Getting Nothing for Something: When Women Prevail in Employment Arbitration Awards
53 Pages Posted: 17 Jun 2007
Millions of workers are now required by their employers to forgo court and arbitrate legal claims that arise from employment disputes. My empirical study of 152 employment arbitrations from 1977-2003 shows that complainants prevail in 49.3% of these cases. This success rate is high compared to trials. However, this study also shows that arbitrators split their awards significantly more often for women. In a typical case, the arbitrator rules in favor of a woman's sex discrimination claim, but refuses to award her attorney's fees. In contrast, when a court reaches the same conclusion on the merits of a sex discrimination claim, a judge orders attorney fees to the plaintiff. Evidence presented here shows that these fees range from $53,430 to $589,624. Cases in this study also show that prevailing complainants who are denied attorney's fees face legal costs that nullify the arbitrator's award of damages. This key difference between trials and arbitrations undercuts the Supreme Court's confident assurance in Gilmer v. Interstate/Johnson Lane Corp. that employment arbitration is merely a change in forum, without substantive import. My findings suggest that experienced employment discrimination lawyers will be less inclined to represent women who are shut out of the court system and forced into arbitration, thereby frustrating the primary enforcement mechanism of Title VIIâ" fee shifting as a method to "make it easier for a plaintiff of limited means to bring a meritorious suit."
Keywords: dispute resolution, judges, arbitration, judicial review, sex discrimination
JEL Classification: J52, J53, J71, K41, K31
Suggested Citation: Suggested Citation