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San Francisco-Employers can force workers to sign arbitration agreements as a condition of employment, the 9th U.S. Circuit Court of Appeals has ruled. Overturning a controversial precedent and sparking two angry dissents, an en banc panel ruled, 8-3, on Sept. 30 to allow San Diego-based Luce, Forward, Hamilton & Scripps to require its employees to enforce their rights in private arbitration, rather than in court. EEOC v. Luce, Forward, No. 03 C.D.O.S. 8755. The ruling overturns Duffield v. Robertson Stephens, 144 F.3d 1182, a 1998 decision that said employers couldn’t require workers to arbitrate discrimination claims under Title VII of the Civil Rights Act of 1964, amended in 1991. “The presumption in Duffield . . . that allowing compulsory arbitration weakens the 1991 [Civil Rights] Act is inconsistent with the Supreme Court’s endorsement of arbitration,” Judge A. Wallace Tashima wrote for the majority. Tashima noted that the 9th Circuit stood alone with its decision in Duffield. Echoing the Supreme Court, he noted that arbitration “affects only the choice of forum, not substantive rights.” The case attracted amicus briefs from employment lawyers as well as critics and advocates of mandatory arbitration. Judges Pamela Rymer, Barry Silverman, Susan Graber, M. Margaret Mc-Keown, William Fletcher, Richard Tallman and Richard Clifton joined Tashima’s opinion. Judge Harry Pregerson dissented, joined by Chief Judge Mary Schroeder and Judge Stephen Reinhardt. Dissent: ‘no choice at all’ “The majority opinion allows employers to force their employees to choose between their jobs and their right to bring future Title VII claims in court,” Pregerson wrote. “That choice is no choice at all.” Reinhardt-who wrote the opinion in Duffield-penned a separate dissent, which Pregerson joined. It included a history of federal civil rights legislation and argued that the decision “effectively deprives American workers of their hard-won legislative victory.” Reinhardt wrote that Congress intended to strengthen workers’ rights with the 1991 bill, disputing the majority’s interpretation of a provision that Tashima said favored arbitration. “It simply makes no sense to assume that Congress went through the trouble of finally granting workers their hard won right to trial by jury only then, in the same bill, to render the provision nugatory by authorizing employers to require all potential employees to forfeit that right and choose between a job and access to the federal courts,” Reinhardt wrote. “I’m pleased that they’ve belatedly overturned Duffield, which was bad law and wrongly decided,” said Paul, Hastings, Janofsky & Walker partner Robert Walker, who filed an amicus brief on behalf of The Employers Group. “It’s another step in utilizing a more efficient resolution of employment cases, including discrimination cases . . . .I think it’s a win-win situation for everyone, employers and employees.” John True III, a Leonard Carder partner who represented a group of congressmen in an amicus brief, lamented the decision. Duffield was “sort of the last roadblock in the road for employers for enforcing arbitration as a condition of employment,” True said. True said employees will now have to look to state law to protect their rights. He also disputed the assertion that arbitration affects only the forum, and not substantive rights. For example, many employees pay part of the bill for arbitrators, and aren’t entitled to the same discovery allowed in courts. “It’s one of the fictions that the courts have used to justify their enthusiasm for arbitration,” True said. Last year, the California Legislature passed a series of bills aimed at reforming arbitration within the state. Governor Gray Davis signed several of those bills, mainly relating to conflict-of-interest rules for sitting arbitrators.

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