Election of remedies clause in union contract does not violate Title VII

The collective bargaining agreement for unionized employees is the first place to look when their rights are violated. When an aggrieved employee in Connecticut looked at the CBA, she saw that it contained a provision that required her to forego arbitration in the event she brought a charge of discrimination with the EEOC. That provision is legal, the Second Circuit held this week.

The case is Richardson v. Commission on Human Rights and Opportunities, decided on July 7. The Second Circuit (Walker and Katzmann) noted that Title VII makes it quite difficult for an employer to require its employees to waive their rights under that law. "Courts have inferred from the purpose and structure of Title VII a requirement -- what we will call the 'Gardner-Denver doctrine' -- that any release or waiver of Title VII meet certain requirements, including that a collective bargaining agreement, as opposed to an individually bargained employment contract] not waive covered workers’ rights to a judicial forum for causes of action created by Congress. . . . Moreover, even with respect to individually bargained agreements, courts require that any such release or waiver be knowing and voluntary."

But the above legal principles do not help the plaintiff here. Judge Walker concludes, "The Gardner-Denver doctrine does not preclude a union and an employer from agreeing that employees must forego their right to arbitrate a grievance if they bring a lawsuit in federal court arising out of the same facts." As "Richardson remained free to file a charge with the EEOC, as she did, and to pursue a Title VII action in federal court, as she has," the CBA's provision disallowing her to bring a simultaneous arbitration does not violate Title VII. This is also sensible policy for the employer and the union as both entities may want to allocate their scarce resources carefully: "the election-of-remedies provision seems to qualify as a “reasonable defensive measure” utilized by Richardson’s employer to litigate discrimination claims brought against it effectively and efficiently."