Arbitration of Statutory Employment Discrimination Claims: What Hath Gilmer Wrought?

Joan Parker

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DOI: 10.2190/B5E9-18RQ-EGQ8-CP2K

Abstract

The United States Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., enforcing mandatory arbitration of statutory employment discrimination claims, is the subject of intense debate in the employment community. Some employers have embraced mandatory arbitration agreements, even requiring assent to one as a term and condition of employment, while others decry these pre-dispute arbitration agreements as an indefensible denial of statutory rights. This article provides a comprehensive review of the judicial decisions interpreting and applying Gilmer in both the non-union and unionized sectors. It also discusses the necessary elements of a fair arbitration system. The author concludes that arbitration agreements that incorporate substantive and procedural fairness can be a meaningful and valuable alternative to litigating statutory employment issues.

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