NELA, along with a broad coalition of employee rights and civil rights organizations, including the Asian American Justice Center, the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Education Fund, the National Employment Law Project, the National Partnership for Women & Families, the National Women’s Law Center, The Employee Rights Advocacy Institute For Law & Policy, Women Employed, and 9to5, National Association of Working Women, filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s refusal to enforce an arbitration agreement containing a class action ban in an employment discrimination case involving Title VII pattern-or-practice discrimination claims. Amici agree with the district court’s holding that pattern-or-practice claims are distinct from individual disparate treatment claims and that arbitration agreements therefore are unenforceable if they preclude plaintiffs from vindicating pattern-or-practice claims. Our brief also contends that vindication of pattern-or-practice claims is vital to achievement of Title VII’s purpose and is largely infeasible on an individual basis due to limitations on the scope of discovery in bilateral adjudications, the substantial costs of proving a pattern-or-practice claim, and limitations on the scope of injunctive relief. Our brief serves to highlight the centrality of pattern-or-practice claims under Title VII in eradicating the complex and pervasive problem of employment discrimination and in providing for meaningful systemic reform, as well as to emphasize the substantive distinctions between pattern-or-practice claims and individual disparate treatment claims. It further argues that enforcement of forced arbitration agreements that ban employees from pursuing pattern-or-practice discrimination claims would allow employers to immunize themselves from private pattern-or-practice actions, diminish workers’ substantive rights under Title VII, and severely undermine the purpose and efficacy of Title VII.
Authors: Joseph M. Sellers, Abigail E. Shafroth (Cohen Milstein Sellers & Toll, PLLC)