Discrimination Archives | Gilbert McWherter Scott Bobbitt PLC

Collective Bargaining Agreements and the Limitation on Judicial Remedies

Suppose a union employee is unhappy with her union representation or the arbitration procedures and wants to pursue her employment law claims in federal court. Can she do both?

Well, it depends on the precise language in the collective bargaining agreement (CBA).

If the CBA “clearly and unmistakably” waives the employees’ right to file certain types of claims in court, the employee may be forced to accept arbitration on those claims. That was the holding of 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009). In a 5-4 decision written by Justice Thomas, the Court looked to the precise language of the CBA. In Penn Plaza, the CBA stated:

“[There] shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disability Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code . . . or any other similar laws, rules or regulations. All such claims shall be subject to grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.” (emphasis added).

Note that this CBA did two things: (1) it defined the specific statutes; and (2) it stated that arbitration was the sole and exclusive remedy for those particular statutes. This type of language was enough to foreclose any judicial lawsuit.

Note, too, that Penn Plaza does not mean that mere mention of non-discrimination language in a CBA, or even the listing of federal statutes in the CBA is sufficient to foreclose judicial remedy. Where a CBA explicitly lists certain statutory claims, it must be contained within the context of a grievance resolution procedure, not as part of a compliance provision. Simply put, a CBA which includes a provision preventing discrimination against employees under a federal statute is not the same as requiring union members to arbitrate such statutory claims. See Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999). A contractual promise to abide by certain civil rights laws does not satisfy the “clearly and unmistakably” requirement of Penn Plaza.

Bottom Line: If a CBA “clearly and unmistakably” requires union members to arbitrate certain statutory claims, then the employee’s claims are subject to grievance and arbitration procedures. But, when a CBA falls short of satisfying this high standard, an employee is free to pursue his or her claims through the judicial system.

Discrimination, “Other Act” Evidence, and the Tennessee Vols

This is part two of our series of blog posts about the strange events at the University of Tennessee. When our story last ended, Athletics Director Dave Hart had forced out a long time female employee of the University. She sued for, among other things, sex discrimination.

Other female employees who have worked for Mr. Hart are apparently willing to say, “Me too!” In other words, it may be that other female employees, both from Hart’s time at U.T. and during his previous posts at other schools, will claim they suffered discrimination at his hands.

So here’s the question for trial lawyers: can they testify?

Rule 404(b)(1) of the Federal Rules of Evidence says that you can’t tell the jury about other bad things that folks have done in order to show that the person is a bad guy. This is called inadmissible “character evidence.”

Rule 404(b)(2), however, says there is an exception. You can introduce “other act” evidence to show a person’s “intent.” In other words, the fact a person has discriminated against women in the past can be used to show that the person has a bias against females.

Courts have struggled with how far this can extend. In 2008, the United States Supreme Court weighed in. They handed down a decision called Sprint v. Mendelsohn. In Sprint, the defendant convinced the lower court to exclude evidence of “other acts” of discrimination because they involved a different supervisor than the plaintiff’s.

The Supreme Court disagreed. They looked at the lower court’s belief that “me too” evidence was only admissible if it involved discrimination from the same supervisor. The Supreme Court said that you can’t have such a hard and fast rule. Instead, there must be a “fact intensive, context-specific inquiry.”

Well, what does that mean for Dave Hart? It’s probably not good news for him. I don’t know the specifics of what other females are claiming. It may be that there is some reason to exclude their testimony at trial. However, the Supreme Court in Sprint held that “me too” evidence might come in even if it involved a different supervisor. Since Hart was apparently the supervisor of all the females who are now crying foul, it seems difficult to see how he could keep them from testifying.

Now, allow me some shameless self-promotion. A few years back, I wrote a law review article on this topic. See “Previous Acts of Employment Discrimination: Probative or Prejudicial?” 25 American Journal of Trial Advocacy 297 (2001).

Send me an email if anyone would like a copy of it. They make great drink coasters.