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Abstract:
Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. This collaborative alternative may help to alleviate workplace conflict. Employees today are stuck between a rock and a hard place. On the one hand, they are increasingly forced to sign pre-dispute arbitration agreements as a condition of employment. Employees are bound by arbitration – an alternative to civil litigation that often does not offer the full panoply of procedural protections. On the other hand, workers seeking relief from the federal court system for employment claims are increasingly finding the system inhospitable to their claims. While the federal courts offer more robust procedural protections than arbitration, they pose obstacles of their own, such as administrative agency backlog, more rigorous pleading requirements, and high dismissal rates. This has put employees in a bind, requiring the consideration of fresh alternatives. A promising and unique alternative is one-way binding arbitration. This unilateral arrangement – voluntarily adopted by The Coca-Cola Company, is a groundbreaking and novel approach to promoting arbitration, while also protecting employee choice and access to the court system. Companies can enjoy all of the benefits of arbitration – such as efficiency, privacy, costs savings and litigation avoidance – while supporting the due process rights of workers and bolstering workplace relations that may enhance profitability. The legal system also profits from arbitration arrangements that relieve administrative and judicial caseloads, promote settlement and reconcile competing dispute resolution systems. One-way binding arbitration has its own limitations, which requires that important safeguards be used. However, given its transformative potential, employers and employee advocates should consider it as an alternative to compulsory binding pre-dispute arbitration. One-way binding arbitration offers society another option along the continuum between mandatory, pre-dispute arbitration and civil litigation – providing society with a compromise that seeks to balance the benefits of both worlds and reconcile their differences. This article is part of a series examining the impact of procedure on civil rights. See Suzette M. Malveaux, Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigation, 74 Geo. Wash. L. Rev. 68 (2005) and available at http://ssrn.com/abstract=1484804; and Suzette M. Malveaux, Fighting to Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo’s Predomination Requirement Threatens to Undermine Title VII Enforcement, Chap. 4 in Employment Class and Collective Actions (Estreicher, Samuel & Sherwyn, D., Editors, 2009 Kluwer Law International), reprinted from 26 Berkeley J. Emp. & Lab. Law 405 (2005) and available at http://ssrn.com/abstract=1484761.

One-way binding arbitration, Coke, Coca-cola, compulsory pre-dispute arbitration, employment discrimination, Federal Arbitration Act, Twombly, Arbitration Fairness Act, EEOC

Abstract:
This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed to serve the underlying policy rationales of limitations law today. Although limitations periods have been a fixture in the American legal system for centuries, in general, little modern scholarship has explored the continued validity of their underlying purposes. The Tulsa litigation is a perfect test case. Such litigation presents both the starkest example of a stale claim (i.e., one that is decades old) and, at the same time, one of the most egregious circumstances under which equitable principles would conceivably apply (i.e., state-sanctioned violence and discrimination). The case provides an important lens through which scholars may examine the policy rationales for our limitations system. Central to limitations law is society’s recognition that there must be tradeoffs for a just and orderly legal system to prevail. Limitations law provides fairness to the defendant by providing repose, promoting accurate fact finding, and curtailing plaintiff misconduct - such as dilatory action and fraudulent litigation. Limitations law also promotes efficiency and ensures institutional legitimacy through the consistent application of neutral rules. Notwithstanding the many benefits of limitations law, the Anglo-American legal system has carved out numerous exceptions to the application of limitations periods to serve countervailing interests. Such exceptions include: Providing litigants their due process right to be heard; ensuring procedure does not trump substance; promoting institutional legitimacy through flexible and equitable considerations; developing the law; and promoting fairness to the plaintiff. Some argue that civil rights claims remote in time should be barred because their age complicates the identification of the parties, causation and remedies. They contend that such claims compromise deterrence, undermine repose or do not warrant equitable treatment. Others argue that these claims should survive limitations periods and be adjudicated on the merits because the claims fall within commonly recognized exceptions such as: equitable estoppel; equitable tolling; and accrual mechanisms like the discovery rule and the continuing violations doctrine. Or they contend that these claims fall outside of law governed by temporal restrictions altogether. This article explores such countervailing views in the context of African-American citizens (some over 100 years old) seeking restitution for a racial massacre that occurred over three-quarters of a century ago. Where the claims are so horrendous they cry out for equitable relief and yet so remote in time they seem insurmountable, it is important for courts to recognize that they have the tools to permit such claims to be heard on the merits, and the responsibility to examine when the underlying policy rationales for limitations law are not being served. This article is part of a series examining the impact of procedure on civil rights.

statute of limitations, reparations, restitution, Tulsa Race Riot of 1921, equitable tolling, equitable estoppel, civil rights, continuing violations, accrual, repose, racial violence, race riot, discrimination, time barred claims, discovery rule, limitations law, policy rationales

Abstract:
The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and that compensatory and punitive damages are by “nature” not incidental. On the opposite end of the spectrum is the Second Circuit’s standard - adopted by the Ninth - which permits the courts to use a flexible “ad hoc” approach when determining predomination. This article contends that should the Supreme Court accept the narrow incidental interpretation of the predomination requirement, employees fighting systemic intentional discrimination will be denied one of the most powerful weapons in their arsenal for justice - the class action.

For decades, Title VII class actions have resulted in extensive reforms in employers’ policies and millions of dollars in equitable monetary relief for thousands of employees nationwide. However, this traditional means of enforcement has come under attack. Specifically, the restrictive incidental interpretation diminishes the number of class actions, deprives employees of full relief, and imposes greater costs and burdens on those employment discrimination class actions that do survive. Deterrence and fairness are also undermined.

The ad hoc approach, on the other hand, respects the courts’ discretion and properly reconciles the goals of the Civil Rights Act of 1991 and Rule 23. The ad hoc approach’s flexibility allows plaintiffs to seek full relief, while enjoying due process protections available through hybrid certification and discretionary notice and opt-out rights. Furthermore, the Class Action Fairness Act of 2005 and recent amendments to Rule 23 curb potential judicial abuse, and confirm the propriety of allowing federal courts wide latitude in making class certification determinations. Consequently, when the Supreme Court has the occasion to consider the propriety of the Rule 23(b)(2) predomination test, it should embrace the ad hoc balancing test to preserve this essential civil rights enforcement tool - the class action. This article is part of a series examining the impact of procedure on civil rights.

Employment discrimination,class action,Rule 23, Title VII, Civil Rights Act of 1991, Predomination, Allison v. Citgo, Robinson, Rule 23(b)(2), incidental, ad hoc, Rule 23(b)(3), Class Action Fairness Act, class certification, 2003 Amendments to Rule 23, Civil Rights Enforcement