Indiana Law Journal
With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with their unions to effectively resolve their disputes through arbitration. This solution requires the union to make every effort to deal fairly and directly with all members of the union. The union will have to focus especially on working through these disputes with those members of different races than the claimants and those who may view the claims as invalid or even as a threat to their own employment gains. The key objective for all those involved is to find an interest-convergence when resolving race-based disputes through final arbitration.
In Part I, this Article examines the current barriers to developing mechanisms to address race discrimination in our society and particularly in the workplace. Part II offers the historical development of arbitration in the union setting, so-called labor arbitration, and compares and contrasts this history with the separate and more recent development of arbitration of statutory employment discrimination claims in the non-union setting, so-called employment arbitration. This history frames the legal landscape as it existed leading up to the Supreme Court's decisions in Ricci and Pyett. This history also explains how and why unions tended to avoid handling statutory employment discrimination matters by keeping them out of labor arbitration. In Part III, this Article discusses the details of the Ricci and Pyett cases and examines how each union involved in those disputes responded to the discrimination claims at issue.
Part IV identifies the potential problems involved with creating a clear and unmistakable union waiver of an employee's statutory right to pursue discrimination claims in court as occurred in Pyett. Part IV explains why these waivers should be allowed as long as employees can be provided with a fair arbitration forum to effectively vindicate their statutory rights as a form of interestconvergence that addresses all the dilemmas for employers, employees, and especially unions when resolving statutory discrimination matters in arbitration. Part IV also establishes the analysis that should be used when assessing whether and how unions and employers can agree to these waivers. Part V concludes that by establishing the criteria in which these waivers will create an arbitration process to allow effective vindication of statutory rights, employers, unions, and mostly employees, will now have clarity and fairness in merging labor disputes with employment discrimination disputes. This interest-convergence merger can result in an appropriate arbitration process as allowed by Pyett and as circumvention of the type of court resolution process that arose in Ricci.
Michael Z. Green,
Reading Ricci and Pyett to Provide Racial Justice through Union Arbitration,
Available at: https://scholarship.law.tamu.edu/facscholar/125