I. Introduction

The Supreme Court made it clear in Epic Systems Corp. v. Lewis that valid, mandatory, individualized arbitration agreements are to be upheld so long as they do not violate basic principles of contract law.[1] This holding cemented four “undesired” consequences for state and federal employment law. First, the significant increase in the number of employers requiring employees to sign arbitration agreements of this kind.[2] Second, federal preemption of state regulation resulting in the diminished ability of employees to exercise protective rights granted by employment discrimination laws.[3] Third, the Supreme Court’s decades-long expansion of the Federal Arbitration Act (FAA), effectively barring more than sixty million American workers from adjudicating their employment rights in a public forum.[4] Lastly, unnecessary pressure on state legislatures to draft progressive legislation protecting citizens from employment discrimination, legislation that Congress already enacted through Title VII of the Civil Rights Act of 1964 (Title VII).[5]

This Comment argues that the result of these “undesired” consequences[6] prevents employees from benefiting from employment discrimination laws by restricting them to an arbitral forum.[7] Proponents of mandatory arbitration in the employment context[8] are unable to reconcile this preference with Congress’s intent that “the use of alternative dispute mechanisms is . . . intended to supplement, not supplant, the remedies provided by Title VII.”[9]

The first section of this Comment analyzes the historical development of employment discrimination law and the FAA. This section will explore the intent, implications, and current precedent guiding courts; it will identify areas in which the Supreme Court’s broad interpretation of the FAA limits the ability of employees to fully vindicate the right to be free of employment discrimination.

The next section of this Comment highlights the ways in which the Supreme Court’s precedent has prevented aggrieved employees from suing their employers under Title VII and similar state employment discrimination laws. Beginning with the implications of the FAA’s precedent on federal and state employment discrimination laws, this section focuses on legislative reactions to the FAA’s growing precedent. The section concludes with an analysis of the Supreme Court’s erosion of employment discrimination protection through its narrow interpretation of Title VII and broad interpretation of the FAA.

The last section of this Comment will illustrate how federal preemption under the FAA came from the Supreme Court, not Congress, and therefore should not be applied within the context of employment discrimination law. This Comment will conclude with policy recommendations that, if implemented, may ensure that rights granted to employees through employment discrimination laws are protected rather than abrogated by mandatory, individualized arbitration agreements.

II. Background

A. The Rise of Employment Discrimination Law

Congress enacted Title VII to prohibit employment discrimination on the basis of race, color, gender, religion, sex, and national origin.[10] Section 703 addresses unlawful employment practices, dividing them into two types of claims: disparate treatment and disparate impact.[11] Disparate treatment claims are addressed in the first part and focus on the employer’s intent.[12] Disparate impact claims are addressed in the second part and focus on the discriminatory consequences of otherwise fair, neutral employment practices.[13]

McDonnell Douglas Corp. v. Green[14] and Griggs v. Duke Power Co.[15] are two seminal employment law cases that laid the foundation for Title VII adjudication. A closer examination of these cases also highlights how the Supreme Court’s narrow interpretation of Title VII has forced Congress to correct its construction to effectuate its original intent.[16] McDonnell Douglas established the burden-shifting framework required to prove disparate treatment claims.[17] The adjudication of disparate treatment claims under the McDonnell Douglas framework has long been respected, and the absence of counteractive legislative action indicates Congress’s satisfaction with its interpretation. This lack of Congressional response following the Supreme Court’s interpretation of disparate treatment claims under Title VII is distinguishable from Congress’s reaction to the adjudication of other Title VII claims.[18]

In Griggs, the Supreme Court unanimously recognized disparate impact claims and explained that “Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.”[19] Almost twenty years later, in Wards Cove Packing Co. v. Atonio, the Supreme Court reduced this burden, recognizing that it was doing so without any incentive from Congress:

We acknowledge that . . . our earlier decisions can be read as suggesting otherwise. But to the extent that those cases speak of an employer’s “burden of proof” with respect to a legitimate business justification defense, they should have been understood to mean an employer’s production—but not persuasion—burden.[20]

The Supreme Court relied on Justice O’Connor’s plurality opinion in Watson v. Fort Worth Bank & Trust,[21] which said that the Supreme Court’s placement of the burden in Griggs “should not be interpreted as implying that the ultimate burden of proof can be shifted to the [defendant–employer].”[22] Congress reversed the Supreme Court’s interpretation of disparate impact claims shortly thereafter.[23] This Congressional action has been described as aiming to achieve the “twin goals of restoring civil rights law . . . and strengthening Title VII.”[24]

B. Replacing Section 2 of the FAA with the Effective Vindication Exception

Congress enacted the FAA in 1925 to ensure the enforceability and validity of arbitration agreements in “maritime transaction[s] or . . . contract[s] evidencing a transaction involving commerce.”[25] In section 1 of the FAA, Congress included an exclusion for employment contracts, specifically stating that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”[26] The Supreme Court initially engaged in a narrow construction of the FAA, limiting the statute’s applicability to maritime and commercial transactions by focusing on the structure and language of its regulatory scheme.[27] It was not until 2001 that Justice Kennedy, writing for a deeply divided majority,[28] expanded the FAA’s scope by holding that Section 1’s exemption only applies to employment contracts of transportation workers.[29]

Originally, the Supreme Court held that the adjudication of substantive rights created by certain federal statutes could not be compelled to arbitration, regardless of whether the contract at issue contained an arbitration agreement.[30] The Supreme Court’s decision in Wilko v. Swan was interpreted by lower federal courts “as creating a defense to the enforcement of arbitration agreements under the FAA when statutory claims were at issue.”[31] At the core of this “statutory defense” were assumptions that judges were better suited to enforce statutory rights than arbitrators, that public policy may be contravened by allowing a waiver of such claims, and that it may be too difficult for judges “to correct arbitral errors in statutory interpretation” due to arbitration’s informational nature.[32]

When the Supreme Court began to digress from past precedent related to the abrogation of statutory claims, it often did so in the context of collective bargaining agreements, an avenue through which employees had the protection of collective action.[33] Nearly fifteen years after its decision in Wilko v. Swan, the Supreme Court’s interpretation of section 4 of the FAA began to narrow the scope under which federal courts could hear challenges to arbitration agreements.[34] Specifically, the Supreme Court held that federal courts could only hear challenges to arbitration using general contract defenses when the fraud being claimed was used to induce parties into the arbitration agreement specifically, rather than the contract as a whole.[35]

Led by Chief Justice Burger, the Supreme Court continued to expand the FAA’s scope, changing its jurisprudence to require arbitration of statutory claims.[36] During this time, the Supreme Court shifted from recognizing a “statutory defense” for claims arising from federal statutes to declaring that it is Congress’s responsibility to identify when statutory rights should be excluded from the FAA’s reach.[37] This decision created the “effective vindication” exception,[38] which maintains that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.”[39] Four years later, continuing its trend of “an indefensible brand of judicial activism,”[40] the Supreme Court overruled Wilko v. Swan entirely, offering the following reason: “To the extent that Wilko rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.”[41]

By engaging in a similar analysis with Title VII and other federal employment statutes, the Supreme Court’s expansion of the FAA turned the once-recognized “statutory defense” against enforcing arbitration agreements into evidence that such an interpretation is beyond what Congress originally intended.[42]

III. Analysis

A. Federal Legislative Reactions

Federal legislative actions such as the Franken Amendment and the Arbitration Fairness Act serve as attempts by Congress to overcome the shift in FAA jurisprudence that once acknowledged the importance of excluding federal statutes from the confines of the FAA to one that now allows the FAA to directly impact the adjudication of such claims.

1. The Franken Amendment

The Department of Defense Appropriations Act of 2010, specifically the Franken Amendment, is the only piece of federal legislation that prohibited employers from requiring employees to agree to mandatory arbitration.[43] The Franken Amendment accomplished this by refusing to grant federal contracts for more than $1 million to contractors who require their employees or independent contractors to enter into arbitration agreements “under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.”[44]

When presented with an arbitration agreement that expressly excludes claims arising under Title VII, “unless and until federal law no longer prohibits the [employer] from mandating arbitration of such claims,” one district court found that an employer was not prohibited from requiring arbitration.[45] At the time the plaintiff began employment at PricewaterhouseCoopers (PwC), the arbitration agreement at issue included the above language. The district court, however, found that PwC was not bound by federal law to exclude arbitration because the work being conducted fell outside the scope of the Franken Amendment’s control.[46] After finding that the limitation excluding arbitration of Title VII claims does not apply,[47] the court went one step further by interpreting the Franken Amendment as “not prohibit[ing] employers from mandating arbitration of Title VII claims.”[48]

Today, the Franken Amendment’s scope is even more narrow, excluding claims of race, age, and disability discrimination.[49] What remains is Congress’s attempt to express its intent as contrary to the Supreme Court’s interpretation of Title VII. This attempt is comparable to successful attempts made regarding earlier Title VII challenges.[50]

2. The Arbitration Fairness Act

In the last decade, Congress has introduced variations of the Arbitration Fairness Act (AFA),[51] usually following Supreme Court decisions that expanded the scope of the FAA.[52] The goal of the AFA is to amend the FAA to allow the invalidation of predispute arbitration agreements in employment, consumer, antitrust, and civil rights disputes.[53] The AFA also attempts to reassign the decision-making power as to the validity and enforceability of these agreements to federal courts, instead of arbitrators, ensuring that such issues are resolved in a public forum.[54] If this version of the AFA passed, it would effectively invalidate the reasoning relied upon in a recent Supreme Court decision that continues to assign such power to private arbitrators.[55]

As a piece of legislation, the AFA seeks to address much more of the Supreme Court’s precedent than the Franken Amendment or other state legislative reactions.[56] The AFA specifically addresses the Supreme Court’s broad interpretation of the FAA and acknowledges that the statute’s extension to “consumer disputes and employment disputes, [is] contrary to the intent of Congress.”[57] Ultimately, all of the discussed legislative reactions attempt to soften the harsh effect of the Supreme Court’s interpretation of the FAA.

Congress’s multiple attempts to pass the AFA highlight its legislative intent to restrict the scope of the FAA and to prevent the Supreme Court’s precedent from further impacting employment discrimination law. For more than a decade, Congress has been trying to pass amendments to the FAA to restore the Act’s ability to effectuate its original intent.[58]

In September 2019, the House of Representatives passed the Forced Arbitration Injustice Repeal Act (FAIR Act).[59] The structure and substance of the FAIR Act largely reflect the structure and substance of the AFA, with the FAIR Act’s main purpose being to prohibit predispute, mandatory arbitration agreements in the context of employment, consumer, antitrust, and civil rights law.[60] Only time will tell whether the FAIR Act will be successfully enacted,[61] but if it is met with the same response from the Senate as the AFA,[62] it is not likely to pass.

B. State Legislative Reactions

The Supreme Court stated that courts may not “invalidate arbitration agreements under state laws applicable only to arbitration provisions.”[63] In response, states have made numerous attempts to pass legislation that delineates the reach of arbitration agreements, some successful and others preempted.

In April 2018, New York Governor Andrew Cuomo[64] signed a bill into law that, in part, addressed the arbitrability of sexual harassment claims.[65] When challenged, the Southern District of New York held that the law could not “overcome the FAA’s command that the parties’ Arbitration Agreement be enforced.”[66] Justice Ginsburg cited the preemption of this bill as an example of the harm the Supreme Court’s interpretation of the FAA has caused by compelling claimants to mandatory, individualized arbitration.[67]

In October 2019, California Governor Gavin Newsom[68] signed AB 51, effectively outlawing mandatory arbitration agreements in the employment context.[69] The bill was carefully drafted to regulate employer conduct prior to entering into an employment agreement, rather than regulating the interpretation or formulation of arbitration agreements, which is protected by the FAA.[70] AB 51 makes any employment practice that conditions employment on the requirement that an applicant waive “the right to file and pursue a civil action or complaint” unlawful.[71] The scope of AB 51 governs more than just arbitration; it includes employee waivers of jury trials and class actions.[72] Depending on what challenges arise, it is likely that opponents of AB 51 will argue that it invalidates contracts that would otherwise be valid and enforceable.[73] Proponents of AB 51, however, can point to section 3(f), which states, “[n]othing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.”[74] This language clearly indicates an effort by California legislators to enforce penalties against employment discrimination[75] while avoiding preemption by the FAA. On December 30, 2019, a district judge in the Eastern District of California issued a temporary restraining order barring the enforcement of AB 51.[76] Given the FAA’s doctrinal effect, this bill will likely be subject to federal preemption as violating a “liberal federal policy favoring arbitration.”[77]

C. Eroding Title VII Protections Through a Narrow Interpretation of Civil Rights Law

1. Disparate Impact

Congress responded to Wards Cove by effectively amending Title VII to codify the burden of proof in disparate impact cases.[78] These amendments explicitly changed the burden framework established by the Supreme Court, emphasizing the dissonance between Congress’s intent and the Supreme Court’s interpretation.[79]

The shift in precedent from the Supreme Court’s interpretation in Griggs to Wards Cove has been partially attributed to the Supreme Court’s transition from Chief Justice Warren to Chief Justice Rehnquist.[80] Through Wards Cove, the Supreme Court endorsed a narrow reading of Title VII, consistent with the Reagan Administration’s goal of achieving a conservative view on civil rights.[81] Congress’s introduction of the Civil Rights Act of 1991 successfully reversed this precedent, denying the burden-shifting framework of disparate impact claims and establishing that the Supreme Court’s interpretation was contrary to Congress’s intent.[82]

Congress’s swift response in amending Title VII following Supreme Court decisions interpreting the statute[83] further establishes the historical flaw in the Supreme Court’s interpretation of how Title VII claims should be adjudicated. Normally, statutes are interpreted to disfavor implied change.[84] The Supreme Court’s direct alteration of the standard established for Title VII disparate impact claims in Griggs illustrates the importance of respecting Congress’s intent and highlights a tendency by the Supreme Court to interpret federal employment discrimination laws in a way that places the burden onto the employee.[85]

2. Mixed-Motive

Another example of the Supreme Court’s narrow interpretation of employee rights under Title VII is its decision in Price Waterhouse v. Hopkins, where the Court established the burden-shifting framework for mixed-motive discrimination cases.[86] Initially, the Supreme Court assigned liability to the employer on the second prong, the employer’s justification for discrimination, only if the employer failed to “prov[e] by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s [protected class] into account.”[87] In 1991, Congress amended the Supreme Court’s interpretation of the burden-shifting framework, attaching liability after a plaintiff meets the initial burden to prove that the plaintiff’s protected class “was a motivating factor for any employment practice, even though other factors also motivated the practice.”[88]

D. The FAA’s Unjustified Encroachment on Title VII

It was not until the Court’s decision in Gilmer v. Interstate/Johnson Lane Corp.[89] that enforcement of arbitration agreements began impacting the rights guaranteed to labor workers.[90] In holding that unequal bargaining power is not sufficient to find arbitration agreements unenforceable in the employment context,[91] the Court began directly contradicting the fundamental rights guaranteed to labor employees.[92] Justice Stevens and Justice Marshall objected to this contradiction by writing in their dissent that the Court construed section 1 of the FAA too narrowly.[93] They explained that during the Senate Judiciary Subcommittee Hearings for the FAA, the chairman “responsible for drafting the bill assured the [other members] that the bill ‘[was] not intended [to] be an act referring to labor disputes, at all.’”[94]

“There is little doubt that the Court’s interpretation of the [FAA] has given it a scope far beyond the expectations of the Congress that enacted it.”[95] Ten years after his dissent in Gilmer v. Interstate/Johnson Lane, Justice Stevens dissented in Circuit City Stores, Inc. v. Adams.[96] He clarified that “the interpretive and policy choices made by a Court that, consistent with its pro‑arbitration trajectory, has not only favored but has given primacy of place to ‘agreements’ mandating private arbitral adjudication of public-law claims, including claims alleging violations of worker protection statutes.”[97] Relying on the statements made by supporters of the FAA,[98] Justice Stevens explained how the Supreme Court “rewrote the text of § 1 to exclude employment contracts solely” because of its residuary clause.[99]

The Supreme Court’s interpretation of section 4 of the FAA prohibits federal courts from considering arbitration challenges based on the fraudulent inducement of contracts—claims associated with parties who have unequal bargaining power. However, it allows federal courts to consider challenges based on “fraud in the inducement of the arbitration clause itself.”[100] This interpretation of the FAA removes the protection of judicial review based on a rather arbitrary difference—fraud in the inducement of a contract versus a particular clause of that contract. When broadening the FAA’s scope to include agreements to arbitrate statutory claims,[101] a decision Congress has attempted to undo,[102] the Supreme Court was dealing with arbitration agreements that were to some extent voluntary through the use of a collective bargaining agreement,[103] whereas the ones most commonly used today are mandatory.[104] Thus, it appears that “the Court is standing on its own shoulders” as it continues to “ignore[ ] the interest of the unrepresented employee, . . . skew[ing] its interpretation with its own policy preferences.”[105]

The Supreme Court relies on what is known as the Steelworkers Trilogy (Trilogy)[106] to defend “the now well-known presumption of arbitrability for labor disputes.”[107] In the three cases that comprise this Trilogy,[108] the Supreme Court proscribed federal courts from determining the arbitrability of grievances.[109] Each case dealt with the interpretation of a collective bargaining agreement, and the Supreme Court ultimately distinguished them from its decision in Wilko v. Swan.[110] The Supreme Court’s interpretation of the Labor Management Relations Act resulted in an expansion of the arbitral issues in the labor context.[111] Over time, this precedent turned the FAA into a “super-statute,”[112] and the FAA has been the subject of close examination by employment law scholars and practitioners.[113]

Beginning in the late twentieth century, the Supreme Court consistently upheld the validity of arbitration agreements over claims brought under numerous federal statutes.[114] During this time, the Supreme Court repeatedly held that “[i]n enacting § 2 of the [FAA], Congress declared a [federal] policy favoring arbitration.”[115] This federal policy favoring arbitration has resulted in Title VII claims being compelled to arbitration,[116] and it continues to restrict the states’ ability to control the enforceability of arbitration agreements in the employment context.[117]

Analyzing the entire text of a statute when engaging in statutory interpretation has long been considered necessary to determine the accuracy of the interpretation of the statute.[118] The plain language of the FAA, the Supreme Court’s originally narrow interpretation,[119] and the attempts by Congress to enact corrective legislation[120] reinforce the proposition that the FAA was never intended to apply to contracts governing the employer–employee relationship.[121] Eighteen years after its decision in Bernhardt v. Polygraphic Co. of America,[122] the Supreme Court reaffirmed the notion that a “private right of action remains an essential means of obtaining judicial enforcement of Title VII.”[123] It was not until the late-twentieth century, after the Supreme Court’s strict interpretation of the FAA was established without objection from Congress, that the Supreme Court’s decisions began broadening the FAA and impacting Title VII.[124] Thus, the Supreme Court’s interpretation of the relationship between the FAA and the adjudication of Title VII claims is contrary to Congress’s intent, as illustrated by legislative amendments opposing the Supreme Court’s narrow interpretation of Title VII.[125]

In Alexander v. Gardner-Denver Co., the Supreme Court confronted the issue of whether an employee can exercise the statutory right to a de novo trial under Title VII after submitting a claim to final arbitration under a collective-bargaining agreement.[126] Both the arbitrator and Equal Employment Opportunity Commission (EEOC) found just cause in discharging the petitioner, who filed a civil action following the receipt of his right to sue letter.[127] After the U.S. District Court for the District of Colorado and the Tenth Circuit Court of Appeals held that the petitioner was precluded from suing his employer under Title VII, the Supreme Court reversed, emphasizing that “the private right of action remains an essential means of obtaining judicial enforcement of Title VII.”[128]

The Supreme Court unanimously and explicitly disagreed with the district and circuit courts’ reliance on the federal policy favoring arbitration of labor disputes.[129] In doing so, the Supreme Court focused on Title VII’s statutory scheme of vesting plenary power with federal courts to ensure statutory requirements are met.[130]

IV. Application/Policy Recommendation

A. State Legislatures May Combat the Court-Created Doctrine

When deciding whether state laws attempting to limit the effects of arbitration in the employment discrimination context are preempted by the FAA, special consideration should be given to the Supreme Court’s well-documented history of creating precedent that controverts the scope of Congress’s intent.[131] Given the conservative majority that makes up the Supreme Court,[132] it seems unlikely that Congress will successfully effectuate its goal of excluding employment discrimination claims from mandatory arbitration agreements through legislation.[133] However, such legislative attempts are comparable to successful legislation Congress passed related to Title VII[134] and help to illustrate just how expansive the Supreme Court’s interpretation of the FAA has become.

B. The Presumption Against Federal Preemption Can Protect Employment Discrimination Laws Through the FAA

“Like many interpretive canons . . . ejusdem generis is a fallback, and if there are good reasons not to apply it, it is put aside.”[135] Given the discourse between the Supreme Court’s narrow application of the ejusdem generis canon and Congress’s intent in passing the FAA,[136] courts should adhere to the presumption against federal preemption canon of statutory construction when interpreting federal statutes challenged by the FAA.[137] While the presumption against federal preemption canon directs courts to interpret federal statutes to supplement state law—rather than displace it[138]— Justice Gorsuch used this canon, in Epic Systems, to further expand the FAA’s scope by ignoring its applicability and necessity in supplementing the National Labor Relations Act.[139] If the Supreme Court were to use the presumption against federal preemption canon of statutory construction, pieces of state legislation that mirror federal employment discrimination laws would not be preempted, thus restoring the deference once given to state legislatures.[140] Such statutory construction would harmonize the intent and objectives of state and federal law protecting citizens against unlawful employment discrimination—similar to what the Supreme Court originally intended for the “statutory defense” to the FAA[141]—while respecting the validity and enforceability of valid arbitration agreements. The applicability of a “statutory defense” to Title VII claims under the FAA is supported by the Supreme Court’s tendency to interpret Title VII claims narrowly, ultimately impairing the ability of Title VII to serve its remedial and deterrent functions.[142]

As the FAA is interpreted by the Supreme Court today, however, it is likely that the scope of the FAA will continue to expand, covering areas it was never intended to cover. This prediction is supported by state’s fear of preemption, as evidenced in the disclaimer used in California’s AB 51 and New York’s statute prohibiting mandatory arbitration agreements in the sexual harassment context.[143]

C. Amending the FAA Can Ensure the Proper Adjudication of Employment Discrimination Claims

The FAA was enacted as a means of overcoming the attitude of most nineteenth-century judges who disfavored private arbitration.[144] Despite more Justices endorsing a view that excludes employment contracts from the FAA’s reach, “a number of [Supreme Court] cases decided in the last several decades have pushed the pendulum far beyond a neutral attitude and endorsed a policy that strongly favors private arbitration.”[145] Given the Supreme Court’s most recent confirmation,[146] the path of reconciliation most likely to correct the Supreme Court’s expansion will be congressional amendments similar to the AFA and FAIR Act.[147]

Amending the FAA to exclude claims of individualized, mandatory arbitration will help restore the integrity of adjudicating employment discrimination claims by allowing employees to exercise their statutory right to be free from such discrimination. To combat the FAA’s preemption of “state antiarbitration laws,”[148] Congress must continue to push for legislation that clarifies the exclusion of employment discrimination claims from the FAA’s reach.

V. Conclusion

Over the past six decades, FAA jurisprudence experienced a shift from a narrow interpretation to an interpretation that broadens the FAA’s applicability to other federal statutes.[149] In the name of upholding a liberal national policy favoring arbitration, the Supreme Court has expanded an Act once meant to reconcile delays in adjudicating commercial disputes[150] to an act that abrogates substantive rights granted by federal statutes.[151] This expansion has resulted in the compelled arbitration of Title VII and similar state employment discrimination claims.[152] Due to the Supreme Court’s history of misconstruing Congress’s intent for Title VII,[153] steps must be taken to correct the FAA’s jurisprudential shift and ensure that the full protection of federal and state employment discrimination law be granted to employees never intended to be included by the FAA’s reach.

To correct the Supreme Court’s interpretation of the FAA and ensure it no longer violates Congress’s original intent, this Comment recommends the implementation of a federal exemption to the FAA that proscribes mandatory, individualized arbitration agreements of federal or state employment discrimination laws. Such an exemption would continue to support a national policy favoring arbitration, while respecting the importance of the private right of action needed to enforce employment discrimination laws.

  1. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1622 (2018); Kindred Nursing Ctrs. Ltd. v. Clark, 137 S. Ct. 1421, 1424–25 (2017) (describing Congress’s intent in drafting the FAA as treating arbitration agreements equally to contractual agreements).

  2. Alexander J.S. Colvin, Econ. Pol’y Inst., The Growing Use of Mandatory Arbitration 3–5 (2017), https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration/ [https://perma.cc/4YTA-9U47].

  3. See Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991) (holding Title VII claims are subject to arbitration under the FAA).

  4. Kathleen McCullough, Mandatory Arbitration and Sexual Harassment Claims: #MeToo- and Time’s Up-Inspired Action Against the Federal Arbitration Act, 87 Fordham L. Rev. 2653, 2666 (2019); see Colvin, supra note 2.

  5. Keith J. Frank, State Legislation Precluding Compelled Arbitration in Sexual Harassment Claims and the FAA, Am. Bar Ass’n (Feb. 24, 2020), https://www.americanbar.org/groups/business_law/publications/blt/2020/03/compelled-arbitration/ [https://perma.cc/V5GQ-RYTT]. See generally 42 U.S.C. § 2000e-2(a).

  6. These consequences have also resulted in a significant increase in employers requiring mandatory arbitration agreements. Colvin, supra note 2, at 4–5.

  7. Id. at 5.

  8. This Comment only addresses the use of arbitration in the employment context, specifically employment discrimination. It does not mention the benefits of arbitration outside of this context as it takes the position that Congress never intended for arbitration to be applied to employment discrimination law.

  9. Michelle Hartmann, A Myriad of Contradiction with Title VII Arbitration Agreements—Duffield as the Past, Austin as the Future, and the EEOC as the Target of Restructuring, 54 SMU L. Rev. 359, 367–69 (2001).

  10. 42 U.S.C. § 2000e-2.

  11. Id. § 2000e-2(a); see Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (“The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”).

  12. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer to make an adverse employment decision on the basis of an individual’s protected class).

  13. See id. § 2000e-2(a)(2) (making it unlawful for an employer to use practices that adversely affect an individual’s employment opportunities as a consequence of the individual’s protected class); Griggs, 401 U.S. at 430–31 (holding that employers may violate Title VII for neutral employment policies that have a discriminatory impact, regardless of the employer’s intent).

  14. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

  15. Griggs, 401 U.S. at 424.

  16. See infra Section III.C (noting how the Supreme Court’s shift to a narrower reading of Title VII after McDonnell Douglas and Griggs prompted Congressional action).

  17. McDonnell Douglas, 411 U.S. at 802–03. The first step in this burden-shifting framework requires the plaintiff to establish a prima facie case of discrimination based on a protected class. This requires a showing that the plaintiff (i) belongs to a protected class, (ii) applied and was qualified for the position, (iii) was rejected from or denied the position, and (iv) the position remained open and the employer continued to seek applicants. Once the plaintiff has established a prima facie case for discrimination, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason (“LNR”) for rejecting the employee or applicant. Id. at 802. The defendant’s burden is not of persuasion but production requiring them only to articulate an LNR for the adverse action. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254–55 (1981). Once the defendant produces an LNR, the burden of proof shifts back to the plaintiff to persuade the factfinder that the LNR is a pretext for discrimination. Id. at 256.

  18. This Comment focuses on disparate impact and mixed-motive discrimination claims. See infra Section III.C (noting how the Supreme Court’s shift to a narrower reading of Title VII disparate impact and mixed-motive claims prompted Congressional action).

  19. Id. at 432.

  20. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660 (1989) (citations omitted).

  21. Id.; Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 981 (1988).

  22. Watson, 487 U.S. at 997.

  23. See Donald O. Johnson, The Civil Rights Act of 1991 and Disparate Impact: The Response to Factionalism, 47 U. Mia. L. Rev. 469, 494 (1992).

  24. Hartmann, supra note 9, at 368 (“The [Civil Rights] Act has at its core the twin goals of restoring civil rights laws by overruling a series of 1989 Supreme Court decisions restricting the reading of Title VII and strengthening Title VII by making it easier for individuals to bring, sustain, and receive full remedial measures on a Title VII cause of action.”).

  25. 9 U.S.C. § 2.

  26. Id. § 1.

  27. Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 201 (1956) (denying the applicability of section 3 of the FAA to cover more than maritime and commercial transactions).

  28. Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 105, 130–31 (2001).

  29. Id. at 118–19; see also Ronald Turner, The FAA, the NLRA, and Epic Systems’ Epic Fail, 98 Tex. L. Rev. Online 17, 24 (2019) (discussing the Supreme Court’s decision in Circuit City Stores, Inc.).

  30. Wilko v. Swan, 346 U.S. 427, 438 (1953).

  31. Richard A. Bales, Compulsory Employment Arbitration and the EEOC, 27 Pepp. L. Rev. 1, 11 (1999).

  32. Id.

  33. Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 235, 253 (1970).

  34. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402–04 (1967) (assigning the evaluation of general contract defenses to arbitrators rather than federal courts).

  35. Id. at 403–04.

  36. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 624–25 (1985); see Turner, supra note 29, at 21 (discussing the institutional shift in jurisprudence led by pro-arbitration Chief Justice Burger).

  37. Mitsubishi Motors Corp., 473 U.S. at 628; see also David Horton, Arbitration as Delegation, 86 N.Y.U. L. Rev. 437, 452–53 (2011) (discussing Supreme Court opinions that render the FAA a private delegation of legislative power).

  38. Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 235 (2013) (citation omitted).

  39. Mitsubishi Motors Corp., 473 U.S. at 637.

  40. Rodriguez de Quijas v. Shearson, 490 U.S. 477, 486 (1989) (Stevens, J., dissenting).

  41. Id. at 481, 485 (majority opinion) (emphasis added).

  42. See infra Section III.D. Based on this line of precedent, the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis proves to be invalid because the employer–defendants are depriving employees of the opportunity to exercise their statutory right to act in concert. 138 S. Ct. 1612, 1633 (2018) (Ginsburg, J., dissenting).

  43. Department of Defense Appropriation Act of 2010, Pub. L. No. 111-118, § 8116(a), 123 Stat. 3454–55 (2009). For an in-depth analysis of the Franken Amendment, as well as other federal and state reactions to the FAA’s enforcement of arbitration agreements in sexual harassment claims, see McCullough, supra note 4, at 2669.

  44. § 8116(a)(1), 123 Stat. at 3454–55.

  45. Ashford v. PricewaterhouseCoopers, LLP, No. 18-cv-904, 2018 WL 3454783, at *1, *3 (D.S.C. July 18, 2018) (citation omitted).

  46. Id. at *3.

  47. Id. at *6.

  48. Id. at *7 (emphasis omitted).

  49. McCullough, supra note 4, at 2672.

  50. See infra Section III.C.1–2.

  51. See, e.g., Arbitration Fairness Act of 2018, S. 2591, 115th Cong. (2018); Arbitration Fairness Act of 2011, S. 987, 112th Cong. (2011); Arbitration Fairness Act of 2007, H.R. 3010, 110th Cong. (2007).

  52. The most recent variation of the AFA, in 2018, was introduced by Congress the day after the Supreme Court’s decision in Epic Systems Corp. v. Lewis. See McCullough, supra note 4, at 2674. Although the bill was met with support from Democratic and Independent senators, it failed to receive enough votes to pass during the 115th Congress. Id. McCullough also notes that support for the federal legislation addressing arbitration in the sexual harassment context, which include other Title VII claims, is widely limited to Democratic and Independent senators. Id. at 2674–75, 2674 nn.201–02.

  53. S. 2591, § 402(a).

  54. Id. § 402(b)(1).

  55. See Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68–70 (2010) (recognizing that parties have the power to agree to arbitrate issues of validity and arbitrability and will be compelled to arbitration if that right is exercised); Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527–28, 530 (2019).

  56. See infra Section III.B.

  57. S. 2591, § 2(2). The AFA also explains how the Supreme Court’s interpretation of the FAA “undermines the development of public law.” Id. § 2(4).

  58. Id. § 2(2) (“A series of decisions by the Supreme Court of the United States have interpreted the Act so that it now extends to consumer disputes and employment disputes, contrary to the intent of Congress.”); see infra Section III.C.

  59. Forced Arbitration Injustice Repeal Act, H.R. 1423, 116th Cong. (2019).

  60. Id. § 2.

  61. At the time this Comment was published, the Senate had not voted on the FAIR Act.

  62. See supra note 52.

  63. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). Writing for the majority, Justice Ginsburg emphasized Congress’s intent in enacting section 2 of the FAA as precluding “[s]tates from singling out arbitration provisions for suspect status” in holding that a Montana statute placing arbitration agreements in a different class than “any contract” was preempted by the FAA. Id. at 687–88.

  64. N.Y. State, https://www.governor.ny.gov/ [https://perma.cc/7V66-HKJC] (last visited Mar. 4, 2021).

  65. Anna Hershenberg, Gov Cuomo Signs New Legislation Barring Use of Mandatory Arbitration to Resolve Workplace Discrimination and Harassment in New York State, CPR Inst.: CPR Speaks (Aug. 12, 2019), https://blog.cpradr.org/2019/08/12/gov-cuomo-signs-new-legislation-barring-use-of-mandatory-arbitration-to-resolve-workplace-discrimination-and-harassment-in-new-york-state/ [https://perma.cc/M8TF-A44Y]; N.Y. C.P.L.R. § 7515 (McKinney 2018).

  66. Latif v. Morgan Stanley & Co., No. 18vc11528, slip op. at 11 (S.D.N.Y. June 26, 2019).

  67. Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1422 (2019) (Ginsburg, J., dissenting).

  68. Off. of Governor Gavin Newsom, https://www.gov.ca.gov [https://perma.cc/6A8M-P7X9] (last visited Mar. 4, 2021).

  69. Assemb. B. 51, 2019 Leg., Reg. Sess. (Cal. 2019).

  70. Michael S. Kun & Kevin Sullivan, California Governor Signs Legislation Outlawing Mandatory Arbitration Agreements with Employees, Nat’l L. Rev. (Oct. 11, 2019), https://www.natlawreview.com/article/california-governor-signs-legislation-outlawing-mandatory-arbitration-agreements [https://perma.cc/7YNV-24DQ].

  71. Cal. Assemb. B. 51 § 3(a).

  72. Id. § 1(b); see also Christopher C. Murray & Danielle Ochs, False Alarm? The Practical Impact of AB 51, California’s New Anti-Arbitration Statute, Nat’l L. Rev. (Oct. 26, 2019), https://www.natlawreview.com/article/false-alarm-practical-impact-ab-51-california-s-new-anti-arbitration-statute [https://perma.cc/W32R-CWJY]; Michael S. Kun & Kevin Sullivan, Employers with Operations in California Must Revise Policies and Practices to Comply with New Law Outlawing Mandatory Arbitration Agreements with Employees, Epstein Becker Green (Oct. 11, 2019), https://www.ebglaw.com/news/employers-with-operations-in-california-must-revise-policies-and-practices-to-comply-with-new-law-outlawing-mandatory-arbitration-agreements-with-employees/ [https://perma.cc/9UUW-ZFCC].

  73. See supra Section II.B; Benjamin M. Ebbink & James J. McDonald, Jr., New California Law Prohibits Most Mandatory Arbitration Agreements—for Now, Fisher Phillips (Oct. 14, 2019), https://www.fisherphillips.com/resources-alerts-new-california-law-prohibits-most-mandatory-arbitration [https://perma.cc/8G48-Y5LP].

  74. Cal. Assemb. B. 51 § 3(f).

  75. See Cal. Assemb. B. 51.

  76. Chamber of Com. of the U.S. v. Becerra, No. 19-cv-02456 (E.D. Cal. Dec. 30, 2019) (order granting temporary restraining order and setting expedited hearing on preliminary injunction); see Anthony Zaller, Federal Judge Puts Temporary Halt on Enforcement of New California Law Barring Mandatory Arbitration Agreements, Cal. Emp. L. Rep. (Dec. 31, 2019), https://www.californiaemploymentlawreport.com/2019/12/federal-judge-puts-temporary-halt-on-enforcement-of-new-california-law-barring-mandatory-arbitration-agreements/ [https://perma.cc/33NM-AHYU]. A preliminary injunction hearing was set for January 10, 2020. Chamber of Com. of the U.S. v. Becerra, No. 19-cv-02456 (E.D. Cal. Dec. 30, 2019) (order granting temporary restraining order and setting expedited hearing on preliminary injunction); Anthony Zaller, New California Employment Laws AB 5 and AB 51 Face Serious Legal Challenges, Cal. Emp. L. Rep. (Jan. 3, 2020), https://www.californiaemploymentlawreport.com/2020/01/new-california-employment-laws-ab-5-and-ab-51-face-serious-legal-challenges/ [https://perma.cc/RRS5-8J53].

  77. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 24 (1983); Doctor’s Assocs, Inc. v. Casarotto, 517 U.S. 681, 687 (1996).

  78. See 42 U.S.C. § 2000e-2(k). The first two prongs of adjudicating a disparate impact claim are found in section (k)(1)(A), which requires employees to demonstrate that their employer uses a specific employment practice that causes disparate impact based on a protected class. Id. § 2000e-2(k)(1)(A). If established, the burden lies with the employer to establish that the challenged practice is job-related and consistent with business necessity. Id. § 2000e-2(k)(1)(A)(i). If an employer cannot do so, a plaintiff–employee can successfully bring a disparate impact claim. Id. An employee can also prove that there is an alternative, nondiscriminatory employment practice that the employer refuses to adopt. Id. § 2000e-2(k)(1)(A)(ii).

  79. Compare 42 U.S.C. § 2000e-2(k), with Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 644 (1989).

  80. Linda Greenhouse, Job Ruling Makes It Clear: Court Has Shifted Right, N.Y. Times (June 7, 1989), https://www.nytimes.com/1989/06/07/us/job-ruling-makes-it-clear-court-has-shifted-right.html [https://perma.cc/4HWG-NYFR] (discussing the impact of the transition from the Warren Court to the Rehnquist Court and its effect on civil rights law).

  81. Id.

  82. See 42 U.S.C. § 1981; The Civil Rights Act of 1991, EEOC, https://www.eeoc.gov/statutes/civil-rights-act-1991 [https://perma.cc/U899-SK3K] (last visited Feb. 15, 2021).

  83. See supra notes 78–79, 82 and accompanying text; infra Section III.C.2.

  84. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 318 (2012).

  85. Id. at 319 (“The direct alteration of the common law by statute is to be distinguished from judicial alteration of a common-law rule when, because of statutory change, the reason for the rule no longer holds.”) (citation omitted).

  86. Price Waterhouse v. Hopkins, 490 U.S. 228, 239–40, 250 (1989). This case is unique in terms of Title VII adjudication because it removed the idea that Title VII requires “but for” causation, making employers liable if an adverse employment decision is made in part “because of” an individual’s protected class. Id. at 240–42.

  87. Id. at 258.

  88. 42 U.S.C. § 2000e-2(m).

  89. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991).

  90. Colvin, supra note 2, at 3–4 (observing the expansion of mandatory employment arbitration agreements “through the 1990s and early 2000s to nearly a quarter of the workforce”).

  91. Gilmer, 500 U.S. at 33. But see Nat’l Licorice Co. v. NLRB, 309 U.S. 350, 359–60 (1940) (holding that the contract in question by its terms “imposed illegal restraints upon the employees’ rights to organize and bargain collectively,” as governed by the National Labor Relations Act).

  92. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 33 (1937).

  93. Gilmer, 500 U.S. at 39 (Stevens, J., dissenting).

  94. Id. (second alteration in original) (citation omitted).

  95. Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 132 (2001) (Stevens, J., dissenting).

  96. Id. at 124, 128 (“History amply supports the proposition that [Section 1’s exemption] was an uncontroversial provision that merely confirmed the fact that no one interested in the enactment of the FAA ever intended or expected that § 2 would apply to employment contracts.”).

  97. Turner, supra note 29, at 27 (footnote omitted).

  98. Most notably, the comment from then-Secretary of Commerce Herbert Hoover saying “[i]f objection appears to the inclusion of workers’ contracts in the law’s scheme, it might be well amended by stating ‘but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.’” Adams, 532 U.S. at 127 (Stevens, J., dissenting) (alteration in original). The adoption of this language implies Congress’s agreement with Hoover’s statement.

  99. Id. at 128–29 (“Playing ostrich to the substantial history behind the amendment, the Court reasons in a vacuum that ‘[i]f all contracts of employment are beyond the scope of the Act under the § 2 coverage provision, the separate exemption’ in § 1 ‘would be pointless.’”(alternation in original)).

  100. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–04 (1967).

  101. Compare Wilko v. Swan, 346 U.S. 427, 438 (1953) (using legislative intent to invalidate an arbitration agreement dealing with the Securities Act of 1933), with Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985) (finding no “presumption against arbitration of statutory claims” within the FAA).

  102. See supra Section III.A.

  103. In Gateway Coal Co. v. United Mine Workers of America, the Supreme Court uses the Labor Management Relations Act (LMRA) to support the claim that Congress intended for a “federal policy favoring arbitration of labor disputes.” 414 U.S. 368, 370, 374, 377 (1974). However, the section of the LMRA that the Supreme Court relies on addresses the settlement of grievance disputes previously established in collective-bargaining agreements, not individualized arbitration agreements. Id. at 377.

  104. Colvin, supra note 2, at 5.

  105. Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 132–33 (2001) (Stevens, J., dissenting).

  106. For an in-depth analysis on the development of the Steelworkers Trilogy, see Bales, supra note 31, at 11–12.

  107. United Mine Workers of Am., 414 U.S. at 377.

  108. Bales, supra note 31, at 11–12, 12 n.89. See generally United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).

  109. Bales, supra note 31, at 12.

  110. Id.

  111. See id.

  112. See McCullough, supra note 4, at 2661.

  113. See, e.g., Federal Arbitration Act and National Labor Relations Act—Arbitration and Collective Actions—Collective Arbitration Waivers—Epic Systems Corp. v. Lewis, 132 Harv. L. Rev. 427, 427–28, 434 (2018); Nantiya Ruan, What’s Left to Remedy Wage Theft? How Arbitration Mandates That Bar Class Actions Impact Low-Wage Workers, 2012 Mich. St. L. Rev. 1103, 1134–36 (2012); David Horton, Arbitration as Delegation, 86 N.Y.U. L. Rev. 437, 451–52 (2011).

  114. See, e.g., Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 231–32, 235–37 (2013) (addressing federal antitrust laws); CompuCredit Corp. v. Greenwood, 565 U.S. 95, 104 (2012) (addressing the Credit Repair Organizations Act); Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 65, 72 (2010) (addressing federal employment-discrimination laws); Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 237–38, 241, 253–54 (1970) (addressing the Norris-LaGuardia Act).

  115. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (describing Congress’s intent in enacting section 2 of the FAA as a “declaration of a liberal federal policy favoring arbitration agreements”). For an in-depth discussion on the FAA’s impact on employment law, see McCullough, supra note 4, at 2661–66.

  116. E.g., Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991) (“Title VII claims . . . are subject to arbitration under the FAA.”).

  117. Preston v. Ferrer, 552 U.S. 346, 349–50, 353, 359 (2008).

  118. See supra note 84, at 167–68 (“Perhaps no interpretative fault is more common than the failure to follow the whole-text cannon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”).

  119. See supra note 27 and accompanying text.

  120. See supra Section III.A.2.

  121. See discussion infra Section IV.B. For a full historical recap of the circumstances surrounding the FAA’s exemption’s submission and passage, see Matthew W. Finkin, “Workers’ Contracts” Under the United States Arbitration Act: An Essay in Historical Clarification, 17 Berkeley J. Emp. & Lab. L. 282, 283–89 (1996).

  122. Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198 (1956).

  123. Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (“In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices.”).

  124. See supra Sections II.B, III.C.

  125. See supra Section III.C.

  126. Alexander, 415 U.S. at 38. In this case, the petitioner raised the claim that his discharge was the result of racial discrimination during the final prearbitration step and “filed a charge of racial discrimination with the Colorado Civil Rights Commission,” which was ultimately referred to the Equal Employment Opportunity Commission (EEOC). Id. at 42.

  127. Id. at 42–43.

  128. Id. at 43, 45, 60.

  129. Id. at 37, 45–46, 46 n.6.

  130. Id. at 47.

  131. See supra Section III.A.

  132. At the time this Comment was written, the following Justices were on the Court: Chief Justice Roberts, Justice Thomas, Justice Breyer, Justice Alito, Justice Sotomayor, Justice Kagan, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. About the Court, Sup. Ct. of the U.S., https://www.supremecourt.gov/about/biographies.aspx [https://perma.cc/J4QV-FZCZ] (last visited Apr. 15, 2021).

  133. See supra Section III.B.

  134. See supra Section III.C.

  135. Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 138 (2001) (Souter, J., dissenting).

  136. Id. at 138–39.

  137. See Scalia & Garner, supra note 84, at 290–92.

  138. Id. at 290.

  139. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630–32 (2018).

  140. See supra Section III.B.

  141. See supra Section II.B; Bales, supra note 31, at 11.

  142. See supra Sections II.B, III.C.

  143. See supra Section III.B.

  144. Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 131–32 (2001) (Stevens, J., dissenting).

  145. See id. at 131–32, 131 n.12.

  146. Justice Barrett superseded Justice Ginsburg on October 26, 2020. Senate Confirms Amy Coney Barrett for Supreme Court, White House, https://trumpwhitehouse.archives.gov/articles/senate-confirms-amy-coney-barrett-supreme-court/ [https://perma.cc/4PJ2-3DWZ] (last visited Apr. 15, 2021).

  147. Erin Mulvaney, Barrett’s Rulings Offer Insight on Gig Work, Job Discrimination, Bloomberg L. (Oct. 15, 2020, 2:43 PM), https://news.bloomberglaw.com/daily-labor-report/barretts-rulings-offer-insight-on-gig-work-job-discrimination [https://perma.cc/9W85-HY38]; see supra Section III.A.2.

  148. Adams, 532 U.S. at 122 (discussing the Supreme Court’s holding in Southland Corp. v. Keating, 465 U.S. 1, 16 (1984)).

  149. See supra Section III.C; see also Turner, supra note 29, at 21.

  150. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1642–43 (2018) (Ginsburg, J., dissenting).

  151. See Ruan, supra note 113, at 1137.

  152. See Southland Corp., 465 U.S. at 10; Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991) (holding Title VII claims are subject to arbitration under the FAA).

  153. See supra Section III.C.