Arbitration of Employment Discrimination Claims: A Need for Statutory Reform?

Leroy D. Clark, The Catholic University of America, Columbus School of Law


The debate about the feasibility of resolving employment discrimination claims through arbitration as opposed to full-fledged litigation was wide-ranging and arose shortly after the passage of Title VII of the Civil Rights Act in 1964. In most of the articles, arbitration was proposed to meet pressing problems-the mounting backlog of charges at the newly created Equal Employment Opportunity Commission (EEOC) and the length and high cost of Title VII litigation. One discussion analyzed how arbitrators had handled discrimination claims before the passage of Title VII, as possible guidance to the fledgling EEOC. Another writer was concerned with the emergence of new forums for the resolution of such disputes, and explored the advantages and disadvantages of arbitration in the search for an accommodation with Title VII which would reduce the possibility of multiple litigations. Later discussions proceeded from a perception that there were an overwhelming number of discrimination grievances beyond the capacity of all the equal employment opportunity enforcement agencies, or that such agencies were administratively inept and unable to promptly and effectively handle discrimination claims. This article will be limited to a discussion of arbitration of anti-discrimination charges that could be brought under Title VII of the 1964 Civil Rights Act, and does not include charges which could be made under the federal constitution, other civil rights statutes (e.g., 42 U.S.C. sec. 1981) or other federal or state employment laws (e.g., the National Labor Relations Act). Arbitration of non-Title VII causes of action entail a host of considerations, which are beyond the scope of this writing.