Does CBA Arbitration Clause Preclude Statutory Discrimination Lawsuit? - COTW #114

The Case of the Week comes to us from the Eastern District of Pennsylvania: Harrell v. Kellogg Co., 2012 WL 3962674 (Sept. 11, 2012). The plaintiff filed racial discrimination, retaliation, and hostile work environment claims against his employer under 42 U.S.C. s1981. The employer filed a motion to dismiss, arguing that a mandatory arbitration provision in the collective bargaining agreement (CBA) divested the Court of jurisdiction.

The CBA contained a generic arbitration provision, mandating that all grievances were subject to arbitration. In turn, grievances were defined as "disputes or disagreements concerning the interpretation and application of the provisions of this Agreement." Working our way down, the CBA's provisions included a broad nondiscrimination provision. So, the employer argued that the CBA mandated arbitration of grievances; grievances cover disputes over provisions; and the provisions included nondiscrimination - therefore the employee had waived his right to bring suit in federal court.

The Court does an amazing job of explaining this issue, and detailing the relevant precedent. I highly recommend reading the whole opinion, but cutting to the chase, the Court held:

[A] prerequisite to enforcing arbitration of federal statutory claims is that the waiver in the CBA "must be clear and unmistakable" . . . . [the leading cases] lead to the clear conclusion that a CBA with a general arbitration provision and a nondiscrimination provision that does not expressly mention the federal antidiscrimination statute under which the employee seeks redress, does not contain an explicit waiver to the employee's right to litigate his/her statutory claims in a judicial forum.

As the Court noted, the nondiscrimination provision in the CBA at issued did not explicitly reference s1981, the statute under which the employee filed suit. Therefore, the CBA did not clearly and unmistakably waive the plaintiff's right to bring his statutory discrimination claims in federal court. Accordingly, the Court denied the employer's motion to dismiss.