A lot has been said about the Supreme Court's decision in 14 Penn Plaza v. Pyett, which came down on April Fools day.  And I have little to add.  (The Court held that "a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act" is enforceable.) 

I will offer a practical tip for labor lawyers:  do not let your clients who wish to clearly waive employees' rights to file statutory discrimination claims in court use the language used by the parties in 14 Penn Plaza.  There are two good reasons not to use the language.

First, the Court did not actually hold that the language clearly and unmistakably waived the employees' right to go to court; the Court merely assumed that it did.  The Court stated, "Finally, respondents offer a series of arguments contending that the particular CBA [Collective Bargaining Agreement] at issue here does not clearly and unmistakably require them to arbitrate their ADEA [Age Discrimination in Employment Act] claims.  But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals."

Second, from a grammatical standpoint, the language may unmistakably waive the right to go to court for statutory discrimination claims, but it is certainly not clear.  Here is the language the Court quotes: 

§30 NO DISCRIMINATION.  There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York  State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations.  All such claims shall be subject to the grievance and arbitration procedures (Article V and VI) as the sole and exclusive remedy for violations.  Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

The term "claims made pursuant to" modifies the word "discrimination," or perhaps the word "characteristic."  Since when are claims a form of discrimination?  Since when are they a characteristic? 

Adding to the lack of clarity, the term "claims" is used three times with potentially different connotations: "claims made pursuant to," "all such claims" and "claims of discrimination."  Does "all such claims" refer to claims brought pursuant to the listed statutes or to all claims of discrimination brought under the contractual no discrimination clause?  What about "claims of discrimination"?  Should arbitrators apply appropriate law to all discrimination claims or only to those brought pursuant to the listed statutes?

In addition to a practical tip, I offer a seemingly more theoretical thought.  The Justices frame the issue as one about waiving individual rights, either to a forum or of a substantive nature.  But might the great difficulty in resolving what to do about union waivers of employees' right to go to court with statutory discrimination claims have something to do with the nature of a public law right that protects minority groups, not individuals?   As I discussed in my prior post on Emporium Capwell under the current labor law framework, workplace conflicts between groups raise seemingly intractable issues. 

So I agree with all the bloggers who have stated the Court really punted on the most relevant and difficult issue: whether a union's grievance and arbitration process is the appropriate dispute resolution method for statutory, as opposed to contractual, discrimination claims.  (I attest from personal experience that grievance arbitration typically involves no discovery except information requests and that subpoenas of witnesses are sometimes virtually unenforceable.)

And, I also agree that the best solution might be to make pre-dispute waivers of employees' right to go to court for statutory employment claims unenforceable across the board, whether entered into by an individual, minority group, or union.