Pyett line of cases promises wide umbrella

On April 1, 2009, the US Supreme Court issued its decision in 14 Penn Plaza LLC v Pyett, holding that unions, through arbitration provisions in collective bargaining agreements, may waive the rights of individual employees to litigate discrimination claims. A little over one month later, the first cases comprising the future Pyett line were released. From these two decisions, it seems likely that lower courts hearing mandatory arbitration cases will cite the Supreme's decision in Pyett in support of their holdings, regardless of whether the facts suit the rather unique circumstances underlying the Pyett decision.

In Mathews v Denver Newspaper Agency LLP, the District Court for the District of Colorado found that an employee's right to litigate his retaliation and discrimination claims was waived and cited Pyett for the proposition that discrimination claims are waivable through grievance arbitration. Unlike Pyett, the plaintiff had the opportunity to litigate his claims, but instead opted for binding arbitration, as his CBA allowed. In essence, the plaintiff himself waived his right to litigate his claims. The waiver did not stem from the CBA, as in Pyett, but rather from the plaintiff's own choice.

The District Court for the Southern District of New York has also weighed in. In Kravar v Triangle Services, Inc, the court cited Pyett for the proposition that CBAs which effectively preclude plaintiffs from raising discrimination claims in any forum cannot be upheld. The Supreme Court's decision in Pyett expressly declined to consider whether the CBA in that case acted as a substantive waiver of the plaintiff's ADEA rights; although the provision allowed the union to block arbitration, the plaintiffs failed to brief the issue. The Southern District faced exactly that question. The CBA in question stated that all discrimination claims would be settled through arbitration, but only if the union requested it. The union decided not to arbitrate, and in so doing, blocked the plaintiff's substantive rights. If anything, this case suggests that the questions raised by Pyett will continue to fuel debate, until the Supreme Court rules on this final point.

The Court may not get the chance, however. The Senate version of the Arbitration Fairness Act includes a provision that would expressly overturn the US Supreme Court’s ruling in Pyett. Russ Feingold, the measure's author, has said that the proposed bill would "make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”