Worker’s Right To Sue Upheld: Arbitration Rejected As Substitute For Trial

Workers generally have a right to sue their employers for discrimination, the Supreme Court said Monday, even when their unions or companies have a policy calling for arbitration of disputes.

By a 9-0 vote, the justices reversed two lower courts that had blocked a South Carolina longshoreman, who had previously been injured on the job but recovered, from suing his employer.

The shipping company had refused to rehire Ceasar Wright, the longshoreman, because of his back injury, and he sued for damages under the Americans with Disabilities Act.

But the case came to the Supreme Court to test another issue, one that has divided US corporations and civil rights lawyers for much of this decade.

Since 1991, companies have been pressing for the adoption of mandatory
arbitration policies as an alternative to costly federal court battles. Some
of these are written into union contracts. In other instances, they are
included in papers signed by newly hired employees.

Corporate lawyers rely on a 1991 high court ruling that touted the virtues of
arbitration as quick and convenient.

But civil rights lawyers have resisted this move as fundamentally unfair to
workers. Companies choose the arbitrators who will hear a dispute, and the
plaintiffs cannot gather the evidence they need to prove their claims of discrimination, lawyers say. They rely on the federal civil rights laws which, since 1964, have made it illegal for employers to discriminate based on
race, sex, religion and ethnicity as well as age and disabilities.

In the case of the South Carolina longshoreman, the US Court of Appeals based in Richmond, VA., ruled employers can enforce binding arbitration clauses on unwilling workers.

In Wright’s case, his union contract said “any dispute” over the “terms and conditions of employment” shall be resolved by a grievance committee made up of management and labor representatives. The appeals court said this clause is “binding” and barred Wright from suing in federal court.

All nine justices voted to reverse that ruling, although Justice Antonin Scalia’s opinion focused on a narrow reason for doing so.

The union contract “does not contain a clear and unmistakable waiver” of the longshoreman’s right to sue, Scalia said. “The right to a federal judicial forum is of sufficient importance’s,” he said, that it cannot be casually waived.

But the court stopped short of deciding whether the worker could sue had the contract gone further and absolutely barred employees from going to court.

Excerpt from a 11/21/98 article in the Chicago Sun-Times
by David G. Savage of the Los Angeles Times