On July 2, 2012, 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 Educational Fund, Inc., 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. The plaintiffs-appellees in Chen-Oster v. Goldman Sachs, pending sub. nom., Parisi v. Goldman Sachs, filed a Title VII class action in the U.S. District Court for the Southern District of New York, alleging that Goldman Sachs maintained a pattern or practice of discrimination with respect to compensation and promotion on the basis of gender. The district court denied Goldman Sachs’ motion to compel arbitration, concluding that plaintiffs could not pursue their Title VII pattern-or-practice claims in individual arbitration and that the arbitration agreement was therefore unenforceable as it precluded effective vindication of the plaintiffs’ statutory rights.
Amici support the district court’s holding that pattern-or-practice claims are distinct from individual disparate treatment claims and that arbitration agreements thus 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. The brief highlights the centrality of pattern-or-practice claims under Title VII in eradicating the complex and pervasive problem of employment discrimination as well as in providing for meaningful systemic reform, and emphasizes the substantive distinctions between pattern-or-practice claims and individual disparate treatment claims. We further argue 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.
We are grateful to NELA member Joseph M. Sellers and Abigail E. Shafroth (Cohen Milstein Sellers & Toll PLLC, Washington, DC) for their terrific work in writing the brief on behalf of NELA and our co-amici. To read our brief, please click here.
This is the third case in which NELA has participated as amicus curiae before the Second Circuit in as many months in cases involving bans on class, collective, joint, or representative actions in forced arbitration agreements. You can read our briefs in the other two cases, Raniere v. Citigroup and Sutherland v. Ernst & Young, on The NELA Exchange:
Raniere Amicus Brief
Sutherland Amicus Brief