2d Issues Major Decision Upholding Election of Remedies Provision In CBA

Richardson v. Commission on Human Rights, ___F.3d___(2d Cir. July 7, 2008), is a major employment discrimination case. In a 24 page fairly well reasoned opinion, the court upholds the use of an election of remedies provision in a CBA. The CBA provided that an aggrieved employee could EITHER arbitrate his claim OR file a charge with the Commission. After an employee filed a lawsuit alleging discrimination, the union withdrew its demand for arbitration. In light of the above contractual provision, that was perfectly permissible. As the court reasoned:

The union's choice to adhere to its collective bargaining agreement in this case was indubitably non-discriminatory: the collective bargaining agreement does not constitute a waive of any statutory rights under Gardner Denver and the defendants' withdrawal from arbitration did not constitute retaliation because the forum selection clause was a reasonable defensive meausre to avoid duplicative proceeding in the two fora Richardson's employer maintained for addressing discrimination complaints.

The Second also cited its earlier case in Pyett v. Penn Bldg Co., 498 F. 3d 88 (2d Cir. 2007), for the propostion that a union could not waive statutory employment discrimination rights. However, the union was found not to have waived any statutory right as the individual was permitted to proceed with his claim in court. Interestingly, though the court noted that there was a conflict in the circuits on this point, it did not mention that the Supremes granted cert. in Pyett.

Mitchell H. Rubinstein