When an employee threatens a discrimination claim, many fundamental questions immediately come to mind.  What type of discrimination is alleged?  Is this discrimination under federal or state law or is it a claim that derives from contractual language?  What is the proper venue to resolve this claim?  And, what if there is a contract, policy, or industry-specific statute that provides a mechanism for discrimination dispute resolution?

This last question is of significant importance and can sometimes be rather complex in its analysis.  To address these issues, we will break down the analysis over the course of multiple articles.  We begin with how a contract, such as a Collective Bargaining Agreement (“CBA”), can impact the resolution of a federal statutory discrimination claim.  As can be anticipated, most employees will solidly insist on the right to file his or her federal discrimination claim in a court of competent jurisdiction, but under certain circumstances, CBA language to the contrary may trump that right.

For an employer to require an employee to follow the CBA dictated dispute resolution procedure for a federal discrimination claim, specific contractual requirements must be met.  In the landmark 2009 U.S. Supreme Court case 14 Penn Plaza v. Pyett, the Court concluded that a CBA’s discrimination resolution provision is enforceable as long as the CBA’s language “clearly and unmistakably” requires the employee to resolve his or her federal statutory discrimination claim by other dispute resolutiontechniques in lieu of a judicial remedy.

What does it mean to “clearly and unmistakably” require an employee to waive his/her right to judicial recourse and instead submit to alternative resolution?  Many federal courts have concluded that for a CBA’s waiver of an employee’s right to a judicial forum for federal statutory discrimination claims to be clear and unmistakable, the CBA must at least identify by name the specific federal statutes the CBA purports to incorporate in its dispute resolution clause.  Regardless, federal courts across the country have set the bar high when enforcing a CBA’s dispute resolution clause over an employee’s right to file in federal court, and have demanded that a CBA have a high level of specificity in exactly what is being waived by an employee.

Employers with a CBA should ensure that the dispute resolution language is clear with respect to the types of claims it seeks to address, including specific reference to the applicable federal statutes.