAA

exempts only the employment contracts of workers actu-

ally engaged in the movement of goods in interstate

commerce”).

The Seventh Circuit adopted the narrow reading of

the exclusion last year. See Pryner, 109 F.3d at 356-58. It

held that contrary decisions misapply a modern reading

of the words, “in commerce,” to an Act drafted in 1925,

when those words did not carry such a broad meaning.

Writing for the court, Judge Posner observed that even

commentators who prefer a broad reading of the section 1

exclusion concede that the “prevailing view” is the nar-

row view, limiting it to cases where the workers them-

selves are personally engaged in interstate commerce. See

id. at 358.

The Second Circuit reached the same conclusion,

again focusing on the meaning of the language at the time

of enactment. See Tenney Engineering, Inc. v. United Elec.,

Radio & Machine Workers, Local 437, 207 F.2d 450, 452-53

(2d Cir. 1953) (fms. omitted) (section 1 exclusion applies

only to workers “who are actually engaged in the move-

ment of interstate or foreign commerce or in work so

closely related thereto as to be in practical effect part of

it.”).

Most other circuits have reached the same conclu-

sion.> The minority view is in the Third and Fourth

> See, e.g., Rojas v. TK Communications, Inc., 87 F.3d 745, 748

(5th Cir. 1996) (majority of circuits have determined that the

exclusionary clause is to be narrowly construed to exempt only

contracts of employment of workers engaged in the movement

of goods in commerce); Asplundh Tree Expert Co. v. Bates, 71 F.3d

592, 600-01 (6th Cir. 1995) (section 1 “should be narrowly

Circuits, but these courts view the exclusion alternatively

as irrelevant to the present issue (Fourth Circuit) or reach

their conclusion without explanation (Third Circuit).°

The facts of the case now before the Court might not

require resolution of this issue because Petitioner's par-

ticular job as a stevedore might bring him within even the

narrow reading of the exclusion. However, because the

FAA's exclusion applies only to a small fraction of union

employees,’ any bright-line rule must reflect the status of

most union employees as falling within the FAA and its

pro-arbitration policies.

construed to apply to employment contracts of seamen, railroad

workers, and any other class of workers actually engaged in the

movement of goods in interstate commerce.”); Erving v. Virginia

Squires Basketball Club, 468 F.2d 1064, 1069 (2d Cir. 1972) (section

1 exclusion applies “only to those actually in the transportation

industry”); Dickstein v. duPont, 443 F.2d 783, 785 (1st Cir. 1971)

(courts have generally limited the section 1 exclusion to

employees “involved in, or closely related to, the actual

movement of goods in interstate commerce”); Signal-Stat Corp.

v. Local 475, 235 F.2d 298, 302-303 (2d Cir. 1956), cert. denied, 354

U.S. 911, and reh’g denied 355 U.S. 852 (1957) (same).

broadly but holding that arbitration is required anyway in view

of the long-standing and important role that arbitration has

played in labor disputes); Pritzker v. Merrill, Lynch, Pierce, Fenner

& Smith, Inc., 7 F.3d 1110, 1120 (3d Cir. 1993) (stating its

conclusion with little analysis).

? For example, in 1996, the total work force was nearly 112

million. Of those, 18 million were in collective bargaining units,

but only 1.1 million of these were transport workers. U.S. Der’t

or Lasor, Bureau or Lasor Stanistics (“BLS”), Employment and

Earnings, Vol. 44, No. 1, at 211-214 (1/97).

3) National labor policy strongly supports

arbitration.

Arbitration has long served as the central means for

resolving disputes arising in the collective bargaining

setting. See United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 363 U.S. 574, 581 (1960). Earlier doubts as to

whether agreements to arbitrate labor contract disputes

were enforceable were dispelled by Textile Workers v. Lin-

coln Mills, 353 U.S. 448 (1957), and the Steelworkers Trilogy.

These cases cemented the Court's policy of reliance on

and deference to labor arbitration.®

The Court has repeatedly reaffirmed the principles

first established in the Steelworkers Trilogy. See, e.g., AT&T

Technologies v. Communications Workers of America, 475 U.S.

643 (1986) (reaffirming presumption of arbitrability);

United Paperworkers Intern. Union v. Misco, Inc., 484 U.S. 29

(1987) (reaffirming narrow scope of judicial review on the

merits).

Thus, in fashioning a bright-line rule, the extension

of Gilmer would correctly reflect Congressional policy

favoring arbitration in the collective bargaining setting.

8 United Steelworkers of America v. American Mfg. Co., 363

U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf

Navigation Co., supra, and United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). Lincoln Mills

held that the courts had jurisdiction to enforce arbitration

provisions in collective bargaining agreements under section

301 of the Labor-Management Relations Act, 29 U.S.C. §185(a).

Lincoln Mills, supra, 353 U.S. at 450-51. In American Mfg., supra,

the role of the courts was limited to determining arbitrability.

363 U.S. at 568. In Warrior & Gulf, supra, the Court stated that

“doubts [regarding arbitrability] should be resolved in favor of

coverage.” 363 U.S. at 583. Finally, ‘n Enterprise Wheel, supra, the

Court held that an arbitrator's award drawing its essence from

the collective bargaining agreement must be enforced, even if

the court would differ on the merits. See 363 U.S. at 597-599.

As the Fourth Circuit observed, even absent the FAA, this

is a sufficient legal and policy basis upon which to favor

the arbitration of statutory discrimination claims. See

Austin, supra, 78 F.3d at 882-83.

Thus, Congress has now made certain its policy favoring

the arbitration of statutory discrimination claims.

B. Unions’ Majoritarian Interests Provide No

Basis To Deprive Bargaining Unit Employees

Of The Option To Arbitrate Statutory Discrimi-

nation Claims.

The Gilmer Court also distinguished Gardner-Denver

by focusing on the tension between collective representa-

tion in the union setting and individual statutory rights.

When analyzed, this is not a reason to preclude, with a

bright-line rule, the arbitration of statutory discrimina-

tion claims for collective bargaining unit employees.

1) The employment laws rely on unions to

perform representative functions and pro-

vide remedies for unions’ discrimination or

failures to represent fairly.

This Court long has recognized that a union

may waive a member's statutorily protected

rights. . . . Such waivers are valid because they

“rest on ‘the premise of fair representation’ and

presuppose that the selection of the bargaining

representative ‘remains free.’ ”

Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 705 (1983)

(citations omitted); see also, Ford Motor Co. v. Huffman, 345

U.S. 330, 336-39 (1953) (describing the representative

nature of collective bargaining). The Fourth Circuit has

applied this principle to a union’s agreement to arbitrate

statutory discrimination claims, and held that it

addressed Gilmer’s concerns about the representative

nature of unions. See Austin, supra, 78 F.3d at 885 (cita-

tions omitted).

Individual union members also have legal protection.

Labor unions fall within the anti-discrimination dictates

of Title VII and the other anti-discrimination statutes.’

Thus, a union’s discriminatory decision not to pursue a

worker's claim exposes the union to a Title VII claim. See,

e.g., EEOC v. Shopmen’s Local 832, 1997 U.S. App. LEXIS

9570 (2d Cir. 1997) (affirming award in excess of $100,000

to worker whose union would not pursue her discrimina-

tion claim). Similarly, when a union fails in its duty to

represent workers fairly, the workers may pursue a civil

action for breach of the collective bargaining agreement.

See 29 U.S.C. §185; Del Costello v. Teamsters, 462 U.S. 151,

164 (1983). When the collective bargaining agreement

incorporates full rights under the discrimination statutes,

and the union breaches its duty, the civil action would

offer the employee full statutory remedies as damages

under section 301.

These two remedial avenues (Title VII and section

301) increase the likelihood that unions will pursue at

least strong claims: the more meritorious the employee's

discrimination claim, the more obvious will be the unfair-

ness or discriminatory purpose of any decision by the

union not to pursue it.

Finally, when a union fails to pursue a meritorious

case, public policy may yet be vindicated. The EEOC is of

the view that it may bring cases irrespective of a private

arbitration. See 1997 EEOC Policy Statement, No. 915.002

(July 10, 1997) at n. 20, (citing General Tel., 446 U.S. 318,

328 (1990), and 118 Cong. Rec. 4041 (1972)). Collective

bargaining unit employees could file a charge with the

EEOC, which could pursue a civil action of its own.

9 See 42 U.S.C. §12111(2) (ADA); 42 U.S.C. §2000e-2(c) (Title

VII); 29 U.S.C. §623(c) (ADEA).

Indeed, this could be an excellent use of the Commis-

sion’s limited resources to develop the law under the

statutes for which it is responsible.

2) Labor unions have the need and incentives

to address their members’ claims of

employment discrimination, and are appro-

priate representatives on such matters.

Organized labor has increasing and much greater

diversity in its membership since the Gardner-Denver

decision in 1974. This, along with vigorous law enforce-

ment, has led to unions’ improved records on discrimina-

tion.

Specifically, unions have experienced a significant

change in demographics since Gardner-Denver. At the

time of Gardner-Denver, 21 percent of American workers

who were members of collective bargaining units were

women. BLS Hanpsook or Lasor Statistics: 1977, Table

137 at 102. By 1996, the proportion of women in bargain-

ing units had risen to 40 percent. See.U.S. Dept. or Com-

MERCE, BUREAU OF THE CENsus, STATISTICAL ABSTRACT OF THE

Unitep States 1997, table 691, at 332 (117th ed. Washing-

ton, D.C. 1997); Diane E. Lewis, Women’s Membership in

Unions Up to 39.4%, THe Boston Grose, at E7 (Mar. 20,

1998). The proportion of Hispanic members in unions has

increased by 20 percent between 1983 and 1997. BLS,

Employment and Earnings, January 1998; BNA, Union Mem-

bership and Earnings Data Book, 1997 (1996 figures as cited

in AFL-CIO website (http:/Aoww.aflcio.org/uniondifference/

uniondiff12.htm.).

The doubling of the proportion of women and the

considerable increase in minority membership necessarily

requires unions to take into account the needs of suck

workers in ways not present at the time of Gardner-

Denver. The time has passed when unions could afford to

ignore or under-represent the interests of minority mem-

bers; 1998 is not 1974.

The reality of today’s union representation obliga-

tions is reflected in a sharp decrease in discrimination

claims brought against unions. In the 1970’s and early

1980's, unions repeatedly were found liable for patterns

of discrimination, and often were targeted by the EEOC.'°

More recently, however, these pattern and practice cases

and class action suits against unions have become scarce.

See EEOC, 1982 Annual Report, at 59 (in 1982, unions were

named as respondents in 3,146 charges, which was over 5

percent of all charges filed); cf, EEOC, 1994 Annual Report,

at 36 (in 1994, only 590 charges — or 0.6 percent — were

against unions). In its recent policy statements on areas of

enforcement emphasis, the EEOC makes no reference to

unions. See EEOC, 1996 National Enforcement Plan,

reprinted in EEOC Compuance Manuat (BNA), No. 209,

N:2061 (Feb. 8, 1996). The inference is that unions’ com-

pliance with the discrimination laws has improved. For

those union officials who do discriminate or act unfairly,

bargaining unit workers have statutory remedies, and the

EEOC also may bring enforcement actions. In perspec-

tive, union representation of members’ interests in the

resolution of employment discrimination claims is suffi-

cient to adopt Gilmer for this setting, and such progress

should be recognized and encouraged.

10 See, e.g., EEOC v. Local 638 . . . Local 28 of Sheet Metal

Workers, 753 F.2d 1172 (2d Cir. 1985) (and cases cited therein),

aff'd, 478 U.S. 421 (1986); EEOC v. Local 638, 565 F.2d 31 (2d Cir.

1977); EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976); United

States v. Local Union 212, 472 F.2d 634 (6th Cir. 1973).

3) Driving workers to the EEOC and private

attorneys does not and will not decrease

employment discrimination or better pro-

tect workers’ rights.

In their criticism of unions as “gatekeepers” for stat-

utory discrimination claims, Petitioner and his amici

neglect that the alternatives of representation through the

EEOC or the private bar contain pitfalls as deep as

workers would find in union representation, but without

the recourse that workers have against their unions.

There is no question that the EEOC and the private

bar, working with the civil courts, have made great

strides in the implementation of the Congressional policy

against employment discrimination. However, the Court

should also implement Congress’ policy favoring arbitra-

tion, including the arbitration of discrimination claims. In

doing so, the Court should not focus on the negatives of

union representation, and compare them to some ideal-

ized view of civil litigation as it currently is practiced.

Although union representation will fail in certain cases,

only an outdated, idealized view of the civil litigation

system permits the inference that it offers workers a more

accessible, more certain avenue. And, unlike unions,

whose failure to support workers may result in civil

liability, the EEOC and the plaintiffs’ bar work without

such checks and balances.

The EEOC as Gatekeeper. The Equal Employment

Opportunity Commission testifies annually to Congress

that it is not adequately funded to do its assigned tasks.

With recent legislative increases in the EEOC’s respon-

sibilities and a dramatic increase in charges of discrimina-

tion in the 1990’s, but with little increase in funding, the

EEOC has developed a record-breaking backlog of pend-

ing charges, and had to reduce sharply the scope of its

activities.

Over the past 17 years, the Commission’s staff fell

from 3,390 in 1980 to 2,680 in 1997. See EEOC, Budget and

Staffing, posted at EEOC website (http://Auww.eeoc.gov/bud-

get.html.) This decline came at the same time that the

agency’s obligations expanded, e.g., ADA-charge han-

dling, which now comprises one-fourth of all charges. See

id. The average caseload per investigator has more than

doubled from 55.3 cases in 1990 to 122.0 in 1994. See

EEOC, Summary of Enforcement Data and Budget and Staff-

ing Information for the EEOC: FY 1991 through FY 1997,

prepared by EEOC Office of Communications and Legis-

lative Affairs (Dec. 8, 1997). In fiscal 1997, the average

time to process a charge of discrimination was 358 days.

See id. Lengthy as this is, it is down from the average of 18

months that charges were pending in 1994. See Peter T.

Kilburn, Backlog of Cases Is Overwhelming Job-Bias Agency,

N.Y. Times Asstracts, Nov. 26, 1994 at A6; 1994 WL

2757055.

By 1995, the backlog of pending charges had reached

an all-time record of 111,345. See EEOC, Enforcement

Activities (“Enforcement Activities”), posted at EEOC

website (http://www.eeoc.gov/enforce.html). Overwhelmed,

the Commission adopted a triage system. See EEOC,

Charge Processing Procedures Adopted, reprinted in EEOC

ComputiANce MANuAL (BNA), No. 199, N:3067 at 115 (Apr.

19, 1995). Applying the system, the Commission reduced

the backlog in one year by 30 percent. See EEOC, Enforce-

ment Activities, supra. This massive, rapid reduction in

pending charges, without any additional staff, could only

mean that cases were closed with far less attention than

what the Commission has traditionally viewed as appro-

priate.'!

11 This was not the first such implementation of drastic

measures to reduce a huge backlog. See EEOC, 1982 Annual

These constraints on resources have also limited the

Commission's litigation efforts. The Commission’s 1983

Litigation Plan had envisioned the full investigation of all

charges and the litigation of all cases where the Commis-

sion found a probable violation and yet conciliation had

failed. See 1983 Litigation Plan, published as Resolution

Modifying Rapid Charge Processing System (Dec. 12, 1983),

reprinted in 239 Dany Las. Rep. (BNA) (Dec. 12, 1983) at

D-1. However, in the 1996 National Enforcement Plan, the

EEOC abandoned this goal. See EEOC, 1996 National

Enforcement Plan, cited in Ea. Emp. Compt. Man. (BNA),

No. 209, supra, at 1, 13. Instead, the EEOC decided that it

had to forego some good cases to devote resources to

others. 1996 National Enforcement Plan, at 1, 14.

The Commission therefore focused on certain priori-

ties.'2 1996 National Enforcement Plan, Part III at 12. But

the priorities do not include, for example, sexual harass-

ment cases, race discrimination cases, or most ADA cases.

See Michael Selmi, The Value of the EEOC, 57 Onto Sr. L. J.

1, 14, 21 (1996) (race cases are the largest category of

charges filed with the EEOC but “result in the fewest

lawsuits” initiated by the EEOC, which seems to “deem-

phasize race cases”). Even among meritorious cases fal-

ling within its new priority limits, the Commission has

Report (April 19, 1983), reprinted in 212 Las. L. Rer.: EmpLtoyment

Practices (CCH) Issue No. 1323 (Jan. 25, 1984).

'2 The priorities are: (1) repeated, egregious, outrageous

cases, pattern and practice cases, and cases involving facially

discriminatory policies; (2) national origin claims involving

language, religious accommodation cases, ADA

accommodation cases, cases involving the obligation to

arbitrate, cases involving the intersection of two or more

protected classes; and (3) cases going to the integrity of the

EEOC’s process.

acknowledged that it still will be unable to litigate some

that fail conciliation. 1996 National Enforcement Plan at 13.

The statistics show how the EEOC’s limited resources

have affected its litigation efforts. For example, of the

nearly 179,000 charges filed at the EEOC in 1994-95, the

EEOC only filed 685 lawsuits. EEOC, 1994 Annual Report,

at 6; EEOC, 1995 Annual Report, at 3. Currently, even

where it finds cause to believe there has been a violation

and conciliation fails, the Commission litigates only

about one-in-ten such cases.'? Moreover, even when the

Commission files litigation, there is no guarantee that it

will have adequate resources to pursue it.'*

13 These statistics are drawn from EEOC Summary of EEOC

Data, Budget and Staffing, supra. In 1997, the EEOC received

80,680 charges, of which the vast majority resulted in no cause

findings. See Selmi, The Value of the EEOC, supra, at 5, 9-14

(concluding that 94.7% of the Commission s charge

determinations in 1994 resulted in a no-cause finding). Of these,

there were only 3,000 cases, where the Commission found cause

but did not conciliate the matter. Still, of these 3,000 remaining

cases, the EEOC filed litigation in only 295. EEOC, Summary of

EEOC Data, Budget and Staffing, supra.

Some commentators have observed that the EEOC finds “no

cause” in many cases, not based on merit, but in part from

bureaucratic constraints. See, e.g., Lenahan O'Connell,

Investigations Are Work: How Bureaucratic and Legal Constraints

Influence the Enforcement of Discrimination Law, 51 Pus. Apmin.

Rev. 123 (March/April 1991).

14 The Commission’s 1996 National Enforcement Plan

acknowledges that, as a result of its new priorities, it will have

to cut resources even on some cases that are already pending.

EEOC, 1996 National Enforcement Plan, supra, reprinted in Eq.

Emp. Compt. Man. (BNA), No. 209, N:2061 at 14.

i i EEOC's

Among the most disturbing examples of the

litigation practices is EEOC v. Sears, Roebuck & Co., 839 F.2d 302

(7th Cir. 1988). There, six years after initiating a Commissioner s

charge of discrimination, the EEOC filed suit. Seven additional

As with unions, the EEOC has “majoritarian” con-

cerns, only its concerns are political. The Commission is

administered by Presidential appointees, who respond to

the Administration and to Congressional oversight, and

the Commission has a constituency of interest groups that

lobby for certain priorities and policies.

As with unions, the Commission too has occasionally

been found to discriminate, such as against its own

employees. For example, it was held liable for race dis-

crimination in a class action brought by its white

employees. Jurgens v. EEOC, 660 F.Supp. 1097 (N.D. Tex.

1987) (awarding attorneys’ fees).

years later, it tried the case for 10 months - 185 trial days. The

district court ruled for Sears and against the EEOC on all claims.

839 F.2d at 307. After 13 years of preparation, the EEOC could

not identify which policy it was challenging on its adverse

impact case, at 308 n.5; on disparate treatment, the EEOC did

not present even one witness who claimed to have been a victim

of discrimination, at 310, 339; it offered no direct or anecdotal

evidence of discrimination, at 311; it instead relied almost

exclusively on statistical evidence that was “misleading as well

as imprecise,” developed with an inadequately small sampling,

presented by witnesses with no knowledge of Sears or the

industry, offered with nothing to support its analytical design,

and was misconceived geographically. Id. at 316-17, 321, 324,

326-27, 350.

The Seventh Circuit affirmed the judgment for Sears in its

entirety. It found that this result followed on the misconduct of

the EEOC, whose lawyer was more committed to a particular

political advocacy group of his personal liking than to his duties

at the EEOC and who had demanded a pre-determination

settlement from Sears of $600 million on this meritless case to

satisfy “outside interest groups,” at 357-58. An astonishing 20

years after the Commissioner's charge was opened, the district

court finally closed the case with an award of nearly $600,000 in

fees against the Commission. EEOC v. Sears, Roebuck & Co., 1992

U.S. Dist. LEXIS 20046 at *7 (N.D. Ill. 1992).

Given the Commission’s constraints, various Admin-

istrations have had difficulty bringing people into leader-

ship positions there. For example, between June 1993 and

July 1995, no General Counsel was confirmed. See EEOC,

1995 Annual Report, Appendix B (also indicating large

gaps in appointments for an interim acting General Coun-

sel during this time).

All in all, workers looking for adequate representa-

tion face very real constraints at the EEOC, and there is

no reason to expect that, as a general proposition, unions

would provide them with less.

The Private Bar as Gatekeeper. The private bar also is an

imperfect vehicle for vindicating civil rights. To attract

the plaintiffs’ bar, cases must offer substantial attorneys’

fees. In an ordinary case, statutory fee-shifting offers no

more than the possibility of collecting regular, hourly

rates, contingent on the plaintiff's prevailing.'° Non-stat-

utory contingent fee arrangements offer little more

inducement than statutory fees.'’° This leaves lawyers

plaintiff can bring related (typically, state law) claims, where

18 42 U.S.C. §§1988(b), 2000e-5(k) (shifting fees for

prevailing parties). See Farrar v. Hobby, 506 U.S. 103 (1992) (civil

rights plaintiff who recovers only nominal damages is not

entitled to recover fees); Charles Silver, Imcoherence and

Irrationality in the Law of Attorneys’ Fees, 12 Rev. Linc. 301 1.55

(Spring 1993) (“There is evidence that lawyers in private

practice tend to reject cases offering less than an 80% chance of

some recovery by trial or settlement”) (citations omitted);

Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711

(1987) (multiplier proper only on specific evidentiary finding of

exceptional case).

16 Damages in discrimination cases involving intentional

misconduct are capped at $300,000 for even the largest

employers, and damages are unavailable in adverse impact

cases. 42 U.S.C. §198la. With the caps, contingent fee

arrangements do not offer much incentive to the bar unless the

reluctant to take any case other than a clear-cut case. See,

e.g., Eric Schnapper, Advocates Deterred by Fee Issues, Nat't

Law J., March 28, 1994, at Cl (lawyers reluctant to take

discrimination cases on contingent fee, and many

workers cannot afford a retainer).

Because unsuccessful plaintiffs’ counsel receive no

fees, attorneys cannot ignore a claimant's likely popu-

larity with jurors.'” For this reason, disfavored minorities

are likely to be those against whom discrimination occurs

at work and, at the same time, those least attractive to the

private bar. For example, how many lawyers would have

taken the case of an Iranian-American shortly after the

hostage-taking in Teheran? What of a gay worker bring-

ing a same-sex sex harassment case in Colorado imme-

diately after the enactment of Proposition 2? See Romer v.

Evans, 517 U.S. 620 (1996) (describing Proposition 2);

Oncale v. Sundowner Offshore Services, 523 U.S. __, 118

S.Ct. 998 (1998) (certain same sex harassment held action-

able). What of a manager who was told he was fired for

sex harassment, but contends that the real reason for the

larger damages might be available.

Partner-level employment lawyers commonly charge

hourly rates of $260-$300 or more. See e.g., Covington v. District of

Columbia, 57 F.3d 1101 (D.C. Cir. 1995) (approving $260 for

partner-level work); Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d

510 (Cal. Ct. App. 1998) (approving $300). With a damages cap

of $300,000, and assuming a contingent fee agreement of '/s, a

lawyer will receive greater than hourly rates only if she

prevails, obtains the maximum verdict and completes all work

through trial in fewer than 350 hours, an unlikely scenario.

(attorneys reject “low lost wages cases that stem from isolated

practices that a jury deems unworthy of significant damages”);

Richard E. Miller & Austin Sarat, Grievances, Claims and

Disputes, 15 Law & Soc’y Rev. 525, 535 n.7 (1981) (cases of less

than $10,000 systematically screened out).

termination was his race? Finally, the private bar is sub-

ject to its own biases. Lynn Hecht Schafran, Is the Law

Male?: Let Me Count the Ways, 69 Cru.-Kent L. Rev. 397,

404-05 (1993) (male attorney wrongly interpreted female

client’s distress at outrageous treatment as evidence of

hysteria).

The result is that discrimination plaintiffs often

appear pro se. See Report of the Working Committees To The

Second Circuit Task Force on Gender, Racial, and Ethnic

Fairness in the Courts, (“Second Circuit Report”), Appen-

dix A to the Report of the Second Circuit Task Force on

Gender, Racial, and Ethnic Fairness in the Courts, at 279

(Nov. 1997). This draws heavily on the judiciary’s

resources, especially with a 2,166 percent increase in dis-

crimination cases from 1970 to 1989, compared to a 125

percent increase in the overall civil case load. See id. at

280.

Thus, the private bar is not an ideal alternative to

union representation at arbitration. Rather, it yields to

financial pressure and popular concerns and often leaves

without representation those who most need it.

Limitations of civil forums. Even those workers who

find their way into the civil system are not guaranteed an

ideal forum. Task forces in the Second, Eighth and Ninth

Circuits have observed that some district judges display

increasing impatience with discrimination cases.'? Back-

logs of civil litigation have become enormous.'* And,

17 See Second Circuit Report, supra, at 277, 279-80, 282, 285,

289-90 (Nov. 1997); see also, Gender Fairness Task Force Report for

the United States Courts of the Eighth Circuit, Ch. 2, IV.A, at 11

(Sept. 1997), published at (http://www.wast.edu/8th.cir/gender/

gftfl.htm); Ninth Circuit Task Force on Racial, Religious and Ethnic

Fairness: Final Report, at 9 (Aug. 1997).

18 See, e.g., Rer. or THE Proceepincs or THE JuD. CONF. OF THE

U.S. (March 12, 1991 and September 23-24, 1991) and 1991

civil trials lack the finality of arbitration, with post-trial

motions, appeals and new trials sometimes adding years

to the process. See, e.g., EEOC v. Sears, Roebuck & Co., 839

F.2d 302 (20 years of investigation and litigation in a

meritless case).

In short, absent an overly idealized view of civil

litigation today, the imperfections of union representation

do not prevent the extension of Gilmer to the collective

bargaining setting; arbitration with union representation

is as useful for this purpose as its civil litigation alterna-

tives.

C. Parties To Collective Bargaining Agreements

Can And Do Agree To Arbitrate Statutory Dis-

crimination Claims.

Finally, the Gilmer Court distinguished Gardner-

Denver because the arbitration provision there did not

extend to statutory claims and offered no statutory

remedies. It has long been the role of the courts to deter-

mine whether a particular dispute falls within the scope

of the parties’ agreement to arbitrate. See First Options of

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-945 (1995) (the

courts, and not arbitrators, decide whether an issue is

subject to arbitration, unless the parties specified other-

wise in the contract); AT & T Technologies, supra, 475 U.S.

ANNUAL Report Or tHe Director Or THe ApMinistrative Orrice or

Tre Unrrep States Courts, Appendix I to 1991 ANNuaL Report or

tHe Director (Detailed Statistical Tables), Table C 6, AT 212

(1992) (reporting that, in 1992, more than 28,421 cases across the

country were still awaiting trial more than three years after they

were filed). See also, California Trial Delay Reduction Act, Ca.

Gov't Cope §§68600, et seq., Leg. H. 1990 Ch. 1232 §3;

(necessitated by frequent five-year delays in civil trials); Harry

N. Scheiber, Innovation, Resistance And Change: A History of

Judicial Reform and the California Courts, 1960-1990, 66 S. Cat. L.

Rev. 2049 (July 1993).

at 649 (same). In adopting Gilmer as the bright-line rule

for collective bargaining unit workers, there is no reason

to disturb this fundamental rule. If the parties do not

agree to arbitrate statutory discrimination claims, the trial

court will not require arbitration.

Thus, to permit union officials, employers, workers,

and the lower courts ease and certainty of administration,

the Court should adopt Gilmer as a bright-line rule for the

arbitration of statutory discrimination claims in the col-

lective bargaining setting. Under this rule, if the parties

choose to provide in the collective bargaining agreement

for the arbitration of statutory discrimination claims,

their choice will be enforced.

Il. IF GARDNER-DENVER HAS CONTINUED

VITALITY, THE POLICY FAVORING ARBITRA-

TION REQUIRES THAT UNION EMPLOYEES

ARBITRATE STATUTORY DISCRIMINATION

CLAIMS IN APPROPRIATE SETTINGS.

If the Court prefers a case-by-case, fact-based anal-

ysis, the criteria on which the analysis should turn are

those that the Court identified in Gilmer, when distin-

guishing Gardner-Denver. Where the collective bargaining

agreement addresses such issues as the parties’ agree-

ment to arbitrate statutory claims, the availability of full

statutory remedies in arbitration, the union’s majoritarian

concerns, and if necessary, perhaps also the applicability

of the FAA,’® the arbitration provision should be enforced

as was the provision in Gilmer. Where the provision fails

1° As discussed above, the pro-arbitration language in the

subsequently enacted CRA and ADA supplies greater policy

support for arbitration of these specific statutory claims than

would the more general provisions of the FAA.

adequately to address those concerns, it would fall within

Gardner-Denver, and arbitration would not be required.

Irrespective of the rationales that they offer, most of

the lower courts reach results that turn on these consider-

ations. For example, the Eleventh Circuit focused on

Gilmer’s concerns and held that the arbitration agreement

at bar was unenforceable because it was like the one in

Gardner-Denver: the arbitrator was not given the power

to decide statutory claims, and the union had demon-

strated that it was “at least unenthusiastic, and perhaps

unwilling, to pursue Brisentine’s claim to arbitration.”

Brisentine v. Stone & Webster Engineering Corp., 117 F.3d

519, 523-25 (11th Cir. 1997).

Reaching the opposite result on different facts, the

Fourth Circuit applied a similar analysis in Austin, supra,

78 F.3d at 881. There, the collective bargaining agreement

expressly required the company to comply with the anti-

discrimination laws, and the court held that unions may

waive rights as part of collective bargaining and that such

waivers are “ ‘valid because they rest on the premise of

fair representation.’ ” Id. at 879-80, 885 (citing Metropolitan

Edison Co., supra, 460 U.S. at 706). The court held that an

agreement to arbitrate statutory discrimination claims is

but an example of such a waiver. Id.

Significantly, on opposite facts, the same Circuit

reached the opposite result. See Brown v. Trans World

Airlines, 127 F.3d 337 (4th Cir. 1997). In Brown, the court

denied the enforcement of arbitration after finding that

the collective bargaining agreement contained a provision

prohibiting discrimination, but nothing to indicate that it

went beyond contract rights. Id. at 341.

In Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th

Cir. 1997), petition for cert. filed (Aug. 6, 1997), the parties’

agreement to arbitrate apparently was silent as to statu-

tory claims, again bringing the fact pattern - and the

result — within Gardner-Denver.2° The Court also shared

Gilmer's concern that there might be “ ‘inherent conflicts

between group goals and individual rights that exist in

the give-and-take of the collective bargaining process.’ ”

Id. at 1453-54 (citation omitted).

Denying arbitration in Pryner, supra, the Seventh Cir-

cuit again focused on the failure to meet Gilmer’s con-

cerns: the employees’ rights under the collective

bargaining agreement were narrower than their statutory

rights, and the majoritarian obligations of the union

could lead it to disregard the interests of disfavored

minorities, such as those who bring discrimination

claims. 109 F.3d at 361-63.

Other Circuits have addressed the issue, but their

decisions are less instructive.?!

20 The record did not contain the collective bargaining

agreement. See Harrison, 112 F.2d at 1451-52, 1454 nn.1, 2. Given

the employer's silence on the language of the collective

bargaining agreement and its failure to put the collective

bargaining agreement on the record, the Court inferred that

there was no reason to expect any mention in the collective

bargaining agreement of arbitrating statutory rights. See id. at

1454 n.2.

21 Penny v. United Parcel Service, 128 F.3d 408, 412 (6th Cir.

1997), rejects Austin on the oversim lified rationale that Gilmer

“did not overrule Gardner-Denve but distinguished it... . ”

This point was not lost on the Fourth Circuit, which

subsequently applied Gardner-Denver in Brown, supra, 127 F.3d

337. The Second Circuit read Gilmer narrowly but in the

distinguishable context of a wage and hour case. See Tran v. Tran,

54 F.3d 115, 117 (2d Cir. 1995). The relevant statute (the Fair

Labor Standards Act, 29 U.S.C. §§201, et seq.) does not

encourage arbitration as does Title VII (§118 of the 1991

amendment). ...” In any event, FLSA cases differ because of the

requirement that there be government involvement to resolve

them. See Gilmer, 500 U.S. at 33; Barrentine v. Arkansas-Best

Responding favorably to Gilmer, some unions and

employers have adopted in collective bargaining agree-

ments arbitration provisions that expressly extend to stat-

utory discrimination claims, empower arbitrators to

award any remedy permitted by statute, and allow the

individual employee either to compel arbitration individ-

ually (irrespective of his union’s wishes) or to have his

personal lawyer participate in the arbitration process.

However, bargaining unit employees cannot negotiate

individual employment agreements. See 29 U.S.C. §159(a);

Emporium Capwell Co. v. Western Addition Community

Organization, 420 U.S. 50, 62-63 (1975). Thus, if unions

cannot act on their behalf to agree to arbitration — even

under facts as reassuring as these, then collective bar-

gaining unit employees and their employers will be

excluded from prospective agreements to arbitrate. This

would defeat the parties’ preferences and the policies of

Congress and the Court, which strongly favor the arbitra-

tion of statutory discrimination claims.

CONCLUSION

For the foregoing reasons, the Chamber of Commerce

of the United States respectfully urges the Court to over-

rule Gardner-Denver and to adopt Gilmer as a bright-line

rule, applying to all employees. In the alternative, and at

the least, the Court should reject Gardner-Denver as a

bright-line and permit collective bargaining unit

Freight System, Inc., 450 U.S. 728 (1981). The Eighth Circuit's

decision in Varner v. National Super Markets, Inc., 94 F.3d 1209

(8th Cir. 1996), cert. denied, 117 S.Ct. 946 (1997), holds only that

the exhaustion of contractual grievance remedies is not a

prerequisite to the filing of a civil claim. The court does not

consider Gilmier or changes in the law; it simply cites Gardner-

Denver without more. See 94 F.3d at 1213.

employees, acting through their unions, to bargain for the

arbitration of statutory discrimination claims in appropri-

ate circumstances

Dated: June 26, 1998

Respectfully submitted,

Of Counsel

STEPHEN A. BOKAT Steven B. Berwin

Rosin S. ConraAl! Counsel of record

SUSSAN MAHALLATI KyseLa Mark A. pe BERNA

NATIONAL CHAMBER GARRY G. MATHIASON

LITIGATION CENTER, IN losePH P. Harkin:

1615 H Street, N.W. LiITTLER MENDELSO

Washington, D.C. 2001 A Professional Corporation

lelephone: 202- 533; 1225 I Street, N.W.,

Suite 1000

Washington, D.C. 20005

lelephone: 202-842-3400

Attorneys for Amicus

Curtae Chamber of

Commerce of the United

toto

State >

AMICUS CURIAE

BRIEF

No. 97-889

Caen nn nn iEnnan sn EEIEEESnEeenn

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

CEASAR WRIGHT,

Petitioner,

Vv.

UNIVERSAL MARITIME SERVICE CORP.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE ON BEHALF OF THE

NATIONAL ASSOCIATION OF

WATERFRONT EMPLOYERS

IN SUPPORT OF RESPONDENTS

CHARLES T. CARROLL, JR. *

F. EDWIN FROELICH

WILCOX, CARROLL & FROELICH,

P.L.L.C.

2011 Pennsylvania Avenue, NW

Suite 301

Washington, DC 20006

(202) 296-3005

* Counsel of Record

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

__BEST AVAILABLE COPY) amen

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

THIS CASE IS NOT CONTROLLED BY THE

COURT'S DECISION IN GARDNER-DENVER

BECAUSE GARDNER DENVER ONLY AP-

PLIES WHEN THE COLLECTIVE BARGAIN-

ING AGREEMENT DOES NOT REQUIRE

ARBITRATION OF STATUTORY CLAIMS

A. Gilmer Provided The Court With Its First

Opportunity To Consider Whether Pre-

Dispute Employment Agreements To Arbi-

trate Statutory Employment Claims Are

Binding On The Parties

. The Collective Bargaining Agreement At

Issue In This Case Contemplates Arbitra-

tion Of Statutory Employment Claims

THE PETITIONER HAS NOT MET HIS

BURDEN OF SHOWING THAT CONGRESS

INTENDED TO PROHIBIT ENFORCEMENT

OF A COLLECTIVE BARGAINING AGREE-

MENT BASED ARBITRATION OF STATU-

TORY EMPLOYMENT CLAIMS

A. The ADA Cannot Be Read As Barring Arbi-

tration Of ADA Claims Under Collective

Bargaining Agreements

B. Nothing In The Legislative Histories Of The

ADA Or The CRA Supports Petitioner’s

Construction Of The Text ........

ii iii

TABLE OF AUTHORITIES

TABLE OF CONTENTS—Continued Cases: Page

Page

. Alexander v. Gardner-Denver, 415 U.S. 36 (1974) ..passim

III. NO STATUTORY BASIS EXISTS TO DIS- Barrentine v. Arkansas-Best Freight System, Inc.,

TINGUISH ARBITRATION SANCTIONED a Oi 4

BY GILMER FROM CBA BASED ARBITRA- Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

TION ......------cossesseeceeoeesssnsteennensnnesessennnnesennnnnassennnnten 14 LO LLL IT GES SE passim

Griggs v. Duke Power, 401 U. S. 424 (1971) ....... 12

STINET cvcicninbsehiniinhicecinmmapneagense acucpecesceuunnmasanscseugenanes 18 McDonald v. City of West Branch, 466 U.S. 284

ES fae ee eee Se EEN ES 4

Mitsubishi Motors Corp. v. Solar Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985) .. alee 6

Paladino v. Avnet Computer Technologies, Inc.,

F.3d f. | aa 17

Rodriguez de Quijas v. Shearson/American Ex-

press, Inc., 490 U.S. 477 (1989) . ae 6

Shearson/American Express, Inc. v. ~ MeMahon,

| |b FS __a 6

Wards Cove Packing Co. v. Atonio, 490 U. S. 642

> \_ 12

Wright v. Universal Maritime Service Corp., 121

Ck. £€ > 7

Statutes, regulations:

Americans with Disability Act of 1990, P.L. 101-

336, 42 U.S.C. § 12101 et seq........... eden ital 7,8

§ 618, 42 U.S.C. § 12212 ....................................... Passtm

Civil Rights Act of 1991, P.L. 102-166 ................. 9

§ 118, 42 U.S.C. § 1981 note ................................ passim

Federal Arbitration Act, 9 U.S.C. § 1 —.... a Le a 14

Longshore and Harbor Workers’ Compensation

Bah, SB UBL. GB GGE C6 COG. cnerecccersencccersesecsesssven 16

National Labor Relations Act, 29 U.S.C. § 141 et

— ' 14

tA Rb of Ol 15

29 C.F.R. § 1918.98 (a) (2) ......... a dailentetedicetecetieeaeiialiiaeabte 15

Legislative History :

Cong. Record

October 25, 1991, p. 15276 _...................... = iad 13

October 30, 1991, p. 29040... cnbenaivimninminnpapetictin 13

TABLE OF AUTHORITIES—Continued

Page

October 30, 1991, p. 29045 _..........----.---.----------- 13

November 7, 1991, p. 30683 _........ 13

SF 8 4k eee 11,138

0 8 ee eee 11

Original Transcript of Proceedings of the House

Judiciary Committee during Mark-up of H.R.

tt a er 11

ee et wee

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-889

CEASAR WRIGHT,

7 Petitioner,

UNIVERSAL MARITIME SERVICE CORP..,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE ON BEHALF OF THE

NATIONAL ASSOCIATION OF

WATERFRONT EMPLOYERS

IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST OF AMICUS CURIAE

The National Association of Waterfront Employers

(“NAWE”)! is a not for profit tax-exempt trade associa-

tion organized under the laws of the District of Columbia.

NAWE’s 35 members, private sector stevedores and

1 Pursuant to Rule 37.3, letters of consent on behalf of both Peti-

tioner and Respondents have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, no part of this brief has been authored by

counsel for either party; rather it has been authored in its entirety

by counsel for NAWE. No monetary contribution for the prepara-

tion of this brief was solicited or received from any Respondent or

any other entity. This brief was funded solely through NAWE’s

annual membership dues.

‘

marine terminal operators, operate in over 100 ports in

the United States on all three coasts, the Great Lakes, and

in the Commonwealth of Puerto Rico. With the exception

of Stevens Shipping & Terminal Co. and Strachan Shipping

Co., all of the other individual companies named Respond-

ents are NAWE members. These NAWE members also

work at numerous other ports throughout the U.S.

Aside from a handful of exceptions, every terminal facil-

ity operated by a NAWE member is subject to, and op-

erated under, one or more collective bargaining agree-

ment(s) (“CBA”) with one or more local union(s) which

supply longshore labor. Unlike most other industries, bar-

gaining in this industry is normally conducted on a multi-

employer basis and the hiring hall concept is utilized

wherever possible.

Due to the fact that an individual employee may work

for numerous signatory employers over the course of a

week, month, or year, it becomes imperative—from the

standpoint of both the signatory employers and the em-

ployees represented by the bargaining agent—that the dis-

pute mechanism provided in a collective bargaining agree-

ment resolve every possible employee claim as quickly as

possible, so that each employer fully understands his obli-

gations to the affected employee, and the employees to

each employer.

Hence, industry bargaining in several port regions is

further characterized by a reliance on arbitration as a

quick, efficient and fair system of resolving disputes, in-

cluding disputes that involve statutory employment claims.

Consequently, every NAWE member has a direct interest

in affirming the decision of the Circuit Court.

SUMMARY OF ARGUMENT

Amicus submits that Alexander v. Gardner-Denver, 415

U.S. 36 (1974), presents no bar to affirming the Circuit

Court’s decision because this early Title VII opinion

applies only to CBA agreements that neither provide for

the arbitration of statutory claims nor authorize the arbi-

trator to resolve such claims. Gilmer v. Interstate/John-

son Lane Corp., 500 U.S. 20 (1991), the Court’s subse-

quent seminal opinion finding employment agreement

based arbitration suitable to resolve statutory employment

claims, resolved any lingering confusion surrounding

Gardner-Denver.

Gilmer’s rationale must now be extended to CBA based

agreements to arbitrate statutory claims, particularly in

view of Congress’ subsequent action, placing language in

both the texts of the Americans with Disabilities Act and

the Civil Rights Act, expressly encouraging the use of

arbitration to resolve claims arising under these two stat-

utes. Despite obfuscatory legislative history, supporters of

using arbitration as an alternative to legal action prevailed.

The Congressional intent behind the two complimentary

provisions is absolutely clear, as the Circuit Court noted.

Nothing in the ADA or the CRA, or any other federal

law, bars the use of CBA based arbitration as a tool to

resolve statutory claims. Such arbitration is in fact war-

ranted by today’s workplace environment. Frequently, an

employee’s CBA claim is so entwined with a statutory

claim that CBA-based compulsory arbitration will pro-

duce a more equitable result than that sought by Peti-

tioner.

ARGUMENT

I. THIS CASE IS NOT CONTROLLED BY THE

COURT'S DECISION IN GARDNER-DENVER BE-

CAUSE GARDNER-DENVER ONLY APPLIES

WHEN THE COLLECTIVE BARGAINING AGREE-

MENT DOES NOT REQUIRE ARBITRATION OF

STATUTORY CLAIMS.

The arguments of the Petitioner and his amici rest on

their misreading of the Court’s decision in Alexander v.

Gardner-Denver, 415 U.S. 36 (174) (“Gardner-Denver” ).

Gardner-Denver and its progeny” stand for the proposi-

tion that an arbitrator may not decide issues that are out-

side the scope of the authority granted to the arbitrator in

the contract. Gardner-Denver involved a collective bar-

gaining agreement (“CBA”) that gave the arbitrator the

authority to decide only contractual claims and not statu-

tory claims. The CBA in Gardner-Denver expressly lim-

ited the authority of the arbitrator to the consideration of

contractual issues:

(T)he arbitrator shall not amend, take away, add to,

or change any of the provisions of this Agreement,

and the arbitrator's decision must be based solely

upon an interpretation of the provisions of this Agree-

ment. Gardner-Denver, 415 U.S. at 42 (emphasis

added ).

Therefore, in Gardner-Denver, it was the contract that

barred binding arbitration of the statutory claims and not

federal law. The employee in Gardner-Denver raised ‘is

statutory claims during the latter part of the arbitration;

however, the arbitrator did not address the employee’s

Statutory claims:

On December 30, 1969, the arbitrator ruled that peti-

tioner had been ‘discharged for just cause.’ He made

no reference to petitioner’s claim of racial discrimina-

tion. Gardner-Denver, 415 U.S. at 42.

Because the arbitrator in Gardner-Denver had not and

could not, under the terms of the CBA, address the em-

ployees statutory claims, the employee was free to pursue

his statutory claims in federal court independent of the

arbitration on the related contractual issues.

Amicus concedes that at one time Gardner-Denver may

have been subject to other interpretations. Today,

Gardner-Denver must be viewed through the prospective

of the Court's holding in Gilmer v. Interstate/Johnson

2 See McDonald v. City of West Branch, 466 U.S. 284 (1984);

Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728

(1981).

Lane Corp., 500 U.S. 20 (1991) (“Gilmer”). Gilmer

resolved any confusion about the reach of Gardner-Denver

and its progeny:

There are several important distinctions between the

Gardner-Denver line of cases and the case before us.

First, those cases did not involve the issue of the

enforceability of an agreement to arbitrate statutory

claims. Rather, they involved the quite different issue

whether arbitration of contract-based claims pre-

cluded subsequent judicial resolution of statutory

claims. Since the employees there had not agreed to

arbitrate their statutory claims, and the labor arbi-

trators were not authorized to resolve such claims, the

arbitration in those cases understandably was held

not to preclude subsequent statutory actions. Gilmer,

500 U.S. at 35 (emphasis added).

Thus, Gilmer could not have been clearer. Gardner-

Denver did not present the Court with a case where the

parties had reached a pre-dispute agreement to arbitrate

Statutory claims. Instead, the parties had reached the ex-

act opposite agreement, i.e, not to arbitrate statutory

claims.

As such, Gardner-Denver never addressed the question

of whether a pre-dispute agreement to resolve both con-

tractual and statutory claims through binding arbitration

was enforceable. Although not dispositive of the issue

presently before the Court, Gardner-Denver recognized the

vital role that arbitration plays in resolving statutory dis-

criminatory claims within the context of a CBA:

[T]he grievance-arbitration machinery of the collec-

tive-bargaining agreement remains a relatively in-

expensive and expeditious means for resoiving a wide

range of disputes, including claims of discriminatory

employment practices. Where the collective-bargain-

ing agreement contains a nondiscrimination clause

similar to Title VII, and where arbitral procedures

are fair and regular, arbitration may well produce a

settlement satisfactory to both employer and em-

ployee. Gardner-Denver, 415 U.S. at 55 (emphasis

added).

For these reasons, the Court’s holding in Gardner-

Denver does not resolve the case now before the Court.

A. Gilmer Provided The Court With Its First Oppor-

tunity To Consider Whether Pre-Dispute Employ-

ment Agreements To Arbitrate Statutory Employ-

ment Claims Are Binding On The Parties.

The case in Gilmer presented the Court for the first time

with the question of whether an industry wide pre-dispute

employment agreement requiring arbitration of statutory

claims was enforceable. The Gilmer Court concluded

that such statutory claims were in fact arbitrable: “It is

by now clear that statutory claims may be the subject of

an arbitration agreement, enforceable pursuant to the

FAA.” Gilmer, 500 U.S. at 26. The legal foundation for

Gilmer was the Court’s then relatively recent decisions

upholding pre-dispute agreeticits to arbitrate statutory

claims arising out of commercial contract disputes.*

Notwithstanding Gilmer, the question of whether a pre-

dispute CBA requiring arbitration of statutory employ-

ment claims is binding and enforceable still remains. As

a result, this question is presently before the Court for the

first time.*

3 Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth, Inc., 473

U.S. 614 (1985); Shearson/American Express Inc. v. McMahon,

482 U.S. 220 (1987); Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989).

*The actual wording of the question presented in the petition

for writ of certiorari is: “Was the court below correct in holding

. . . that a general arbitration clause in a collective bargaining

contract bars an employee covered by the contract from filing his

own lawsuit under federal anti-discrimination statute?”

B. The Collective Bargaining Agreement At Issue In

This Case Contemplates Arbitration Of Statutory

Employment Claims.

Some of Petitioner’s amici have suggested to the Court

that it consider whether the CBA at issue in this case did

in fact contemplate binding arbitration of claims under

the Americans with Disability Act, 42 U.S.C. 12101 et

seq. (“ADA”).5 See e.g., Brief for the United States and

EEOC at 20-21. Amicus concedes that if the parties did

not agree in the CBA to submit ADA claims to binding

arbitration, then and only then, would this case fall

squarely within Gardner-Denver’s holding.

Amicus agrees with the holding of the Circuit Court

that the arbitration clause in this case was “particularly

broad” and was not required to specifically mention ADA

claims to bring arbitration of ADA claims within its

scope. Wright v. Universal Maritime Service Corp., 121

F.3d 702, 702 (4th Cir. 1997). The Circuit Court cor-

rectly compared the CBA language in this case (“Union

agrees that this Agreement is intended to cover all matters

affecting wages, hours, and other terms and conditions

of employment.”) with the language of the agreement in

Gilmer (“any dispute, claim or controversy”) and con-

cluded that the CBA language was equally as broad. /d.

at 702 (citing Gilmer, 500 U.S. at 23).

The CBA language in the present case can also be con-

trasted with the CBA language in Gardner-Denver. While

the arbitrator in Gardner-Denver was limited “solely {to]

an interpretation of the provisions of this Agreement,”

Gardner-Denver, 415 U.S. at 42, an arbitrator interpreting

the CBA now before the Court would have the broad

authority to decide “all matters affecting . . . terms and

conditions of employment.”

Amicus suggests that, should the Court conclude that

the CBA before it now did not, as a contractual matter,

5 It is not clear to amicus that this question falls within the scope

of the question presented for certiorari.

contemplate binding arbitration of ADA claims, the Court

would have no need to reach the issue of whether a CBA

that does contemplate biding arbitration of ADA claims

is enforceable.

Il. THE PETITIONER HAS NOT MET HIS BURDEN

OF SHOWING THAT CONGRESS INTENDED TO

PROHIBIT ENFORCEMENT OF A COLLECTIVE

BARGAINING AGREEMENT BASED ARBITRA-

TION OF STATUTORY EMPLOYMENT CLAIMS.

Under Gilmer, in order to prevail in this case, the Peti-

tioner has the burden of showing that when the ADA

was enacted, Congress intended to preclude binding arbi-

tration of ADA claims under a pre-dispute CBA requiring

such binding arbitration.® Petitioner has not made and

cannot make such a showing.

A. The ADA Cannot Be Read As Barring Arbitration

Of ADA Claims Under Collective Bargaining

Agreements.

Even if the ADA were silent on the issue of arbitra-

tion, the Petitioner could not make the showing required

by Gilmer. The ADA, however, is not silent. The plain

language of the ADA indicates that Congress enthusiasti-

cally endorsed the use of arbitration:

Where appropriate and to the extent authorized by

law, the use of alternative means of dispute resolu-

tion, including settlement negotiations, conciliation,

facilitation, mediation, factfinding, minitrials, and ar-

bitration, is encouraged to resolve disputes arising

under this Act.

ADA, 42 U.S.C. § 12212 (“ADR clause”).”

6 See Gilmer, 500 U.S. at 35. (“We conclude that Gilmer has not

met his burden of showing that Congress, in enacting the ADEA,

intended to preclude arbitration of claims under that Act.”).

7 Section 513 of the Americans with Disabilities Act of 1990,

P.L. 101-336. Section 513 of the ADA is codified at 42 U.S.C.

Several facts are apparent from the plain language of

the ADA’s ADR clause. First, Congress took the rare

step of including its purpose within the text of the statu-

tory clause itself—to encourage the use of alternative

means of dispute resolution. Therefore, any interpreta-

tion of the remaining language of the clause must be

made in light of, and must be consistent with, this Con-

gressionally stated purpose.

Second, Congress intended to encourage a broad range

of alternative methods of resolving ADA disputes. Con-

gress expressly endorsed settlement negotiations, concilia-

tion, facilitation, mediation, factfinding, minitrials, and

arbitration. This broad list of endorsed alternative dis-

pute resolution methods is a further indication that Con-

gress intended for this clause to be read broadly.

Third, there is no statutory basis for concluding that

Congress intended to encourage non-binding alternative

dispute resolution, but to discourage binding alternative

dispute resolution. There is no reason, based on the text,

for concluding that arbitration of ADA claims should be

non-binding than there is for concluding that “settlement

negotiations” of ADA claims should be non-binding.

Finally, and perhaps most important to this case, there

is no textual basis for distinguishing between the use of

alternative dispute resolution within the context of a

CBA, versus outside the context of a CBA.

The arguments advanced by Petitioner and his amici

essentially ask the Court to interpret this clause, inserted

into the statute for the express purpose of encouraging

the use of alternative dispute resolution, in such a fashion

as to thwart this express Congressional purpose. The

§ 12212. Virtually identical language was later included in § 118

of the Civil Rights Act of 1991 (“CRA”), P.L. 102-166, which

made the provision applicable to claims filed under fitle VII and

other laws governed by the amended CRA, including the ADA.

Section 118 of the CRA is codified at 42 U.S.C. 1981 note.

Petitioner asks the Court to support this position in the

absence of any textual support. And, while the Petitioner

and his amici have advanced a number of interesting

policy arguments in support of their position, policy argu-

ments are not a substitute for the plain language within

a statute. Furthermore, such policy arguments are mis-

directed, since the most appropriate forum for their re-

view is Congress.

B. Nothing In The Legislative Histories Of The ADA

Or The CRA Supports Petitioner’s Construction Of

The Text.

Petitioner urges the Court to view the plain language

of Section 513 of the ADA and Section 118 of the CRA

encouraging the use of arbitration, in light of the legis-

lative histories of these two provisions, and to exclude

CBA based agreements to arbitrate statutory employment

claims from their reach. Amicus submits that the legisla-

tive histories of the two provisions simply do not support

this view.

Section 513 of the ADA originated in the House of

Representatives, where it was first considered and accepted

on May 1, 1990 during House Judiciary Committee

markup of H.R. 2273, the bill that eventually was enacted

as P.L. 101-336. Congressman Glickman offered the

amendment and it was quickly accepted without dissent

by voice vote.

While it subsequently became clear that there was some

disagreement within the House Judiciary Committee as to

the use of alternative dispute resolution in the context of

resolving ADA claims, the opponents were unwilling to

challenge the amendment directly at the mark-up, presum-

ably because they did not have the votes. At no time

during the Committee deliberations on the ADA did either

the sponsor of the ADA arbitration clause, or any other

member of the Committee express any intent to restrict

the scope of the amendment to non-CBA based arbitra-

tion agreements. See Original Transcript of the Proceed-

ings of the House Judiciary Committee during mark up of

H. Rept. 2273, May 1, 1990, pp. 82-83.* By all indica-

tions, the members of the Committee thought they had

just approved a provision “encouraging” the use of arbi-

tration and other non-judicial alternatives to resolve ADA

claims, with the sole qualification being “where appro-

priate and to the extent permitted by law.”

Fifteen days later, without any further Committee action,

an explanation of the Glickman amendment was offered

in the House Judiciary Committee Report on the ADA.

This explanation provided several qualifications to the clear

text of the amendment. See H. Rept. 101-485, Pt. III,

p. 76. The inconsistencies between the plain language of

the amendment and the Committee Report itself can only

be read as an attempt to frustrate the amendment'’s clearly

stated purpose. The drafters of the Report attempted—

without vote or debate—to limit the broad scope of the

Glickman amendment in several ways.

First, the authors of the Report argued that the pur-

pose of the amendment was to “supplement, not sup-

plant” the remedies provided by the Act. Amicus believes

that this concept is inconsistent with the language of the

amendment. “Supplement(ing)” the judicial resolution of

ADA claims is not an “alternative” to judicial resolu-

tion of ADA claims. An ADA amendment turning the

use of alternative dispute resolution into a supplement

to litigation would not “encourage” the use of such an

alternative, rather it would discourage its use. It is clear

that under this interpretation, both parties would waste

8 Under the House Judiciary Committee’s practice, executive ses-

sion documents such as this are available at the Committee’s main

office (2138 Rayburn House Office Building) for reading only.

®The Conference Report notes that the joint conferees also ac-

cepted this point of view. H. Rept. 101-596 of July 12, 1990 at p. 89.

time submitting to the alternative forms of dispute reso-

lution if the losing party were free to seek a subsequent

de novo hearing in a federal district court.

The authors of the Committee Report also attempted to

limit the unambiguous scope of the Glickman amendment.

According to the Committee Report, the amendment does

not encompass disputes that arise either in the “context

of a collective bargaining agreement or an employment

contract.” In other words, the amendment does not apply

to Title I of the ADA. Thus, the Committee Report

contradicts the very language of the amendment, which

states that alternative dispute resolution “is encouraged to

resolve disputes arising under this Act.” Moreover, there

was no discussion by the House Judiciary Committee

during its consideration of the amendment in terms of

limiting the scope of the alternative dispute resolution

clause. Clearly, as indicated by the language of the

amendment, the amendment’s sponsor and its supporters

intended no such limitation.

Finally, the authors of the Committee Report (as op-

posed to the authors and supporters of the amendment)

attempted to codify the Gardner-Denver opinion. As dis-

cussed above, even assuming arguendo that the purpose of

the amendment was to codify Gardner-Denver, such a

codification would not resolve the issue presently before

the Court. More fundamentally, it is simply not plausible

that an amendment intended to encourage the use of alter-

native dispute resolution would do so by codifying a deci-

sion that rejected its very use. Furthermore, as Congress

demonstrated in the Civil Rights Act of 1991, when it

wants to codify or reject a Supreme Court decision, it

knows how to do so without taking such a subcutaneous

route.'?

10 CRA §3 explicitly codifies one opinion of the Court, Griggs v.

Duke Power, 401 U.S. 424 (1971) while overruling another, Wards

Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

Ten months after the passage of the ADA, the Court

handed down the seminal opinion in Gilmer, in which it

held for the first time, that a pre-dispute employment

agreement to settle statutory claims through binding arbi-

tration is enforceable. Six months later, Congress enacted

the CRA with an alternative dispute resolution clause

that was virtually identical to that found in the ADA.

The CRA legislation that ultimately became law was

a floor substitute introduced by Senator Danforth that

included the alternative dispute resolution clause. This

alternative dispute language ultimately became Section

118 of P.L. 102-166. Neither of the two interpretive

memorandums placed into the Congressional Record by

Senator Danforth indicated his thoughts concerning the

proper interpretation of the alternative dispute resolution

clause. See Cong. Rec. of Oct. 25, 1991 at p. 15276

and Cong. Rec. of Oct. 30, 1991 at p. 29045. Senator

Dole—on behalf of himself, several Senators and the ad-

ministration—did piace a memorandum into the record

that cited Gilmer with favor:

[I}n light of the litigation crisis facing this country

and the increasing sophistication and reliability of

alternatives to litigation, there is no reason to dis-

favor the use of such forums. See Gilmer v. Inter-

state/Johnson Lane Corp., 111 S. Ct. 1647 (1991).

See Cong. Rec. of October 30, 1991 at pp. 29034,

29040).

During the House debate on the Danforth substitute,

Congressman Edwards included an explanation of Section

118 into the Congressional Record. This explanation

mirrored the explanation found originally in the House

Report on the ADA (H. Rept. 101-485(III), p. 75).

Cong. Rec. of Nov. 7, 1991, at p.30665. Congressman

Hyde, on the other hand, included in the record an ex-

planation that was consistent with the interpretation of the

Dole memorandum. Cong. Record, Nov. 7, 1991, p.

30683.

While much in the legislative histories of the respective

ADR clauses conflict with the plain language of the Glick-

man amendment and thus is of little value in devining

Congressional intent, it is clear that Congress was divided

into two distinct camps on the use of alternative dispute

resolution in resolving statutory employment claims. Some

in Congress vigorously opposed, while others strongly

supported, ADR. But the bottom line is that those

who supported the use of alternative dispute resolution

prevailed when it came to enacting the plain language

of the statutes.

Ill. NO STATUTORY BASIS EXISTS TO DISTINGUISH

ARBITRATION SANCTIONED BY GILMER FROM

CBA BASED ARBITRATION.

As noted above, Gilmer has already held that a pre-

dispute employment based agreement to arbitrate statu-

tory employment claims is enforceable. Thus, the threshold

issue—the enforceability of employment based arbitration

—has already been favorably addressed and decided by

the Court.

Amicus believes that there is no statutory basis upon

which to distinguish Gilmer governed arbitration from

traditional Labor Management Relations Act governed

arbitration." Amicus further suggests that finding CBA

based arbitration of statutory employment claims enforce-

11 See Labor Management Relations Act, 29 U.S.C. § 141 et seq.

Amicus’ position is also supported by the Court’s extensive hody of

CBA-based jurisprudence decided prior to the passage of the prin-

cipal federal employment protection statutes. See Textile Workers

Union v. Lincoln Mills, 353 U.S. 448 (1957); “Steelworkers Trilogy”

(United Steelworkers of America v. American Mfg. Co., 363 U.S.

564 (1960); United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960); United Steelworkers of

America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)).

While it is true that LMRA based arbitration is seldom governed

by the Federal Arbitration Act, LMRA based arbitration is subject

to equally rigorous review standards under case law.

able is in the best long term interest of labor-management

relations for several reasons.

First, in the modern workplace governed by CBAs, it

is almost impossible to resolve contractual employment

issues independent of statutory employment issues. Today,

given the presence of numerous statutory employment pro-

tections, it is likely that when an employer attempts to

discipline an employee, that employee will typically raise

both contractual and statutory challenges to the employer’s

action at some point during the CBA governed grievance/

arbitration proceedings. These dual challenges frequently

turn on the same set of facts, and independently resolu-

tion frequently results in inconsistency. The deciding issue

ordinarily is a question of fact the motive of the employer.

Consequently, the rule of law sought by Petitioner—tre-

icting the enforcement of the arbitrator’s authority to

decide CBA based contract questions only, while allowing

ey ona prosecution of a statutory claim—makes

sense.

As an example of just how intertwined contract and

statutory claims have become, one need look no further

than this case.* The CBA below calls for the arbitration

12 Petitioner’s CBA claim is intertwined with several federal

statutes beyond the ADA. E.g., The Occupational Safety and

Health Administration recently revised its vertical safety standards

for the Longshoring and Marine Terminals industry, 29 C.F.R.

$$ 1917, 1918 respectively. The following language regarding em-

ployee medical conditions, as they concern safe cargo handling

operations on marine terminals, was incorporated into each of

these two safety standards. “No employee known to have defective

uncorrected eyesight or hearing, or to be suffering from heart

disease, epilepsy, or similar ailments that may suddenly incapacitate

the employee, shall be permitted to operate a crane, winch or other

power-operated cargo handling apparatus or a power-operated

vehicle.” Jd. 1917.27(a)(2); 1918.98(a)(2) (Federal Register, Vol.

62, No. 143, p. 40142 (July 25, 1997)). Under ADA § 501(b) and

the EEOC’s implementing regulations, 29 C.F.R. 1630.15(e), these

two OSHA safety standards effectively preempt ADA rights and

remedies in those cases where an employee is affected with any of

of all matters which cannot be promptly resolved. Pre-

sumably this would include disputed work assignments,

including Petitioner’s initial attempt to be deemed suitable

for a work assignment after recovering from a “permanent-

total” disability claim under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901 et seq. The

ADA requires that disabled employees receive job assign-

ments based on the concept of “reasonable accommoda-

tion,” however, it also allows employers to set job qualifi-

cations based on safety and health considerations in cer-

tain circumstances. ADA § 103(b). Ultimately, this stat-

utory consideration may prove to be a factor in resolving

the contract based question concerning Petitioner’s suit-

ability to return to work.

If the Petitioner’s position prevails, it is doubtful that

the Respondents will be able to resolve these conflicting

interests. What should employers do if an arbitrator first

orders one resolution based on a CBA claim, while inde-

pendently, a federal court reaches a different conclusion

based solely on an interpretation of the ADA, and orders

the employers to do another thing? ** Under the Petition-

er’s view, there will never be a way to bring these two

conflicting claims before a single finder of fact and law

for final resolution. As noted above, there is absolutely

the described conditions. A strict reading of ADA § 501(b) indi-

cates that employer action to comply with the OSHA standards,

thus avoiding an OSHA citation, would not trigger ADA liability.

Amicus further notes that federal district courts do not have sub-

ject matter jurisdiction over either the LHWCA or OSH Act, and

consequently are without expertise in these areas of the law.

13 This scenario can also involve the competing interests of two

employees which further complicates the employer’s predicament.

E.g., an employee who receives a new job assignment due to the

employer’s efforts at providing reasonable accommodation, and in

the process bumps another employee with greater job seniority,

may cause the second employee to file a statutory discrimination

claim. The arbitrator’s order may well wind up in conflict with the

court’s resolution.

no evidence that Congress intended to leave employers in

this type of Catch-22 predicament.

Moreover, as previously noted, providing an employee

covered by a CBA with two independent challenges to an

employer’s decision may result in mutually inconsistent

decisions. If an arbitrator makes a finding of fact that an

employer’s action was motivated exclusively by employee

malfeasance and nothing else, why should that employee

be permitted to argue otherwise in a subsequent legal

action?

Finally, if the Petitioner’s position were to prevail, the

workplace may eventually wind up with two classes of

employees in the context of workplace dispute resolution.

In the wake of Gilmer, appellate courts have endorsed

employment based arbitration agreements on may fronts,

including agreements quite different than the industry wide

employment agreement at issue in Gilmer. See, e.g.,

Paladino v. Avnet Computer Technologies, Inc., ——

F.3rd (11th Cir. 1998) for a discussion of agree-

ments authorized by that Circuit.

Under Petitioners theory, some employees will get two

bites at the apple. First through binding arbitration and

second through litigation in federal court if the initial

arbitration produces an unsuccessful result. As amicus

has clearly pointed out above, no statutory basis exists to

support an argument that Congress intended for some

employees to have their employment claims treated in one

fashion, while others are to be treated in a different fash-

ion. Accordingly, Gilmer’s umbrella should be extended

to cover arbitration of statutory employment claims when

CBA based arbitration agreements so provide.

CONCLUSION

Amicus submits that the Fourth Circuit’s decision is

fully supportable and must be affirmed.

Respectfully submitted,

CHARLES T. CARROLL, JR. *

F, EDWIN FROELICH

WILCOX, CARROLL & FROELICH,

P.L.L.C.

2011 Pennsylvania Avenue, WW

Suite 301

Washington, DC 20006

(202) 296-3005

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.