Due Process in Employment Arbitration: Differential Coverage is Not Due Process

Abstract

The thesis of this paper is that the U.S. Supreme Court, however well meant its decision in Gilmer v. Interstate/Johnson Lane Corp., erred in not realizing that the decision created an unfair two-tier system involving the arbitration of disputes containing a statutory discrimination claim.1 The two tiers are employees involved in (1) proceedings under an employment arbitration agreement as in Gilmer and (2) statutory claims arising under a collective bargaining agreement as available under Alexander v. Gardner-Denver.2 There are many aspects to due process, including knowledge of rules, timely handling of disciplinary and other matters, access to representation, and avoidance of differential treatment in similar situations. The lack of due process emphasized here is the different way the two tiers referred to above are handled in workplace disputes. I note that the two tiers reflect the two aspects of the new Labor and Employment Relations Association title for our organization.