Vindication Over Arbitration: How Disparate Treatment Pattern or Practice Claims Render Arbitration Agreements Unenforceable

Transcription

1 George Mason University From the SelectedWorks of Jeremy Greenberg August 27, 2012 Vindication Over Arbitration: How Disparate Treatment Pattern or Practice Claims Render Arbitration Agreements Unenforceable Jeremy Greenberg, George Mason University Available at:

2 VINDICATION OVER ARBITRATION: HOW DISPARATE TREATMENT PATTERN OR PRACTICE CLAIMS RENDER ARBITRATION AGREEMENTS UNENFORCEABLE BY JEREMY GREENBERG Contents ABSTRACT... 1 INTRODUCTION... 1 I. BACKGROUND... 4 A. Federal Arbitration Act... 4 B. Class Actions and Arbitration... 6 C. Title VII of the Civil Rights Act of II. ANALYSIS A. Arbitrating Statutory Rights B. Arbitrating Title VII Claims After Mitsubishi C. Vindicating Disparate Treatment Pattern or Practice Claims in Class Action Justifications for Class Action Use Only Individual Use Allowed? A Misreading of Circuits III. ARGUMENT A. Text B. Legislative History C. Inherent Conflict Between Arbitration and Title VII Pattern or Practice Claims Underlying Purpose D. Which Future Is the Fairest of Them All? CONCLUSION... 46

3 ABSTRACT The Supreme Court has consistently held that the Federal Arbitration Act embodies a federal policy favoring arbitration. Despite this policy, the Court also holds that arbitration agreements are unenforceable when individual plaintiffs cannot vindicate their statutory rights in arbitration. Additionally, the Court has emphasized that plaintiffs cannot arbitrate as a class unless the parties agreed to do so in the arbitration agreement. Certain claims, such as pattern or practice claims under Title VII, must be heard as a class. This Comment, therefore, argues that the inability to vindicate Title VII statutory rights in a class action renders arbitration clauses in certain employment contracts unenforceable where an employee alleges a pattern or practice of disparate treatment. The inherent conflict between pattern or practice claims and individual arbitration demonstrates that Congress intended to preclude the waiver of the judicial remedies in pattern or practice claims. INTRODUCTION Goldman Sachs and most of the financial industry have been the target of much ire for their roles in causing the United States worst financial crisis since the Great Depression. A major complaint has been the financial firms treatment of their employees. The complaints have not been focused on how badly the firms treated the employees. On the contrary, many have railed against the Wall Street firms for over compensating their executives with new offices and golden parachutes while their Main Street investors lost money. 1 Although few would think that a firm like Goldman Sachs would ever treat its employees poorly or unfairly. 1 Former Merrill chief to lead CIT Group; Bank of America deal, bonuses put Thain at center of controversy, THE WASHINGTON POST, Feb. 9, 2010, at A12; Todd Wallack, Pay czar blasts lavish rewards; 17 firms chided for making payments after getting aid, THE BOSTON GLOBE, July 24, 2010, at B5. 1

4 Christina Chen-Oster (Chen-Oster), a former vice president at Goldman Sachs, would disagree. In September 2010 she, 2 alongside several other women, submitted a class action complaint alleging that Goldman Sachs violated Title VII of the Civil Rights Act of 1964 (Title VII) 3 by systematically favoring male professionals at the expense of their female counterparts, otherwise known as a Title VII pattern or practice claim. 4 At trial Chen-Oster faced a problem. As a condition of working at Goldman Sachs, Chen- Oster signed an employment contract containing an arbitration clause. 5 The contract stated that [a]ny dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration and binding upon [all] parties. 6 Goldman Sachs, therefore, moved that the court order Chen-Oster and the other named class members to submit to individual arbitration. 7 The district court, however, faced a unique issue of law. Precedent holds that Title VII complaints alleging intentional employer patterns or practices of discrimination, as opposed to 2 Chen-Oster first filed a class action complaint of gender discrimination against Goldman Sachs with the Equal Employment Opportunity Commission (EEOC) in July of 2005, and in June of 2010 the EEOC dismissed Chen- Oster's case and issued a Notice of Right to Sue. Class Action Complaint at 31 Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394 (S.D.N.Y. 2011) reconsideration denied, 2011 WL (S.D.N.Y. July 7, 2011) (No. 10CV06950), 2010 WL Pub.L , Title VII, 701, July 2, 1964 (codified as amended at 42 U.S.C.A. 2000e to e-17 (West 2012)). 4 Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, (S.D.N.Y. 2011) reconsideration denied, 10 CIV LBSJCF, 2011 WL (S.D.N.Y. July 7, 2011). 5 Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, 398 (S.D.N.Y. 2011) reconsideration denied, 10 CIV LBSJCF, 2011 WL (S.D.N.Y. July 7, 2011). 6 Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, 398 (S.D.N.Y. 2011) reconsideration denied, 10 CIV LBSJCF, 2011 WL (S.D.N.Y. July 7, 2011). 7 Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, 399 (S.D.N.Y. 2011) reconsideration denied, 10 CIV LBSJCF, 2011 WL (S.D.N.Y. July 7, 2011). 2

5 individual instances, can only be heard on a class basis. 8 The Supreme Court, however, has held that class arbitration can only occur if allowed in the arbitration clause itself. 9 Additionally, the Supreme Court has repeatedly emphasized a federal policy favoring individual arbitration over class actions under the Federal Arbitration Act. 10 Thus, the court faced a dilemma of whether it should allow the class action to continue despite the employment contract s arbitration clause. This Comment argues that even with a federal policy favoring arbitration, the inability to vindicate Title VII statutory rights in a class action renders arbitration clauses in employment contracts unenforceable where an employee alleges a pattern or practice of disparate treatment. Part I of this Comment discusses the development of the federal policy favoring arbitration and how courts have applied that policy when confronted with class actions. Additionally, Part I examines the types of claims a plaintiff may bring under Title VII. Part II of this Comment generally analyzes the jurisprudence surrounding the arbitrability of statutory rights and then analyzes its application to Title VII. Part II then shifts to a discussion of how circuit courts hold that pattern or practice claims of disparate treatment can only be heard in class action. Part III of this Comment argues that Congress precluded the waiver of a judicial forum in Title VII pattern or practice claims. Because of the inherent conflict between arbitration and a Title VII pattern or 8 Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004); Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 159 (2d Cir. 2001); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, (4th Cir. 1998) vacated on other grounds, 527 U.S (1999); Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990). 9 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, (2011); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, (2010). The Chen-Oster agreement said nothing about the availability of class arbitration. Chen-Oster v. Goldman, Sachs & Co., 785 F.Supp.2d 394, 403 (S.D.N.Y. 2011) reconsideration denied, 10 CIV LBSJCF, 2011 WL (S.D.N.Y. July 7, 2011) U.S.C.A (West 2012); E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 290 (2002); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985); Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983). 3

6 practice claim s underlying purpose, an employee cannot vindicate her rights in individual arbitration and must be able to proceed in a class action lawsuit. Part III concludes with a brief examination of future congressional action that may impact this Comment s analysis. I. BACKGROUND This Comment investigates the interplay between the Federal Arbitration Act, class actions, and pattern or practice claims of disparate treatment under Title VII. Such an investigation requires an understanding of each area s development. Section A of this Part discusses the background environment and early applications of the Federal Arbitration Act. Section B of this Part then examines the interaction between arbitration and class action jurisprudence. Section C of this Part discusses Title VII and how an employee may bring a claim under the statute. A. Federal Arbitration Act Arbitration allows contractual parties to agree to resolve future disputes by submitting their disputes to an extra-judicial forum. 11 It is an informal process that works as an alternative to litigation but is still judicially binding on all parties. 12 Instead of appearing before a judge and jury, parties agree to give the arbitrator or arbitration panel full legal authority to resolve their dispute. 13 The proceeding follows rules agreed by the parties, usually in accordance with the procedures of an identified arbitral institution. 14 Once the arbitration begins, arbitrators typically 11 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) Alt. Disp. Resol. 1:1 (3d ed.) Alt. Disp. Resol. 6:1 (3d ed.) Alt. Disp. Resol. 8:30 (3d ed.). See, e.g., AM. ARBITRATION ASS N, EMPLOYMENT ARBITRATION RULES AND MEDIATION PROCEDURES available at 4

7 have the procedural authority to fashion flexible proceedings to resolve the dispute. 15 After the parties have presented their evidence and positions, the arbitrator deliberates and announces her decision and award. 16 Courts, however, were initially hostile to the use of arbitration. 17 Common law courts considered binding arbitration as a usurpation of their jurisdiction. 18 In response to this hostility, Congress passed the Federal Arbitration Act (FAA) in 1925 to put arbitration agreements on an equal footing with any other aspect of contract law. 19 The passage of the FAA created a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. 20 Overall, the Supreme Court has read the FAA as a congressional declaration of a liberal federal policy favoring arbitration agreements. 21 A court should enforce agreements made by private parties. 22 Agreeing to arbitrate does not, however, change any party s substantive rights afforded by the law. 23 An arbitration agreement merely dictates the forum of any future dispute resolution Alt. Disp. Resol. 8:30 (3d ed.) Alt. Disp. Resol. 9:50 (3d ed.). 17 Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974). 18 Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 n. 4 (1974) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)). 19 Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)). 20 Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983). 21 Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983) (footnote omitted). 22 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985). 23 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). 24 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). 5

8 B. Class Actions and Arbitration The class action is an important aspect of the American judicial system that serves as a vehicle for vindicating statutory rights. 25 It allows aggrieved parties to consolidate their claims into one action. 26 The consolidation allows for the efficient use of judicial resources while ensuring fairness to all class members. 27 The class action mechanism overcomes the lack of incentive an individual claimant might have to vindicate her rights when there might be a relatively low recovery not worth the cost of litigating. 28 With these negative-value claims, the expected recovery does not justify the cost of litigating individually. 29 For example, a lawyer might not take a case where the value of the claim at issue was only $70, but the same claim in a class action with 1000 claimants would create a $70,000 case. 30 Some commentators view class actions as a type of blackmail, where plaintiffs can extort defendants into settling claims or otherwise risk a higher value judgment at court. 31 To avoid the high stakes of class action litigation, parties can include terms within their contracts that dictate 25 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)); In re Am. Exp. Merchants' Litig., 667 F.3d 204, 214 (2d Cir. 2012). 26 See Fed. R. Civ. P See Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 553 (1974). 28 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)); In re Am. Express Merchants' Litig., 634 F.3d 187, 194 (2d Cir. 2011). 29 J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 VAND. L. REV. 1735, 1737 (2006). 30 See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974). A critical fact in this litigation is that petitioner's individual stake in the damages award he seeks is only $70. No competent attorney would undertake this complex antitrust action to recover so inconsequential an amount. Economic reality dictates that petitioner's suit proceed as a class action or not at all. 31 See generally Charles Silver, We re Scared to Death : Class Certification and Blackmail, 78 N.Y.U. L. REV (2003). See also Milton Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits-the Twenty-Third Annual Antitrust Review, 71 COLUM. L. REV. 1, 9 (1971). 6

9 the kinds of procedures used in future disputes arising from the contract. 32 Courts allow this kind of specialized procedure because contracting parties are generally free to structure their agreements as they see fit 33 Allowing parties to design their own method of dispute resolution creates efficient, streamlined procedures tailored to the type of dispute. 34 Examples of specialized procedures include class action waivers and agreements to use arbitrators rather than the courts. 35 Contracts can even allow parties to arbitrate as a class, with procedures very similar to class action lawsuits. 36 Nevertheless, the one party cannot compel the other into class arbitration when the arbitration agreement at issue is silent on the use of class procedures. 37 The Supreme Court has held that parties are not required to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. 38 In so holding, the Court reasoned that courts and arbitrators must give effect to the contractual rights and expectations of the parties. 39 A 32 Jaime Dodge, The Limits of Procedural Private Ordering, 97 VA. L. REV. 723, (2011). 33 Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). 34 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1749 (2011). 35 Jaime Dodge, The Limits of Procedural Private Ordering, 97 VA. L. REV. 723, (2011). 36 See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 (2010). Compare AM. ARBITRATION ASS N, SUPPLEMENTARY RULES FOR CLASS ARBITRATIONS available at with Fed. R. Civ. P AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1750 (2011); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775, 1776 (2010). 38 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010) (emphasis in opinion). 39 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, (2010) (quoting Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989)). 7

10 central expectation in a contract is the ability to specify with whom [the parties] choose to arbitrate their disputes and to designate the procedures used. 40 The Court found that the fundamentally different natures of individual and class arbitration create no expectation of class arbitration when parties generally agree to arbitrate their claims. 41 Individual arbitration forgoes the procedural rigor and appellate review of the courts for the supposed benefits of lower costs, greater efficiency and speed. 42 According to the Court, class arbitration is less likely to lead to these supposed benefits due to increased procedure. 43 Class arbitration, like judicial class actions, requires procedures to determine class certification, including whether the named parties are sufficiently representative and typical, and how discovery for the class should be conducted. 44 Another difference between individual and class arbitration is that a class arbitration decision applies to absent parties, similar to a class action in court. 45 The greater scope of class 40 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1774 (2010) (emphasis in opinion). See also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, (2011). 41 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1750 (2011); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775, 1776 (2010). 42 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010). But see PUBLIC CITIZEN, CONGRESS WATCH, COST OF ARBITRATION 8 (Aug. 2002), available at (last visited Nov. 20, 2011) (finding that despite the frequent claim of arbitration s expedited process reduced costs, net cost savings will not materialize in the vast majority of consumer and employee claims). 43 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010). 44 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1751 (2011). Compare AM. ARBITRATION ASS N, SUPPLEMENTARY RULES FOR CLASS ARBITRATIONS available at with Fed. R. Civ. P Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 (2010). Compare AM. ARBITRATION ASS N, SUPPLEMENTARY RULES FOR CLASS ARBITRATIONS available at with Fed. R. Civ. P. 23. In agreeing to arbitrate, a party does not forgo their substantive rights; therefore, if a party would have had the right to bring or defend against a class action claim binding all non present class members in court, she would have that same right in arbitration. See infra Part II.A. 8

11 arbitration increases the financial stake of the defending party like in a class action in court. 46 Despite the higher financial stake, class arbitrations, like all arbitration, have limited judicial review. 47 The Supreme Court posits that these crucial differences between individual and class arbitrations show that a party could not have the same expectations for both forms of arbitration; therefore, an arbitrator cannot imply consent to class arbitration without evidence of a specific agreement to class procedures. 48 C. Title VII of the Civil Rights Act of 1964 Title VII prohibits certain employer practices that are motivated by race, color, religion, sex, or national origin. 49 The Equal Employment Opportunity Commission (EEOC) is the federal government agency primarily responsible for enforcing Title VII violations against employers. 50 Title VII, however, gives individuals the right to pursue their claim in court if they follow certain procedures. 51 An individual must file a complaint with the EEOC within a certain timeframe. 52 If the EEOC pursues a civil action against the employer, the individual may 46 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 (2010). 47 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 (2010). 48 Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775, 1776 (2010) U.S.C.A. 2000e-2(a)(1)-(2) (West 2012). Other federal legislation that protect employees from discrimination include Americans with Disabilities Act of 1990, 42 U.S.C , and the Age Discrimination in Employment Act of 1967, 29 U.S.C U.S.C.A. 2000e-5, 2000e-6 (West 2012) U.S.C.A. 2000e-5(f)(1) (West 2012); 42 U.S.C.A. 1981a(a)(1) (West 2012) U.S.C.A. 2000e-5(e)(1) (West 2012); 42 U.S.C.A. 1981a(a)(1) (West 2012). An employee must generally file a charge with the EEOC within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C.A. 2000e-5(e)(1) (West 2012). However, if the employee initially brings her claim to an appropriate State or local agency, she has 300 days or 30 days after the State or local agency concludes it proceeding, whichever is sooner, to file the charge with the EEOC. Id. 9

12 intervene as a party. 53 If the EEOC does not pursue the claim, the EEOC must notify the individual that she may then pursue her own civil action. 54 There are generally two categories of Title VII claims of discrimination: (1) disparate impact and (2) disparate treatment. 55 Disparate impact occurs where employer practices or policies are facially neutral, but nevertheless adversely affect a protected Title VII group more than a non-protected group and the practices cannot be adequately justified. 56 Since the practices are facially neutral, disparate impact claimants do not have to prove intent. 57 Instead, a claimant establishes a prima facie case by showing preponderant evidence that the employer practice has a disparate impact on a protected class. 58 The defendant can then disprove the plaintiff s allegation by showing that no disparity exists or that the practice is based on a business necessity. 59 If defendant asserts a business necessity, the plaintiff must show an existing alternative practice that would satisfy the alleged necessity without causing a disparate impact U.S.C.A. 2000e-5(f)(1) (West 2012) U.S.C.A. 2000e-5(f)(1) (West 2012). Within 180 days after receiving the complaint, the EEOC must notify the complainant of her right to sue, even if the EEOC has yet to make its decision to pursue the claim or not. Id. 55 David J. Bross, The Use of Pattern-and-Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, 798 (2004). See also Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977). 56 Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977); Michael J. Zimmer, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 207 (7th ed. 2008); David J. Bross, The Use of Pattern-and- Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, 798 (2004) (citing EEOC v. Joe s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000)). 57 Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977). 58 Connecticut v. Teal, 457 U.S. 440, 459 n. 3 (1982); David J. Bross, The Use of Pattern-and-Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, (2004) U.S.C.A. 2000e-2(k)(1)(A)(i) (West 2012); David J. Bross, The Use of Pattern-and-Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, 799 (2004) (citing Davis v. Califano, 613 F.2d 957, 962 (D.C. Cir. 1979)) U.S.C.A. 2000e-2(k)(1)(A)(ii) (West 2012). 10

13 Disparate treatment occurs where an employer intentionally treats protected class member employees differently than non-class member employees. 61 A plaintiff must prove an employer s intent through direct evidence, inference, or establishing a pattern or practice of discrimination. 62 Where an employee shows direct evidence of disparate treatment against her, the employer must prove that he would have treated the employee with the same employment practice despite the alleged discrimination. 63 The plaintiff must prove that the employer s discrimination was a motivating factor in the employment decision. 64 The direct evidence must show that discrimination caused the different practice, without inference or presumption. 65 Since employers now know better, direct evidence of employment discrimination is rare. 66 In McDonnell Douglas Corp. v. Green, the Supreme Court established a burden-shifting framework whereby an employee may establish a rebuttable inference of disparate treatment. 67 To utilize the framework, a plaintiff must initially establish a prima facie case of discrimination by demonstrating that (1) she belongs to a protected class, (2) she applied and was qualified for a job for which the employer was seeking applicants, (3) she was rejected despite her 61 Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). 62 David J. Bross, The Use of Pattern-and-Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, 799, 800 (2004). 63 David J. Bross, The Use of Pattern-and-Practice by Individuals in Non-Class Claims, 28 NOVA L. REV. 795, 799, 800 (2004) (citing Tex. Dep t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)) U.S.C.A. 2000e-2(m) (West 2012) 65 Brown v. E. Mississippi Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). 66 Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 662 (9th Cir. 2002). 67 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 11

14 qualifications, 68 and (4) non-protected class members with similar qualifications received the job at the time the plaintiff's request was denied. 69 The burden of production then shifts to the employer to explain a legitimate, nondiscriminatory reason for its actions. 70 The plaintiff retains the burden of persuasion to show that employer s given reason was not the true reason for the employment decision. 71 The other standard for proving disparate treatment is by establishing that the employer exhibits a systematic pattern or practice of resistance to the full enjoyment of an employee s Title VII rights. 72 A plaintiff must prove by preponderant evidence that discrimination was a part of the employer s regular operating procedure. 73 Proof of isolated instances of discriminatory incidents is not enough. 74 In International Brotherhood of Teamsters the Supreme Court set out a two stage framework for proving a pattern or practice claim McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 69 Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The McDonnell Douglas test has evolved overtime, becoming flexible to ever changing situations. See Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 6 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13 (1973)). Circuit courts have applied the McDonnell Douglas prima facie test of disparate treatment for other adverse employment actions, including significant changes in employment status, such as firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits applies See Semsroth v. City of Wichita, 304 F. App'x 707, 718 (10th Cir. 2008) 70 Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 71 Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) U.S.C.A. 2000e-6(a) (West 2012); David J. Bross, The Use of Pattern-and-Practice by Individuals in Non- Class Claims, 28 NOVA L. REV. 795, 799, 801 (2004). 73 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 336 (1977). 74 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 336 (1977). 75 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, (1977). 12

15 The first stage determines the liability of the employer. 76 The plaintiff has the initial burden of showing the employer engaged in systematic unlawful discrimination as its standard operating procedure. 77 Evidence is typically shown through strong statistical data with anecdotal support. 78 If the plaintiff satisfies this initial burden, she creates a rebuttable inference of a pattern or practice of discrimination. 79 The burden of production then shifts to the employer to disprove the plaintiff s evidence. 80 If the defendant fails to rebut the plaintiff s inference, the trial then enters into the second, remedial stage. 81 The finding of a pattern or practice alone justifies the award of prospective relief such as an injunction against further discrimination or other orders necessary to ensure the protection of the employees' rights under Title VII. 82 When employees also seek individual relief for being victims of the discriminatory practice, the court must hold additional proceedings to determine the scope of individual relief. 83 The pattern or practice established during the liability stage creates the rebuttable inference that the employer engaged in individual instances of discrimination pursuant to the discriminatory practice. 84 As in the liability stage, an 76 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 336 (1977). 77 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 3336 (1977). 78 Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d 1036, 1051 (7th Cir. 1991) opinion supplemented on denial of reh'g, 963 F.2d 929 (7th Cir. 1992). 79 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 360 (1977). 80 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 360 (1977). 81 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 361 (1977). 82 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 361 (1977). 83 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 361 (1977). 84 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 362 (1977). 13

16 employer may bring evidence that its actions against the specified individual were not made pursuant to the practice. 85 II. ANALYSIS This Part discusses the vindication of statutory rights in arbitration and in disparate treatment pattern or practice claims. Section A of this Part examines how the arbitration of statutory rights was initially very restricted. 86 As time passed, the Court eventually embraced the arbitrability of statutory claims. 87 Section B of this Part discusses how the Court applied this new view of arbitrability to Title VII claims. The key requirement of arbitrability was that a claimant must be able to successfully pursue her claim. 88 With this emphasis on vindication in mind, Section C of this Part then shifts to a discussion on vindicating pattern or practice claims of disparate treatment in class action. A. Arbitrating Statutory Rights The Supreme Court was initially resistant to allow parties to arbitrate their statutory rights such as those present in Title VII. 89 In Alexander v. Gardner-Denver Co., the Supreme Court held that arbitration was a comparatively inappropriate forum for the final resolution of rights created by Title VII. 90 The Alexander Court explained that the purpose and procedures 85 Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 362 (1977). 86 See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). 87 Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 480 (1989). 88 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985). 89 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (holding that an arbitration clause in a collective bargaining agreement did not preclude an employee to bring a Title VII lawsuit against employer). 90 Alexander v. Gardner-Denver Co., 415 U.S. 36, 56 (1974). 14

17 of Title VII show that Congress intended the courts, not arbitrators, to enforce Title VII. 91 Arbitration is an appropriate forum for an employee s contract dispute, but not for vindicating her statutory rights. 92 The arbitral forum and its inadequate procedures invariably affect the scope of the substantive right at issue. 93 Through the early 1980s, Court continually held that arbitral procedures were not as effective in protecting individual statutory rights as judicial procedures. 94 While the Alexander Court did not directly address the FAA in its opinion, 95 the Court did hold that the federal policy favoring arbitration and the federal policy against discrimination would best be fulfilled by allowing employees to pursue their claims in arbitration and then in court. 96 A claimant would arbitrate her claim first in order to facilitate voluntary settlement. 97 If no settlement occurred, a court would hear the claim de novo and the arbitration decision could be admitted as evidence. 98 Although a court would weigh an arbitral decision in its ruling, 91 Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974). 92 Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974). 93 Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974) (quoting U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, (1971) (Harlan, J., concurring)). 94 Stephen A. Plass, Arbitrating, Waiving and Deferring Title VII Claims, 58 BROOK. L. REV. 779, (1992) (citing McDonald v. City of West Branch, Mich., 466 U.S. 284 (1984); Barrentine v. Arkansas Best Freight Sys. Inc, 450 U.S. 728 (1981)). 95 R. Gaull Silberman et. al., Alternative Dispute Resolution of Employment Discrimination Claims, 54 LA. L. REV. 1533, 1543 (1994). 96 Alexander v. Gardner-Denver Co., 415 U.S. 36, (1974). 97 Alexander v. Gardner-Denver Co., 415 U.S. 36, 59 (1974). 98 Alexander v. Gardner-Denver Co., 415 U.S. 36, (1974). 15

18 Congress intended for the courts to decide the ultimate resolution of discriminatory employment claims. 99 As time passed arbitral procedural protections began to improve. 100 For example, after Alexander the American Arbitration Association revised its rules to provide greater procedural protection for claimants. 101 Recognizing these improvements, some lower courts began to find arbitration agreements binding against individuals with statutory claims. 102 In the 1980s a radical change occurred in the Court s receptivity of arbitrating statutory rights, 103 ending the judicial hostility against arbitration. 104 By 1985, the Supreme Court espoused that it was well past the time [of] judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals. 105 In Mitsubishi Motors Corp. v. Soley Chryster-Plymouth, Inc., the Supreme Court held that parties to a contract are generally required to arbitrate their statutory claims under the 99 Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 (1974). 100 R. Gaull Silberman et. al., Alternative Dispute Resolution of Employment Discrimination Claims, 54 LA. L. REV. 1533, 1542 (1994). 101 Stephen A. Plass, Arbitrating, Waiving and Deferring Title VII Claims, 58 BROOK. L. REV. 779, 788 (1992) (citing Robert Coulson, Fair Treatment: Voluntary Arbitration of Employee Claims, 33 ARB. J. No. 3, 23 (1978)). The president of the American Arbitration Association, Robert Coulson, wrote that the [n]ew [s]ystem [p]roposed would be attractive to both the employee and the employer. Such a system would be a great boon to millions of Americans In claims between individual employees and their employer, a sensitivity to the human concerns involved will also be important. The Arbitrator must not only be capable of reaching a fair decision, but must also appear to be fair to both individual claimants and to the interests of the defending parties. Robert Coulson, Fair Treatment: Voluntary Arbitration of Employee Claims, 33 ARB. J. No. 3, 24, 26 (1978). 102 R. Gaull Silberman et. al., Alternative Dispute Resolution of Employment Discrimination Claims, 54 LA. L. REV. 1533, 1542 (1994). 103 Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 77 (1998). 104 Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 480 (1989). 105 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, (1985). 16

19 FAA. 106 The Mitsubishi case involved a contract dispute between a Japanese car manufacturer and a regional distributor. 107 The contact included an agreement to arbitrate all disputes, controversies or differences which may arise between the two parties. 108 The distributor brought a claim in federal court against the manufacturer for violating the Sherman Antitrust Act, 15 U.S.C. 1-38, and the manufacturer wished to compel arbitration. 109 Before this case, all Supreme Court decisions that enforced arbitration agreements under the FAA involved only contract claims. 110 The Court had never previously found that an arbitration clause referring to claims arising out of or relating to a contract covered statutory claims indirectly related to the contract. 111 The key to the Mitsubishi Court s ruling was its application of the FAA. The FAA makes arbitration agreements involving commerce valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 112 The Court found that the FAA s liberal federal policy favoring arbitration agreements embodies the principle that courts should enforce the agreements into which private parties enter. 113 Absent claims such as 106 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985). 107 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 617 (1985). 108 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 617 (1985). 109 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 616 (1985). 110 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 646 (1985) (Stevens, J. dissenting). 111 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 647 (1985) (Stevens, J. dissenting) U.S.C.A. 2 (West 2012). 113 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985) (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)). 17

20 fraud or overwhelming economic power which would render any contract unenforceable, the FAA applies to disputes over contractual and statutory rights equally. 114 In contrast to the Supreme Court s decision in Alexander, which rejected arbitration of Title VII claims, 115 the Mitsubishi Court held: By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration. 116 Looking prospectively, the arbitral forum serves the same remedial and deterrent function as a court because claimants can still vindicate their statutory rights. 117 If a contract provision operated in tandem as a prospective waiver of a party's right to pursue statutory remedies [the Court] would have little hesitation in condemning the agreement as against public policy. 118 Parties should be held to their agreements; however, the Mitsubishi Court cautioned that not all disputes regarding statutory rights are suitable for arbitration. 119 Congressional intent within other statutes may preclude the use of arbitration to settle disputes related to those claims. 120 Congress may not want parties to be able to relinquish their federal statutory rights by U.S.C.A. 2 (West 2012); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985). 115 Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974). 116 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). 117 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985). 118 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n. 19 (1985). 119 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627, 628 (1985). 120 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985). 18

21 agreeing to arbitrate. 121 A court can deduce congressional intent from a statute s text and legislative history. 122 Throughout the rest of the decade, the Court continued to enforce the arbitration of statutory rights resulting from commercial contracts. 123 The Court, however, added another method of determining congressional intent. The congressional intent to prohibit the waiver of a judicial forum can also be found from an inherent conflict between arbitration and the statute s underlying purposes. 124 There is an inherent conflict between arbitration and a statute s underlying purpose when a party may not effectively vindicate her statutory claim in an arbitral forum. 125 B. Arbitrating Title VII Claims After Mitsubishi After Mitsubishi, some circuits continued to follow the Alexander Court s holding that arbitration agreements were not binding on claims of employment discrimination. 126 These circuits distinguished employment discrimination from claims arising out of business contracts like in Mitsubishi since the Supreme Court had yet to explicitly overturn Alexander. 127 These 121 David Horton, Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine, 60 U. KAN. L. REV. 723, 726 (2012). 122 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). 123 See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) (Securities Act); Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220 (1987) (Racketeer Influenced and Corrupt Organizations Act). 124 Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 227 (1987). 125 Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 242 (1987). Despite much discussion by the courts, the vindication of rights doctrine has received little scholarly attention. David Horton, Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine, 60 U. KAN. L. REV. 723, 726 (2012). 126 See, e.g., Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104, 107 (5th Cir. 1990) cert. granted, judgment vacated, 500 U.S. 930 (1991); Utley v. Goldman Sachs & Co., 883 F.2d 184, 186 (1st Cir. 1989); Swenson v. Mgmt. Recruiters Int'l, Inc., 858 F.2d 1304, 1307 (8th Cir. 1988). 127 Utley v. Goldman Sachs & Co., 883 F.2d 184, 186 (1st Cir. 1989). 19

22 courts believed that the presumption of arbitrarily under the FAA was overridden by congressional intent in employment discrimination statutes. 128 Congress precluded the waiver of judicial forum since employment discrimination involve[s] adjudication of the rights of an individual under the Constitution, an inquiry that, with all due respect to arbitration, has historically been the sole province of Article III adjudication. 129 Other circuits, however, did not find an inherent conflict between the FAA and employment discrimination statutes. 130 With this circuit split, the Supreme Court granted certiorari to Gilmer v. Interstate/Johnson Lane Corp. 131 The Gilmer Court held that claims alleging employer violations of the Age Discrimination in Employment Act of 1967 (ADEA) could be arbitrated. 132 The Court reaffirmed its holdings that parties may agree to arbitrate statutory claims without foregoing their statutory rights and that there is a presumption of arbitrability unless otherwise evidenced by congressional intent. 133 Without any text or legislative history to preclude waiver, the issue was whether arbitration was inconsistent with the purposes of the ADEA. 134 Congress designed the ADEA to address both individual grievances and further important social 128 Utley v. Goldman Sachs & Co., 883 F.2d 184, 186 (1st Cir. 1989). 129 Utley v. Goldman Sachs & Co., 883 F.2d 184, 187 (1st Cir. 1989) (quoting Page v. Moseley, Hallgarten, Estabrook, and Weeden, Inc., 806 F.2d 291, 297 (1st Cir.1986)). 130 See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195, 197 (4th Cir. 1990). 131 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (involving the discharge of a 62 year old employee who had signed an arbitration agreement). 132 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991); 29 U.S.C.A. 621 (West 2012) (prohibiting arbitrary age discrimination in employment decisions). 133 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) ( By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. )). 134 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991). 20

23 policies. 135 The Court did not find arbitration to be inconsistent with promoting these social policies. 136 As in Mitsubishi, the Court held that as long as a claimant may vindicate her statutory rights in arbitration, the statute still serves its remedial and deterrent function. 137 In addition, the inability to utilize a judicial forum does not prevent a claimant from filing a charge with the EEOC for the agency to pursue. 138 Although Gilmer dealt with the interactions between the FAA and the ADEA, the decision immediately caused an abrupt change in the circuit courts treatment of arbitration agreements and Title VII. 139 Seven days after Gilmer, the Supreme Court vacated and remanded a case involving the arbitrability of a Title VII claim back to the Fifth Circuit in light of its Gilmer opinion. 140 In Dean Witter, an employee subject to an arbitration agreement brought a Title VII sex discrimination claim against her employer. 141 The Fifth Circuit initially found that Alexander controlled the issue of the claim s arbitrability, despite the more recent Supreme Court 135 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991). 136 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991). 137 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985)). 138 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). The Supreme Court further explored the impact of arbitration agreements and the role of the EEOC in E.E.O.C. v. Waffle House, Inc. 534 U.S. 279 (2002). The Court held that the EEOC s statutory authority to vindicate the public interest of eliminating employment discrimination allowed the agency to seek injunctive relief against an employer despite an employee s arbitration agreement. Id. at 290 (quoting E.E.O.C. v. Waffle House, Inc., 193 F.3d 805, 810 (4th Cir. 1999)). An employee s ability to seek specific relief through the EEOC would not significantly trample the strong federal policy favoring arbitration despite previously agreeing to submit her claim to arbitration. Id. Once an employee submits her claim to the EEOC, she has no control over her claim or the relief the EEOC seeks. See Waffle House, 534 U.S. at 291. Additionally, since the EEOC was not a party to the arbitration agreement, the FAA s policy favoring arbitration cannot force the EEOC to relinquish its statutory authority to prosecute discrimination claims. Id. at Michelle Hartmann, A Myriad of Contradiction with Title VII Arbitration Agreements-Duffield As the Past, Austin As the Future, and the EEOC As the Target of Restructuring, 54 SMU L. REV. 359, 364 (2001). 140 Dean Witter Reynolds, Inc. v. Alford, 500 U.S. 930 (1991). 141 Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104, 105 (5th Cir. 1990) cert. granted, judgment vacated, 500 U.S. 930 (1991). 21

24 decisions allowing for the arbitration of statutory claims. 142 On remand, however, the Fifth Circuit held that because Title VII and the ADEA have similar civil rights purposes and joint private-eeoc enforcement, arbitrability of claims under those statutes should be analyzed in the same manner. 143 Six month after Gilmer, Congress passed the Civil Rights Act of 1991 (Amendment), amending Title VII and the ADEA. 144 Section 118 of the Amendment states: [w]here appropriate and to the extent authorized by law, the use of alternative dispute resolution, including... arbitration, is encouraged to resolve disputes arising under Title VII and the ADEA. 145 Circuit courts read the text of the Amendment to show the clear intent to encourage the arbitration of Title VII statutory claims. 146 The courts continued to emphasize, however, that a party agreeing to arbitrate does not forgo the substantive statutory rights in Title VII which, when effectively vindicated, serves the statute s remedial and deterrent function. 147 If a claimant 142 Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104, 106 (5th Cir. 1990) cert. granted, judgment vacated, 500 U.S. 930 (1991). 143 Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991). See also Mago v. Shearson Lehman Hutton Inc., 956 F.2d 932, 935 (9th Cir. 1992) ( both statutes are similar in their aims and substantive provisions ). 144 Civil Rights Acts of 1991 Pub.L (1991). The Amendment was written prior to but signed into law following Gilmer. Sara Lingafelter, Lack of Meaningful Choice Defined: Your Job vs. Your Right to Sue in A Judicial Forum, 28 SEATTLE U. L. REV. 803, 822 (2005). 145 Civil Rights Acts of 1991 Pub.L , 118 (1991) (reprinted in notes to 42 U.S.C.A (West 2012)). 146 See, e.g., Seus v. John Nuveen & Co., Inc., 146 F.3d 175, 182 (3d Cir. 1998). 147 Seus v. John Nuveen & Co., Inc., 146 F.3d 175, 182 (3d Cir. 1998) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 28 (1991)). See also Shankle v. B G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230, 1234 (10th Cir. 1999) (citations omitted) ( Gilmer reaffirmed the Arbitration Act's presumption in favor of enforcing agreements to arbitrate-even where those agreements cover statutory claims. While we recognize this presumption, we conclude that it is not without limits. As Gilmer emphasized, arbitration of statutory claims works because potential litigants have an adequate forum in which to resolve their statutory claims and because the broader social purposes behind the statute are adhered to. This supposition[ ] falls apart, however, if the terms of an arbitration agreement actually prevent an individual from effectively vindicating his or her statutory rights. ). Cf. Sutherland v. Ernst & Young LLP, No. 10 Civ (KMW) (MHD), 2012 WL , at *6 (S.D.N.Y. Jan. 17, 2012) (holding that the right to collective action under the Fair Labor Standards Act cannot be vindicated in individual arbitration); Owen v. Bristol Care, Inc., CV-FJG, 2012 WL , at *4 (W.D. Mo. Feb. 28, 2012) (same); Raniere v. Citigroup Inc., 827 F. Supp. 2d 294, 309 (S.D.N.Y. 2011) (same). 22