disputes, rather than filing lawsuits. These “mandatory arbitration agreements” have, for the most part, survived vigorous court challenges, particularly by plaintiffs attempting to litigate employment discrimination claims. The legal standards for enforcing an arbitration agreement when employment discrimination claims are brought by unionized employees are discussed in Section 4.3.3 of this book.
If the employees are not unionized, however, the standards for enforcing arbitration clauses are somewhat less strict. Beginning with a decision by the U.S. Supreme Court in Gilmer v. Interstate-Johnson Lane, 500 U.S. 20 (1991), courts have agreed to enforce arbitration clauses in individual employment contracts. Gilmer, a registered securities representative, had signed a contract that required him to submit all employment disputes to compulsory arbitration. When he challenged his discharge by filing an age discrimination claim, his employer filed a motion to compel arbitration, which the trial court upheld. The appellate court reversed, but the U.S. Supreme Court sided with the trial court, ruling that the language of the contract must be enforced.
In several cases decided after Gilmer, trial courts have enforced arbitration clauses in situations where plaintiffs have filed employment discrimination claims with an administrative agency or in court. The Supreme Court in Gilmer noted that the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) favors arbitration agreements and that they should be upheld whenever appropriate. Since Gilmer, most lower federal courts, as well as the U.S. Supreme Court, have upheld most arbitration agreements; these cases are discussed in Sections 4.3.6 and 4.5.5.
Courts typically use contract law principles to determine whether an employee's agreement to use arbitration rather than to litigate is binding. In Futrelle v. Duke University, 488 S.E.2d 635 (N.C. Ct. App. 1997), a state appellate court dismissed a medical librarian's breach of contract, wrongful discharge, and defamation claims because she had used Duke University's internal grievance procedure, which culminated in arbitration. The plaintiff had prevailed at arbitration and Duke gave her a check for the damages the university had been ordered to pay by the arbitrator. The court ruled that because the plaintiff had cashed the check, which was in satisfaction of the arbitration award, she was precluded from initiating litigation about the same issues that had been determined through arbitration.
2.3.3 Applications to colleges and universities. Litigation involving ADR in colleges and universities has focused primarily on what issues an arbitrator may decide and under what circumstances an arbitration award may be overturned by a court.
Because ADR mechanisms are created by the parties in contracts, an arbitrator's authority to resolve a particular issue and the authority to impose a sanction are creatures of the arbitration agreement. Although faculty at a number of unionized colleges and universities are covered by collective bargaining agreements that provide for arbitral review of most employment decisions, many agreements do not permit the arbitrator to grant or deny tenure, although they may allow the arbitrator to determine the procedural compliance or fairness of the tenure decision. In Board of Trustees of the California State University v. Public Employment Relations Board, 66 Cal. Rptr. 3d 389 (Cal. Ct. App., 2d Dist. 2007), the state's Public Employment Relations Board, interpreting the state's enabling legislation for collective bargaining at the state university system, had ruled that a collective bargaining agreement between the faculty union and the California State University system could not include a provision that limited the power of an arbitrator to reverse a campus president's decision on appointment, reappointment, tenure, or promotion. A state appellate court reversed the board's ruling, stating that the board had misinterpreted the statute, and allowed the limitation on the arbitrator's authority to stand.
If an agreement does not permit an arbitrator to substitute his or her judgment concerning the merits of a tenure decision, a court will overturn an award in which the arbitrator does his or her own review of the grievant's qualifications. For example, in California Faculty Association v. Superior Court of Santa Clara County, 75 Cal. Rptr. 2d 1 (Cal. Ct. App. 1998), a state appellate court affirmed a trial court's decision vacating an arbitration award and remanding the case for another hearing before a different arbitrator. The arbitrator whose decision was challenged had conducted his own review of the scholarly achievements of a grievant who had been denied tenure and had awarded her tenure. The trial court ruled that the arbitrator had exceeded his authority under the collective bargaining agreement, because the standard in the collective bargaining agreement for overturning a negative tenure decision required the arbitrator to find that the president could not have made a “reasoned judgment” in reaching the negative decision and that the arbitrator could state with certainty that the grievant would have been granted tenure otherwise. In this case, the grievant had not received positive recommendations at various stages of the tenure decision process, and the arbitrator based his decision on testimony from witnesses who supported the grievant's quest for tenure, rather than on a review of the record that the president had used to reach his decision. Finding that the arbitrator had substituted his judgment for the president's, the court affirmed the trial court's remedy. For a case with similar facts, see Nash v. Florida Atlantic University Board of Trustees, 213 So.3d 363 (Fla. Dist. Ct. App. 2017).
Whether or not the arbitrator's decision is binding on the parties is also a creature of the contract. Unless the contract explicitly states that the arbitration is binding, the arbitrator's award is not enforceable in court. For example, in Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College, 991 N.E.2d 646 (Mass. 2013), a professor denied tenure at the community college grieved the decision, which then went before an arbitrator. The arbitrator ruled in favor of the faculty member and ordered the college to reinstate the professor and provide him with a second opportunity to be reviewed for tenure. The union filed a claim with a state trial court to confirm the arbitration award. Although the trial court confirmed the award, a state appellate court and the state supreme court disagreed. In reviewing the collective bargaining agreement, the Massachusetts Supreme Court refused to enforce the arbitration award, noting that the language of the collective bargaining agreement made it clear that, although the parties could arbitrate a tenure denial, the outcome of the arbitration was not binding.
Grievants challenging a tenure denial may attempt to state claims of procedural noncompliance that actually attack the substance of the tenure decision. For example, in AAUP, University of Toledo Chapter v. University of Toledo, 797 N.E.2d 583 (Oh. Ct. C.P. 2003), an assistant professor denied tenure challenged the negative decision as a procedural violation, stating that the determinations of the department chair and the dean that the professor had produced an insufficient number of publications violated the contract's procedural requirements. The arbitrator ruled that the agreement had not been violated and found for the university, and the plaintiff appealed the award to a state trial court. The court upheld the arbitrator's award, stating that the contract's procedural requirements afforded the chair and the dean the latitude to determine what weight to give a tenure candidate's publications compared with teaching and service, and that the arbitrator did not exceed his authority by interpreting the contract in the university's favor.
The decision of an institution to limit arbitration of employment decisions to only procedural issues rather than to the merits of the decision may persuade a court to allow a plaintiff to litigate the merits of the decision in court—at least when discrimination is alleged. In Brennan v. King, cited above, a faculty handbook provided for arbitration of procedural issues in tenure disputes but specifically provided that the arbitrator was without the power to grant or deny tenure. Because the arbitration procedure did not provide “a forum for the entire resolution” of the candidate's tenure dispute, said the court, the plaintiff did not have to exhaust his arbitral remedies prior to bringing a lawsuit alleging discrimination.
Although arbitration awards are usually final and binding (unless the agreement provides for some other arrangement, such as “advisory arbitration”), courts are reluctant to overturn an arbitrator's award because the parties to the agreement intended it to be final. Nevertheless, courts will overturn arbitration awards that go beyond the power of the arbitrator, that are viewed as harmful to public policy, or that are a result of arbitrator misconduct (such