Mandatory Arbitration as an Employer's Contractual Prerogative: The Efficiency Challenge to Equal Employment Opportunity
Cardozo Law Review
The Supreme Court’s classification of mandatory employee arbitration policies as contracts has severely impeded the vindication of employee antidiscrimination rights in derogation of the statutory scheme. The Court has in effect decided that rights expressly granted to employees do not operate as a restraint on employers' contractual liberty if employees can vindicate those rights in arbitration using alternative processes. After reviewing the historical conditions that led to the enactment of various antidiscrimination statutes, the article weighs a history of employer abuses against potential social conditions supporting enforcement (e.g., deters fraudulent suits). The article concludes that these agreements should only be enforced when they are voluntary, bargained-for, and supported by consideration to the employee.
Stephen A. Plass, Mandatory Arbitration as an Employer's Contractual Prerogative: The Efficiency Challenge to Equal Employment, 33 CARDOZO L. REV. 195 (2011).