Union Employees May Not be Required to Pursue Discrimination Claims under CBAs if Unions Fail to Take Claims to Arbitration

By Ted Olsen

In our last newsletter, we reported on the U.S. Supreme Court's April 1, 2009 decision in 14 Penn Plaza LLC v. Pyett, Case No. 07-581, --- U.S. --- (April 1, 2009). In that case, the Court held that a collective bargaining agreement ("CBA") provision prohibiting age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and stating that the CBA's grievance and arbitration procedures are the "sole and exclusive remedy" for such alleged violations constitutes a "clear and unmistakable waiver" of the bargaining unit employees' rights to pursue such ADEA claims in court.

The Supreme Court in 14 Penn Plaza expressly declined to rule on the legality of a CBA's waiver of a judicial forum for individual discrimination claims when the union controls access to and presentation of employees' claims in arbitration. (The Court declined to rule on this because the plaintiffs had failed to address the point.) Of course, in most collective bargaining situations, unions do exactly that — they decide which grievances they will take to arbitration and they present the grievances in the arbitration process.

In the brief period since the 14 Penn Plaza decision, at least one court has used this loophole so as not to deny a judicial forum to any employee whose discrimination claim is not taken to arbitration by her union. Kravar v. Triangle Servs. Inc., Case No. 1:06-cv-07858-RJH, --- F. Supp. 2d --- (S.D.N.Y. May 19, 2009). This approach would mean that even the clearest mandatory arbitration provision in a CBA would preclude court litigation of statutory discrimination claims only in those situations when the union actually takes the claims to arbitration.

In Kravar, an employee who was represented by the same union under the same CBA as in 14 Penn Plaza, filed assorted grievances, including one concerning her employer's alleged failure to provide reasonable accommodation for her disability (unspecified limitations resulting from abdominal surgery), in violation of the Americans with Disabilities Act. The union did not take the grievance to arbitration. According to the employee, her union representative laughed at her disability claim and said it would be dismissed. The union representative (who did not recall his conversation with the plaintiff, but could not deny making his alleged comment) said the grievance was not taken to arbitration because Ms. Kravar had obtained a permanent night position in the grievance process. When she filed her federal court ADA lawsuit, the employer contended that her exclusive remedies were under the CBA. The court rejected the argument, holding that the plaintiff could not be limited to the remedies under the CBA because the union had blocked her ADA claims from going to arbitration, and that such blockage would result in an unlawful "substantive waiver" of her ADA rights. "[T]here is little question that if Ms. Kravar's union prevented her from arbitrating her disability discrimination claims, the CBA's arbitration may not be enforced as to her."

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C. June 5, 2009

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Union Employees May Not be Required to Pursue Discrimination Claims under CBAs if Unions Fail to Take Claims to Arbitration By Ted Olsen In our last newsletter, we reported on the U.S. Supreme Court's April 1, 2009 decision in 14 Penn Plaza LLC v. Pyett, Case No. 07-581, --- U.S. --- (April 1, 2009). In that case, the Court held that a collective bargaining agreement ("CBA") provision prohibiting age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") and stating that the CBA's grievance and arbitration procedures are the "sole and exclusive remedy" for such alleged violations constitutes a "clear and unmistakable waiver" of the bargaining unit employees' rights to pursue such ADEA claims in court. The Supreme Court in 14 Penn Plaza expressly declined to rule on the legality of a CBA's waiver of a judicial forum for individual discrimination claims when the union controls access to and presentation of employees' claims in arbitration. (The Court declined to rule on this because the plaintiffs had failed to address the point.) Of course, in most collective bargaining situations, unions do exactly that — they decide which grievances they will take to arbitration and they present the grievances in the arbitration process. In the brief period since the 14 Penn Plaza decision, at least one court has used this loophole so as not to deny a judicial forum to any employee whose discrimination claim is not taken to arbitration by her union. Kravar v. Triangle Servs. Inc., Case No. 1:06-cv-07858-RJH, --- F. Supp. 2d --- (S.D.N.Y. May 19, 2009). This approach would mean that even the clearest mandatory arbitration provision in a CBA would preclude court litigation of statutory discrimination claims only in those situations when the union actually takes the claims to arbitration. In Kravar, an employee who was represented by the same union under the same CBA as in 14 Penn Plaza, filed assorted grievances, including one concerning her employer's alleged failure to provide reasonable accommodation for her disability (unspecified limitations resulting from abdominal surgery), in violation of the Americans with Disabilities Act. The union did not take the grievance to arbitration. According to the employee, her union representative laughed at her disability claim and said it would be dismissed. The union representative (who did not recall his conversation with the plaintiff, but could not deny making his alleged comment) said the grievance was not taken to arbitration because Ms. Kravar had obtained a permanent night position in the grievance process. When she filed her federal court ADA lawsuit, the employer contended that her exclusive remedies were under the CBA. The court rejected the argument, holding that the plaintiff could not be limited to the remedies under the CBA because the union had blocked her ADA claims from going to arbitration, and that such blockage would result in an unlawful "substantive waiver" of her ADA rights. "[T]here is little question that if Ms. Kravar's union prevented her from arbitrating her disability discrimination claims, the CBA's arbitration may not be enforced as to her." Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2009 Sherman & Howard L.L.C. June 5, 2009 Copyright 2000-2010 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use