Document Type

Article

Publication Date

1998

Abstract

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that great Nineteenth Century English social philosopher, W.S. Gilbert's Little Buttercup, may apply here: "Things are seldom what they seem." Perhaps the validity of mandatory arbitration should depend more on a pragmatic assessment of what is likely to be best in practice for the great majority of workers, employers, and the public, rather than on abstract notions about the inviolability of statutory claims and the sanctity of the right to a jury trial. At least arguably, in light of an overworked, underfunded Equal Employment Opportunity Commission (EEOC) and backlogged federal court dockets, most employees might be better off with mandatory arbitration, even of statutory claims, provided there were due process guarantees and the arbitrator could furnish the full range of statutory remedies.