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Abstract

How clear and unmistakable should arbitration clauses be when employees waive their right to pursue discrimination claims in federal court under union-negotiated collective-bargaining agreements? The United States courts of appeals have been split on this question since the Supreme Court handed down its decisions in Wright v. Universal Maritime Service Corp. and 14 Penn Plaza LLC v. Pyett. In Wright, the Court held that waiver in union-negotiated collective-bargaining agreements must be “clear and unmistakable.” Eleven years later, in Pyett, the Court affirmed its clear-and-unmistakable standard for waiver of a union member’s right to pursue her statutory claim through litigation. Since Pyett though, the courts of appeals have diverged on their interpretation of the clear-and-unmistakable standard. But their differing interpretations are unsurprising after the Supreme Court declined to address what constituted a clear-and-unmistakable waiver. This Article proposes that, with the issue before the Supreme Court again, the Court should resolve the circuit split by adopting what I call the “Perspicuity Rule.” This Perspicuity Rule would require that collective-bargaining agreements specifically list which statutes are covered by the waiver to be considered clear and unmistakable. This Rule would give employees a clear, precise presentation of what federal statutory rights must be vindicated through arbitration rather than litigation. Such language would be easy for employers and unions to include in collective-bargaining agreements and is all the proposed Perspicuity Rule would require.

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