CBA’s Nondiscrimination Clause Does Not Waive Employee’s Right to Sue for Discrimination

November 19, 2013 by Susan Garea

The U.S. Supreme Court several years ago in 14 Penn Plaza v. Pyett ruled that employees covered by a union contract are prohibited from bringing statutory discrimination claims against their employer only where the union contract “clearly and unmistakably” waives the employee’s right to go to court, forcing the employee to arbitrate the claim under the union contract.  Attorneys of Beeson, Tayer and Bodine (BT&B) Public Sector Labor Law Practice, provide a related case summary involving a California collective bargaining agreement.

A California Court of Appeals has now for the first time applied the Pyett test to a case arising solely under California state law. In Volpei v. County of Ventura, the court applied Pyett to reject a California county’s claim that a union-represented county employee had to arbitrate his state discrimination claims under the union contract.

In Volpei, a Ventura County employee sued his employer for retaliation, harassment and disability discrimination under the California Fair Employment and Housing Act (FEHA). The County petitioned to compel arbitration under the applicable collective bargaining agreement The union contract contained a grievance procedure that defined a grievance to include “a complaint of illegal discrimination because of the charging party’s . . . sex, [or] physical disability” and stated that an unresolved grievance “may be submitted to arbitration” by the union. The court held that this grievance provision was not a clear and unmistakable waiver of the employee’s right to sue his employer in state court for statutory violations, because the provision was “permissive” in its use of the word “may” and therefore did not require submission to arbitration.

Union contracts that provide bargaining unit members an arbitration forum for challenging workplace discrimination pose a risk that they will act to waive unit members’ right to sue their employer in court for statutory discrimination. Volpei confirms this risk exists under both federal and state law. BT&B recommends care and consultation with legal counsel in drafting grievance procedure language to understand the impact of such language on employees’ rights to sue their employer for statutory violations.  With over 75 years of experience in union and employment law as well as collaborative labor relations, BT&B can provide legal consultation to California bargaining units as well as individuals seeking to better understand labor and employment law.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.