Hastings Law Journal


The 1991 Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp. introduced a new era in the enforcement of statutory rights designed to protect individuals in the workplace. No longer would employees be entitled to a judicial forum or employers limited to such a forum in adjudicating workplace disputes. Rather, Gilmer created the possibility that pre-dispute employment contracts could bind workers to litigate important public rights in the private forum of arbitration under the auspices of the Federal Arbitration Act. This possibility reached fruition in the Court's 2001 decision in Circuit City Stores, Inc. v. Adams, making such pre-dispute arbitration contracts, except "contracts of employment of transportation workers," generally applicable throughout the economy.

Though the Court in EEOC v. Waffle House, Inc. preserved the enforcement role of the EEOC despite arbitration agreements between employees and targeted employers, it simultaneously acknowledged the limited practical effect of EEOC jurisdiction on employment arbitration in statutory cases.

This development potentially subjects most adjudication involving statutory rights to arbitration rather than courts as originally contemplated by Congress in most protective legislation. Critics have objected that the ceding of jurisdiction in statutory cases amounts to an abrogation of employee rights and an abdication of judicial enforcement responsibility.

This Article recognizes the advantages and disadvantages of arbitration in statutory cases. It also affirms the centrality of judicial supervision to the effective enforcement of statutory rights. In taking up a key issue yet to be decided by the Supreme Court, the Article proposes a substantive integrity standard of review which accomplishes the dual purposes of making effective both arbitral disposition of statutory employment cases and judicial supervision of arbitral decision-making. While situating the substantive integrity standard among the prevailing appellate review standards, the Article also reconciles the competing statutory policies in the FAA and statutes such as Title VII and incorporates the important policy pronouncements of the Supreme Court. Finally, the Article demonstrates the viability of integrity review by applying it and drawing upon the results of the South African experience under a similar standard.

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