Petition for Writ of Certiorari — Dean Witter Reynolds Inc. v. Alford

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€ Caurt, US.

-ED

" YOSEPH F. SPANIOL, JR,

IN THE CLERK

Wess

Supreme Court of the Ynited

OCTOBER TERM, 1990

DEAN WITTER REYNOLDS INC. AND DON L. HARRIS,

. Petitioners,

JOAN CHASON ALFORD,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

FRANK C. MORRIS, JR.*

THOMAS R. BAGBY

EPSTEIN BECKER & GREEN, P.C.

1227 25th Street, N.W.

Suite 700

Washington, D.C. 20037

(202) 861-0900

Of Counsel: RONALD M. GREEN

RAYMOND L. KALMANS EPSTEIN BECKER & GREEN, P.C.

JOSEPH G. GALAGAZA 250 Park Avenue

NEEL, HOOPER & KALMANS, P.C. New York, New York 10177

1700 West Loop South (212) 351-4500

Suite 1400 Attorneys for Petitioners

Houston, Texas 77027 Dean Witter Reynolds Inc.

(713) 629-1800 and Don L. Harris

* Counsel of Record

a rR ge

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Federal Arbitration Act, 9 U.S.C. §§1

et seg. (“FAA”), required that respondent’s employment

discrimination claims under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e et seg., be

submitted to arbitration pursuant to an individual agree-

ment by respondent to arbitrate any dispute, claim or

controversy arising out of her employment or the termi-

nation of her employment?

(i)

PARTIES BELOW AND PARENT COMPANIES

The names of the parties below are identified in the

Petition. The parent companies of petitioner Dean Witter

Reynolds Inc. are Dean Witter Financial Services Inc.

and Sears, Roebuck & Co.

iii i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................-....-..---.2---...0-.-- i

PARTIES BELOW AND PARENT COMPANIES...... ii

ey Vc ess.) : SER iii

pF Seg 6 yg |: ea iv

oc cs ccescnceskscesnndincnceesincssnsestnesss 1

EE 2

5 2

STATEMENT OF THE CASE ....00000022...20..eeeesee nee 2

a is ck cnc scnackcteoaceckuccccccvssecnes 2

B. Procecurel Becmeround .......................................... 5

REASONS FOR GRANTING THE WRIT OF CER-

pe ER dE ES TSE ly Oe 7

I. THE COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE A CON-

FLICT AMONG THE CIRCUITS REGARD-

ING THE ARBITRABILITY OF FEDERAL

EQUAL EMPLOYMENT OPPORTUNITY

I ile heir a ineticscotqncasesecenesoensens aoc 8

II. REVIEW IN THIS CASE WILL ALLOW THE

COURT TO ADDRESS THE APPLICABIL-

ITY TO TITLE VII OF ITS RECENT SERIES

OF DECISIONS REQUIRING ARBITRATION

OF STATUTORILY-BASED CLAIMS UNDER

a Aa ae 11

ai csdniensonmndeieansons 20

EE EE la

Nee a sepactccecwsaceines 8a

EEE ree Siete Sin 12a

ae ES 13a

ae ee 14a

TABLE OF AUTHORITIES

Cases: Page

Aiexander v. Gardner-Denver Co., 415 U.S. 36

CRIPW ED Mcnacenontisncalnapicnichdceand mavsbiltpainh A bathbscscneceunbenania passim

Anderson v. Dean Witter Reynolds, Inc., 449

N.W.2d 468 (Minn. Ct. App. 1989) —....000000000.... 10, 11

Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds,

Inc., 847 F.2d 475 (8th Cir. 1988) 2.00022. 10

Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557

5, etre ata SRNL ear ee RS La Pn one A recat abe ta 9,16

Barrentine v. Arkansas-Best Freight Sys., 450

U.S. 728 (1981) ....... Ae aot NPR Fe et 9, 16

Barrowclough v. Kidder, Peabody & Co., 752 F.2d

Oe Re Ci RD tenn datinctssinnaledassinaci. 10

Bird v. Shearson Lehman/American Exp., Inc.,

871 F.2d 292 (2d Cir.), vacated and remanded

in light of Rodriguez de Quijas v. Shearson/

American Exp., Inc., 109 S. Ct. 1917 (1989), 110

Pee ce SO hy ee ee 10

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213

§ | RSE ee re ee Sr ee eee Ye 12, 18, 16

Garfield v. Thomson McKinnon Securities, Inc.,

731 F. Supp. 841 (N.D. Ill. 1988) 2.00000... 10

Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d

195 (4th Cir.), cert. granted, 111 S. Ct. 41

iE I vscscs eh hopbesieieaensbinneiencaedditeadeiniiaiaarieeatdh adie oad passim

Hall v. Nomura Securities Int’l, 268 Cal. Rptr. 45

PU I I tho ate ee a Te 10

Jones v. Baskin, Flaherty, Elliot & Mannino, P.C.,

670 F. Supp. 597 (W.D. Pa. 1987), aff’d, 897

F.2d 522 (3d Cir.), cert. denied, 111 S. Ct. 47

6 CR NS AE ee Oe 10

Lorillard v. Pons, 484 U.S. 575 (1978) ..........0......- 9

McDonald v. City of West Branch, 466 U.S. 284

(| REESE on Se SEOs e Ce ee eee 9, 16

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, 473 U.S. 614 (1985) 2.000002... passim

Moses H. Cone Memorial Hosp. v. Mercury Constr..

a we og! ee eee 12, 13, 16

Nicholson v. CPC Int'l Inc., 877 F.2d 221 (3d Cir.

RRR RL caters otaed “SY RRR Ae eke Sea AR 10, 17

TABLE OF AUTHORITIES—Continued

Page

Pierce v. Shearson Lehman Hutton, Inc., 52 Fair

Empl. Prac. Cas. (BNA) 1882 (N.D. Ill. 1990) .. 10

Pihl v. Thomson McKinnon Securities, Inc., 48

Fair Empl. Prac. Cas. (BNA) 922 (E.D. Pa.

chatiaceticanieenienas Ride cdiislhigh darlin iecdicieditinbubipinnedion inne 10

Rodriguez de Quijas v. Shearson/American Exp.,

es Rk | nen eee passim

Roe v. Kidder, Peabody & Co., 52 Fair Empl. Prac.

Cas. (BNA) 1865 (S.D.N.Y. 1990) ~.................. 10

Scherk v. Alberto-Culver Co., 417 U.S. 506

(SRI EE Cae eee wee A a eae 11, 12,13

Shearson/American Exp., Inc. v. McMahon, 482

i 8), AREER ER RE eaerrmremwerncmanr seers Sune passim

Southland Corp. v. Keating, 465 U.S. 1 (1984)... 12

Steck v. Smith Barney, Harris Upham & Co., 661

F. Supp. 543 (D.N.J. 1987) -..... oe oS Ses ee 11

Steele v. L.F. Rothschild & Co., 701 F. Supp. 407

(S.D.N.Y.), appeal dismissed, 864 F.2d 1 (2d

TES Nes ae See ae eR a ene 10

Swenson v. Management Recruiters Int’l, Inc., 858

F.2d 1804 (8th Cir. 1988), cert. denied, 110

| EERE ER Cone ere 10

Utley v. Goldman Sachs & Co., 883 F.2d 184 (1st

Cir. 1989), cert. denied, 110 S. Ct. 842 (1990).. 10

Wilko v. Swan, 346 U.S. 427 (1953) -...................... 18, 19

Yellow Freight System, Inc. v. Donnelly, 110 S. Ct.

I seis Ioik nes ane cinelielalininisigiboaiiniendinevntens 17

Statutes:

Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. §§ 621 et seq. .................... 7

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

I TCO dicta scentltasnianenctenntstsenicntnainnaniennecsncoed passim

Section 706, 42 U.S.C. § 2000e-5 _.................... 2

Employee Retirement Income Security Act of 1974,

29 UBS. 86 1061 of eee. ......................-................. 10

Equal Pay Act of 1963, 29 U.S.C. § 206(d) -.......... 10

Federal Arbitration Act, 9 U.S.C. §§ 1 et seq......... passim

I a ast eeereinoemsannnes 2, 6,12

SS 2 2, 12

TABLE OF AUTHORITIES—Continued

Page

Eg EE ana eee Se 1a Era 2,12

Sn Uy Ps AE UD coca ackac allo hc adbacoskeen 6

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. $§ 1961 et seg. ................................ 6

Securities Act of 1933 §12(2), 15 U.S.C.

ie A 14

Securities Exchange Act of 1934 §10(b), 15

Rn ee rh 14

Sherman Act, 15 U.S.C. §§ 1 et seq. 000000002... 14

I a i et ca ckalcis tas sainlane 2

Minnesota Human Righis Act, Minn. Stat. § 363.03

RARER Se ae ORC te 10, 11

Rules:

ney MO or ke 8

Miscellaneous:

Burger, Isn’t There A Better Way?, 68 A.B.A. J.

RRR ae nF IEE OL SNUG Ces BN i 14

H.R. Rep. No. 96, 68th Cong., Ist Sess. (1924) ...... 12

Meyerowitz, The Arbitration Alternative, 71

Se Oe Oe We wok Oe 14

Nationai Association of Securities Dealers Code of

FD ig | cna 3

New York Stock Exchange Rule 347 _........ 3,9

Report of the Federal Courts Study Committee

I ee inten’ 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No.

DEAN WITTER REYNOLDS INC. AND DoN L. HARRIS,

. Petitioners,

JOAN CHASON ALFORD,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners Dean Witter Reynolds Inc. (“Dean Witter’)

and Don L. Harris (“Harris”) respectfully request that

this Court grant the Petition for a Writ of Certiorari

seeking review of the decision and judgment of the United

States Court of Appeals for the Fifth Circuit. As dis-

cussed below, a review of the issues presented in this

case is necessary to resolve a conflict among the circuits

and to enable the Court to determine whether the FAA

requires arbitration of employment discrimination claims

pursuant to an individual arbitration agreement.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Fifth Circuit is published at 905 F.2d 104 and is set

forth in the Appendix to the Petition (“Pet. App.) at

la. The opinion of the United States District Court for

the Southern District of Texas is reported at 712 F.

Supp. 547 and is set forth in Pet. App. at 8a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on July 11, 1990. Pet.

App. at la. A petition for rehearing was denied by

order of that court dated August 3, 1990. Pet. App. at

12a, The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

The statutory provisions involved in this case are: '

Federal Arbitration Act, 9 U.S.C. §§ 1 et seg.

Section 2, 9 U.S.C. § 2

Section 3, 9 U.S.C. § 3

Section 4, 9 U.S.C. § 4

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. $§ 2000 et seg.

Section 706, 42 U.S.C. § 2000-5

STATEMENT OF THE CASE

Petitioners seek review of a decision and judgment of

the United States Court of Appeals for the Fifth Circuit

that affirmed a district court order denying petitioners’

motion to dismiss and to compel arbitration under the

FAA of respondent’s claims brought under Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C.

S$ 2000e et seg. (“Title VII’).

A. Factual Background

Joan Chason Alford (“Alford) was employed by Dean

Witter on or about August 7, 1984 as a registered rep-

resentative of Dean Witter in the purchase and sale of

1The text of thesdé provisions is set forth in Pet. App. at

14a-25a.

securities for customers of the company. Harris was the

manager of the Dean Witter office where Alford was em-

ployed.

At or around the time of her employment with Dean

Witter and as a condition of her empioyment, Alford ex-

ecuted a Uniform Application For Securities Industry Reg-

istration (“Form U-4”) that contained the following

agreement:

I agree to arbitrate any dispute, claim or contro-

versy that may arise between me and my firm, or a

customer, or any other person, that is required to be

arbitrated under the rules, constitutions or by-laws

of the organizations with which I register as indi-

cated in Question 8.

Two of the organizations with which Alford registered,

as indicated in Question 8 on her application, were the

New York Stock Exchange (“NYSE”) and the National

Association of Securities Dealers (“NASD”)” NYSE

Rule 347 provides that:

Any controversy between a registered representative

and any member or member organization arising out

of the employment or termination of employment of

such registered representative by and with such mem-

ber or member organization shall be settled by arbi-

tration, at the instance of any such party, in ac-

cordance with the arbitration procedure pr>scribed

elsewhere in these rules.

In addition, NASD’s Code of Arbitration Procedure pro-

vides in relevant part as follows:

Sec. 1. This Code of Arbitration Procedure is pre-

scribed and adopted pursuant to Article VII, Section

1(a) (3) of the By-Laws of the National Association

of Securities Dealers, Inc. (the “Association”) for

the arbitration of any dispute, claim or controversy

arising out of or in connection with the business of

any member of the Association, with the exception of

disputes involving the insurance business of any

member which is also an insurance company:

eed

(1) between or among members;

(2) between or among members and public cus-

tomers, or others; and

‘(3) between or among members, registered clear-

ing agencies with which the Association has entered

into an agreement to utilize the Association’s arbi-

tration facilities and procedures, and participants,

pledgees or other persons using the facilities of a

registered clearing agency, as these terms are de-

fined under the rules of such registered clearing

agency.

Sec. 8 (a) Any dispute, claim or controversy eligi-

ble for submission under part I of this Code between

or among members and/or associated persons, and/or

certain others, arising in connection with the busi-

ness of such member(s) or in connection with the

activities of such associated person(s), shall be arbi-

trated under this Code, at the instance of:

(1) a member against another member;

(2) a member against a person associated with a

member against a member; and

(3) a person associated with a member against a

person associated with a member.’

Alford’s employment with Dean Witter was terminated

on July 31, 1987 by Harris after she proved to be an

unsatisfactory employee. Prior to and after her termina-

tion from Dean Witter, Alford filed charges of discrim-

ination with the Equal Employment Opportunity Com-

mission (“EEOC”) alleging that she had been discrim-

inated against because of her sex and retaliated against

in violation of Title VII.

* Harris also similarly was bound to submit to arbitration any

disputes either with Dean Witter or with other registered repre-

sentatives of the NYSE or persons associated with the NASD.

Thus, it is clear that the agreements contemplated that any dis-

putes of Alford with Dean Witter and/or Harris would be resolved

by arbitration.

B. Procedural Background

On July 5, 1988, Alford filed suit in the United States

District Court for the Southern District of Texas, Hous-

ton Division. Her complaint alleged that she was discrim-

inated against in violation of Title VII by Dean Witter

and Harris on the basis of her sex, in her terms and con-

ditions of employment and by her termination. Her com-

plaint also alleged that her termination was in retalia-

tion for her having filed a charge of discrimination with

the EEOC and for her having opposed alleged practices

which she claimed constituted unlawful sex discrimination.

By letter to Alford’s counsel dated July 28, 1988, Dean

Witter and Harris demanded that Alford submit any

claims and controversies arising out of her employment

with Dean Witter or the termination thereof to arbitra-

tion under the auspices of either the NYSE or NASD. By

letter dated August 19, 1988, Alford responded that Title

VII did not require exhaustion of remedies, such as arbi-

tration, before commencing a private action and that she

would not submit or agree to submit her claims to arbi-

tration as requested.

On September 19, 1988, Dean Witter and Harris moved

to dismiss Alford’s claims and to compel arbitration pur-

suant to the FAA.’ By order entered on May 31, 1989,

the district court concluded that the issues raised in the

motion were controlled by this Court’s decision in Alea-

3In their motion, Dean Witter and Harris requested that the

court find that the parties had entered into an agreement by which

Alford agreed to arbitrate her employment-related disputes with

Dean Witter and Harris; that Alford be required to submit her

employment-related disputes to arbitration and that her complaint

be dismissed with prejudice; and, alternatively, that Alford’s Title

VII suit be stayed and that she be ordered to submit her employ-

ment-related claims to arbitration.

ander v. Gardner-Denver Co., 415 U.S. 36 (1974).* Pet.

App. at 9a. The court determined that Alford’s Title VII

claims were not subject to arbitration, notwithstanding the

fact that Alexander involved arbitration pursuant to a col-

lective bargaining agreement and not pursuant to an indi-

vidual arbitration agreement. The court denied the mo-

tion to dismiss and to compel arbitration. 7d. at 11a.

Dean Witter and Harris took timely appeals to the

Fifth Circuit pursuant to 9 U.S.C. § 15. By an opinion

dated July 11, 1990, the Fifth Circuit affirmed the district

court’s denial of the dismissal of Alford’s claims and the

request of Dean Witter and Harris for an order compel-

ling arbitration. Pet. App. at la. In doing so, the Fifth

Circuit also v!timately concluded that the issue was con-

trolled by Alexander, although apparently not without

reservations. —

Before so deciding, however, the Fifth Circuit acknowl-

edged the more recent decisions of this Court, where par-

ties subject to individual arbitration agreements have

been required to arbitrate various statutorily-based

claims, including claims under the securities and anti-

trust laws and under the Racketeer Influenced and Cor-

rupt Organizations Act, 18 U.S.C. §§1961 et seg.

(“RICO”). Pet. App. at la-2a.° In light of these more

*The district court apparently recognized that Alford had an

arbitration agreement within the meaning of 9 U.S.C. §2. The

district court stated that “Alford executed . . . an agreement

. which contained a clause stating she agreed to resolve by

arbitration any controversy arising out of her employment in-

cluding her termination.” Pet. App. 8a-9a. Despite the arbitra-

tion agreement, the district court nevertheless concluded that

Alexander controlled and precluded arbitration of Alford’s Title

VII claims.

5 See Rodriguez de Quijas v. Shearson/American Exp., Inc., 109

S. Ct. 1917 (1989) (securities claims); Shearson/American Ezp.,

Inc. v. McMahon, 482 U.S. 220 (1987) (securities and RICO

claims) ; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473

U.S. 614 (1985) (antitrust claims).

aT NF

recent decisions of this Court involving individual arbi-

tration agreements,* the Fifth Circuit panel observed that:

If the issue were open to us to evaluate afresh, we

might well interpret Title VII consistent with these

recent decisions. But, because of the Alexander deci-

sion, the issue is not an open one.

Pet. App. at 3a.

The Fifth Circuit regarded the rationale in Alexander

to be broad enough to cover the arbitration of any Title

VII claims, whether those claims arose in the context of

a collective bargaining agreement or under an individual

agreement, such as here, to arbitrate all employment-

related disputes. Jd. at 4a. In doing so, the panel de-

termined that it was bound by Alexander “until the Court

holds otherwise.” Id. at 6a.

REASONS FOR GRANTING THE WRIT OF CERTIORARI

Petitioners Dean Witter and Harris respectfully re-

quest that the Court grant their petition for a writ of

certiorari to resolve a conflict among the circuits regard-

ing the arbitrability, pursuant to an individual arbitra-

tion agreement, of claims brought under federal equal

employment opportunity statutes. The Court has- agreed

to decide whether claims brought under the Age Discrim-

ination in Employment Act of 1967, as amended, 29 U.S.C.

§§ 621 et seg. (“ADEA”), are subject to arbitration pur-

suant to an individual arbitration agreement. See Gilmer

v. Interstate/Johnson Lane Corp., 895 F.2d 195 (4th Cir.),

cert. granted, 111 §S. Ct. 41 (1990). The Court should

grant the petition herein to ensure consistency in the

application of federal equal employment opportunity or

other employment-related statutes by determining whether

6 The Fifth Circuit panel recognized that “[plermitting enforce-

ment of statutory remedies by means of contractual arbitration

has thus become the norm rather than the exception for contracts

governed by the Federal Arbitration Act (“FAA”). Pet. App. at

3a,

claims brought under Title VII also are subject to arbi-

tration pursuant to an individual arbitration agreement.

In addition, review of this case will allow the Court to

reconcile the important policies favoring arbitration un-

derlying the FAA and those underlying Title VII. More-

over, such a review also will provide an opportunity for

the Court to address the applicability to Title VII claims

of its recent series of decisions requiring arbitration, pur-

suant to an individual arbitration agreement, of disputes

involving other important statutorily-based claims.

I. THE COURT SHOULD GRANT THE WRIT OF CER-

TIORARI TO RESOLVE A CONFLICT AMONG THE

CIRCUITS REGARDING THE ARBITRABILITY OF

FEDERAL EQUAL EMPLOYMENT OPPORTUNITY

CLAIMS

Petitioner’s writ of certiorari should be granted to en-

able the Court to resolve a conflict among the circuits on

the issue of whether claims brought pursuant to federal

equal employment opportunity statutes are subject to

arbitration under the FAA where the parties have agreed,

through an individual arbitration agreement, to arbitrate

all employment-related claims. Because the Court has

agreed to review this issue as it relates to claims brought

under the ADEA, it should resolve the nearly identical

issue presented herein—that is, whether Title VII claims

also are subject to arbitration under the FAA where the

parties have agreed to arbitrate all claims or disputes.

See Sup. Ct. R. 10.1(a).

On October 1, 1990, this Court granted certiorari in

Gilmer to decide the issue of whether claims brought under

the ADEA are subject to arbitration pursuant to an in-

dividual agreement to arbitrate any dispute, claim or con-

troversy arising between the parties.’ The Fourth Cir-

7 Gilmer, like Alford, was required at the time of his employ-

ment to register as a securities representative with the NYSE.

Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d at 196 n.l.

Gilmer’s arbitration agreement was essentially the same as that

cuit in Gilmer held that Gilmer’s ADEA claims were

subject to arbitration pursuant to the FAA after it de-

termined that there was nothing in the text, legislative

history or underlying purposes of the ADEA indicating a

congressional intent to preclude enforcement of arbitra-

tion agreements. 895 F.2d at 197. In this regard, the

Fourth Circuit in Gilmer noted that “Courts should be

reluctant .. . to imply in a statute an intention to pre-

clude enforcement of arbitration agreements where Con-

gress has not expressed one, particularly in light of the

countervailing intention expressed by Congress in the

FAA.” Id.

Moreover, the Fourth Circuit in Gilmer, unlike the

Fifth Circuit herein, expressly rejected Gilmer’s conten-

tion that this Court’s decision in Alexander v. Gardner-

Denver Co., 415 U.S. 36 (1974), and its progeny,® were

controlling where the arbitration agreement was not pur-

suant to a collective bargaining agreement, but rather

was pursuant to an individual agreement to arbitrate all

claims or disputes. Giimer, 895 F.2d at 201-02.

Thus, notwithstanding the fact that the “prohibitions

of the ADEA were derived in naec verba from Title VII,”

Lorillard v. Pons, 434 U.S. 575, 584 (1978), the Fourth

and Fifth Circuits have reached diametrically inconsistent

results regarding the arbitrability, pursuant to an individ-

ual arbitration agreement, of claims under Title VII and

the ADEA. In addition, numerous other decisions have

reached conflicting results on whether or not similar

executed by Alford herein and brought Gilmer under Rule 347 of

the NYSE, id., one of the Rules applicable to Alford as a result

of her agreement.

® See Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557 (1987);

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

tine v. Arkansas-Best Freight Sys., 450 U.S. 728 (1981).

claims are subject to arbitration pursuant to an individ-

ual arbitration agreement.®

®In addition to the Fourth Circuit in Gilmer, numerous other

courts have found employment-related statutory claims to be sub-

ject to arbitration pursuant to an individual arbitration agreement.

See, e.g., Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 847

F.2d 475 (8th Cir. 1988) (claim under the Employee Retirement

Ineome Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”) ) ;

Pierce v. Shearson Lehman Hutton, Inc., 52 Fair Empl. Prac. Cas.

(BNA) 1882 (N.D. Ill. 1990) (ADEA claim); Roe v. Kidder,

Peabody & Co., 52 Fair Empl. Prac. Cas. (BNA) 1865 (S.D.N.Y.

1990) (Title VII claim); Steele v. L.F. Rothschild & Co., 701

F. Supp. 407 (S.D.N.Y.), appeal dismissed, 864 F.2d 1 (2d Cir.

1988) (claim under Equal Pay Act of 19638, 29 U.S.C. § 206(d));

Garfield v. Thomson McKinnon Securities, Inc., 731 F. Supp. 841

(N.D. Ill. 1988) (ADEA claim); Pihl v. Thomson McKinnon

Securities, Inc., 48 Fair Empl. Prac. Cas. (BNA) 922 (E.D. Pa.

1988) (ADEA claim); Hall v. Nomura Securities Int’l, 268 Cal.

Rptr. 45 (Ct. App. 1990) (claims under California antidiscrimina-

tion statutes) ; see also Nicholson v. CPC Int'l Inc., 877 F.2d 221,

231 (3d Cir. 1989) (Becker, J., dissenting); Bird v. Shearson

Lehman/American Exp., Inc., 871 F.2d 292, 298 (2d Cir.), vacated

and remanded in light of Rodriguez de Quijas v. Shearson/Ameri-

can Exp., Inc., 109 S. Ct. 1917 (1989), 110 S. Ct. 225 (1989)

(Cardamone, J., dissenting); Anderson v. Dean Witter Reynolds,

Inc., 449 N.W.2d 468, 470 (Minn. Ct. App. 1989) (Randall, J.,

dissenting) (“The compulsory arbitration process can provide a

speedy and fair hearing on the merits of the [Minnesota Human

Rights Act] claim.’’).

A number of other courts have held that parties may not be

compelled to arbitrate certain employment-related statutory claims

pursuant to an individual arbitration agreement. See, e.g., Nichol-

son v. CPC Int'l Inc., 877 F.2d 221 (3d Cir. 1989) (ADEA claim) ;

Utley v. Goldman Sachs & Co., 888 F.2d 184 (1st Cir. 1989),

cert. denied, 110 -S. Ct. 842 (1990) (Title VII claim); Bird v.

Shearson Lehman/American Exp., Inc., 871 F.2d 292 (2d Cir.),

vacated and remanded in light of Rodriguez de Quijas v. Shearson/

American Ezp., Inc., 109 S. Ct. 1917 (1989), 110 S. Ct. 225 (1989)

(ERISA claim); Swenson v. Management Recruiters Int’l, Inc.,

858 F.2d 1304 (8th Cir. 1988), cert. denied, 110 S. Ct. 148 (1989)

(Minnesota Human Rights Act claim, Minn Stat. § 363.03 (1988) ) ;

Barrowclough v. Kidder, Peabody & Co., 752 F.2d 928 (8d Cir.

1985) (ERISA claim) ; Jones v. Baskin, Flaherty, Elliot € Mannino,

Accordingly, because the Court has agreed in Gilmer

to decide whether ADEA claims are subject to arbitration

pursuant to an individual arbitration agreement, it also

should decide in this case whether Title VII claims sim-

ilarly are subject to arbitration pursuant to such an in-

dividual agreement.

II. REVIEW IN THIS CASE WILL ALLOW THE

COURT TO ADDRESS THE APPLICABILITY TO

TITLE VII OF ITS RECENT SERIES OF DECI-

SIONS REQUIRING ARBITRATION OF STATU-

TORILY-BASED CLAIMS UNDER THE FAA

Even apart from the need to resolve the conflict in

circuits as discussed above, the Court should grant the

petition to address the applicability of its recent series

of decisions requiring the arbitration of statutorily-

based claims where the parties have entered into individ-

ual agreements to arbitrate all claims or disputes. More-

over, such a review will enable the Court to reconcile the

strong policies favoring arbitration, as evidenced by these

decisions and by the FAA, with the policies underlying

Title VII and other federal equal employment opportunity

statutes.

Congress enacted the FAA to “revers(e] centuries of

judicial hostility to arbitration agreements.” Shearson/

American Exp., Inc. v. McMahon, 482 U.S. 220, 225

(1987) (quoting Scherk v. Alberto-Culver Co., 417 US.

506, 510 (1974)). This was to be accomplished by

“plac[ing] arbitration agreements ‘upon the same footing

P.C., 676 F. Supp. 597 (W.D. Pa. 1987), aff'd, 897 F.2d 522 (3d

Cir.), cert. denied, 111 S. Ct. 47 (1990) (ERISA claim); Steck v.

Smith Barney, Harris Upham & Co., 661 F. Supp. 543 (D.N.J.

1987) (ADEA claim); Anderson v. Dean Witter Reynolds, Inc.,

449 N.W.2d 468 (Minn. Ct. App. 1989) (Minnesota Human Rights

Act, Minn. Stat. § 363.08, subd. 1(2)(b) & (c) (1988)).

as other contracts’.” Scherk, 417 U.S. at 511 (quoting

H.R. Rep. No. 96, 68th Cong., Ist Sess. 2 (1924) ).2°

Section 2 of the FAA makes covered written agree-

ments to arbitrate existing or future disputes enforceable.

9 U.S.C. § 2; McMahon, 482 U.S. at 226. Section 2 of

the FAA also provides that an arbitration agreement may

be invalidated only on “such grounds as exist at law or in

equity for the revocation of any contract.” 9 U.S.C. § 2.

Section 3 of the FAA provides that a federal district

court shall stay its proceedings if it is satisfied that an

issue is within the scope of an agreement to arbitrate.

9 US.C. § 3. Finally, Section 4 of the FAA gives a court

the authority to issue an order compelling arbitration

where there has been a “failure, neglect, or refusal” to

comply with an arbitration agreement. 9 U.S.C. § 4."

This Court has observed that the first task of a court

asked to compel arbitration is to determine whether the

parties agreed to arbitrate the dispute. See Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614,

626 (1985). That determination is to be made by apply-

ing the “ ‘federal substantive law of arbitrability, appli-

cable to any arbitration agreement within the coverage of

the Act.’” Jd. (quoting Moses H. Cone Memorial Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)); see

also Southland Corp. v. Keating, 465 U.S. 1, 12 (1984).

Thus, this Court has noted that the FAA establishes a

“federal policy favoring arbitration,” McMahon, 482 U.S.

10This Court has noted that the “preeminent concern of Con-

gress in passing the Act was to enforce private agreements into

which parties had entered.” Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 218, 221 (1985).

11 This Court has stated that “[bly its terms, the Act leaves no

place for the exercise of discretion by a district court, but in-

stead mandates that district courts shall direct the parties to

proceed to arbitration on issues as to which an arbitration agree-

ment has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470

U.S. at 218 (emphasis in original).

at 226 (quoting Moses H. Cone Memorial Hosp., 460 U.S.

at 24),!* and that this federal policy requires that “we

rigorously enforce agreements to arbitrate.” Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 218, 221 (1985); see

also Rodriguez de Quijas v. Shearson/American Exp.,

Ine., 109 S. Ct. 1917, 1920 (1989); McMahon, 482 US.

at 226."

The Court has held that ‘“‘[t]his duty to enforce arbi-

tration agreements is not diminished when a party bound

by an agreement raises a claim founded on statutory

rights.” McMahon, 482 U.S. at 226. As the Court noted

in McMahon, id. (quoting Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. at 627), where a

dispute is based on a statute, “ ‘we are well past the time

when judicial suspicion of the desirability of arbitration

and of the competence of arbitral tribunals’ should inhibit

enforcement of the Act.” Moreover, this Court has made

clear that “[b]y agreeing to arbitrate a statutory claim,

a party does not forgo the substantive rights afforded by

the statute; it only submits to their resolution in an arbi-

tral, rather than judicial, forum.” Mitsubishi Motors

Corp., 473 U.S. at 628; see also Rodriguez de Quijas, 109

S. Ct. at 1920; McMahon, 482 U.S. at 229; Scherk v.

Alberto-Culver Co., 417. U.S. at 519 (characterizing arbi-

12 This Court stated in Moses H. Cone Memorial Hosp., 460 US.

at 24-25, that the FAA is a:

[Clongressional declaration of a liberal federal policy favor-

ing arbitration agreements, notwithstanding any state sub-

stantive or procedural policies to the contrary. The effect of

[the FAA] is to create a body of federal substantive law of

arbitrability, applicable to any arbitration agreement within

the coverage of the Act.... [The FAA] establishes that, as

a matter of federal law, any doubts concerning the scope

of arbitrable issues should be resolved in favor of arbitration.

See also Mitsubishi Motors, 473 U.S. at 626.

18 Thus, in the absence of any explicit congressional intention

to the contrary, see discussion below, there would appear to be

no reason ‘why Alford’s claims would not be arbitrable under the

FAA.

tration agreements as “in effect, a specialized kind of

forum-selection clause’’) .

With these principles in mind, it is not surprising that

in recent years this Court has upheld numerous agree-

ments to arbitrate claims arising under various federal

statutes. See Rodriguez de Quijas, 109 S. Ct. at 1920-21

(claims under Section 12(2) of the Securities Act of 1933,

15 U.S.C. § 7711(2)); McMahon, 482 U.S. at 287, 241-

42 (claims under Section 10(b) of the Securities Ex-

change Act of 1934, 15 U.S.C. § 78j(b), and under RICO) ;

Mitsubishi Motors, 473 U.S. at 640 (antitrust claims

under the Sherman Act, 15 U.S.C. §$1 et seqg.). Thus,

the Court has observed that “[t]he Arbitration Act, stand-

ing alone . . . mandates enforcement of agreements to

arbitrate statutory claims.” McMahon, 482 U.S. at 226."

While it has enforced numerous arbitration agreements

where statutory claims are involved, the Court has deter-

mined that “the Arbitration Act’s mandate may be over-

ridden by a contrary congressional command.” Jd. Where

a party asserts that a “contrary congressional command”

precludes the enforcement of an arbitration agreement,

the party must establish the basis for the preclusion:

The burden is on the party opposing arbitration

. . . to show that Congress intended to preclude a

waiver of judicial remedies for the statutory rights

at issue. If Congress did intend to limit or prohibit

14The efficacy of arbitration of various types of disputes has

been widely recognized. See, e.g., Meyerowitz, The Arbitration

Alternative, 71 A.B.A. J. 78, 79 (1985). Moreover, arbitration has

been suggested by many as a speedy and relatively inexpensive

means of coping with the ever-increasing caseload in our judicial

system. See, e.g., Burger, Isn’t There A Better Way?, 68 A.B.A.

J. 274, 277 (1982). Like many other types of claims, the number

of employment discrimination cases filed in the federal courts has

increased dramatically in recent years. See Report of the Federal

Courts Study Committee 60-61 (Apr. 2, 1990) (“Since 1969, the

number of private employment discrimination cases filed in the

federal courts has increased more than 2,000 percent.”).

| en a Ne Te

waiver of a judicial forum for a particular claim,

such an intent, “will be deducible from [the stat-

ute’s] text or legislative history,” or from an in-

herent conflict between arbitration and the statute’s

underlying purposes.

Id. at 227 (quoting Mitsubishi Motors, 473 U.S. at 628)

(citations omitted) ; see also Rodriguez de Quijas, 109

S. Ct. at 1921.

Notwithstanding the clear federal policy favoring arbi-

tration, as evidenced in the FAA and in the recent de-

cisions of this Court enforcing agreements to arbitrate

statutory claims, the Fifth Circuit in the instant case de-

termined that it was not appropriate to compel the arbitra-

tion of Alford’s Title VII claims. Pet. App. at 6a-7a."

In doing so, the Fifth Circuit concluded that this Court’s

decision in Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974), a case involving a collective bargaining agree-

ment and not an individual arbitration agreement, was

controlling and dictated that Alford’s Title VII claims

were not subject to arbitration. Pet. App. at 3a. In so

doing, the Fifth Circuit created a direct conflict between,

the arbitrability of claims brought under Title VII and

those brought pursuant to other important federal stat-

utes—a conflict which, it is respectfully submitted, this

Court should resolve.

In Alexander, 415 U.S. at 60, the Court determined

that an employee’s right to a trial de novo under Title VII

was not fereclosed by an adverse arbitral decision pur-

suant to the non-discrimination clause of the applicable

collective bargaining agreement. As discussed below, how-

ever, the various rationales underlying Alexander, and

relied upon by the Fifth Circuit herein, either have no

15 Neither the Fifth Circuit herein, nor other courts that have

addressed the issue, cited anything in the text or legislative

history of Title VII that addresses directly the issue of whether

the FAA mandates that Title VII claims are subject to arbitra-

tion pursuant to an individual arbitration agreement,

applicability to Alford’s individual arbitration agreement

or have been sufficiently eroded by later decisions of this

Court so as to provide no support for the Fifth Circuit

decision.

Because Alexander involved a collective bargaining

agreement and not an individual arbitration agreement

such as that executed by Alford herein, the Court in

Alexander did not address the important policies reflected

in the FAA, including the “ ‘federal policy favoring arbi-

tration’ requiring that ‘[courts] rigorously enforce agree-

ments to arbitrate’.” McMahon, 482 U.S. at 226 (quoting

Moses H. Cone Memorial Hosp., 460 U.S. at 24, and Dean

Witter Reynolds Inc. v. Byrd, 470 U.S. at 221); see also

Gilmer, 895 F.2d at 201. If the petition is granted herein,

the Court will have an opportunity to address fully the

application of these policies underlying the FAA to claims

brought under Title VII, particularly in light of the

Court’s recent decisions approving the arbitration of var-

ious other statutorily-based claims.

In addition, because the instant case involves an indi-

vidual arbitration agreement and not a collective bar-

gaining agreement, the Court’s concern in Alexander, 415

U.S. at 58 n.19, that “the interests of the individual em-

ployee may be subordinated to the collective interests of

all employees in the bargaining unit” simply does not -

exist herein. Thus, in the instant case, unlike in Alez-

ander, Alford would have absolute control over the arbi-

tration of her statutory claims pursuant to her individ-

ual arbitration agreement. The decisions of this Court in

Buell, McDonald, and Barrentine, therefore, are no more

instructive on the issues presented herein than is Alex-

ander because they also involved statutory claims that

arose in the context of a collective bargaining agreement

where the individual was not in command of his own

claim.

Likewise, the concern in Alexander, 415 U.S. at 53, that

an arbitrator might lack the power to invoke legislation

, |

that is in conflict with the collective bargaining agreement

also should not exist herein. As the Court noted in Mc-

Mahon, 482 U.S. at 231 “there is no reason to assume

at the outset that arbitrators will not follow the law,”

and judicial review of an arbitrator’s decision is “suffi-

cient to ensure that arbitrators comply with the require-

inents of the statute.” Jd.'®

Nor can a persuasive argument be made that issues

arising under Title VII would be too factually or legally

complex for an arbitrator. As the Court noted in Mc-

Mahon, 482 U.S. at 231 (quoting Mitsubishi, 473 U.S. at

633-34), “arbitral tribunals are readily capable of han-

dling the factual and legal complexities of antitrust [and

securities] claims, notwithstanding the absence of judicial

instruction and supervision.” See also Gilmer, 895 F.2d

at 201; Nicholson v. CPC Int’l Inc., 877 F.2d 221, 234

(3d Cir. 1989) (Becker, J., dissenting). Claims under

Title VII clearly are no more complex than antitrust, se-

curities, or RICO claims, all of which have been held by

this Court to be arbitrable.”

Finally, concerns expressed by this Court in Alexander,

415 U.S. at 56-58, about the adequacy of the arbitral

16 As noted above, by agreeing to arbitrate statutory claims of

discrimination pursuant to an individual arbitration agreement,

a party does not agree to forego the substantive rights afforded by

the statute, but rather merely agrees to their resolution in an

arbitral forum. See, e.g., Rodriguez de Quijas, 109 S. Ct. at 1920;

McMahon, 482 U.S. at 229; Mitsubishi Motors Corp., 473 US.

at 628.

17 Moreover, it is clear that in enacting Title VII, Congress did

not intend that the federal courts would be the exclusive forum

for vindicating rights under Title VII. See Yellow Freight Sys-

tem, Inc. v. Donnelly, 110 S. Ct. 1566, 1567, 1570 (1990) (state

courts have concurrent authority to adjudicate Title VII claims).

If anything, this grant of concurrent jurisdiction over Title VII

claims supports the notion that parties may agree to have their

claims determined in an arbitral forum. See Rodriguez de Quijas,

109 S. Ct. at 1920; Gilmer, 895 F.2d ai 200 (“Congress’ grant

of concurrent jurisdiction over ADEA suits may evince an affirm-

ative intent apart from that contained in the FAA, to permit

waiver of the judicial forum.”’).

process clearly are out of step with the Court’s recent

endorsements of arbitration as an effective and efficient

means to resolve disputes. For example, in Mitsubishi,

473 U.S. at 626-27, the Court stated that “we are well

past the time when judicial suspicion of the desirability

of arbitration and of the competence of arbitral tribunals

inhibited the development of arbitration as an alternative

means of dispute resolution.” In McMahon, 482 U.S. at

231, the Court also observed that “the streamlined pro-

cedures of arbitration do not entail any consequential re-

striction on substantive rights.”

Moreover, this Court in Rodriguez de Quijas, 109 S. Ct.

at 1920 (overturning its earlier decision in Wilko v.

Swan, 346 U.S. 427 (1953), which had held that claims

under the Securities Act of 1933 were not subject to arbi-

tration), recognized the unpersuasiveness of concerns such

as those expressed in Alexander regarding the adequacy

of the arbitral process:

To the extent that Wilko rested on suspicion of arbi-

tration as a method of weakening the protections af-

forded in the substantive law to would-be complain-

ants, it has fallen far out of step with our current

strong endorsement of the federal statutes favoring

this method of resolving disputes."*

18 Wilko was cited with apparent approval by the Court in

Alexander, 415 U.S. at 57-58, in support of its concerns regarding

the then-perceived inadequacies in the arbitral process. Even

prior to its decision in Rodriguez de Quijas, however, this Court

in McMahon, 482 U.S. at 231-32 (citations omitted), also had been

highly critical of the concerns expressed in Wilko regarding the

adequacy of the arbitral process:

[T]he reasons given in Wilko reflect a general suspicion of

the desirability of arbitration and the competence of arbitral

tribunals—most apply with no greater force to the arbitration

of securities disputes than to the arbitration of legal disputes

generally. It is difficult to reconcile Wilko’s mistrust of the

Thus, review of the Fifth Circuit decision in this case

is necessary to enable the Court to resolve the conflict

with Gilmer and to determine the applicability, if any, of

Alexander where the FAA otherwise would require arbi-

tration of Title VII claims pursuant to an individual

arbitration agreement. In addition, because the issues

presented herein involve critical questions regarding the

relationship between the FAA and Title VII that are

arising with increasing frequency in the lower courts, it

is appropriate for the Court to resolve the various im-

portant issues presented in this case.

arbitration process with this Court’s subsequent decisions

involving the Arbitration Act.

Indeed, most of the reasons given in Wilko have been re-

jected subsequently by the Court as a basis for holding claims

to be nonarbitrable. In Mitsubishi, for example, we recognized

that arbitral tribuna's are readily capable of handling the

factual and legal complexities of antitrust claims, notwith-

standing the absence of judicial instruction and supervision.

Likewise, we have concluded that the streamlined procedures

of arbitration do not entail any consequential restriction on

substantive rights. Finally, we have indicated that there is

no reason to assume at the outset that arbitrators will not fol-

low the law; although judicial scrutiny cf arbitration awards

necessarily is limited, such review is sufficient to ensure that

arbitrators comply with the requirements of the statute.

CONCLUSION

For the foregoing reasons, petitioners respectfully re-

quest that the Petition for a Writ of Certiorari be

granted.

Respectfully submitted,

FRANK C. MORRIS, JR.*

THOMAS R. BAGBY

EPSTEIN BECKER & GREEN, P.C.

1227 25th Street, N.W.

Suite 700

Washington, D.C. 20037

(202) 861-0900

Of Counsel: RONALD M. GREEN

RAYMOND L. KALMANS EPSTEIN BECKER & GREEN, P.C.

JOSEPH G. GALAGAZA 250 Park Avenue

NEEL, Hooper & KALMANS, P.C. New York, New York 10177

1700 West Loop South (212) 351-4500

Suite 1400 Attorneys for Petitioners

Houston, Texas 77027 Deon Witter Reynolds Inc.

(713) 629-1800 ; and Don L. Harris

* Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 89-2599

JOAN CHASON ALFORD,

Plaintiff-Appellee,

DEAN WITTER REYNOLDS, INC. and Don L. HARRIS,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

July 11, 1990

Before CLARK, Chief Judge, THORNBERRY, and

JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Joan Alford was a stockbroker with Dean Witter Reyn-

olds, Inc. (“Dean Witter’) until she was fired for al-

legedly discriminatory reasons. The issue before us is

whether she may pursue a Title VII lawsuit for sex dis-

crimination and sexual harassment or must, as the com-

pany contends, submit to commercial arbitration of her

claim. In 1974, a unanimous Supreme Court held that

Title VII claims need not be relegated to the arbitration

process governed by a collective bargaining agreement.

Alexander v. Gardner—Denver Company, 415 U.S. 36,

94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). We conclude that,

despite the Court’s subsequent series of decisions encour-

aging commercial arbitration, Alexander governs this

case. We therefore affirm the district court’s denial of a

dismissal or an order compelling arbitration. 712 F.Supp.

547.

This dispute requires us to reconcile the strong national

policy favoring commercial arbitration, 9 U.S.C. § 2, with

the equally important federal legislation designed to com-

bat discrimination. Dean Witter forcefully argues that

in recent Supreme Court jurisprudence, contractual pro-

visions for arbitration have prevailed against pleas for

litigation of various statutorily-founded claims, including

those under the securities, RICO and anti-trust laws.’

The Court has declared that

As a matter of federal law [the Federal Arbitration

Act], any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration... .

Moses H. Cone Memorial Hospital v. Mercury Construc-

tion Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927 at 941-42, 74

L.Ed.2d 765 (1985). The Court has also held that, “we

rigorously enforce agreements to arbitrate.” Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 218, 221, 105 S.Ct. 1238,

1243, 84 L.Ed.2d 158 (1985). That the claim rests on

federal statutory grounds does not necessarily render it

less susceptible to arbitration:

The Arbitration Act, standing alone, therefore man-

dates enforcement of agreements to arbitrate statu-

1Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq.

2 Rodriguez De Quijas v. Shearson/American Express, Inc.,

U.S. , 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities

claims) ; Shearson/American Express, Inc. v. McMahon, 482 USS.

220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (RICO and Securities

Exchange Act § 10(b)) ; Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985),

(antitrust).

tory claims. Like any statutory directive, the Arbi-

tration Act’s mandate may be overridden by a con-

trary congressional command. The burden is on the

party opposing arbitration, however, to show that

Congress intended to preclude a waiver of judicial

remedies for the statutory rites [sic] at issue. ... If

Congress did intend to limit or prohibit waiver of a

judicial forum for a particular claim, such an intent

“will be deductible from [the statute’s] text or leg-

islative history,” . .. or from an inherent conflict

between arbitration and the statute’s underlying pur-

poses.” ... (citations omitted).

Shearson/American Express, Inc. v. McMahon, 482 U.S.

220, 226-27, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987).

Permitting enforcement of statutory remedies by means

of contractual arbitration has thus become the norm

rather than the exception for contracts governed by the

Federal Arbitration Act (“FAA”).

If the issue were open to us to evaluate afresh, we

might well interpret Title VII consistent with these re-

cent decisions. But, because of the Alexander decision,

the issue is not an open one. In Alexander, the Supreme

Court held that a union employee was not foreclosed by

his lack of success in an arbitration compelled by his col-

lective bargaining agreement from later pursuing a Title

VII su‘t for his employer’s racial discrimination. After

analyzing the enforcement scheme of Title VII and find-

ing that “federal courts have been assigned plenary pow-

ers to secure compliance with Title VII,” 415 U.S. at 45,

94 S.Ct. at 1018, the Court held that,

[t] here is no suggestion in the statutory scheme that

a prior arbitral decision either forecloses an individ-

ual’s right to sue or divests federal courts of juris-

diction.

415 US. at 47, 94 S.Ct. at 1019. The Court rejected a

rule of blanket deference owed by federal courts to the

prior findings of arbitrators on Title VII issues:

The purpose and procedures of Title VII indicate

that Congress intended federal courts to exercise final

responsibility for enforcement of Title VII; deferral

to arbitral decisions would be inconsistent with that

goal. Furthermore, we have long recognized that ‘the

choice of forums inevitably affects the scope of the

substantive right to be vindicated.’ U.S. Bulk Car-

riers, Inc. v. Arguelles, 400 U.S. 351, 359-360, 91

S.Ct. 409, 413-14 [27 L.Ed.2d 456] (1971) (Harlan,

J., concurring).

Alexander, 415 U.S. at 56, 94 S.Ct. at 1023. In a final

footnote citing factors relevant to a federal court’s deci-

sion to admit in evidence a prior arbitral award, the

Court added:

. courts should ever be mindful that Congress,

in enacting Title VII, thought it necessary to pro-

vide a judicial forum for the ultimate resolution of

discriminatory employment claims. It is the duty

of courts to assure the full availability of this

forum.

Alexander, 415 U.S. at 60, n. 21, 94 S.Ct. at 1025,

n. Zi.

Although distinctions between Alexander and the pres-

ent case will be considered, we regard Alexander’s ra-

tionale as broad enough to speak to any arbitration of

Title VII claims. Two other circuits have already so

held. Utley v. Goldman Sachs & Co., 883 F.2d 184 (1st

Cir.1989) ; Swenson v. Management Recruiters Interna-

tional, Inc., 858 F.2d 1304, 1307 (8th Cir.1988), reh’g

denied, 872 F.2d 264 (8th Cir.1989). No circuit court

has held otherwise.*

3 But see Roe v. Kidder Peabody & Co., Inc., No. 88 Civ. 8507,

slip op. 19909 WL52200 (S.D.N.Y. Apr. 18, 1990) (Title VII claim

may be arbitrated under FAA). Circuit and district courts have

divided over the arbitrability of employee claims under the Age

Discrimination in Employment Act, which is very similar to Title

VII. See Nicholson v. CPC Int'l, Inc., 877 F.2d 221 (3d Cir.1989)

Dean Witter nevertheless urges that Alexander does

not control this case for three reasons. First, Alexander

specifically held that an employee may pursue both ar-

bitration and Title VII remedies simultaneously, thus

implying that Alford may be required to arbitrate first

and sue later. Second, Alexander was premised upon the

nature of labor arbitration, which is distinguishable in

this context from arbitration under the FAA. Third,

the rationale of Alexander has been undercut by the Su-

preme Court decisions affirming the use of commercial

arbitration in statutorily-founded claims. None of these

arguments is convincing enough.

It is true that Alexander emphasized the availability

of two overlapping remedies for discrimination in that

case—the non-discrimination clause in the plaintiff’s

union contract and his Title VII claim. To conclude, as

the Court did, that the plaintiff could pursue each claim

in the appropriate forum does not equate to concluding

that a plaintiff must always “exhaust” contractual arbi-

tration remedies before filing a Title VII suit When

a plaintiff asserts only claims founded on employment

discrimination proscribed by Title VII, and she chal-

lenges no other feature of her employment relationship

except as it was affected by the alleged discrimination,

she well may find no reason to pursue arbitration. How-

ever, the contract does provide for arbitration of any

(contra arbitration) ; Cooper v. Asplundh Tree Expert Co., 836 F.2d

1544 (10th Cir.1988); Johnson v. Univ. of Wisconsin-Milwaukee,

783 F.2d 59, 62 (7th Cir.1989) ; Gilmer v. Interstate/Johnson Lane

Corp., 895 F.2d 195 (4th Cir.1990), reh’g en banc denied, (March

28, 1990) (pro arbitration); Pihl v. Thompson McKinnon Securi-

ties, Inc., 48 FEP cases 922, 924, 1988 WL54036 (E.D.Pa.1988)

(pro arbitration) ; Pierce v. Shearson Lehman Fiutton, Inc., No. 90-

C-0722, slip op., 1990 WL60751 (N.D.Ill. Apr. 25, 1990) (pro

arbitration).

4 Compare Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct.

614, 13 L.Ed.2d 580 (1965) (requiring exhaustion of collective

bargaining remedies by union employees).

controversy arising out of the employment relationship

and Alexander provides that if arbitration is pursued

any award may be introduced in the court action “and

accorded such weight as the court deems appropriate.”

Alexander, 415 U.S. 60, 94 S.Ct. at 1025.

Dean Witter’s second argument against the applicabil-

ity of Alexander is that it turned on the collective bar-

gaining context in which the plaintiff’s claim arose. The

Court denied that Alexander, by being a union member,

had waived his Title VII rights or was foreclosed by the

doctrine of election of remedies from pursuing his stat-

utory claim. 415 U.S. at 50-52, 94 S.Ct. at 1020-21. The

Court was concerned that a labor arbitrator, whose duty

is to enforce the parties’ contract rather than extrinsic

law, would be unsuited to apply Title VII principles. 415

U.S. at 54, 57-59, 94 S.Ct. at 1022, 1024-25. The Court

also commented that in pursuing an employee grievance,

a Union has to satisfy its institutional interest as well

as that of the employee. This relationship may deprive

the employee of full authority over the fate of his Title

VII claim, in derogation of his statutory right. 415 U.S.

at 59, n. 19, 94 S.Ct. at 1024, n. 19.

While these points are fairly made, they do not carry

the day, because they refer to case-specific considerations

that reinforced the Court’s ultimate conclusion “that the

federal policy favoring arbitration does not establish that

an arbitrator’s resolution of a contractual claim is dis-

positive of a statutory claim under Title VII.” 415 US.

at 47, n. 6, 94 S.Ct. at 1019, n. 6. The Court’s emphasis

on arbitration pursuant to collective bargaining agree-

ments may be seen as a response to the only kind of ar-

bitration then prevalent in employment relations. Alez-

ander predates the Court’s decisions giving full rein

to the FAA, and no FAA question is likely to have been

considered in Alexander. This does not mean, however,

that Alexander should not apply until the Court holds

otherwise. As we have already stated, Alexander ap-

pears to rest first on a construction of Title VII. Al-

though there are significant differences between labor

arbitration and commercial arbitration—relating to the

arbitrator’s competence in public law issues and the

autonomy with which an employee may pursue an arbi-

tration remedy—there is also a strong federal policy

favoring labor arbitration.’ The Court’s decision to sub-

ordinate that policy to Title VII gives us pause, to say

the least, before inferring that commercial arbitration

would not likewise be subordinated.

Dean Witter finally asserts that Alexander has been

overshadowed by the Court’s later decisions favoring

commercial arbitration. As the company recognizes, our

court was specifically reminded that we have no au-

thority to overrule an apparently controlling Supreme

Court decision because it “appears to rest on reasons re-

jected in some other line of decisions .. .” Rodriquez De

Quijas v. Shearson/American Express, Inc., —— US.

——, 109 S.Ct. at 1921. We are bound by the broad

wording of Alexander.

AFFIRMED.

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

U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelwork-

ers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80

S.Ct. 1847, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4

L.Ed.2d 1424 (1960).

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-88-2295

JOAN CHASON ALFORD,

Plaintiff,

Vv.

DEAN WITTER REYNOLDS, INC., and

DON L. HARRIS,

Defendants.

[Entered May 31, 1989]

ORDER DENYING DEFENDANTS’ MOTION

TO DISMISS AND COMPEL ARBITRATION

This is a sex discrimination suit filed by Plaintiff,

Joan C. Alford (Alford) pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17

(1982) (Title VJI) against Defendants Dean Witter

Reynolds, Inc., and Donald L. Harris. The Defendants

have moved this Court to dismiss with prejudice Plain-

tiff’s suit and to compel arbitration of Plaintiff’s claims.

For the reasons set forth below, the Court denies De-

fendants’ Motion to Dismiss and Compel Arbitration.

As a condition of her employment with Dean Witter,

Alford executed an application and agreement for regis-

tration with the New York Stock Exchange, Inc.

(NYSE), and the National Association of Security

Dealers, Inc., which contained a clause stating she agreed

to resolve by arbitration any controversy arising out of

her employment including her termination. Additionally,

Rule 347 of the NYSE also called for arbitration of

employment-related disputes upon demand by either

party. The Defendants seek to compel arbitration pur-

suant to the Federal Arbitration Act, 9 U.S.C. §§ 1-14

(1982), and assert that the United States Supreme —

Court’s opinions in Mitsubishi Motors Corp. v. Soler

Chrysler-Piymouth, Inc., 473 U.S. 614 (1986), and

Shearson/American Express, Inc. v. McMahon, 482 U.S.

——, 107 S. Ct. 2332 (1987), require Alford to submit

her federally protected rights to arbitration. The Court

finds that the Supreme Court’s decisions in Title VII

cases do not require Alford to arbitrate her Title VII

claims.

This case is controlled by the Supreme Court’s decision

in Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974). In Alexander, the court held that clearly “there

can be no prospective waiver of an employee’s rights un-

der Title VII.” Jd. at 51. The court found that Congress

intended the federal courts to exercise final responsibility

for the enforcement of Title VII and that deferral to

arbitration would be inconsistent with that goal. Jd. at

56. Neither Shearson nor Mitsubishi overrules Alex-

ander.

In Mitsubishi, the Supreme Court recognized that not

all controversies implicating statutory rights should be

submitted to arbitration. Mitsubishi, 473 U.S. at 627.

There are some statutory rights which Congress intended

to preclude a waiver of the right to resort to a judicial

forum for resolution of the statutory right at issue. See

id. at 627-28. Congress’s intention to prohibit such a

waiver would be deducible from the text or legislative

history of the statute, Mitsubishi, 473 U.S. at 628, or

10a

from the inherent conflict between arbitration and the

statute’s underlying purposes, Shearson, 482 U.S. at

——; 107 S. Ct. at 2337. The court in Alexander exam-

ined the intention of Congress in passing Title VII and

found not only that Congress intended the federal courts

to exercise final responsibility for the enforcement of

Title VII, Alexander, 415 U.S. at 56, but also that there

was inherent conflict between arbitration and the con-

gressional purpose of Title VII, id. at 56-59.

The Defendants argue that Alexander has been over-

ruled by implication by the Supreme Court’s later opin-

ions in Shearson and Mitsubishi... This issue was

squarely addressed by the Eighth Cirewit Court of Ap-

peals in Swenson v. Management Recruiters Int’l, Inc.,

858 F.2d 1304 (8th Cir. 1988). In Swenson, the plain-

tiff had signed an employment agreement which pro-

vided, in part, for the arbitration of any controversies

between her and her employer pursuant to the commer-

cial arbitration rules of American Arbitration Associa-

tion. The Eighth Circuit Court of Appeals noted that

the Supreme Court’s decision in Alexander did not turn

upon the issue of whether the agreement of arbitration

was pursuant to a collective bargaining agreement but

instead turned on “the unique nature of Title VII.”

Swenson, 858 F.2d at 1306. Relying upon the Supreme

Court’s opinion in Alexander, the court then held that a

commercial agreement to arbitrate under the Federal

Arbitration Act could not preempt the plaintiff’s right to

seek a judicial determination of her Title VII claims.

Swenson, 858 F.2d at 1307, 1309. Thus, the Court con-

cludes that Alford’s Title VII claims are not subject to

arbitration. Accordingly, the Court

1 The Defendants suggest that in light of these more recent opin-

ions, the Supreme Court would now overrule Alexander. The court’s

decision in Alexander, however, is binding upon this Court and the

district courts have no power to overrule it. Marcello v. Ahrens,

212 F.2d 830, 838-39 (5th Cir. 1954).

lla

ORDERS that all relief sought in Defendants’ Motion

to Dismiss and Compel Arbitration be, and is hereby,

DENIED.

SIGNED at Houston, Texas, on this 29th day of May,

1989.

/s/ David Hittner

DAVID HITTNER

United States District Judge

12a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2599

JOAN CHASON ALFORD,

Plaintiff-A ppellee,

versus

DEAN WITTER REYNOLDS, INC. and Don L. HARRIS,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(August 3, 1990)

Before CLARK, Chief Judge, THORNBERRY,

JONES, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ Edith H. Jones

United States Circuit Judge

8/3/90

and

13a

APPENDIX ‘D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-2599

D.C. Docket No. CA H 88 2295

JOAN'CHASON ALFORD,

Plaintiff-Appellee,

versus

DEAN WITTER REYNOLDS, INC., and DON L. HARRIS,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of Texas

[Filed July 11, 1990]

Before CLARK, Chief Judge, THORNBERRY and

JONES, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the District Court in this cause is affirmed.

IT IS FURTHER ORDERED that defendants-

appellants pay to plaintiff-appellee the costs on appeal to

be taxed by the Clerk of this Court.

Issued as Mandate: Aug. 13, 1990

July 11, 1990

l4a

APPENDIX E

FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1 et seq.

Section 2, 9 U.S.C. § 2:

Validity, irrevocability, and enforcement of agree-

ments to arbitrate

A written provision in any maritime transaction

or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or transac-

tion, or the refusal to perform the whole or any part

thereof, or an agreement in writing to submit to

arbitration an existing controversy arising out of

such a contract, transaction, or refusal, shall be

valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revoca-

tion of any contract.

(July 30, 1947, c. 392, 61 Stat. 670.)

Section 3, 9 U.S.C. § 3:

Stay of proceedings where issue therein referable

to arbitration

If any suit or proceeding be brought in any of the

courts of the United States upon any issue referable

to arbitration under an agreement in writing for

such arbitration, the court in which such suit is

pending, upon being satisfied that the issue involved

in such suit or proceeding is referable to arbitration

under such an agreement, shall on application of one

of the parties stay the trial of the action until such

arbitration has been had in accordance with the

terms of the agreement, providing the applicant for

the stay is not in default in proceeding with such

arbitration.

(July 30, 1947, c. 392, 61 Stat. 670.)

15a

Section 4, 9 U.S.C. § 4:

Failure to arbitrate under agreement; petition to

United States court having jurisdiction for order

to compel arbitration; notice and service thereof;

hearing and determination

A party aggrieved by the alleged failure, neglect,

or refusal of another to arbitrate under a written

agreement for arbitration may petition any United

States district court which, save for such agreement,

would have jurisdiction under Title 28, in a civil

action or in admiralty of the subject matter of a

suit arising out of the controversy between the par-

ties, for an order directing that such arbitration

proceed in the manner provided for in such agree-

ment. Five days’ notice in writing of such applica-

tion shall be served upon the party in default. Serv-

ice thereof shall be made in the manner provided by

the Federal Rules of Civil Procedure. The court

shall hear the parties, and upon being satisfied that

the making of the agreement for arbitration or the

failure to comply therewith is not in issue, the court

shall make an order directing the parties to proceed

to arbitration in accordance with the terms of the

agreement. The hearing and proceedings, under such

agreement, shall be within the district in which the

petition for an order directing such arbitration is

filed. If the making of the arbitration agreement or

the failure, neglect, or refusal to perform the same

be in issue, the court shall proceed summarily to the

trial thereof. If no jury trial be demanded by the

party alleged to be in default, or if the matter in

dispute is within admiralty jurisdiction, the court

shall hear and determine such issue. Where such an

issue is raised, the party alleged to be in default may,

except in cases of admiralty, on or before the return

day of the notice of application, demand a jury trial

of such issue, and upon such demand the court shall

16a

make an order referring the issue or issues to a jury

in the manner provided by the Federal Rules of Civil

Procedure, or may specially call a jury for that pur-

pose. If the jury find that no agreement in writing

for arbitration was made or that there is no default

in proceeding thereunder, the proceeding shall be dis-

missed. If the jury find that an agreement for arbi-

tration was made in writing and that there is a de-

fault in proceeding thereunder, the court shall make

an order summarily directing the parties to proceed

with the arbitration in accordance with the terms

thereof.

(July 30, 1947, c. 392, 61 Stat. 671; Sept. 3, 1954,

ce. 1263, § 19, 68 Stat. 1233.)

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,

AS AMENDED, 42 U.S.C. §§ 2000e et seq.

Section 706, 42 U.S.C. § 2000e-5:

Enforcement provisions

(a) Power of Commission to prevent unlawful em-

ployment practices

The Commission is empowered, as hereinafter pro-

vided, to prevent any person from engaging in any

unlawful employment ‘practice as set forth in section

2000e-2 or 2000e-3 of this title. ;

(b) Charges by persons aggrieved or member of

Commission of unlawful employment practices

by employers, etc.; filing; allegations; notice to

respondent; contents of notice; investigation by

Commission; contents of charges; prohibition on

disclosure of charges; determination of reason-

able cause; conference, conciliation, and per-

suasion for elimination of unlawful practices;

prohibition on disclosure of informal endeavors

to end uniawful practices; use of evidence in

subsequent proceedings; penalties for disclosure

17a

of information; time for determination of rea-

sonable cause

Whenever a charge is filed by or on behalf of

a person claiming to be aggrieved, or by a mem-

ber of the Commission, alleging that an employer,

employment agency, labor organization, or joint

labor-management committee controlling apprentice-

ship or other training or retraining, including on-

the-job training programs, has engaged in an unlaw-

ful employment practice, the Commission shall serve a

notice of the charge (including the date, place and

circumstances of the alleged unlawful employment

practice) on such employer, employment agency, la-

bor organization, or joint labor-management commit-

tee (hereinafter referred to as the “respondent’’)

within ten days, and shall make an investigation

thereof. Charges shall be in writing under oath or

affirmation and shall contain such information and

be in such form as the Commission requires. Charges

shall not be made public by the Commission. If the

Commission determines after such investigation that

there is not reasonable cause to believe that the

charge is true, it shall dismiss the charge and

promptly notify the person claiming to be aggrieved

and the respondent of its action. In determining

whether reasonable cause exists, the Commission shall

accord substantial weight to final findings and orders

made by State or local authorities in proceedings

commenced under State or local law pursuant to the

requirements of subsections (c) and (d) of this sec-

tion. If the Commission determines after such in-

vestigation that there is reasonable cause to believe

that the charge is true, the Commission shall en-

deavor to eliminate any such alleged unlawful em-

ployment practice by informal methods of confer-

ence, conciliation, and persuasion. Nothing said or

done during and as a part of such informal endeav-

18a

ors may be made public by the Commission, its of-

ficers or employees, or used as evidence in a subse-

quent proceeding without the written consent of the

persons concerned. Any person who makes public

information in violation of this subsection shall be

fined not more than $1,000 or imprisoned for not

more than one year, or both. The Commission shall

make its determination on reasonable cause as

promptly as possible and, so far as practicable, not

later than one hundred and twenty days from the

filing of the charge or, where applicable under sub-

section (c) or (d) of this section, from the date upon

which the Commission is authorized to take action

with respect to the charge.

fication of State or local authority; time for

filing charges with Commission; commencement

of proceedings

In the case of an alleged unlawful employment

practice occurring in a State, or political subdivision

of a State, which has a State or local law prohibiting

the unlawful employment practice alleged and estab-

lishing or authorizing a State or local authority to

grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon re-

ceiving notice thereof, no charge may be filed under

subsection (b) of this section by the person aggrieved

before the expiration of sixty days after proceedings

have been commenced under the State or local law,

unless such proceedings have been earlier terminated,

provided that such sixty-day period shall be extended

to one hundred and twenty days during the first year

after the effective date of such State or local law. If

any requirement for the commencement of such pro-

ceedings is imposed by a State or local authority

other than a requirement of the filing of a written

19a

and signed statement of the facts upon which the

proceeding is based, the proceeding shall be deemed

to have been commenced for the purposes of this sub-

section at the time such statement is sent by regis-

tered mail to the appropriate State or local author-

ity.

(d) State or local enforcement proceedings; noti-

fication of State or local authority; time for

action on charges by Commission

In the case of any charge filed by a member of the

Commission alleging an unlawful employment prac-

tice occurring in a State or political subdivision of a

State which has a State or local law prohibiting the

practice alleged and establishing or authorizing a

State or local authority to grant or seek relief from

such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof,

the Commission shall, before taking any action with

respect to such charge, notify the appropriate State

or local officials and, upon request, afford them a

reasonable time, but not less than sixty days (pro-

vided that such sixty-day period shall be extended to

one hundred and twenty days during the first year

after the effective day of such State or local law),

unless a shorter period is requested, to act under

such State or local law to remedy the practice al-

leged.

(e) Time for filing charges; time for service of

notice of charge on respondent; filing of charge

by Commission with State or local agency

A charge under this section shall be filed within

one hundred and eighty days after the alleged un-

lawful employment practice occurred and notice of

the charge (including the date, place and circum-

stances of the alleged unlawful employment prac-

20a

tice) shall be served upon the person against whom

such charge is made within ten days thereafter, ex-

cept that in a case of an unlawful employment prac-

tice with respect to which the person aggrieved has

initially instituted proceedings with a State or local

agency with authority to grant or seek relief from

such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof,

such charge shall be filed by or on behalf of the per-

son aggrieved within three hundred days after the

alleged unlawful employment practice occurred, or

within thirty days after receiving notice that the

State or local agency has terminated the proceedings

under the State or local law, whichever is earlier,

and a copy of such charge shall be filed by the Com-

mission with the State or local agency.

(f) Civil action by Commission, Attorney General,

or person aggrieved; preconditions; procedure;

appointment of attorney; payment of fees, costs,

or security; intervention; stay of Federal pro-

ceedings; action for appropriate temporary or

preliminary relief pending final disposition of

charge; jurisdiction and venue of United States

courts; designation of judge to hear and deter-

mine case; assignment of case for hearing; ex-

pedition of case; appointment of master

(1) If within thirty days after a charge is filed

with the Commission or within thirty days after ex-

piration of any period of reference under subsection

unable to secure from the respondent a conciliation

agreement acceptable to the Commission, the Com-

mission may bring a civil action against any re-

spondent not a government, governmental agency, or

political subdivision named in the charge. In the

case of a respondent which is a government, govern-

mental agency, or political subdivision, if the Com-

21a

mission has been unable to secure from the respond-

ent a conciliation agreement acceptable to the Com-

mission, the Commission shall take no further action

and shall refer the case to the Attorney General who

may bring a civil action against such respondent in

the appropriate United States district court. The

person or persons aggrieved shall have the right to

intervene in a civil action brought by the Commis-

sion or the Attorney General in a case involving a

government, governmental agency, or political sub-

division. If a charge filed with the Commission pur-

suant to subsection (b) of this section is dismissed

by the Commission, or if within one hundred and

eighty days from the filing of such charge or the

expiration of any period of reference under subsec-

tion (c) or (d) of this section, whichever is later,

the Commission has not filed a civil action under this

section or the Attorney General has not filed a civil

action in a case involving a government, governmen-

tal agency, or political subdivision, or the Commis-

sion has not entered into a conciliation agreement to

which the person aggrieved is a party, the Commis-

sion, or the Attorney General in a case involving a

government, governmental agency, or political sub-

division, shall so notify the person aggrieved and

within ninety days after the giving of such notice a

civil action may be brought against the respondent

named in the charge (A) by the person claiming to

be aggrieved or (B) if such charge was filed by a

member of the Commission, by any person whom the

charge alleges was aggrieved by the alleged unlawful

employment practice. Upon application by the com-

plainant and in such circumstances as the court may

deem just, the court may appoint an attorney for

such complainant and may authorize the commence-

ment of the action without the payment of fees, costs,

or security. Upon timely application, the court may,

in its discretion, permit the Commission, or the At-

22a

torney General in a case involving a government,

governmental agency, or political subdivision, to in-

tervene in such civil action upon certification that the

case is of general public importance. Upon request,

the court may, in its discretion, stay further proceed-

ings for not more than sixty days pending the termi-

nation of State or local proceedings described in sub-

section (c) or (d) of this section or further efforts

of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commis-

sion and the Commission concludes on the basis of

a preliminary investigation that prompt judicial ac-

tion is necessary to carry.out the purposes of this

Act, the Commission, or the Attorney General in a

case involving a government, governmental agency,

or political subdivision, may bring an action for ap-

propriate temporary or preliminary relief pending

final disposition of such charge. Any temporary re-

straining order or other order granting preliminary

or temporary relief shall be issued in accordance

with rule 65 of the Federal Rules of Civil Procedure.

It shall be the duty of a court having jurisdiction

over proceedings under this section to assign cases

for hearing at the earliest practicable date and to

cause such cases to be in every way expedited.

(3) Each United States district court and each

United States court of a place subject to the jurisdic-

tion of the United States shall have jurisdiction of

actions brought under this subchapter. Such an ac-

tion may be brought in any judicial district in the

State in which the unlawful employment practice is

alleged to have been committed, in the judicial dis-

trict in which the employment records relevant to

; such practice are maintained and administered, or

i} in the judicial district in which the aggrieved person

ij ~ would have worked but for the alleged unlawful

i} employment practice, but if the respondent is not

28a

found within any such district, such an action may

be brought within the judicial district in which the

respondent has his principal office. For purposes of

sections 1404 and 1406 of Title 28, the judicial dis-

trict in which the respondent has his principal office

shall in all cases be considered a district in which

the action might have been brought.

(4) It shall be the duty of the chief judge of the

district (or in his absence, the acting chief judge)

in which the case is pending immediately to desig-

nate a judge in such district to hear and determine

the case. In the event that no judge in the district

is available to hear and determine the case, the chief

judge of the district, or the acting chief judge, as

the case may be, shall certify this fact to the chief

judge of the circuit (or in his absence, the acting

chief judge) who shall then designate a district or

circuit judge of the circuit to hear and determine

the case.

(5) It shall be the duty of the judge designated

pursuant to this subsection to assign the case for

hearing at the earliest practicable date and to cause

the case to be in every way expedited. If such judge

has not scheduled the case for trial within one hun-

dred and twenty days after issue has been joined,

that judge may appoint a master pursuant to rule

53 of the Federal Rules of Civil Procedure.

(g) Injunctions; appropriate affirmative action; equi-

table relief; accrual of back pay; reduction of

back pay; limitations on judicial orders

If the court’ finds that the respondent has inten-

tionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

24a

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or labor organization, as the case may be, responsi-

ble for the unlawful employment practice), or any

other equitable relief as the court deems appropri-

ate. Biz2k pay liability shall not accrue from a date

more than two years prior to the filing of a charge

with the Commission. Interim earnings or amounts

earnable with reasonable diligence by the person or

persons discriminated against shall operate to reduce

the back pay otherwise allowable. No order of the

court shall require the admission or reinstatement

of an individual as a member of a union, or the hir-

ing, reinstatement, or promotion of an individual as

an employee, or the payment to him of any back

pay, if such individual was refused admission, sus-

pended, or expelled, or was refused employment or

advancement or was suspended or discharged for

any reason other than discrimination on account of

race, color, religion, sex, or national origin or in vio-

lation of section 2000e-3(a) of this title.

(h) Provisions of sections 101 to 115 of Title 29

not applicable to civil actions for prevention of

unlawful practices

The provisions of sections 101 to 115 of Title 29

shall not apply with respect to civil actions brought

under this section.

(i) Proceedings by Commission to compel compli-

ance with judicial orders

In any case in which an employer, employment

agency, or labor organization fails to comply with

an order of a court issued in a civil action brought

under this section, the Commission may commence

proceedings to compel compliance with such order.

25a

(j) Appeals

Any civil action brought under this section and any

proceedings brought under subsection (i) of this

section shall be subject to appeal as provided in

sections 1291 and 1292, Title 28.

(k) Attorney’s fee; liability of Commission and

United States for costs

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party, other than the Commission or the United

States, a reasonable attorney’s fee as part of the

costs, and the Commission and the United States

shall be liable for costs the same as a private person.

(Pub. L. 88-352, title VII, § 706, July 2, 1964, 78 Stat.

259; Pub. L. 92-261, § 4, Mar. 24, 1972, 86 Stat. 104.)

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.