Retaliatory Employment Arbitration Academic Article uri icon


  • In 2014, we reach a key milestone with the fiftieth anniversary of the passage of Title VII of the Civil Rights Act of 1964 ("Title VII"). This landmark federal legislation, which prohibits discrimination in the workplace, also created the Equal Employment Opportunity Commission ("EEOC"). This Article focuses on the use of arbitration, a form of alternative dispute resolution ("ADR"), to decide federal employment discrimination claims brought under that and related statutes. Specifically, this Article addresses the use of so-called "mandatory," "forced," "employer-mandated," or "pre-dispute" or "compelled" agreements to arbitrate that have garnered much attention and criticism over the past twenty years. The Supreme Court's decisions under the Federal Arbitration Act ("FAA") since 1991 have overwhelmingly endorsed arbitration as a dispute resolution tool to resolve statutory claims, including employment discrimination claims brought pursuant to Title VII. Out of the key Supreme Court cases involving arbitration of statutory employment discrimination claims since 1991, only one of those decisions still represents a loss for the employer. This Article's review of several lower court decisions after Waffle House demonstrates that employers may have responded to that case by seeking to force arbitration after the EEOC became involved. These employer responses create a chilling effect that deters employees from further filing of discrimination charges. Moreover, as this Article asserts, forcing arbitration in these instances represents an illegal form of retaliation that is proscribed by statutory requirements and inconsistent with the Supreme Court's jurisprudence providing enthusiastic support to enforcement of retaliation claims. This Article examines the use of retaliation claims to resolve employment discrimination matters as an effective response to an employer's action to force arbitration as a purported response to Waffle House. Also, the Article explains how decisions involving similar retaliation matters filed with the National Labor Relations Board ("NLRB"), the agency which enforces charges filed pursuant to the National Labor Relations Act ("NLRA"), may also help employees respond to forced arbitration actions. In Part I, this Article reviews the Supreme Court's vigorous enforcement of arbitration of statutory employment discrimination claims under the FAA and related matters regarding the EEOC's policy during that time-frame. Part II explores the implications from the primary Supreme Court case, EEOC v. Waffle House, where employee interests prevailed over the Court's pro-arbitration standards established pursuant to FAA jurisprudence. In examining lower court decisions since Waffle House, Part II also exposes employer efforts to circumvent the Court's analysis through actions to compel employees to arbitrate after a charge with the EEOC has been filed and how this action retaliates against employees by deterring them from filing agency charges. Part III considers potential claims to be developed by agencies, through the courts, and by legislative action in Congress to combat employer efforts to chill employee filings of charges with the EEOC and the NLRB by trying to compel arbitration before final agency action can occur, what this Article terms "retaliatory employment arbitration." In Part IV, this Article proposes that the EEOC and NLRB continue to adopt and enforce clear policies aimed at responding to retaliation from forced arbitration to achieve sufficient regulation of employer usage of arbitration. By reference to the terms of a consent order in a case that the EEOC settled in federal court, the Article's thesis suggests the parameters that employees may use to frame a retaliation challenge to unfair employer efforts to force arbitration of statutory employment discrimination claims. Likewise, Part IV discusses a recent NLRB administrative law judge decision that identifies the parameters in which employees may challenge retaliation through forced arbitration efforts under labor law. In concluding, this Article suggests that if agencies and employees are not allowed to challenge retaliatory employment arbitration, then the public interest in eradicating discrimination in the workplace, as referenced in Waffle House, will be diminished.

published proceedings

  • Berkeley Journal of Employment and Labor Law

author list (cited authors)

  • Green, M. Z

complete list of authors

  • Green, Michael Z

publication date

  • May 2014