Access to Justice in Employment Arbitration: a Critical Look

Abstract

As one of the editors of this book has argued, arbitration of employment disputes through company-promulgated programs can provide a mode of dispute resolution accessible to, and resulting in a hearing for, employees with incomes and claims that generally do not attract private lawyers. However, reviewing data from the files of a leading arbitration provider, Colvin and Pike suggest in this chapter, though without controlling for possible systematic differences between employees obtaining a hearing in arbitration and employees whose claims survive to trial in court, that employment arbitration results in lower average recoveries than obtainable in private litigation and that arbitrators are showing greater receptivity to entertaining dispositive motions. Alternative dispute resolution (ADR) procedures, including arbitration, mediation, and other related techniques, are often held out as providing improved conflict resolution compared to litigation along such outcome dimensions as efficiency, equity, and participant voice. From an access to justice perspective, the potential advantage of ADR procedures is that they may reduce the cost and time barriers to access that are created by the inefficiencies of the litigation system. Although ADR procedures do not typically provide the elaborate fact determination and review process of litigation, the argument for them is that they provide both enough equity to disputants and greater opportunity to have disputes voiced that overall access to justice is enhanced. In the employment area, the most prominent ADR innovation in recent years is the use of arbitration to resolve statutory and other employment law claims. Whereas labor arbitration has long been a central dispute resolution mechanism in unionized workplaces, until the 1990s arbitration was rarely used in the nonunion sector. This changed in the wake of a key 1991 Supreme Court decision, Gilmer v. Interstate/Johnson Lane , which held for the first time that a statutory employment claim could be subject to arbitration. Over the course of the 1990s and 2000s a series of court decisions reinforced the basic principle that employment law claims could be subject to arbitration and the courts would enforce these arbitration agreements in most circumstances. A controversial feature of employment arbitration is that many procedures are promulgated by employers as a mandatory term and condition of employment, similar to other non-negotiable human resource policies that employers require employees to follow.