Selected U.S. Court of Appeals Decisions Dealing With Arbitration of Statutory Employment Claims

DC Circuit

Cole v. Burns International Security Services105 F3d 1465 (2/11/97) Title VII Enforced mandatory pre-dispute agreement to arbitrate, finding the procedure adequate and interpreting agreement as requiring employer to pay all arbitrator''s fees.

1st Circuit

Rosenberg v. Merrill Lynch Pierce Fenner & Smith, 170 F3d 1 (2/24/99) (vacating and replacing opinion issued in 12/98) ADEA & Title VII Found mandatory pre-dispute U-4 agreements generally enforceable but, on the facts of this case, denied motion to compel arbitration because of procedural inadequacies in informing the employee of the arbitral plan.

2nd Circuit

Desiderio v NASD, 191 F3d 198 (9/22/99) Title VII and US Constitution Expressly rejecting Duffield, found no evidence that Congress in Title VII intended to preclude waiver of judicial forum. U-4 found not to be unconscionable. Constitutional claims rejected for lack of state action.

Halligan v. Piper Jaffray, Inc.148 F3d 197 (7/9/98), cert. denied 143 L. Ed. 2d 378, 119 S. Ct. 1286 (U.S. 1999) ADEA Vacated award, finding manifest disregard of law (and evidence).

DiRussa v Dean Witter Reynolds, Inc. 121 F3d 818 (8/5/98), cert denied, 118 S.Ct 695 (1998), rehearing denied, 118 S.Ct 1180 (1998) ADEA Denied vacatur/modification even though arbitrators did not award attorney fees as required by statute. Manifest disregard of the law not shown.

EEOC v Kidder, Peabody & Co., 156 F3d 298 (8/28/98) ADEA Held that arbitration agreement between employer and employee precluded EEOC from seeking purely monetary relief under the ADEA in federal court

3rd Circuit

US v John Nuveen & Co., 146 F3d 175 (6/8/98), cert denied, 2/22/99 Title VII and ADEA Enforced a U-4 arbitration agreement, rejecting arguments alleging unconscionable adhesion or yellow dog contract.

4th Circuit

Hooters of America Inc. v Phillips, Case 173 F3d 933 (4/8/99) Title VII Found mandatory pre-dispute agreements generally enforceable, expressly rejecting Ninth Circuit''s Duffield analysis, but found that no binding agreement existed in this case because one-sidedness of employer''s system breached contract to arbitrate.

EEOC v. Waffle House, Inc., 193 F3d 805 (10/6/99) ADA Held that the EEOC cannot be compelled to arbitrate, by reason of an arbitration agreement between employer and charging party, but the EEOC is precluded from judicial action seeking make-whole relief on behalf of charging party.

Johnson v Circuit City Stores, 148 F3d 373 (7/1/98) Title VIISection 1981 Enforced pre-employment arbitration agreement set forth in application; action brought by applicant for employment.

O''Neil v Hilton Head Hospital, 115 F3d 272 (6/13/97) FMLA Enforced pre-dispute mandatory agreement that was adopted as a condition of continued employment.

Carson v. Giant Foods, Inc., 175 F.3d 325 (4/29/99), and Brown v. ABF Freight Systems, Inc, 183 F.3d 319 (7/13/99) Title VII, ADEA, ADA, Section 1981 Found that CBA language did not present clear and unmistakable waiver of employee''s right to a judicial forum as required by Wright. Therefore, arbitration of statutory claim was not required. Court outlined ways in which Wright standard for effective waiver could be met.

Austin v Owens-Brockway Glass Container, Inc., 78 F3d 875, (3/12/96), cert denied, 519 US 980 (11/12/96) Title VII and ADA Required arbitration under CBA containing provision for grieving statutory claims.

5th Circuit

Williams v Cigna Financial Advisors, Inc., 56 F3d 656 (6/19/95), appeal after remand, 1999 US App LEXIS 31992 (12/6/99) ADEA Enforced securities industry pre-dispute agreement. Rejected OWBPA argument regarding waiver. On appeal after remand, the court applied (and defined) the standard of manifest disregard of the law and declined to adopt a deferral concept in affirming the district court''s decision upholding the arbitration award which rejected the employee''s discrimination and retaliation claims.

6th Circuit

EEOC v Frank''s Nursery & Crafts, 177 F3d 448 (4/23/99), amended (6/18/99) Title VII Found that while employee may waive right to sue by agreeing to arbitration, that action cannot preclude the EEOC from pursuing both monetary and injunctive relief on employee''s behalf.

Asplundh Tree Expert Co. v Bates, 71 F3d 592 (12/14/95) Employment contract Held that FAA exclusionary provision is limited to employees engaged in the movement of interstate commerce.

Willis v Dean Witter Reynolds, Inc., 948 F2d 305 (11/7/91) Title VII Enforced securities industry''s U-4 arbitration agreement

7th Circuit

Koveleski v SBC Capital Markets, 167 F3d 361 (2/4/99), cert. denied, 1999 US 4839, 68 USLW 3222 (10/4/99) Title VII, EPA, NY state claim Enforced pre-dispute agreement, relying heavily on Seus and Rosenberg, rejecting Duffield.

Michalski v Circuit City Stores, 177 F.3d 634 (5/7/99), re''hrg denied (6/4/99) Title VII Building on Koveleski, enforced pre-dispute agreement imposed after employment. Adequate consideration found in employer''s commitment to be bound by arbitration award. Gibson (below) distinguished.

Gibson v Neighborhood Health Clinics, Inc., 121 F3d 1126 (8/21/97) ADA Found arbitration provision unenforceable for lack of consideration where employee signed contract referring to arbitration agreement in manual, but manual was not given to her at time of signing; manual specifically stated that it created no contractual obligation on the part of the employer.

Matthews v Rollins Hudig Hall Co., 72 F3d 50 (12/6/95) ADEA Enforced pre-dispute agreement to arbitrate.

Pryner v Tractor Supply Co., 109 F3d 354 (3/20/97), cert denied, 118 SCt 295 (1997) ADEA, ADA, Title VII, Sec. 1981 Held that CBA arbitration provision did not bar employees'' access to federal court on statutory discrimination claims.

8th Circuit

Keymer v Mgmt Recruiters Internat''l, Inc. 169 F3d 501 (2/5/99) vacating and substituting for decision at 161 F3d 1154 (12/4/98) ADA Pre-dispute agreement not enforced because language excluded termination of employment from coverage.

Patterson v Tenet Healthcare, Inc., 113 F3d 832 (5/12/97) Title VII and Missouri Law Held that separate handbook provision established binding agreement to arbitrate.

9th Circuit

Duffield v Robertson Stephens & Co., 144 F3d 1182 (5/8/98), cert denied, 67 USLW 3113 (11/9/98) Title VII and state claims Found pre-dispute securities agreement to arbitrate not enforceable as to Title VII. Held that Congress, through CRA of 1991, intended to preclude compulsory arbitration of Title VII disputes.

Craft v. Campbell Soup Co., 161 F3d 1199 (12/2/98), amended, reh''g, en banc, denied, 177 F3d 1083 (5/27/99) Title VII and state claims Held that FAA does not apply to employment contracts.

10th Circuit

Shankle v B-G Maintenance Management of Colorado, 163 F.3d 1230; 78 FEP1057 (1/5/99) Title VII, ADEA, ADA Pre-dispute arbitration agreement not enforced because agreement required claimant to pay half cost, which made forum for resolution of rights inaccessible, even though agreement provides for an advance to cover fees and arbitrator could award costs. FAA exclusion limited to those directly engaged in channels of interstate commerce.

McWilliams v Logicon, Inc., 143 F3d 573 (5/1/98) ADA Enforced pre-dispute arbitration agreement. FAA exception found to apply only to employees actually engaged in the channels of interstate commerce.

Metz v Merrill Lynch Pierce Fenner & Smith, 39 F3d 1482 (11/8/94) Title VII Held that employer had waived right to compel arbitration in this case. Recognized general validity of pre-dispute agreements to arbitrate statutory claims.

11th Circuit

Paladino v Avnet Computer Technologies, Inc., 134 F3d 1054 (2/4/98) Title VII Held that pre-dispute arbitration agreement set forth in handbook not enforceable because of restrictions on remedies. Concurring opinion makes reference to the problems posed by the employee''s responsibility for half of the "hefty cost" of arbitration under commercial rules.

Brisentine v Stone & Webster Engineering Corp., 117 F3d 519 (1997) Title VII Held that arbitration not required for statutory discrimination claim under terms of this CBA. Court set forth three factors that must be met for enforceable approach.
11th Montes v Shearson Lehman Brothers, 128 F3d 1456 (11/24/97) FLSA Vacated award on grounds of manifest disregard of the law.