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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Rogers v. New York University, 220 F.3d 73 (2d Cir. July 17, 2000)

Keywords: ADA and FMLA (arbitration agreement)

Introduction: Susan Rogers sued NYU under the ADA and the FMLA. NYU moved to have the lawsuit stayed pending arbitration. The district court denied the motion. The Second Circuit affirms.

Facts: The Collective Bargaining Agreement (CBA) between NYU and Rogers' Union contains a "no discrimination" provision. It also provides that all employees are entitled to all provisions of the FMLA that are not specifically provided for in the CBA.

Law:

1. Because the arbitration provision (by which employees purport to waive their right to a federal forum with respect to statutory claims) is contained in a "union-negotiated" CBA, the Court holds that the arbitration provision is not enforceable based on the teachings of Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
2. While that fact alone is sufficient to decide this case, the Court also discusses Wright v. Universal Maritime Service Corp., 119 S.Ct. 391 (1998). In Wright the Supreme Court does not reach the issue of whether a union-negotiated waiver is enforceable. It just holds that as a condition precedent to enforceability, CBAs that purport to waive an employee's right to bring discrimination claims in federal court must be "clear and unmistakable."
3. The Court applies an "either or" test to determine whether the waiver is clear and unmistakable: (1) a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration; and (2) a waiver may be sufficiently clear and unmistakable when the CBA contains an explicit incorporation of the statutory anti-discrimination requirements in addition to a broad and general arbitration clause.
4. The Court reviews the language in the CBA in question and finds that the test has not been met. Therefore, the Court affirms the order of the district court.
5. Click here to see actual case.