COLLECTIVE BARGAINING AGREEMENTS IN DISCRIMINATION CASES: FORUM SHOPPING THEIR WAY INTO A NEW YORK DISTRICT COURT NEAR YOU!

George Klidonas, Benjamin N. Cardozo School of Law

Abstract

There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court cases explained that union negotiated waivers are acceptable so long as the issue involves theories of contract, and not statutory interpretations. However, the Court never explained what constitutes a waiver thus the Second Circuit enunciated a standard for a clear and unmistakable waiver. The district courts, while recognizing that there is a split between the federal and state forums, have followed the Second Circuit. However, the New York State courts have not, and, therefore, caused a split between federal and state courts. This split, as described in my article, brings about a number of problems, including forum shopping, judicial inefficiency and lack of uniformity and clarity.