Abstract
Arbitration, it is said, provides employers with a means to block aggrieved employees from resorting to courts to obtain the full range of remedies, most notably jury awards of compensatory and punitive damages, that the Civil Rights Restoration Act of 1991 added to the enforcement mechanisms previously incorporated in Title VII of the Civil Rights Act of 1964. 1 To be sure, the ability of employers to condition jobs on employee acceptance of arbitration procedures as alternatives to adjudication is limited to some degree. In the now relatively unusual cases in which employees and employers enter into collective bargaining agreements recognized and protected by the Labor Management Relations Act, the United States Supreme Court held in the famous case of Alexander v. Gardner-Denver 2 that arbitration arrangements do not prevent employees from resorting to litigation to enforce Title VII. But for most employees, Gardner-Denver is beside the point. The Supreme Court, ruling in 1991 in Gilmer v. Interstate/Johnson Lane Corp. , 3 has held that suits arising under the Age Discrimination in Employment Act are pre-empted by arbitration agreements covering statutory claims, at least in cases in which such agreements fall within the scope of the Federal Arbitration Act. The United States courts of appeals are so far unanimous in their view that Gilmer more or less automatically governs in cases arising under Title VII as well. 4 I think that the courts of appeals are wrong: arbitration agreements both outside and inside collective bargaining should not ...