The Supreme Court will not review the decision of the U.S. Court of Appeals for the Second Circuit in Rogers v. New York University, 2d Cir, No. 99-9172, 7/17/00. Susan Rogers is now entitled to litigate her discrimination claim under the American with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Rogers was fired by her employer, New York University, while on medical leave under the FMLA. Rogers brought a discrimination charge against NYU to the Equal Employment Opportunity Commission (EEOC), and on January 20^th, 1999, she filed a suit in the Southern District of New York claiming discrimination under the ADA, the FMLA and New York State and New York city human rights laws. In April 1999, NYU attempted, but failed, to stay Rogers suit under the Federal Arbitration Act in a district court.

Rogers was a member of Local 3882 of the United Staff Association of NYU (NYSUT, AFT, AFL-CIO) and was therefore covered by a collective agreement. The agreement included a “no discrimination” clause that stated that "there shall be no discrimination as defined by applicable Federal, New York State, and New York City laws, against any … employee by reason of . . . physical or mental disability . . . ." The agreement also stated that, "employees are entitled to all provisions of the Family and Medical Leave Act of 1993 ["FMLA"] that are not specifically provided for in this agreement."

A separate grievance and arbitration clause in the collective agreement said that disputes arising under the agreement would be arbitrated.

The U.S. Appeals Court (Second Circuit) agreed with the district court not to stay Rogers' suit, citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 7 FEP Cases 81 (1974) as a precedent. In Gardner-Denver the Supreme Court allowed a discharged employee to sue for discrimination in federal court after his discrimination grievance had been arbitrated under the collective agreement. The decision stated that a union could not waive an employee’s statutory right to a judicial forum.

It’s All in the Wording

Of particular interest to employers and unions was the further discussion by the Second Circuit concerning how specific such a waiver of rights would have to be before the issue of enforceability could be addressed.

Citing Wright v. Universal Maritime Service Corporation (1998), a more recent Supreme Court decision that addressed this issue, the Appeals court agreed with Wright that, “a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration” (italics added).

As the Appeals Court for the Second Circuit noted, this was not the case in Rogers, where the arbitration clause was so general that it included "any dispute concerning the interpretation, application, or claimed violation of a specific term or provision of this Agreement." Secondly, Wright states that a waiver must name the anti-discrimination statutes that are being incorporated into the agreement. Again, in Rogers v. New York University, the clauses referring to the federal laws are too broad.

Individual Contract or Collectively Bargained?

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33-35 (1991), the Court held that an employee who had individually waived his rights to take his claims to a federal forum could be compelled to arbitrate his age discrimination claim. Since this case, courts have applied Gilmer for individual arbitration contract decisions and Gardner-Denver when the arbitration provision was negotiated by a union. In the new year, HR.com will be looking at some recent court decisions involving individual arbitration contracts. It would seem that in both collectively bargained and individual contracts the courts are redefining the protection of employee’s rights. In the words of Justice Stanley Mosk, who wrote the decision for Armendariz v. Foundation Health Psycare Inc., 24 Cal. 4^th 83, 99 Cal. Rptr. 2d 745 (2000);

we must be particularly attuned to claims that employers

with superior bargaining power have imposed one-sided,

substantively unconscionable terms as part of an arbitration

agreement.

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