Employment Discrimination Law: ADA, ADEA, and Arbitration

Gilmer v. Interstate/Johnson Lane: Mandatory Arbitration and the ADEA

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), petitioner Robert Gilmer, a securities representative registered with the New York Stock Exchange, was required by his employer to register as a securities representative. His registration application contained a clause stating his agreement to arbitrate any and all controversies "arising out of a registered representative's employment or termination of employment." At the age of sixty-two, Gilmer was terminated, and he subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that his termination violated the Age Discrimination in Employment Act (ADEA). Relying on the registration agreement, the employer moved to compel arbitration. The Supreme Court ultimately ruled that arbitration was mandatory.

In its decision, the Supreme Court reasoned that mandatory arbitration did not undermine the EEOC's enforcement role under the ADEA because the Act still permits an individual to file a charge with the Commission. The Commission is charged simply with combating age discrimination, and nothing in the Act requires that this mission be carried out exclusively through judicial actions. On the contrary, the Commission may receive information regarding violations "from any source," and pursuant to 29 C.F.R. §§ 1626.4 and 1626.13, nothing in the ADEA requires the Commission to be directly involved in all employment disputes.

Supreme Court Reasoning and Its Implications

Gilmer's principal argument was that arbitration was improper because it deprived him of his right to a "judicial forum" as provided by the Act. However, the Court held that the ADEA is silent as to what constitutes a "judicial forum" and thus does not explicitly protect against a waiver of the right to such a forum. Based on this reasoning, the Court concluded that Gilmer failed to meet his burden of proving that Congress enacted the ADEA with the intent to preclude arbitration of claims brought under the Act.

This ruling has significant implications for court-mandated arbitration. In essence, it holds that statutory language granting a petitioner the right to bring a judicial action can be interpreted to encompass arbitration and other nonjudicial resolutions. What is particularly striking is the Court's interpretation of the term "judicial forum" to include arbitration — the very opposite of what that word ordinarily conveys. It seems apparent that by using the word "judicial," Congress intended to refer to traditional judicial proceedings, such as the private court action Gilmer originally filed. The Supreme Court, however, interpreted the term in the opposite direction, holding that if Congress had intended to exclude arbitration, it would have said so explicitly. Yet Congress arguably did say so implicitly through its deliberate use of the word "judicial," which is by definition the opposite of "nonjudicial."

It is because of this misinterpretation of Congress's evident intent that this analysis sides with the dissenting opinion. The dissent relies heavily on the Federal Arbitration Act (FAA), which provides: "Nothing herein contained shall apply to contracts of employment of … any class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. Because Gilmer was engaged in interstate commerce, he falls outside the FAA's jurisdiction — contrary to the majority's conclusion. Whereas the majority held that the FAA compels enforcement of arbitration clauses even in ADEA claims, the dissent argued that the FAA does not extend to such cases. Arbitration clauses in employment contracts are specifically exempt from FAA coverage, and therefore the employer could not compel Gilmer to submit his claim to arbitration. This reading is the more persuasive one.

ADA and Deaf Employees: UPS Training Accommodation

In this scenario, several deaf employees of United Parcel Service (UPS) brought an action for disability discrimination under the Americans with Disabilities Act (ADA). During training, the employer conducted sessions on handling the anthrax threat via video. The deaf workers claimed discrimination on the grounds that the employer never provided sign language interpreters or subtitles. The employer countered that no special accommodation was required because the deaf employees could watch the videos and because deafness does not constitute a disability for the purposes of handling packages.

The ADA covers qualified individuals with a disability employed by covered entities, including private employers. A qualified individual is one who, with or without reasonable accommodation, can perform the essential functions of the position held or desired. A disability is defined as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. Where an individual qualifies as disabled, the employer must take reasonable measures to accommodate that disability.

Although courts have held that certain hearing impairments do not constitute disabilities when their effects can be mitigated through corrective instruments, this reasoning does not apply to complete deafness. Being deaf is a physical impairment that substantially limits one or more major life activities. Accordingly, UPS was required to make reasonable accommodations during training. When training involves both visual and audio components, it is insufficient to assert that deaf workers can simply watch the video, as that approach denies them the full benefit of the training. The provision of an interpreter or closed-caption subtitles is a reasonable accommodation. The employees therefore have a valid claim of discrimination under the ADA.