My name is Samuel Estreicher.(1)
Since 1978 I have been teaching labor and employment law at
New York University School of Law. I am also the faculty director of NYU's Center for Labor
and Employment Law and Institute of Judicial Administration. Since 1984 I have served as
Counsel to Cahill Gordon & Reindel, a law firm in New York where I handle labor and
employment matters. In addition to my teaching, writing and law practice, I am on the labor,
employment and commercial panels of the American Arbitration Association and on the panel of
distinguished neutrals of the Center for Public Resources (where I also serve on CPR's
Employment Disputes Committee). The views expressed are solely the author's and should not
be attributed to any organization or other person.
I have long been engaged in exploration of the legal and policy issues in connection with
predispute agreements to arbitrate statutory employment claims, including my work on CPR's
Employment Disputes Committee in drafting model arbitration and mediation procedures and on
the American Arbitration Association's National Employment ADR Task Force, Subcommittee
on Rules and Procedures. I have also given testimony on this subject before Secretary of
Commerce Brown's and Secretary of Labor Reich's Commission on the Future of Worker-Management Relations ("Dunlop Commission") on September 29, 1994. I thank the Committee
for this opportunity to testify on these issues, with particular reference to the situation in the
securities industry. Chairman D'Amato and all the Members of the Committee are to be
commended for holding this hearing on these important questions.
My views are set out in full in my recent article, "Predispute Agreements to Arbitrate Statutory
Employment Claims," 72 N.Y.U.L. Rev. 1344 (Dec. 1997), which is enclosed and should be
appended as an appendix to this testimony. I offer here only some highlights of the points made
in the article.
A. The Courts are Basically Getting it Right in Enforcing Predispute Agreements to
Arbitrate Statutory Employment Claims Because Such Agreements Further the Joint
Interests of the Parties and Promote the Public Interest in Expeditious, Fair Resolution of
Civil Rights Claims.
Predispute agreements to arbitrate statutory employment claims are a legitimate alternative to
litigation that offers the prospect of a quicker, less costly, less divisive, less distracting and
nonpublic resolution of employment disputes. Such agreements should be enforced provided that
certain adjudicative quality standards (of the type proposed by the Dunlop Commission(2) and
promulgated by leading arbitration services organizations like the American Arbitration
Association(3) and J.A.M.S./Endispute(4)) are met.
1. The Overwhelming Weight of Judicial Authority Supports the Validity of Predispute
Building on the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp.,(5) the
federal courts of appeals have fairly uniformly held that these agreements are enforceable under
the Federal Arbitration Act (FAA),(6) whether the claims sought to be arbitrated arise under
contract law or federal or state civil rights laws.(7) The one exception, a recent decision of the
Ninth Circuit,(8) contends that Congress in §118 of the Civil Rights Act of 1991, sub silentio
overruled Gilmer. The Ninth Circuit's reasoning is open to serious question,(9) and its decision is
not likely to survive Supreme Court review.
2. Such Agreements Further the Joint Interests of the Parties Without Effecting a Waiver of any Substantive Rights
The reasoning of the courts in Gilmer and its progeny is that predispute arbitration agreements
can further the joint interests of the parties without resulting in a waiver of any substantive rights.
From a pre-dispute perspective, the parties are better off because they have the option of a
dispute resolution mechanism that is faster, less costly and less divisive. No substantive waiver
occurs because the arbitrator, under Gilmer, must have the authority to apply statutory standards
and award statutory remedies if a violation is found. The only waiver that occurs is a waiver of
the purely procedural right to a judicial forum. In essence, predispute arbitration agreements
conforming to the adjudicative quality standards identified in Gilmer, and as promulgated by the
AAA and J.A.M.S./Endispute, functions purely as an alternative forum-selection device.
3. Concerns Over the Adjudicative Quality of Securities Industry Arbitration Procedures
are Premature in Light of Recent SEC Action.
Legitimate, if overblown, concerns have been raised about the adjudicative quality of securities
industry arbitration procedures, principally the fact that arbitration agreements were secured as a
condition of registration with the self-regulatory organizations (SROs) in the industry (the
National Association of Securities Dealers (NASD) and New York Stock Exchange (NYSE)) and
the panels of arbitrators were selected by the SROs themselves. However, in view of the recent
SEC action(10) approving the change in NASD rules to remove arbitration of statutory
employment claims from the reach of the NASD arbitration process, these concerns are
premature. This is because we can anticipate similar action shortly by the NYSE, and when that
occurs registered representatives in the securities industry will be in precisely the same position
as other employees in industries covered by the FAA -- arbitration agreements entered into
directly between the employer and the employee, with the arbitrations conducted pursuant to the
adjudicative quality standards of the leading provider organizations.
I believe it is best to allow the parties -- the employers and their employees -- in the securities
industry themselves to work out the dispute resolution procedures that best fit their joint
objectives. In light of the above developments, there is certainly no warrant for special
legislation targeting arbitration of employment claims in the securities industry.
B. The Policy Objections to Predispute Arbitration of Statutory Employment Claims Are Misplaced.
Admittedly, people disagree passionately here. Let's consider some of the policy objections that
have been raised.
1. A New Form of "Yellow Dog" Contract?
One source of criticism is suggested by the reference to "yellow dog" contracts. This congers up
the image of powerless workers giving up hard-fought rights in order to meet the bare necessities
of life. The imagery is vivid but does not quite fit the facts. Arbitration involves a change in the
forum -- from the courts to a jointly selected neutral decisionmaker. It does not involve a waiver
of substantive rights. When a contract provides for arbitration of statutory claims, the arbitrator
must be empowered to apply statutory standards and award statutory remedies.
In the negotiation of employment contracts, there are some non-negotiable terms established by
law (e.g., minimum wages, maximum hours, nondiscrimination rules), but areas of
overwhelming importance to the employees (e.g., compensation, pension benefits, job security)
are left for the parties to negotiate by themselves. Little is gained by the "yellow dog" rhetoric.
The policy question is whether there are strong reasons for placing the forum-selection topic
outside of the realm of contract and thus into the non-negotiable sphere. This is not current law,
and the burden is on those seeking legal change to justify taking this matter out of the sphere of
joint determination by the parties themselves.
2. Procedural Adequacy: Fresh Apples vs. Spoiled Oranges?
A second source of criticism points up the procedural inadequacy of arbitration: that the process
is supposed to be informal, with scant opportunity for prehearing discovery and little adherence
to procedural scruples. Critics suggest a kind of second-class justice system.
Some of this criticism, too, is overdrawn. To some extent, apples are being compared -- not
with oranges -- but with spoiled fruit. On the one hand, we are offered a picture of private
litigation under ideal conditions (a world of substantial monetary claims warranting the attention
of able advocates like Judith Vladeck and Cliff Palefsky, quick and cheap access to the courts,
and hefty jury awards). On the other hand, arbitration is depicted at its worst (claimants without
lawyers confronting their former employers in management-dominated industry panels, and
proceedings rife with bias). This, too, is good rhetoric but, analytically, a mistake. We should be
assessing the relative merits of litigation and arbitration under the real-life conditions that most
employees and employers will face. For the average employee -- whose claims will not warrant
the attention of sophisticated trial lawyers -- arbitration offers a better adjudicative alternative
than court litigation.
There are, of course, some important issues of procedural design that have to be considered.
How extensive should the opportunity for discovery be in order to provide a meaningful hearing
on statutory claims without at the same replicating the costs and delay of a court action? Can we
provide a mechanism for publication of awards -- so that representatives of employers and
employees can monitor the performance and impartiality of arbitrators, while preserving the
benefits of low-visibility, informal claims resolution? Can the standard for judicial review of
awards be modified to ensure some adherence to statutory requirements without converting
arbitrators into trial courts? These questions should be addressed, and are being addressed by
the leading provider organizations and in the courts, but they do not present a case for new
3. Private Law?
Opponents of arbitration assume a world dominated by private arbitration of statutory claims in
which no public law, no guidance from prior decisions is generated. As with postdispute
settlement agreements -- clearly lawful at present -- there would remain under any realistic
scenario plenty of claims for the civil courts. Indeed, precisely because arbitration reduces costs
for claimants as well as employers and provides only limited opportunity for judicial review,
many firms will be reluctant to promulgate arbitration policies. In any event, even if the
unimaginable were to occur, and all private claimants were confined to the arbitration forum,
surely this would free up the resources of administrative agencies to pursue systemic litigation.
4. Absence of Jury Trials.
A fourth objection highlights the absence of jury trials. Jury trials indeed play, and will continue
to play an important role, in the overall system. But consider the following:
First, civil litigation resulting in substantial jury awards is a realistic prospect for relatively few
claimants. For the vast majority, a private lawyer cannot be secured and their claims will be
addressed, if at all, by overworked, understaffed administrative agencies. These agencies -- after
considerable delay -- typically offer little more than a perfunctory investigation.
Even where private lawyers can be secured, very few employment cases go to trial. The
overwhelming number of these cases are resolved by dispositive motion.
Second, while some individuals with substantial claims -- often, white senior managers with age-discrimination grievances or, if they work in California, Michigan and few other places,
wrongful-dismissal allegations -- may lose access to jury trials, the jury trial is a relatively recent
innovation in employment law (introduced as late as 1991 for Title VII and ADA lawsuits). We
should not assume jury trials are an essential feature of the employment-law landscape. Major
strides were made in the discrimination field for 25 years without resort to juries. Our basic
labor laws do not provide for jury trials. European countries with wrongful dismissal laws rely
on specialized labor tribunals (essentially tripartite arbitration boards), with well-defined,
scheduled recoveries; there is no access to the ordinary civil courts, let alone civil juries, for such
From the employer's perspective, jury trials inject an element of uncertainty because of the
unpredictability of jury awards and the risk that, in certain cases, juries will dispense their own
view of social justice rather than finding facts in accordance with the law. This spectre of
liability undermines society's interest in enabling firms to make sound personnel decisions and,
as the Rand studies suggest, may have negative effects for the willingness of firms to hire
additional workers. We have, in short, a system in which a few individuals in protected classes
win a lottery of sorts, while others queue up in the administrative agencies and face reduced
C. Where Does the Public Interest Lie?
Where does the public interest lie? I submit it lies in allowing maximum freedom of choice
consistent with the substantive commitments of federal and state civil rights and employment
laws. Predispute arbitration agreements are not for every industry, every employer, every
employee. There will be a good deal of variety in practice, with some eschewing arbitration in
favor of mediation and nonbinding process while others embarking on internal dispute resolution
systems culminating in a fair binding arbitration process. The civil rights enforcement agencies
will be freed of perfunctory processing of routine claims, and able to pursue systemic
Binding arbitration of public law disputes can be fairly conducted without sacrificing the
substantive protections of employment laws or turning proceeding into full-fledged civil trials.
Appropriate safeguards include:
* a competent arbitrator who knows the laws in question;
* a fair and simple method for exchange of information;
* a fair method of cost sharing to ensure affordable access to the system for all employees;
* the right to independent representation if sought by the employee;
* a range of remedies equal to those available through litigation;
* a written award explaining the arbiter's rationale for the result; and
* limited judicial review sufficient to ensure that the result is consistent with applicable law.
A well-designed private arbitration alternative for employment claims is in the public interest.
The law should encourage arbitration of employment disputes in a manner that satisfies the
standards for a fair adjudication before a neutral arbiter empowered to apply the law and, where
warranted, impose statutorily available remedies.
1. Professor of Law & Director, Center for Labor and Employment Law & Institute of Judicial Administration, New York University School of Law; Counsel, Cahill Gordon & Reindel. This testimony represents the views solely of the author and should not be attributed to the Center, the Institute, my law firm or any other organization. Address: 40 Washington Square So., New York, NY 10012; 212-998-6226 (tel.); 212-995-4341 (fax); email: < email@example.com>.
2. See U.S. Dept's of Commerce and Labor, Commission on the Future of Worker-Management Relations, Report and Recommendations 31 (Dec. 1994).
3. See American Arbitration Ass'n, National Rules for the Resolution of Employment Disputes (1996).
4. See J.A.M.S./Endispute Arbitration Policy (1996).
5. 500 U.S. 20 (1991).
6. 9 U.S.C. §§ 1 et seq.
7. See Seus v. John Nuveen & Co., Inc., 1998 U.S. App. LEXIS 11907 (3d Cir., June 8, 1998) (securities broker alleging Title VII and ADEA claims); O'Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir. 1997) (compelling arbitration of FMLA claim); Patterson v. Tenet Healthcare, 113 F.3d 832 (8th Cir.1997) (former hospital medical technologist alleging Title VII and state civil rights law claims); Great Western Corp. v. Peacock, 110 F.3d 222 (3d Cir. 1997) (former mortgage consultant for mortgage company alleging sexual harassment claim under state law); Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997) (former security guard alleging racial discrimination and harassment claims under Title VII and intentional infliction of emotional distress claims under state law); Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir. 1996) (former disk jockey for radio station alleging sexual harassment claim under Title VII); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50 (7th Cir. 1995) (former employee/consultant of insurance broker alleging ADEA and fraudulent inducement claims); Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 (6th Cir. 1995) (former chief executive of predecessor meter service company alleging contract claims).
8. See Duffield v. Robertson Stephens & Co., 1998 U.S. App. LEXIS 9284 (9th Cir., May 8, 1998).
9. As the Third Circuit reasonably observed in Seus:
Nor do we believe that this straightforward declaration of the full Congress [in §118 of the Civil Rights Act of 1991] can be interpreted to mean that the FAA is impliedly repealed with respect to agreements to arbitrate Title VII claims which were executed by an employee as a condition of securing employment. Thus, we respectfully disagree with the decision of the Court of Appeals for the Ninth Circuit in Duffield v. Robertson Stephens & Co., 1998 U.S. App. LEXIS 9284, No. 97-15698, 1998 WL 227469 (9th Cir. May 8, 1998). As we understand the opinion in that case, the court reads the preferatory clause, "where appropriate and to the extent authorized by law," in light of the legislative history, as a codification of a particular view of the decisional law regarding Title VII arbitration as it existed prior to the Supreme Court's decision in Gilmer. To us, it seems most reasonable to read this clause as a reference to the FAA.... Finally, even if we were to accept "authorized by law" as intended to codify case law, we would find the text incompatible with the notion that the law codified was case law inconsistent with a Supreme Court case decided six months before the passage of the [Civil Rights] Act.
1998 U.S. App. LEXIS 11907, *22.
10. SEC Release No. 34-40109; File No. SR-NASD-97-77.
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