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Appellate Court Suggests Grievance Arbitration May Be Exclusive Remedy for FEHA Claims

In Volpei v. County of Ventura, 2d Civil No. B243954, the Second Appellate District of the California Court of Appeal on Thursday (November 7) denied the County’s petition to compel arbitration, holding that a grievance provision in a collective bargaining agreement did not prevent a County employee from filing a lawsuit alleging claims of retaliation, harassment and discrimination under the California Fair Employment & Housing Act (“FEHA”). The Court’s analysis suggests that with more specific waiver language the employee could have been compelled to arbitrate such claims.

The collective bargaining agreement in question contained language that defined a grievance to include “a complaint of illegal discrimination . . . .” and provided that an unresolved grievance “may be submitted to arbitration by the Association.”  The grievance procedure further provided that the decision of the arbitrator “shall be final and binding upon the County, [The Association] and the employee affected, subject to judicial review.” 

In its petition to compel arbitration, the County contended that this language established that the grievance procedure was the only available remedy for the employee’s FEHA claims.  The Court of Appeal disagreed, finding that the grievance language “is not a clear and unmistakable agreement to arbitrate Volpei’s statutory claims against the County.”  Of note to the Court was the fact that the grievance procedure did not specifically refer to the FEHA or any other statute, did not expressly cover both statutory and contractual discrimination claims, and that the provision was both permissive and unilateral.

While the Court of Appeal denied the County’s petition to compel arbitration based on the specifics of the grievance procedure in this case, the Court’s analysis suggests that if the procedure unambiguously required arbitration as the sole and exclusive remedy for an employee’s FEHA claims, that there is a potential that the employee would have been bound to proceed through arbitration.

Meyers Nave Practice Pointer: The United States Supreme Court has already held that a collective bargaining agreement provision requiring arbitration of Title VII claims can be enforceable.  See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). This case now suggests the possibility that FEHA claims may also be subject to such a waiver. We recommend consulting with legal counsel before considering such a provision as there are risks with such an approach as well as very stringent procedural requirements for mandating employees in California to submit employment claims to arbitration.