Tuesday, February 20, 2007

What is the proper standard for determining whether an employee has effectively waived the right to a judicial forum in an employment dispute?

The proper standard is "clear and unmistakable," according to the First Department in Sum v. Tishman Speyer, decided on February 15, 2007. In granting defendant's motion to compel arbitration in a gender discrimination action brought under the New York City Human Rights Law, the court noted that "[t]he collective bargaining agreement governing plaintiff's employment contains an arbitration agreement that specifically includes within its scope gender discrimination claims under the New York City Human Rights Law. This union-negotiated waiver of plaintiff's right to a judicial forum to pursue the statutory claims here at issue is 'clear and unmistakable,' and enforceable."