whether-an-arbitration-agreement-can-bar-an-employee-from-pursuing-an-adea-claim

QUESTION PRESENTED The question presented in this Petition is whether an arbitration agreement can be used to bar an employee from pursuing a claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., when that employee would have been able to pursue that claim in court. The ADEA includes a comprehensive timing scheme setting forth the time individuals have to file a charge of discrimination. 42 U.S.C. § 2000e-5()(1); 29 U.S.C. §§ 626(d), 633(b). Under that scheme, individuals have either 180 or 300 days to file a charge first with the Equal Employment Opportunity Commission (“EEOC”), after which they may proceed in court. However, if similar charges of discrimination have already been filed with the EEOC, an individual need not meet this time limit but instead can file a claim in court much later (even years later, after learning that he or she may have been the victim of discrimination, based upon an EEOC investigation or claims brought forward by other employees). The Second Circuit below erroneously held that an arbitration agreement can undermine this scheme, thus preventing employees from pursuing claims of age discrimination that would have been timely in court. In so holding, the Second Circuit diverged from the Sixth Circuit, which has held that the comprehensive timing scheme for asserting an ADEA claim before the EEOC and in court is a substantive right that cannot be waived by contract. See Thompson v. Fresh Products, LLC, 985 F.3d 509, 521 (6th Cir. 2021). In contrast, u the Second Circuit held that this timing scheme is a procedural right that can be waived. The Second Circuit’s conclusion violates this Court’s pronouncement in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) , that arbitration is an acceptable alternative to court action so long as an employee can pursue claims in arbitration that could have been pursued in court. Petitioners thus ask the Court to correct the Second Circuit’s erroneous conclusion that an arbitration agreement can take away a right to pursue an age discrimination claim that could have been pursued in court and thereby resolve this significant circuit split.