14 Penn Plaza Llc V. Pyett: Oppression or Opportunity for U.S. Workers; Learning from Canada

The 2009 decision in 14 Penn Plaza v. Pyett is probably the most controversial labor arbitration decision in the Supreme Court’s history. The Court held that as long as its language is clear and unambiguous, a collective bargaining agreement may waive an employee’s right to sue and compel the employee to bring statutory employment claims through the contract’s grievance and arbitration procedure. Some contend that the decision stripped employees of valuable rights and relegated them to adjudication in a second class forum subject to the control of their union and employer. Others contend that grievance arbitration provides employees with a forum that is more accessible and that can resolve statutory claims quicker and cheaper and, thereby, facilitates the resolution of claims that would never be brought in litigation. Since the decision of the Supreme Court of Canada in 1974 in McLeod v. Egan, claims under human rights statutes have been routinely adjudicated through collective agreements’ grievance and arbitration procedures. In his Presidential Address at the 2009 Annual Meeting of the National Academy of Arbitrators, NAA President Michel Picher drew on the Canadian experience arbitrating statutory human rights claims under collective agreements and suggested that Pyett may increase access to justice. Funded by a grant from the National Academy of Arbitrators Research and Education Foundation, we compared the handling of statutory human rights claims in Ontario between 2009 and 2013 in labor arbitration and before the Human Rights Tribunal of Ontario (HRTO). All relevant arbitration awards as reported in the Canadian Legal Information Institute (CanLII) data base and a representative sample of employment cases from the HRTO during that period were coded for such matters as grounds claimed, representation (if any), stage of the employment relationship at which the event arose and at which the claim was filed, elapsed time between various stages of the process, claimant and adjudicator gender, outcomes, remedies requested and awarded and use of legal authority. This article presents the study’s results and analyzes their implications for the controversy over Pyett.