Election-Of-Remedies Provision In Union Contract Is Not Discriminatory

In Richardson v. Commission on Human Rights & Opportunities, et al. (2d Cir. - Decided: July 15, 2008), the United States Court of Appeals for the Second Circuit held that Title VII of the Civil Rights Act of 1964 did not forbid the inclusion of an election-of-remedies provision in a collective bargaining agreement. The court further held that adherence to such a provision did not constitute unlawful discrimination.

The Plaintiff was an African-American woman who had been employed by the State of Connecticut for 15 years. She had been involved in a series of ongoing disputes with her Supervisor, and eventually filed Charges of Discrimination with the Connecticut Commission on Human Rights and Opportunities (“CHRO”) alleging disparate treatment and retaliation by her Supervisor and others. She was later terminated from employment. Plaintiff’s Union filed a grievance with respect to the termination under the collective bargaining agreement. However, after Plaintiff later amended the charges to include race discrimination, the Union withdrew its appeal pertaining to the grievance on the basis that complaints of unlawful discrimination filed with CHRO were not subject to arbitration under the union contract. The Plaintiff thereafter filed another Charge, alleging this time that her Union’s refusal to seek arbitration of her grievance constituted an independent act of retaliation.

Interestingly, the case presented a conflict as between the Equal Employment Opportunity Commission (“EEOC”) and CHRO. The EEOC claimed that the Union had discriminated against Plaintiff because the provision of the union contract precluding arbitration of discrimination complaints violated Title VII. CHRO came to the opposite conclusion and asserted that the provision was not discriminatory.

The District Court granted Defendants’ motions for summary judgment, and the Second Circuit affirmed. In its decision, the Second Circuit held that the Union properly contracted to limit an employee’s legal recourse by agreeing that an aggrieved employee could either arbitrate a grievance or file a charge with the CHRO describing that grievance. Further, the court found that the Union did not discriminate against the Plaintiff by adhering to the election-of-remedies provision after the Plaintiff chose to file a charge with CHRO. In short, the Plaintiff could not allege a prima facie case of retaliation against the Union since she could not show that either agreeing to or adhering to the election-of-remedies provision constituted an adverse employment action.

The holding in Richardson makes sense. The union contract did not impact adversely on the Plaintiff’s right to pursue her claims of discrimination. She was free to do so, but could not simultaneously pursue arbitration of discrimination claims through the contractual grievance process. To do otherwise could result in duplicative claims and inconsistent determinations through arbitration and the courts based on common questions of law and fact. The court avoided that nightmare-like legal scenario in this instance.