Jottings By An Employer's Lawyer

Tuesday, September 30, 2003

Ding, Dong - Dare We Say It Once Again? Duffield is Dead!

Knowing what the en banc decision in EEOC v. Luce, Forward, Hamilton & Scripps (9th Cir. 9/30/03) [pdf] is about, once you see that Judge Reinhardt has dissented you know that the 9th Circuit has finally joined with all of its fellow brethren to hold that employers may require that employees arbitrate Title VII claims. Duffield, the 9th Circuit now says, was wrongly decided. Of course, Governor (for at least 7 more days) Davis can still sign AB 1715 which bars arbitration of employment law claims, setting up an interesting clash between California law and the Federal Arbitration Act, but we will leave that for another day, and for now celebrate unity in the law of arbitration, all across the land.

But of course it being the 9th Circuit, it would not be fair to totally absolve the employer. As the majority notes in its penultimate paragraph:
At least on the surface, it would appear that, if an employer can compel its employees to submit all claims arising out of their employment to arbitration, no retaliation would be involved in an employer’s exercise of such right, because an employee opposing such a practice would not be engaged in any protected activity. At oral argument, however, the EEOC advanced a novel theory why, even assuming our overruling of Duffield, an employer’s adverse action against an employment applicant for his or her opposition to compulsory arbitration would still amount to retaliation under the Civil Rights Acts. Because this argument was not fully developed on appeal, we leave it to the district court to address on remand.

And we should also give notice for the reprise of the best biblical analogy by a union leader, found again in Judge Pregerson's dissent, just as it was in his dissent to the original panel decision:
More than three-quarters of a century ago, Andrew Furuseth, then president of the International Seaman’s Union of America, said in opposition to the Federal Arbitration Act as originally proposed: “Will such contracts be signed? Esau agreed [to give up his first birthright], because he was hungry. . . . With the growing hunger in modern society, there will be but few that will be able to resist.” Proceedings of the 26th Annual Convention of the International Seaman’s Union of America 203-04 (1923).


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