Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate

23 Pages Posted: 6 Aug 2014

Date Written: August 4, 2014

Abstract

The Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 570 U.S. -- 186 L. Ed. 2d 417, 133 S. Ct. 2403 (2013), that class action waivers ordinarily must be enforced under the Federal Arbitration Act even when the cost of an arbitration exceeds a claimant's potential recovery. This essay suggests, however, that employee waivers of class treatment in arbitrations are not appropriate for claims under Title VII of the Civil Rights Act of 1964 because of enforcement provisions unique to that statute. Because Congress has effectively set its legislative face against limits on employee access to class treatment, employee class treatment waivers are unenforceable as to Title VII status discrimination and retaliation claims.

Keywords: Title VII, arbitration, class action, waivers

JEL Classification: J7, J70, J71, J78, J79

Suggested Citation

Harkavy, Jonathan, Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate (August 4, 2014). Available at SSRN: https://ssrn.com/abstract=2476646 or http://dx.doi.org/10.2139/ssrn.2476646

Jonathan Harkavy (Contact Author)

Patterson Harkavy LLP ( email )

609 Rockford Road
Greensboro, NC 27408
United States
336 370-4200 (Phone)

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