CAN AN EMPLOYER ADD PROVISION EXCLUDING EEOC CLAIMS FROM CONTRACTUAL GRIEVANCE-ARBITRATION PROCEDURES?

The trend nationally has been to require employees through individual arbitration agreements to arbitrate their legal claims on the theory that the arbitration process is quicker and cheaper than going to court.  Some employers are going the opposite direction, however, and putting provisions into their grievance and arbitration procedures indicating that an employee waives the right to continue to use those procedures if they use outside government agencies to process their claims.

An employee has a statutory right to pursue a discrimination claim in federal court.  An employee may also have a contractual right, often established by a collective bargaining agreement, to pursue discrimination claims through a grievance process or arbitration.  In most circumstances, both (statutory and contractual) rights have legally independent origins and are equally available to the aggrieved employee. 

An older case dealt with a collective bargaining agreement which provided that if an employee "seeks resolution of the matter in any other forum, whether administrative or judicial, the [employer] shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure."  The Seventh Circuit Court of Appeals ruling found that, because it authorizes the employer to take an adverse employment action (termination of the in-house grievance proceeding) for the sole reason that the employee has engaged in protected activity (filing a discrimination claim), the provision was a retaliatory policy and a per se violation of the discrimination law.   EEOC v. Board of Governors of State Colleges and Universities, 957 F. 2d 424 (C.A. 7, 1992). 

A more recent ruling from the Second Circuit reaches the opposite conclusion, finding the policy was not discriminatory because it does not foreclose other avenues of relief, such as the right to pursue claims in federal court.  It was simply an "election-of-remedies provision which avoids duplicative proceedings."  Richardson v. Commission on Human Rights and Opportunities, 532 F. 3d 114 (C.A. 2, 2008). 

Thus, there is a "split in the circuits" on this issue, although the most recent district court ruling on this subject agrees with the Second Circuit finding that such an election-of-remedies provision streamlines dispute resolution and avoids the expense and uncertainty of having the same issue decided in two different proceedings.  Watford v. Jefferson County Public Schools, 128 FEP Cases 1462 (W.D. Ky. 2016).