Waiving Goodbye to Gilmer? Early Signs of Repatriating Employment Disputes to Courts

Abstract

Employer exposure to liability rose sharply following implementation of the 1991 Civil Rights Act and Americans with Disabilities Act in 1992. Employment discrimination lawsuits in federal courts rose from 8,273 in 1990 to 15,965 in 1994, 19,059 in 1995, and 23,152 in 1996 (Administrative Office of the U.S. Courts 2004)—a nearly threefold increase in seven years. After the Supreme Court approved mandatory arbitration in Gilmer v. Johnson/ Interstate Lane Corp. (1991), employers saw an opportunity to opt out of these lawsuits. By the late 1990s, most Fortune 1000 companies used employment arbitration (Bureau of National Affairs 2004).