Jottings By An Employer's Lawyer

Friday, March 28, 2003

9 Lives for Duffield in the 9th Circuit?

The 9th Circuit had en banc arguments yesterday in EEOC v. Luce, Forward. As noted in Jottings last September, the panel opinion bowed to the weight of the Supreme Court's pro-arbitration decisions and had tried to bring the 9th Circuit into line with every other circuit court, holding that employees could be required to arbitrate Title VII claims as a condition of employment. In February, hearing en banc was granted, reviving Duffield. According to the report at, at least a majority of the en banc panel appears headed to finding its decision in Duffield still lives. If it weren't for the confusion and the cost it causes, having a large segment of the country taking a different path from the rest of the world, would be comical. Of course, if that view should ultimately prevail at the Supreme Court, then rather than comical it would be a story of judicial fortitude and correctness. In today's environment, I know how I would place my wager. But as times and courts change, who knows; for the anti-arbitration forces, keeping the issue alive could prove to be a major victory.


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