Duffield gone by a split decision
by Michael Fox
Apparently tired of being the only circuit to hold that Title VII claims were not subject to arbitration agreements, two judges of the 9th Circuit hold that the Supreme Court's decision in Circuit City implicitly overruled Duffield. The vehicle for this decision is EEOC v. Luce, Forward, Hamilton & Scripps [pdf]. A legal secretary who had refused to agree to arbitration had been terminated and the lower court had enjoined the practice based on Duffield.
Of course some in California just can't let it go, including not only the dissenting judge, but the California legislature. It recently sent S.B. 1538, prohibiting mandatory arbitration under the FEHA, the state equivalent to Title VII, to the Governor for his signature. Watch now for a request for en banc consideration for Luce, Forward, what the governor does with S. B. 1538, and if he signs it, for the quick challenge that it is pre-empted by the FAA.
What would we do without California?