Friday, May 11, 2012
Deborah Widiss (Indiana-Bloomington) has just posted on SSRN her essay Divergent Interests: Union Representation of Individual Employment Discrimination Claims. Here's the abstract:
This short essay, written for a symposium, argues that if unions agree to arbitrate employment discrimination claims (as newly permitted by 14 Penn Plaza LLC v. Pyett), there is a high risk that a union’s duty to protect and advance the collective interests of all members will diverge from the particular interests of an employee asserting a discrimination claim. The essay identifies three potential risks. The first is simply that union leaders may themselves hold discriminatory biases and accordingly fail to support individual employees adequately in the grievance and arbitration process. The more subtle — and probably more significant — risks stem from the fact that employment discrimination claims are likely to be valued significantly more highly by a discrete minority of union members than by the majority. Accordingly, a union acting entirely in good faith might bargain away the right to litigate in court in return for employer concessions that are valued more highly by the membership as a whole. A union might also value pursuing antidiscrimination claims less highly than other potential grievances. Additionally, supporting a member’s discrimination claim will often directly disadvantage other members. At least as traditionally understood, a union’s duty of fair representation would offer inadequate recourse in these scenarios.
In Pyett, the Court cavalierly dismissed concerns of potential conflicts as an attack on collective bargaining more generally. This improperly ignores a key distinction. Since most benefits secured by unions are not mandated by employment laws, labor relations law generally takes away from individual employees only the speculative potential that they might have made a better deal bargaining individually. But the right to bring an employment discrimination claim in court is guaranteed by statute — and accordingly individual employees stand to lose significant rights that they would otherwise enjoy.