Closing a Discrimination Loophole: Using Title VII's Anti-Retaliation Provision to Prevent Employers from Requiring Unlawful Arbitration Agreements as Conditions of Continued Employment

Authors

Sidney Charlotte Reynolds

Abstract

Courts have long viewed mandatory arbitration agreements (MAAs) as contract provisions that employees may accept or decline based on the common law doctrine of employment at-will. However, employees may see such MAAs as attempts to curtail Title VII rights and may refuse to sign them. Title VII prohibits employers from retaliating against employees who oppose discriminatory employment practices. A legal loophole has developed where some employers seek explicitly or implicitly to exempt themselves from Title VII's provisions by drafting MAAs that eliminate statutory rights and remedies from the arbitration process or deter employees from filing discrimination claims altogether. The U.S. Supreme Court has declared such MAAs to be contrary to the policies and purposes of Title VII. At the same time, courts have broadly construed Title VII's anti-retaliation provision to protect employees who might not be protected under the plain language of the provision. This Comment argues that Title VII's anti-retaliation provision should protect employees who have a reasonable belief that the MAAs they oppose are unlawful under Title VII and its policies and purposes.

First Page

957

Recommended Citation

Sidney C. Reynolds, Notes and Comments, Closing a Discrimination Loophole: Using Title VII's Anti-Retaliation Provision to Prevent Employers from Requiring Unlawful Arbitration Agreements as Conditions of Continued Employment, 76 Wash. L. Rev. 957 (2001).
Available at: https://digitalcommons.law.uw.edu/wlr/vol76/iss3/7