Supreme Court decisions establish two separate lines of analysis concerning whether arbitration agreements should pre-empt judicial remedies for parties already covered by employment and labor legislation. First, in cases like Gilmer v. Interstate/Johnson Corp., the Supreme Court espouses a procedural analysis: the Court considers the extent to which the arbitration procedures reflect judicial processes. In Alexander v. Gardner-Denver and its successors, on the other hand, the Court examines whether the applicable statutes explicitly pre-empt the arbitration agreement. This article argues that neither approach is helpful. Rather, 'courts should consider whether the relevant statute applies standards derived essentially from "inside" the institutions the statutes regulate or from "outside" those institutions. Arbitration, Professor Gudridge argues, is plainly appropriate under statutes which reveal an "inside" orientation, and not appropriate under statutes with an "outside" orientation. The author uses the 1991 Civil Rights Act to reach conclusions concerning the applicability of arbitration agreements in the Title VII context. This amendment added a right to injunctive relief in the "mixed motive" Title VII action. The author uses a constitutional analysis of the 1991 amendment as a starting point for thinking about arbitration within Title VII generally. Professor Gudridge argues that this analysis reveals the focus of Title VII actions has shifted to an "outside" orientation. Title VII actions, therefore, are best solved through litigative, rather than arbitral procedures.
Patrick O. Gudridge, Title VII Arbitration, 16 Berkeley J. Emp. & Lab. L. 209 (1995).