By Tahl Tyson and Henry Farber
Many employers prefer to resolve discrimination claims through arbitration rather than a judge or jury trial. In the last few years, a growing number of companies have attempted to require employees to submit discrimination claims to arbitration. Some courts, particularly the Ninth Circuit, which covers Washington, Oregon, and California, have been antagonistic to these efforts. The U.S. Supreme Court recently sent signals as to the direction that this area of law is developing. This article will interpret the Court's signals to guide both unionized and non-unionized employers who want to use alternative dispute resolution for discrimination claims, and provide practical advice on how to maximize the likelihood that an arbitration agreement will be enforceable.
