For those who want to get a quick overview of what the topic of compulsory arbitration is all about, I have listed below the cites for the best six articles I found.  These articles can easily be found through a Westlaw or Lexis search, as well as on Legal Trac.  The best search term is "compulsory arbitration agreements and statutory rights" and I have included more information on such searches under Legal Research Tools.  For those who wish a more in depth study, I have included a list of articles and books under Secondary Sources.

    I have also included here the three main Supreme Court cases dealing with arbitration.  Gardner-Denver and Wright deal with the collective bargaining context, and Gilmer deals with the securities industry.  However, as there are no Supreme Court cases dealing with compulsory arbitration agreements between individual employees and their employers outside of the collective bargaining or securities industry context, these cases are what the lower courts are relying on and extrapolating from.  Following the three Supreme Court cases, I have listed three of what I found to be the most representative and helpful federal circuit court decisions.  For those who would like a more detailed look at what each circuit is doing as to compulsory arbitration agreements, see the Cases by Circuit page.  For information on how to search for cases, see the Legal Research Tools page and the Websites page also.

           A.    Articles

    Law review/journal articles are a very efficient way to start a research project, because the writer of the article has already done a considerable amount of research on the topic.  In one article, you can generally find hundreds of footnotes that can lead you to useful information.  For this particular topic, there are many articles available (see Secondary Sources, for representative lists).  Because there are so many articles, and because the topic is very current and changing with caselaw all the time, it is important to use the most current sources (see Legal Research Tools, for how to search by date).

    It is also important to pay attention to who the author of the article is.  While the article will of course be useful for its sources and the information contained in it, it may be somewhat slanted by the perspective of the person who wrote it.  For this topic, I recommend reading a well rounded selection of authors-- professors, plaintiffs’ attorneys, employers’ attorneys, and student
authors, for example.  I have tried to include below a helpful example from each category, although each article is included for its usefulness beyond simply for its perspective.
 

Michael Delikat & Rene Kathawala, “Arbitration of Employment Discrimination Claims Under Pre-Dispute Agreements: Will Gilmer Survive?” Hofstra Labor and Employment Law Journal, Fall, 1998.  (Cite as 16 Hofstra Lab. & Employment L.J. 83.)

    At publication, Delikat was co-chair of the Employment Law Dept. at Orrick, Herrington & Sutcliffe LLP and Kathawala was an associate there.  Orrick represents many major employers in connection with their alternative dispute resolution programs.

    The authors recognize that Gilmer arguably left open the question of whether arbitration clauses in employment contracts, as opposed to arbitration clauses in the Form U-4 (securities industry), can be used to compel arbitration of employment discrimination claims.  The authors note that nonetheless, many federal courts have relied upon Gilmer to enforce employment-related arbitration agreements with respect to a broad range of statutory employment claims.  Yet the
Ninth Circuit recently held in Duffield that the 1991 amendments to the Civil Rights Act of 1964 preclude the compulsory arbitration of Title VII disputes.  However, other courts continue to find that pre-dispute arbitration agreements are enforceable and consistent with the strong federal policy favoring arbitration, making this issue now ripe for Supreme Court review, despite the Court’s decision to deny certiorari in Duffield.

    The article notes that the enforceability of pre-dispute arbitration agreements when dealing with statutory discrimination claims is under siege in the courts, administrative agencies and even in the legislatures, and examines the arguments underlying the latest challenges to pre-dispute arbitration agreements.
 

Mark L. Adams, “Compulsory Arbitration of Discrimination Claims and the Civil Rights Act of 1991: Encouraged or Proscribed?” Wayne Law Review, Winter, 1999.  (Cite as 44 Wayne L. Rev. 1619.)

    At publication, the author was an Associate Professor at Valparaiso University School of Law.  He states that numerous commentators have addressed the general issue of compulsory arbitration (and he lists several in a useful footnote-- coincidentally two of the same I listed here), so that he will focus instead on a detailed examination of the impact of the Civil Rights Act of 1991 and whether it precludes the compulsory arbitration of Title VII claims, a “hot” topic following the Ninth Circuit Duffield case (see cases below, and it is mentioned also in the Delikat & Kathawala article).

    The author argues that the language of the Civil Rights Act of 1991 and its legislative history provide evidence of Congress’ intent to preclude compulsory arbitration of Title VII claims and also indicates that employers may not require employees, as a condition of employment, to waive their right to bring future Title VII claims in court.  He briefly discusses the Supreme Court holdings in Gardner-Denver and Gilmer, the Federal Arbitration Act, and of course, the Civil Rights Act of 1991 and Title VII.
 

Richard A. Bales, “Creating and Challenging Compulsory Arbitration Agreements,” Labor Lawyer, Winter/Spring 1998.  (Cite as 13 Lab. Law. 511)

    At the time of publication of his article, Bales was a Professor at Southern Methodist University College of Law and was a Visiting Associate at the University of Montana School of Law.  This article was adapted from a chapter in his book, listed below.  For a brief look, use the article-- for a deeper look use the book, keeping in mind that this is a very current topic so that some of the information may need updating.

    The article sets aside the theoretical disagreement over whether compulsory arbitration is an appropriate way to resolve employment disputes, and instead takes a practical look at what exactly it is that courts require of compulsory arbitration agreements as a prerequisite to judicial enforcement.  The article discusses several different ways in which such agreements have been challenged and examines existing (at the time) caselaw.  The article then provides recommendations, both to courts regarding what the minimum standards should be, and to employers regarding how their agreement should be drafted.  Following the footnotes, the author provides a sample arbitration agreement which may be modified according to the applicable
situation, i.e. new hires, current employees, or “professional” employees only.

    This article, or the chapter it is from in the book below, is very useful to a researcher to determine what may be seen as a fair and enforceable arbitration agreement.
 

Richard A. Bales, “Compulsory Arbitration: The Grand Experiment in Employment,” Ithaca, N.Y.: Cornell University Press, 1997.

(Also listed under Secondary Sources as a representative Sabio cite, library call numbers included there.)

    The book provides a more in-depth treatment of the subject than the article-- going more into background about the Civil Rights Act and the Gilmer case.  Of course it also includes the chapter represented by the article above.  The book also presents the pros and cons of compulsory arbitration, and explores and analyzes related issues.
 

Amy L. Ray, Comment: "When Employers Litigate to Arbitrate: New Standards of Enforcement For Employer Mandated Arbitration Agreements," Southern Methodist University Law Review,  January / February, 1998.  (Cite as 51 SMU L. Rev. 441.)

    Bluebook Rule 16.5.1 describes how to cite student-written Law Review materials.  The title of this article is preceded by “Comment” so this is apparently a student-written comment.  Also, Ray has no biographical information in her first footnote as authors other than students do.  Ray does thank “visiting Professor Richard A. Bales for his ideas and assistance with this
Comment” however.  (See Bales’ article and book above.)

    I included this student note because it was actually one of the more helpful articles I read.  Its tone is neutral and its purpose seems to be more about providing information than about advocating a position.  It gives brief information about several important areas within the compulsory arbitration topic: history of arbitration and the Federal Arbitration Act (FAA);
various methods of implementing arbitration agreements and examples of caselaw which has examined the methods and either determined to compel the arbitration or refused to; government reaction including the EEOC, NLRB, and proposed legislative reform; policy section where both pro and con arguments are provided.  This note does not include information about Duffield
however, which was decided May 8, 1998.
 

Miriam A. Cherry, “Note: Not-So-Arbitrary Arbitration: Using Title VII Disparate Impact Analysis to Invalidate Employment Contracts That Discriminate,” Harvard Women’s Law Journal, Spring 1998.  (Cite as 21 Harv. Women’s L.J. 267)

    This is also a student note.  However, it contains biographical material about Cherry:  “J.D. Candidate, Harvard Law School, Class of 1999[....] This Note stems from an amicus brief I drafted last summer on behalf of the Lawyers’ Committee for Civil Rights Under the Law of the Boston Bar Association in the case of ...”[Rosenberg, see below, but the brief she refers to here was to the District Court, as the case hadn’t yet gone to the Circuit Court at the time of this article].

    I included this article as an important one because it represents a very recent argument from a plaintiffs attorney perspective.  Ms. Cherry argues that mandatory arbitration clauses embody an attempt by employers to reduce their liability for gender and race discrimination without correspondingly reducing the amount of discrimination in their workplaces.  She asserts that women and people of color are then barred from bringing sexual or racial harassment and discrimination claims to juries of their peers and instead face a lack of procedural protections and an arbitrator pool that is demographically unrepresentative.

    Her note advocates the use of a Title VII disparate impact claim against employers with a history of discriminatory workplace practices who choose to institute pre-dispute mandatory arbitration policies.  The note is also useful for its examination of the background of mandatory arbitration, the impact of the Civil Rights Act of 1991, Title VII, and the possibilities of political mobilization.
 

Jennifer N. Manuszak, Article: "Pre-Dispute Civil Rights Arbitration in the Nonunion Sector: The Need for a Tandem Reform Effort at the Contracting, Procedural and Judicial Review Stages: An Overview of Employment Community Reactions to Gilmer and Suggested Reforms," 1997 Ohio State Journal on Dispute Resolution.  (Cite as 12 Ohio St. J. on Disp. Resol. 387)

    Jennifer N. Manuszak is a graduate of Harvard Law School and an attorney at the law firm of Ropes & Gray in Boston, Massachusetts.

    This article is a bit older than the above-mentioned, and is pre-Duffield.  This is a good illustration of the currency of this topic-- an article only two years old is already somewhat outdated.  However, I included this article because it gives an excellent overview of the caselaw concerning compulsory arbitration pre-Duffield.  It discusses quite a few cases from different
circuits and several different contexts of challenges to mandatory arbitration (ADA, ADEA, Older Workers’ Benefits Protection Act (OWBPA), Employee Retirement and Investment Security Act (ERISA), Employee Polygraph Protection Act, and others.)  The paper also focuses on the responses of the national legislature, the EEOC, private providers of ADR and certain policy groups, to the increasing use of mandatory arbitration.
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           B.    Cases

    Cases are usually not the most efficient way to start a research project, because generally you don’t know all the case names to be able to find them.  This is why law review and journal articles are usually a better way to start, because there you can find articles related by topic, and those articles will give you many case names.  This is the way I have done the research for this
project.  However, if you began your research with one or more case names, you could look at those first and move further by Shepardizing or Keyciting those cases.

    The cases included here I found on Westlaw.  It would be a similar search on Lexis.  However, if the researcher does not have access to Westlaw or Lexis, cases can obviously be found the “old fashioned way,” that is, in the books in the law library.  Shepardizing can also be accomplished through the books, as discussed in the Currency section.  Ways to find cases are discussed further Cases by Circuit section, and in the Website section for Internet searches.  I have also listed more cases in the Cases by Circuit section.  For the topic of compulsory arbitration, it is very important to know the caselaw.
 

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

    A unanimous Supreme Court held that a plaintiff suing under Title VII for race discrimination retained an independent right to be heard in federal court, despite his or her participation in an arbitration scheme established under a collective bargaining agreement (CBA).  The court stated:

    Title VII’s purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a CBA.  In submitting a grievance to arbitration, an employee seeks to vindicate his contractual rights under a CBA.  By contrast, in filing a lawsuit under Title VII, an
employee asserts independent statutory rights accorded by Congress.  No inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.  If the relief obtained by the employee at arbitration were fully equivalent to the relief obtainable under Title VII, there would be no further relief for the court to grant and hence no need for the employee to institute suit.

    The court said that it is clear that there can be no prospective waiver of an employee’s rights under Title VII. [The union may not waive the employee’s rights for him prospectively.]  Presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement, but in determining the effectiveness of any such waiver, a court would have to determine at the outset that the employee’s consent to the settlement was voluntary and knowing.

    Finally, the court said that arbitration, while well suited to the resolution of contractual disputes, is a comparatively inappropriate forum for the final resolution of Title VII rights.  The purpose and procedures of Title VII indicate that Congress intended federal courts to exercise final responsibility for enforcement of Title VII.
 

Gilmer v. Interstate/Johnson, 500 U.S. 20 (1991).

    The Supreme Court held that an age discrimination claim under the ADEA could be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application.  The court said that because the Federal Arbitration Act (FAA) manifests a liberal federal policy favoring arbitration, and since neither the text nor the legislative history of the ADEA explicitly precludes arbitration, Gilmer is bound by his agreement to arbitrate unless he can show an inherent conflict between arbitration and the ADEA’s underlying purposes.  Further, the unequal bargaining power between employers and employees is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.

    The court did not overrule Gardner-Denver but distinguished it by stressing that it involved a collective bargaining agreement, the operative distinction being that the union had traded away the individual’s Title VII rights.  In Gilmer there was no union involved, just a contract with an individual.  Section 1 of the FAA contains an exception for certain employment contracts, and prior to Gilmer there was a longstanding debate as to which ones were covered.  But the court declined to interpret that provision since the plaintiff did not raise it below and because the arbitration clause at issue in the case was with a securities exchange, not an employer.
 

Wright v. Universal Maritime Service, 119 S.Ct. 391 (1998).

    A unanimous Supreme Court held that a CBA’s general arbitration clause did not require a longshoreman to use an arbitration procedure for an alleged violation of the ADA.

    The court noted the tension between the two lines of cases: whereas Gardner-Denver stated that an employee’s rights under Title VII are not susceptible of prospective waiver, Gilmer held that the right to a federal judicial forum for an ADEA claim could be waived.  However, the court stated that it was unnecessary to resolve the question of the validity of a union-negotiated waiver of employees’ statutory rights to a federal forum, since it was apparent on the facts and arguments presented in this case that no such waiver had occurred.

    The court stated that whether or not Gardner-Denver’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA.  The court said it would not infer from a general contractual provision that the parties intended to waive a statutorily protected right-- the standard for such a waiver is that it must be clear and unmistakable.  The waiver in this case did not meet that standard, and the court specifically declined to reach the question of whether a clear and unmistakable waiver would be enforceable.
 

Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997).

Decided Feb. 11, 1997.

    Discharged employee brought employment discrimination action against his former employer.  The United States District Court for the District of Columbia, Paul L. Friedman, J., granted former employer's motion to compel arbitration and dismissed complaint.  Employee appealed.  The Court of Appeals, Harry T. Edwards, Chief Judge, held that: (1) Federal
Arbitration Act's (FAA) exclusionary clause did not apply to all contracts of employment that affected commerce; (2) parties' arbitration agreement was valid; (3) former employer could not require employee to pay all or part of arbitrator's fees; and (4) arbitrator's rulings on employee's statutory claims would be subject to meaningful judicial review.  (The court notes that the nearly unlimited deference paid to arbitration awards in the context of collective bargaining was not
required in the context of employee's statutory claims.)  Affirmed.

    ***Note that this case addresses the issue of what types of employment contracts are covered by section 1 of the FAA.  The case is useful because it provides a list of what other federal courts have held regarding this issue.  Note that the Supreme Court has not resolved this issue, as noted above under Gilmer.
 

Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), cert. denied, 119 S.Ct. 445 (1998).

Decided May 8, 1998.

    Securities broker-dealer sued employer, alleging breach of contract and tort claims and sexual discrimination and sexual harassment under Title VII and California's Fair Employment and Housing Act (FEHA), and seeking declaration that securities industry employees could not be compelled to arbitrate employment disputes.  The U.S. District Court denied declaratory
relief, and granted employer's motion to compel arbitration.  Broker appealed.  The Court of Appeals, Reinhardt, Circuit Judge, held that: (1) Civil Rights Act of 1991 precludes compulsory arbitration of civil rights claims; (2) securities exchange registration, or form U-4, was unenforceable to extent it required arbitration of broker's Title VII and FEHA claims as a
condition of employment in the securities industry; but (3) no state action was involved in broker's mandatory waiver of judicial forum, and, thus, there was no constitutional bar to enforcing Form U-4 with respect to her state tort and contract claims.  Affirmed in part, reversed in part, and remanded.

    ***Note that looking at the list of who who was amicus curiae for the defendant and plaintiff is very informative, so I have included it here.  This list illustrates the controversial nature of this topic:

C. Gregory Stewart, J. Ray Terry, Jr., Gwendolyn Young Reams, Vincent J. Blackwood, Robert
J. Gregory (argued and on the brief), for amicus curiae Equal Employment Opportunity
Commission, Washington, DC, in support of plaintiff- appellant.
David E. Feller, Berkeley, California, David T. Weckstein, San Diego, California, for amicus
curiae The National Academy of Arbitrators, in support of plaintiff-appellant.
John M. True, III, Rudy, Exelrod, Zeiff & True, San Francisco, California, for amicus curiae
National Employment Lawyers Association, in support of plaintiff- appellant.
 Elaine R. Jones, NAACP Legal and Educational defense Fund, New York City;  Judith L.
Lichtman, Women's Legal Defense *1185 Fund, Washington, DC; Thomas J. Henderson,
Lawyers' Committee for Civil Rights Under the Law, Washington, DC;  Eva Jefferson Paterson,
Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California,
for amicus curiae in support of plaintiff-appellant.
Paul D. Carrington, Duke University School of Law, Jean R. Sternlight, Florida State University
College of Law, Richard C. Reuben, Stanford Center on Conflict and Negotiation, Katherine Van
Wezel Stone, Cornell Law School, for amicus curiae Concerned Legal Scholars, in support of
plaintiff-appellant.

William J. Emanuel, Michael L. Wolfram, John S. Battenfeld, Morgan, Lewis & Brockius, Los
Angeles, CA, for amicus curiae The Employers Group, in support of defendants-appellees.
Samuel Estreicher, New York University School of Law, for amicus curiae California
Employment Law Council, in support of defendants-appellees.
Robert E. Williams, Ann Elizabeth Reesman, Erin Quinn Gery, McGuiness & Williams,
Washington, DC, for amicus curiae Equal Employment Advisory Counsel, in support of
defendants-appellees.
Gary R. Siniscalco, Lisa K. McClelland, Orrick, Herrington & Sutcliffe, San Francisco,
California, for amicus curiae Securities Industry Association, in support of defendants-appellees.
 

Rosenberg v. Merrill Lynch, et al., 170 F.3d 1 (1rst Cir. 1999).

Decided Feb. 24, 1999.

    Following her discharge by brokerage firm, employee brought suit in state court, alleging
age and gender discrimination and related claims against firm and her supervisor. Case was
removed to federal court. The U.S. District Court denied defendants' motion to compel
arbitration, and they appealed. The Court of Appeals, Lynch, Circuit Judge, held that: (1) Title
VII, as amended by 1991 Civil Rights Act (CRA), did not prohibit predispute arbitration
agreements; (2) application of predispute arbitration agreements to federal claims arising under
Age Discrimination in Employment Act (ADEA) is not precluded by Older Workers Benefit
Protection Act (OWBPA); (3) there was no showing of actual bias in New York Stock
Exchange's (NYSE) arbitration process; (4) securities industry registration form, and arbitration
agreement included therein, was not unconscionable contract of adhesion; BUT (5) arbitration
agreement did not meet standard set forth in 1991 CRA for enforcing arbitration clauses.
Affirmed.

    ***Note that this case is very new and cites Duffield (see below under Keycite in the
Currency section-- it seems to disagree in certain areas (Title VII and Civil Rights Act of 1991
precluding compulsory arbitration of civil rights claims) but agree in others).  This case is very
helpful in that it lists many earlier cases that have held that pre-dispute agreements to arbitrate
Title VII claims are permissible.  This case and the Koveleskie case (listed below under Cases by
Circuit) are representative of post-Duffield cases which illustrate the split among the Circuits as
to whether pre-dispute agreements to arbitrate Title VII claims are permissible

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