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17 Berkeley J. Emp. & Lab. L. 131 (1996)
Mandatory Arbitration: Alternative Dispute Resolution or Coercive Dispute Suppression

handle is hein.journals/berkjemp17 and id is 137 raw text is: Mandatory Arbitration: Alternative
Dispute Resolution or Coercive
Dispute Suppression?
Sharona Hoffman*
The enforceability of mandatory arbitration policies contained in em-
ployment contracts between employees and their direct employers remains
an open question, even after the Supreme Court's 1991 decision in Gilmer
v. Interstate Johnson Lane Corp. While Gilmer gave effect to a mandatory
arbitration clause in a contract between a securities broker and his licens-
ing exchange, the Court noted that the contract at issue was not an ordinary
employment contract between employer and employee. The Court declined
to decide whether arbitration agreements in ordinary employment contracts
are per se enforceable under the Federal Arbitration Act or whether these
provisions are exempt from the Act and therefore subject to closer judicial
Sharona Hoffman argues that arbitration provisions in ordinary em-
ployment contracts are beyond the scope of the Federal Arbitration Act, a
conclusion consistent with the approach of the majority of courts of appeal
which have considered this issue.
To demonstrate the continuing development of the law governing the
enforcement of mandatory arbitration policies, the author details a recent
case in which the Equal Employment Opportunity Commission challenged
and successfully enjoined enforcement of a mandatory arbitration policy.
The arbitration policy was vulnerable to attack because its provisions so
clearly favored the employer and because pre-existing employees were
forced to choose between keeping their jobs or prospectively agreeing to
arbitrate nearly all disputes under the terms of the employer's arbitration
Hoffman concludes that while voluntary alternative dispute resolution
schemes are enforceable, mandatory arbitration policies unilaterally im-
posed by employers upon employees may be voidable under both statutory
law and the common law of contracts.
* B.A. Wellesley College 1985; J.D., Harvard Law School 1988. Ms. Hoffiman is a Senior Trial
Attorney in the Equal Employment Opportunity Commission's Houston District Office and an adjunct
professor at South Texas College of Law. The views expressed in this article represent the personal
views and opinions of its author and are not intended to represent the views of the Equal Employment
Opportunity Commission or any other United States governmental agency.
© Berkeley Journal of Employment and Labor Law, Volume 17, No. 1, 1996.

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