draft: comments welcome individual employment rights ... · 3 arbitration procedures for their...
TRANSCRIPT
DRAFT: Comments Welcome
Individual Employment Rights Arbitration in the U.S.:
Actors and Outcomes
August, 2012
Alexander J.S. Colvin and Mark Gough ILR School, Cornell University
Ithaca, NY Email: [email protected]
1
Abstract
This study examines disposition statistics from nine years of employment arbitration
cases administered by the American Arbitration Association (AAA) to investigate the impact
institutional characteristics of a case have on employee win rates and award amounts. We find
these institutional variables have mixed impacts on employee outcomes. Employee win rates are
higher in California and lower in Texas compared to those filed in all other states. Female
arbitrators and members of the National Academy of Arbitrators (NAA) render awards in favor
of employees less often than do male arbitrators and non-NAA members. And former judges
award higher damages, on average, than arbitrators without judicial experience. Finally, this
study provides evidence of a significant repeat employer-arbitrator pair effect; employers that
use the same arbitrator on multiple occasions win more often relative to employers appearing
before an arbitrator for the first time.
2
Introduction
With the decline of collective representation, contemporary employment relations is
increasingly focused on individualized determination of terms and conditions of employment.
Statutory rights, not unions, are becoming the primary check on managerial prerogatives in the
workplace (Piore and Safford, 2006; Colvin, 2012). However, despite the reduction in collective
action and industrial conflict, this individual rights era is not characterized by an absence of
conflict, but rather has seen a growth in conflicts around individual rights in the workplace. The
resolution and outcomes of these individual rights conflicts are central to determining the nature
of the employment relationship in this era.
In this study, we examine the operation and outcomes of a major new institutional
structure for the resolution of individual rights conflicts in the United States - the arbitration of
individual employment rights claims under mandatory employer-promulgated procedures.
Mandatory arbitration procedures allow employers to require all nonunion employees to agree as
a condition of employment to resolution of individual statutory rights claims, such as Title VII of
the Civil Rights Act, through private arbitration, barring recourse to the public court system. The
impetus for the rise of mandatory arbitration of employment disputes was two key Supreme
Court decisions. In the 1991 case Gilmer v. Interstate/Johnson Lane (500 U.S. 20), the majority
of the court held that claims based on employment statutes, the Age Discrimination in
Employment Act in that case, were arbitrable. In a subsequent 2001 case, Circuit City v. Adams,
a majority of the court held that arbitration agreements incorporated into employment contracts
were enforceable under the Federal Arbitration Act. Following these decisions, the possibility of
avoiding employment lawsuits in the courts with their high litigation costs and the danger of
large jury awards has encouraged increasing numbers of employers to adopt mandatory
3
arbitration procedures for their workforces. Although precise figures on the extent of mandatory
arbitration are difficult to come by, estimates suggest a quarter or more of all nonunion
employees in the U.S. are covered by these procedures (Colvin, 2008; Lewin, 2008). This
suggests mandatory arbitration is now a much more widespread institution in employment
relations than union representation, which had shrunk to only 13.0 percent of the workforce by
2011 (BLS, 2012).
How does this new institution operate and what is its impact on employment relations?
The Supreme Court stated in Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc. (1985), and
later reiterated in Gilmer that: “By agreeing to arbitrate a statutory claim, a party does not forgo
the substantive rights afforded by the statute; it only submits to their resolution in an arbitral,
rather than a judicial, forum.” This study investigates and questions this assumption that the
universally-applicable rights afforded by federal statutes are resolved uniformly in the forum of
mandatory arbitration. In particular, we analyze how variation in who is deciding the case in
arbitration affects outcomes and how arbitration outcomes vary regionally across the country.
Theory and Literature Review
Arbitrator Characteristics and Arbitrator Selection Processes
Parties in arbitration directly influence who will arbitrate their case. 1 No equivalent
power is provided for in the judicial system. While some degree of forum shopping occurs,
parties have little sway over the judge selected to preside over their case. If arbitrator
characteristics affect case outcomes, then parties with the resources and institutional knowledge
to capitalize on this information can directly influence their expected remedies through arbitrator 1 Parties can designate an arbitrator in the original agreement, otherwise, the parties are encouraged to mutually select an arbitrator from a list provided by the AAA. See http://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTG_004362&revision=latestreleased
4
selection. Evoking the adage “there is no right without a remedy,” an agreement to arbitrate may
not be a mere forum substitution; it may be a forced sacrifice of statutory rights.
There is a body of research documenting that parties rely on arbitrator background
characteristics prior to selecting a arbitrator in labor disputes (Bingham and Mesch, 2002;
Bemmels 1990; Thorton and Zirkel, 1990; Lawson, 1981; Bloom and Cavanagh, 1986). As
Dworkin (1974, p. 200) states: “it is well known that companies and unions conduct an extensive
preliminary inquiry into an arbitrator’s background and reported decisions prior to agreeing upon
his selection.” Employment arbitration lacks the countervailing force unions exert in arbitrator
selection, potentially leaving employees at a distinct disadvantage relative to large or repeat
employers that can benefit from background information to select a predictably biased arbitrator.
As a first point of analysis, we can find evidence that superior arbitrator selection by one
of the parties may affect outcomes if the results of arbitral proceedings vary with the
characteristics of the arbitrator. Put alternatively, if we see systematic variation in outcomes by
arbitrator characteristics, then parties can potentially exploit these differences through selection
of arbitrators contingent on these characteristics. A second indication of the impact of arbitrator
selection would be if we see repeat players having a systematic advantage in obtaining more
favorable outcomes in arbitration. We begin by discussing the potential effects of arbitrator
characteristics and then turn to the issue of repeat player effects.
Gender
Researchers from varied fields have acknowledged certain aspects of social behavior,
personalities, and abilities differ between the sexes. Research psychologists have contended that
these differences extend to decision-making, with woman basing decisions on moral concerns
5
with priorities given to social relationships, while male decision-making is dominated by “rights
[and] formal reasoning that uses a universalizable, abstract, and [an] impersonal style (Gilligan,
1982).” And while debates about the origin of these differences continue—whether they are
immutable biological differences resulting from evolution (maximalist perspective) or responses
to societal structures of gendered proscriptions and prescriptions (minimalist perspective)—their
existence is not in dispute (Eagley and Wood, 1999).
Numerous studies have empirically tested what effect, if any, an arbitrator’s gender has
on their decision-making. Zirkel (1983), looking at 369 labor arbitration decision, and Bigoness
and Dubose (1985), using 80 students as mock arbitrators, found no difference between male and
female arbitrator outcomes. Bemmels (1988a) reports male arbitrators treat female grievants
more leniently with no such preference displayed by female arbitrators. Clyde Scott and
Elizabeth Shadoan (1989) tested to see if female arbitrators issue less severe judgments than
male arbitrators, but their empirical findings failed to identify any significant differences
between the genders. In analyzing 177 arbitrators rulings on six hypothetical cases, Thorton and
Zerkil (1990) found that arbitrator gender cannot account for any differences in the awards
granted to grievants. Bemmels (1990) found that women arbitrators issued judgments slightly
more favorable to grievants than male arbitrators in a sample of 2,001 labor arbitrator awards.
Finally, Caudill and Oswald (1993) asked 146 arbitrators to rule on a hypothetical drug-testing
case and found that women arbitrators are harsher than their male counterparts. They found that
women arbitrators were less likely to issue full reinstatements, but also found that gender did not
have any explanatory power in length of suspensions.
From the field of criminology, Steffensmeier and Hebert (1999), using data from 1991-
1993 judicial sentences in Pennsylvania and additional archival data, examined whether a judge's
6
gender affected criminal defendants’ outcomes in court. The authors concluded that female
judges were 10 percent more likely to incarcerate and their sentences were 5 months longer on
average than those of male judges. The authors impressed, however, that in the majority of the
sentencing-related variables analyzed, gender effects were non-existent or negligible.
Corroborating this study, Kulik, Perry and Pepper (2003) fail to find a relationship between a
judge’s gender and case outcomes in a sample of 786 sexual harassment cases decided between
1981 and 1996.
Unlike judges and labor arbitrators, an employment arbitrator wields extraordinary
discretion in case disposition and is unencumbered by precedent, formal sentencing guidelines,
rules of evidence, or detailed collective bargaining agreements. In addition, they are not subject
to the uniform experiences associated with law school and the career trajectory necessary for a
judicial role, which would moderate the influence such personal characteristics like gender
would have on decision making. In the absence of such constraints and socialization, differences
in outcomes based on the decision-maker’s gender should be more pronounced in employment
arbitration relative to the other forums. In addition to possible maximalist difference between the
genders, life experiences of female arbitrators will likely differ in fundamental respects from
those of male arbitrators, leading to gendered differences in case outcomes.
The weak and inconsistent findings in the literature are likely the result of small sample
sizes of female actors. Still today, and to a greater extent historically, the arbitrator and judge
professions were predominantly male. The 1982 labor arbitrator roster at the Federal Mediation
and Conciliation Service (FMCS) comprised 0.33 percent women (47 out of 14,075) (Bemmels,
1990). In 1993, the percentage of women in the federal judiciary was around 12 percent
(American Bar Association, 2006).
7
Professional Background and Status
Does professional background and status affect arbitral decision-making? While
employment arbitration is a relatively recent phenomenon, there is a long-standing system of
labor arbitration used to resolve disputes in unionized workplaces. The cadre of professional
neutral labor arbitrators has won a well-deserved reputation for respect for due process and
fairness in decision-making. Some of these same labor arbitrators are now among the arbitrators
deciding employment cases in mandatory arbitration proceedings. Do employment arbitrators
who also practice labor arbitration differ in their decision-making? We investigate the potential
impact of this type of professional background and status by looking at the effect of arbitrator
membership in the National Academy of Arbitrators (NAA), the leading professional
organization of prominent labor arbitrators.
Membership in the NAA is a prestigious credential desired by labor arbitrators, reflecting
general acceptability by institutions from both management and labor. Membership requires
substantial experience as an impartial arbitrator of labor-management disputes: at least five years
of experience and a minimum of 60 written decisions over a six-year period (National Academy
of Arbitrators, 2012). The induction criteria to the AAA roster of employment arbitrators, by
comparison, specify only that a potential member needs 10 or more years of experience in
employment law (American Arbitration Association, 2012).
The cumulative decisions and professional norms built over the past 75 years have given
labor arbitrators a far-reaching and unique role in industrial relations. A labor arbitrator’s broad
authority is predicated on the view that collective bargaining agreements are imperfect, or at
least incomplete, charters for enforcing the “common law of the shop.” Rather than interpreting
8
collective bargaining agreements with a rigid adherence to the black letter of the text, decisions
are rendered to comport with basic standards of due process and unwritten rules, practices, and
customs. Notions of just cause, progressive discipline, and the allocation of the burden of proof
are not binding rules enumerated in most collective bargaining agreements; rather, they are
routine expressions of discretionary arbitrator power.
Unlike the common law experienced by judges and lawyers, the common law of the shop
is fluid, informal, and not subject to the principle of stare decisis. Employment arbitrators, being
closely associated with norms of the judiciary, will likely adhere to these narrower standards
when deciding cases. In contrast, NAA members acting in an employment arbitrator capacity
will likely continue taking a liberal view of their role and powers, culminating in more
employee-favorable outcomes. Employer fears that labor arbitrators would be too sympathetic to
employees manifested during the constitution of the AAA Employment Disputes Arbitrators
Panel. In 1996, the AAA committee designated to establish the new panel virtually excluded
labor arbitrators from it (Bingham and Mesch, 2002).
Practical support for arbitrator characteristics influencing outcomes can be found in a
2006 Klaas et al policy-capturing study looking at decisions of 140 AAA employment
arbitrators, 82 labor arbitrators from the National Academy of Arbitrators (NAA), and 83 jurors
who had served in employment discrimination cases over the last five years. The study analyzed
participant responses on 32 hypothetical termination cases and concluded that labor arbitrators
are most likely to rule in favor of the employee, followed by jurors, and then employment
arbitrators.
Another aspect of professional background and status that may be associated with
differences in arbitral decision-making is if the arbitrator is a former judge. Increasing numbers
9
of judges have developed arbitration practices after retirement from the Bench. Indeed, the
relatively low judicial salaries and potential to earn substantial arbitration fees has prompted
growing numbers of judges to take early retirement in order to pursue this new career path. This
phenomenon has become so widespread in the state of California that it prompted a warning
from the Chief Justice of the California Supreme Court that it was causing significant shortages
in staffing of the courts in that state.
Our review of the literature failed to produce a study looking directly at the differences
between judge and arbitrator decision making. However, in their policy-capturing study, Klaas et
al (2006) found that former jurors who had decided employment cases in the courts were more
likely to rule in favor of an employee plaintiff than were employment arbitrators reviewing the
same scenarios. At the same time, Clermont and Schwab (2004) analyzing outcomes in federal
court litigation found that judges deciding cases without a jury were also less likely to rule in
favor of employee plaintiffs than were juries. Taken together these studies suggest that both
judges and employment arbitrators are less likely to rule in favor of employee plaintiffs than are
juries. However, they do not indicate between judges and employment arbitrators which are
more likely to rule in favor of employee plaintiffs. Past experience as a judge may produce
differences in decision-making and we will investigate its impact, though past research and
theory do not provide a clear a priori indication of what direction any effect will be in.
Repeat Player Effects
Repeat player concerns derive from a fear that arbitrators, eager to be selected in future
cases, will betray their neutrality and award favorable decisions to repeat players with hopes of
being selected to arbitrate future disputes. With regard to employment arbitration, employers are
10
the repeat players, leaving individual employees, only ever participating in a single case,
potentially at a distinct disadvantage. This is in contrast to labor arbitration, where management
and the union are seen as countervailing institutional forces equally as likely to be involved in
future arbitration selections.
Though there is a clear economic incentive for arbitrators to give biased rulings favoring
employers, doing so would be an obvious breach of ethical and professional codes. The current
body of literature, however, presents evidence that a repeat player effect does exist in the
arbitration environment but is careful to note many potential explanations may account for it
Bingham (1997) found that repeat players received favorable outcomes when compared
to non-repeat players in a study examining 270 consumer arbitration rulings decided under the
auspices of the AAA between 1993 and 1994. Whereas arbitrators awarded damages to an
employee grievant in 71 percent of the cases involving non-repeat employer players, when a
repeat employer was involved, arbitrators awarded damages to an employee grievant in a mere
16 percent of cases, a 55 percentage point difference. These findings were mirrored in a similar
study published a year later (Bingham 1998b).
Far from proving a repeat player bias in arbitration, these early studies merely established
that employers appearing in multiple cases achieved more favorable results in arbitration (Hill,
2003; Sherwyn et. al. 2005). Advantages can accrue to repeat players relative to one-time
participants for legitimate reasons such as those enumerated by Professor Marc Galanter:
“(1) experience leading to changes in how the repeat player structures the next
similar transaction; (2) expertise, economies of scale, and access to specialist
advocates; (3) informal continuing relationships with institutional incumbents; (4)
bargaining reputation and credibility; (5) long-term strategies facilitating risk-
11
taking in appropriate cases; (6) influencing rules through lobbying and other use
of resources; (7) playing for precedent and favorable future rules; (8)
distinguishing between symbolic and actual defeats; (9) investing resources in
getting rules favorable to them implemented.
One-shotters, on the other hand: (1) have more at stake in a given case; (2) are
more risk averse; (3) are more interested in immediate over long-term gain; (4)
are less interested in precedent and favorable rules; (5) are not able to form
continuing relationships with courts or institutional representatives; (6) cannot use
the experience to structure future similar transactions; and (7) have limited access
to specialist advocates”iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii
(Bingham,1999, p. 5-6, citing Galanter, 1975)
To test more directly for a repeat-player bias, researchers have looked at repeat employer-
arbitrator pairs. Focusing analysis on cases where an employer has used a given arbitrator at
least once controls for most of the legitimate advantages expressed above. Bingham (1998)
shows employees lose more frequently when a decision is made involving a repeat employer-
arbitrator pair. In such cases, arbitrators gave no relief 75 percent of the time, which is
significantly higher than the 45 percent of no relief rulings in cases where employers had not
previously used the arbitrator. In the most thorough study to date looking at the repeat-player
bias, Colvin (2011) presents significant differences in win rates and award amounts for repeat
employer-arbitrator pairs compared to other repeat employers. He finds that employees win 18.6
percent of cases involving repeat employers but only 12 percent of cases if it involves a repeat
employer-arbitrator coupling. Mean award amounts are reported as $19,146 for repeat
employers encountering an arbitrator for the first time and $7,451 for repeat employer-arbitrator
12
pairs. The explanatory power of these variables remained when conducting a multivariate
regression analysis.
Overall, existing theory and literature suggest repeat employers and employers involved
in repeat employer-arbitrator pairs experience advantages in arbitration relative to their one-shot
counterparts. Whether these advantages are a result of arbitrator bias or reflect specialized
knowledge is a question that remains to be answered.
Regional Variation
So far our focus has been on how variation in the characteristics and selection of arbitrators
may affect outcomes. Another factor that may affect outcomes is variation in where arbitration
occurs. Patterns of employment relations vary widely across the United States at the regional and
state level. This is seen dramatically in union membership rates, which range from a low of 2.9
percent in North Carolina to a high of 24.1 percent in New York State. There are distinct
regional patterns to this variation with unions tending to be weaker in the Southern, Prairie, and
Mountain states and stronger in the Northeast, Midwest, and on the West coast. Some of this
relates to differences in culture, industrial structure and economic history between these regions.
However they have also become embedded in the institutional structure of labor relations, most
famously through the “right to work” laws that have been enacted in many southern and central
states.
Should we expect similar variation in individual employment rights between regions and
states? States do have the authority to enact employment laws, which can produce variation
depending on the political and economic climate of the state. At the same time, Federal
employment statutes, such as Title VII, FLSA, ERISA, the ADEA, the ADA, and the FMLA,
13
have national coverage and are designed to provide a universal floor of employment rights for
employees across the county. Most famously, the Civil Rights Act of 1964 was explicitly
adopted as Federal legislation to override the segregationist policies and laws of state
governments in the South of that era. Similarly, the Federal Arbitration Act (FAA) has been
interpreted by the Supreme Court as reflecting a strong Federal policy that preempts most efforts
to regulate mandatory arbitration at the state level. Indeed a series of state laws and state court
rulings that would limit mandatory arbitration have been explicitly held to be pre-empted by the
FAA’s liberal federal policy favoring enforcement of arbitration agreements. What is unclear is
whether mandatory arbitration in practice reflects the idea of universal national coverage
suggested by both the FAA’s liberal federal policy and the Federal employment statutes or if
there is in practice more substantial variation at the state level akin to what we observe in labor
relations.
If there is state level variation in mandatory arbitration, where would we expect to see it? The
state that is often considered to provide the most employee favorable employment law
environment is California.2 California is known for having relatively extensive state level
employment laws that supplement the Federal statutes. Its state courts are considered relatively
favorable to employees, with a high rate of employee success in lawsuits and relatively large
damage awards (Oppenheimer, 2003). This may be in part driven by the relatively strong and
well organized plaintiff employment lawyers bar in California. In the specific area of arbitration
law, California courts have been willing to require, to the degree that Federal pre-emption
doctrines allow, that arbitration agreements need to meet certain basic due process standards to
be enforceable. By contrast, most of the Southern states have generally been considered to have
2 Montana would be the other logical candidate for most employee-favorable status as the only state that has statutorily modified the employment-at-will rule.
14
more employer favorable state laws, courts, and legal environments. We will focus our analysis
on the particular Southern state example of Texas, which is both the largest state by population
after California and has had an especially high number of mandatory arbitration cases. The status
of California and Texas as exemplars of relatively employee favorable and unfavorable states,
respectively, is supported by Block and Roberts’ (2000) index ranking of labor standards
amongst American states and Canadian provinces, where they rank California as having the 15th
highest labor standards out of the 63 jurisdictions and Texas as only the 57th highest.
Data and Methods
The data used in this study was published by the American Arbitration Association in
compliance with Section 1281.96 of the California Code of Civil Procedure. This California
state law mandates that private arbitration service providers publish select characteristics on all
consumer arbitrations administered within the past five years. In the employment context, the
burden of this provision is limited to cases where employees were required to accept a pre-
dispute arbitration agreement drafted by their employer (i.e., employer-promulgated
agreements). Specifically, the California Code requires providers to publish such basic case
information as the: name of the employer, name of the arbitrator, salary level of employee,
prevailing party, date of filing, date of disposition; type of disposition, amount claimed, amount
awarded, total arbitrator fee, fee allocation between parties, and whether the employee was self-
represented. Information regarding employee characteristics, types of claims being filed (e.g.,
FLSA, contract, Title VII), the arbitrator’s complete written award, among many others, are
conspicuously absent from these disclosure requirements. And while limited in scope, simply by
affording a glimpse into the privately-administered types of cases implicated in the Gilmer and
15
Circuit City decisions, this reporting provision is a wellspring among a dearth of publically
available information.
The American Arbitration Association (AAA), the nation’s largest provider of
employment arbitration services, publishes quarterly consumer arbitration reports (hereafter
referred to as “AAA C-filings”) containing information on all consumer disputes it administers
nationwide pursuant to a broad interpretation of the Section 1281.96. This provides a
comprehensive national set of data on all mandatory employment arbitration cases administered
by the AAA. By virtue of its size and liberal disclosure policy, the AAA C-filings represent the
best publically available dataset for analyzing disposition trends in employment arbitration. The
data used in this article include all employment disputes arising under employer-promulgated
arbitration agreements published in these AAA C-filings.3 Covering claims from all 50 states,
the data include 8,211 employment cases filed and terminated between January 1, 2003 and
December 31, 2011.4 Of these 8,211 cases, 2,211 were adjudicated by an arbitrator, while the
remaining 6,000 were settled, withdrawn, or otherwise disposed of prior to the award stage.
All variables used in the proceeding analysis section, with the exception of National
Academy of Arbitrators (NAA) membership status, were imputed using content found in the
AAA C-filings. Descriptive statistics for the variables described below are shown in Table 1.
Dependent Variables
3 The current (as of June 2012) AAA C-filing can be found here: http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015407. 4 For the purpose of this analysis, a “case” is defined as an individual arbitration proceeding. Consequently, each “case” can refer to a single plaintiff naming multiple parties (such as a claim against both Citibank and Citigroup) or a claim with multiple plaintiffs naming a single defendant (if two coworkers were to file a single claim against their employer).
16
We analyze two dependent variables representing different aspects of an arbitrator’s
decision: employee win rates and award amounts. Defining what constitutes an employee win in
arbitration is mildly provocative. It seems apparent that cases resulting in a monetary award or
compensation of any kind are, to some degree, employee victories. However, if an arbitrator
were to render a de minimis, albeit non-zero, financial award for an employee, it may seem
disingenuous to interpret such an outcome as a win. For the purpose of this study an employee
win (Employee Win = “1”) is an adjudicated case where the employee receives any form of
monetary or non-monetary relief. Conversely, an employee loss (Employee Win = “0”) is
attributed to cases where an award provides no compensation for the employee. Award amounts
were positive in 442 out of 2,211 awarded cases, producing an employee win rate of roughly 20
percent. Award Amount reflects the nominal monetary amount, if any, awarded on a case. It is
published by the AAA for all awarded cases. The mean and median amounts awarded to
successful employee claimants are $112,855 and $40,312, respectively.
Independent Variables – Claim Characteristics
Repeat Employer measures the total number of instances an employer appears in our
database. It is calculated using all disposition types (settled, dismissed, withdrawn, etc.), not just
awards, as it is meant to measure employer size and familiarity with the arbitration procedure.5
3,167 unique employers appear over the period covered in the data; during this nine year span, an
employer is, on average, implicated in 3 arbitration proceedings, with one employer being named
in 416 separate cases. Repeat Employer-Arbitrator Pairing is a binary variable coded as “0” for
the first instance an employer engages a particular arbitrator and “1” for all subsequent
5 Including separate measures for employer size and employer experience would introduce problem of co-linearity.
17
interactions between the two parties. 23 percent of the cases and 15 percent of all awards
involved repeat employer-arbitrator pairs.
The variable Self-Represented indicates whether an employee was professionally
represented (“0”) in arbitration or represented themselves pro se (“1”). 1,966 cases, representing
nearly 25 percent of all disputes, involved self-represented employees. The AAA publishes the
variable “salary range,” categorizing employee income as between $0 and $100,000, $100,001
and $250,000, and $250,000 and above. Despite being subject to the mandatory disclosure
requirements enumerated in Section 1281.96, salary range data was missing for nearly two-thirds
of all observations. We therefore capture salary data using the binary variable Salary > $100k,
which is coded as “1” if salary is reported to be above $100,000 and “0” if salary is reported to b
between $0 and $100,000 or was unreported.
Finally, the California and Texas binary variables capture the filing state of each case.
They are coded as “1” if a case was filed in the state of the variable’s namesake and “0”
otherwise. Other States is coded as “1” if the case originated in any state other than California or
Texas, and “0” otherwise; it is the reference category for our regression models. These state
locations were imputed from the hearing address published in the AAA C-filing.
Independent Variables – Arbitrator Characteristics
We ascertained the National Academy of Arbitrators (NAA) membership status of
arbitrators by referencing the roster maintained at the NAA’s website. 98 arbitrators, responsible
for 14 percent of all arbitrations conducted, yielded a positive match, corresponding to a NAA
Member code of “1.” 6 The remaining 958 unmatched arbitrators were coded as “0”. We should
note that not all members agree to be listed on the NAA website; however, the 658 unique names 6See: http://naarb.org/member_list.asp (accessed July 12, 2012).
18
published provide a large enough sample to be confident in our measure. Next, we determined
Male Arbitrator (“1” = Male, “0” = Female) using arbitrator first names. When ruling on
ambiguously gendered names, we assessed middle names and resolved any remaining
uncertainty using an online search. 30 percent of hearings in the entire database and 35 percent
of cases disposed of through an award were conducted under the auspices of a female arbitrator.
Former Judge was created based on the presence (“1”) or absence (“0”) of any of the following
titles in arbitrator names: “Hon.,” “Judge,” “Honorable,” and “Justice.” Approximately 10
percent of arbitrators had this indicator of judicial experience. This may miss some cases of
former judges who no longer use these honorifics, however in most instances former judges do
tend to use these titles given the potential attractiveness of ex-judge status for the arbitrator
selection process and the ability to charge higher fees attendant to this status.
Results
Descriptive statistics and simple bivariate analyses are presented in Table 1. Overall,
employees won in 442 out of 2,211 awarded cases or nearly 20 percent of the time. However,
the employee win rate was 14.9 percent for cases involving repeat employers compared to 29.6
percent in cases involving first time employers. This 14.7 percentage point difference is
statistically significant (p<0.01). There is also a difference when comparing the employee win
rates for the 329 cases involving repeat employer-arbitrator pairs, 11.3 percent, to employee win
rates for the 1,882 cases involving first time employer-arbitrator pairs, 21.5 percent. Again, this
10.2 percentage point difference is highly statistically significant (p<0.01). Taken together, these
results suggest a strong repeat player effect and equally as strong repeat employer-arbitrator
pairing effect. The AAA C-filing data include 172 observations where employee salary is
19
reported as being above $100,000, or in 7.8 percent of all cases. The employee win rate is 32.6
percent for employees with high salaries, significantly greater (p<0.01) than the win rate of 18.9
percent for cases from all other salary categories. Thirty-three percent of employees in the
sample were self-represented and experienced a 10.5 percentage point reduction, on average, in
win rates relative to attorney-represented employees. Claims filed in Texas have an employee
win rate of 15.6 percent, significantly lower (p<0.05) than the 20.0 percent employee win rate
found for claims filed in all other states. Claims filed in California experience a win rate of 30.4
percent, which is 10.4 percentage points above the rate for claims filed in all other states. This
difference is significant at the .001 level. These regional differences are aligned with our
expectations. Arbitrator characteristics produce significant differences in terms of gender
(p<0.01), NAA membership status (p<0.01), and judicial experience (p<0.10). Employee win
rates are higher when the arbitrator is male, lower when the arbitrator is a member of the NAA,
and higher when the arbitrator is a former judge. These findings are evidence that outcomes vary
significantly by arbitrator characteristics.
The average award amount for the 442 cases where the plaintiff received an award of
damages was $112,855, with a median award of $40,312, indicating the distribution of award
amounts is right-skewed with a number of relatively large awards. Employees representing
themselves received significantly lower (p<0.01) awards relative to cases where employees had
representation. The average award amount in a self-represented case was $60,963, but was over
twice that amount, $126,683, in cases where the employee had a lawyer. Employees with high
salaries were awarded, on average, $202,077 compared to $99,911 in cases with all other salary
levels, a significant difference (p<0.01). Average award amounts were not significantly different
between the categories represented by the remaining claim characteristic variables. The final
20
significant difference (p<0.01) within cases won by employees appears between average
arbitrator awards rendered by former judges, $184,435, and arbitrators without judicial
experience, $103,930. Again, significant differences were not found between NAA members and
non-members and male and female arbitrators.
The rightmost column of Table 1 presents mean award amounts for all awarded cases,
reflecting differences in both win rates and award amounts. It can be interpreted as the expected
value of a case, taking into account both the chance of winning and the likely damages. The
expected value of cases involving repeat employers is $17,236 but is 91 percent higher, $32,885,
for cases involving first time employers. This difference is highly significant (p<0.01).
Differences are similarly significant (p<0.05) between repeat employer-arbitrator couplings and
first time associations. The average award is $12,146 for repeat employer-arbitrator pairs and
$24,473 for cases involving first time associations between an employer and arbitrator.
Employees representing themselves received, on average, $7,896 compared to an average award
of $29,753 for employees represented by an attorney. This $21,857 difference is significant
(p<0.01). Average award amounts for claims filed in Texas cannot be said to differ between
average awards from the remaining 49 states; however, average award amounts for claims filed
in California, $35,252, are significantly different (p<0.10) from the $21,993 average award in
other states. All three arbitrator characteristic variables produce significant differences. NAA
members award $10,347 on average, while non-members award significantly (p<0.05) more,
$24,568, on average. Male arbitrators award $7,194 more (p<0.10) than female arbitrators. And
the expected value of a case involving arbitrators with judicial experience award is $45,187 and
$20,382, significantly (p<0.01) less, where arbitrators did not have judicial experience.
21
To analyze the impact of simultaneous influences upon arbitration outcomes, in Table 2
we estimate regression models for employee win rates and award amounts controlling for the
variables described above. Model 1 looks at the independent effects each control variable has on
employee win rate. As employee win is a dichotomous variable, we employ a logit model.7
Models 2 and 3 estimate Poisson regression models for award amount.8 Award amount is right-
skewed, including a large number of observations where zero damages were awarded and several
high value awards. Poisson regression models the natural log of the dependent variable, thereby
normalizing the distribution of award amount to better fit the underlying assumptions of the
model. In Model 2 we estimate a Poisson regression for award amount constrained to cases
determined to be employee wins. Next, in Model 3, we use a Poisson regression for award
amount from all cases resolved through adjudication, even those where zero damages were
awarded (i.e., an employee loss). This third regression functions to model the expected value of
a case, incorporating both an employee’s chance of success and damages awarded.
The first model in Table 2 tests the effects arbitrator and claim characteristics have on the
odds employees will win their case. The coefficients (β) reported in model 1 imply that for every
unit increase in an independent variable, the likelihood of an employee win will be multiplied by
e^β. This transformation is presented as the odds ratio. For example, each appearance by an
employer multiples the odds an employee will win by e^-0.003= .997. In other words, for every
unit change in repeat employer, the odds an employee will win their case decreases by 0.3
percent. This is statistically significant (p<0.001) and practically significant considering the
mean value for repeat employer is 63, implying an average decrease of 21 percent in the
employee win rate relative to employers appearing only once. An odds ratio of 0.712 (p<0.10)
7 For a discussion of logit models, see Cramer (2003, chapter 9) 8 For a discussion of Poisson models, see Long, (1997, chapter 8).
22
for repeat employer-arbitrator pair suggests, on average, an employee’s likelihood of winning
decreases by 28.8 percent when faced with a repeat employer-arbitrator pair as opposed to pairs
with no repeat encounters. An employee who is self represented is 44.6 percent less likely to be
successful in arbitration relative to an employee with professional representation, a difference
significant at the .001 level. The odds ratio for Salary > $100K is above 1, meaning high-salaried
employees are 70.4 percent more likely to succeed in arbitration than employees with salaries
below $100,000 or in cases where salary was kept confidential. The model also suggests
employee win rates have a significant positive relationship (p<0.10) with claims filed in
California and a significant negative association (p<0.05) with claims filed in Texas relative to
claims filed in the remaining 49 states. These findings support the contention that claim
characteristics affect arbitration outcomes. With regard to arbitrator characteristics, the model
speaks with equal force that such characteristics are related arbitration outcomes, though judicial
experience was not found to be significant. However, if an arbitrator is a member of the NAA,
there is a significant (p<0.05) drop of 46.3 percent in the odds an employee will win. Finally, the
odds an employee will win their case increases by 24.9 percent if the presiding arbitrator is male
as opposed to female.
Just as logit regression models the log odds of an event, Poisson regression models the
natural log of the expected count of the dependent variable. Since we are again modeling the
natural log of a variable in Models 2 and 3, it is easiest to interpret the exponentiated
coefficients, reported as the award ratio corresponding to a one unit change in the predictor
variable. Model 2 measures the effects predictor variables have on employee award amount,
restricted to cases where employees won. Of the claim characteristic variables, only self-
represented (p<0.10) and salary > $100K (p<0.05) significantly affect the amount awarded to
23
employees. Even when they receive damages, a self-represented employee can expect a 50.2
percent decrease in award amount relative to an employee with representation. And an awarded
case involving an employee with a high salary level can expect a 93.6 percent increase in award
amount compared to cases involving all other salary amounts. Of the arbitrator characteristic
variables, only former judge is significant (p<0.05); if arbitrators were formerly judges, their
awards are 63.2 percent larger than awards from arbitrators without judicial experience.
The third model in Table 2 includes all adjudicated cases, whether the plaintiff wins or
loses. Consequently, it models the expected value to the plaintiff of an adjudicated case. Given a
unit change in repeat employer, the average damages awarded in a case decreases by 0.3 percent,
which is statistically significant (p<0.05). The mean value for repeat employer is 63, implying an
average decrease at this mean value of 21 percent in the size of the award relative to awards
rendered in cases with one-shot employers. Damages awarded to self-represented employees are
only 32.9 percent the size of damages awarded to their represented counterparts, a significant
difference (p<0.001). An employee plaintiff with salary > $100K is associated with a significant
(p<0.001) increase of 174.6 percent in the amount awarded. Finally, the model suggests a
significant association (p<0.001) between awarded damages and NAA membership status. An
arbitrator member of the NAA will, on average, award damages that are only 49.1 percent of
amounts awarded by non-members. Finally, the reported ratio of 1.605 (p<0.10) for Former
Judge indicates award amounts from former judges are 60.5 percent higher than amounts from
arbitrators without judicial experience.
Analysis
24
Our analysis provides strong evidence of a repeat player effect and, of more concern,
evidence of a repeat employer-arbitrator pair effect. Both repeat players and repeat employer-
arbitrator pairs are associated with lower employee win rates relative to their one-shot
counterparts. The average award amount for all adjudicated cases is further diminished in
observations involving repeat players. Employees trying to vindicate their rights against repeat
employers may experience lower win rates and award amounts because of arbitrator bias, but it
strikes us as plausible that repeat employers accrue legitimate advantages by virtue of their larger
size, greater resources, and experience which could also explain these results. These alternative
explanations hold less currency when interpreting the repeat employer-arbitrator pair results.
Even when controlling for employer size and experience in arbitration, employers involved with
arbitrators they have selected in the past realize more favorable outcomes than employers
involved in first time encounters. This alarming relationship suggests that arbitrators may be
responding to economic incentives and issuing relatively favorable awards to repeat clients.
Here again, however, there are alternative explanations for the reported relationship. Past
experience with an arbitrator may confer advantages that can be applied to subsequent hearings.
For example, employers involved in repeat pairs may cater their arguments to known arbitrator
preferences. Alternatively, employers may adjust their settlement strategies according to prior
experience with a given arbitrator. Although not arbitrator bias, this would still constitute an
employer advantage. In labor arbitration, the opposing institutional force of unions inoculates
labor arbitration against such advantages systematically favoring one side. Although the
plaintiffs’ bar could theoretically fulfill a similar role in employment arbitration, our results
suggests that as yet they do not have a sufficient presence to eliminate repeat employer-arbitrator
pairing advantages from mandatory employment arbitration. Future studies should control for
25
these varied explanations and explore how other institutions such as the plaintiffs’ bar could
more effectively reduce the repeat player advantages currently possessed by employers in
mandatory employment arbitration.
Proponents of employment arbitration proclaim its accessibility, particularly for
claimants unable to find representation in courts of law (Estreicher, 2001). Our findings,
however, show that employee self-representation is common and clearly associated with adverse
impacts in terms of win rates and size of damages awarded to employees. Employees are 50
percent more likely to represent themselves in arbitration relative to federal courts, so in a
technical sense the arbitral forum may be more accessible.9 But if a 50 percent reduction in both
the odds of winning and award amounts are attendant to self-representation in arbitration, such
employees may not be getting access to an institution of justice. Such a drastic reduction is
especially poignant considering Clermont and Schwab (2004, page 445) assert: “pretrial and trial
win rates [in federal courts] are similar across types of discrimination cases…despite the
differences in pro se representation…” The data do not allow a standardized comparison of cases
between those with professional and those with self-representation. Therefore, we do not know
whether self-representation is the cause of lower win rates and award amounts, or whether self-
represented claims are simply less meritorious.
Our results indicate that there are substantial differences between states in the outcomes
of mandatory arbitration. As expected, employees do much better in California than in other
states. This confirms the popular assumption that California is a particularly employee-friendly
state regime. What our results do not allow us to determine is the degree to which this is due to a
more employee friendly set of substantive employment laws in California, greater state court
9 Clermont and Schwab (2004) report that 19.8 percent of plaintiffs were represented pro se in federal courts, while 29.5 percent of claimants in our sample, 32 percent of adjudicated cases, were self-represented.
26
recognition of rights to due process in arbitration, or the strength of the California plaintiffs’ bar.
Conversely, Texas appears to be a relatively employer friendly state for mandatory arbitration
based on the lower employee success rates we find in that state. These findings indicate that
mandatory arbitration does not operate as a uniform national institution, but rather exhibits
substantial regional variation at the state level. This raises the question of whether it makes sense
to assume a uniform federal policy on arbitration and, particularly, to assume that arbitration
uniformly provides across the country a system that is merely an alternative set of procedures for
enforcing the same substantive rights. By contrast, what we find is a distinct lack of uniformity
in the outcomes of attempts to enforce substantive employment rights through mandatory
arbitration.
Turning to arbitrator characteristics, the multivariate models provide nuanced and
reinforcing results to the bivariate analysis, indicating variation in arbitrator characteristics is
related to outcomes. This result raises potential concerns over the ability of sophisticated
employers to exploit this variation to obtain more favorable outcomes. Unlike litigation, parties
in arbitration have direct influence over the party who decides their case. If such an asymmetric
benefit is conferred on employers, being forced into an arbitral forum will directly affect the
resolution and determination of universally-applicable substantive rights. And this would be in
stark contrast to the Supreme Court’s current stance of assuming a different process but similar
outcomes. These results, however, do not allow us to distinguish between whether arbitrator
characteristics are the cause of these differences, or whether the types and merits of cases
presented to certain types of arbitrators systematically differ. Addressing this uncertainty should
be a priority for future researchers.
27
One unexpected result is that NAA members are associated with employee unfriendly
outcomes. Coming from a collective bargaining environment where labor arbitrators enforce
standards that are tied to the actual contract language, especially the just cause standard for
discipline and dismissal, we predicted NAA members would apply relatively employee-
favorable standards in employment arbitration. However, the employee win rate is lower if the
arbitrator is an NAA member and there is also a reduction in the expected value of a case. This
may be the result of NAA member arbitrators being more skeptical of employment law based
claims, as compared to the labor arbitration claims they more typically adjudicate. Or
alternatively it may be due to employers selecting NAA member arbitrators in cases where
employees have weaker claims. The finding should certainly be troubling for NAA members
participating in employment arbitration and suggests that they should guard against any
systematic tendency to be skeptical of employee claims.
An employee’s odds of winning a case are higher when the arbitrator is male relative to
female. This may be evidence that male arbitrators are more severe to employers (or, stated
differently, less severe to employees) or, simply indicate that female arbitrators are selected for
less meritorious cases. In addition, former judges tend to make higher awards than other
arbitrators, providing further evidence of significant variation in outcomes depending on
arbitrator characteristics. This raises the policy concern that sophisticated parties, in this area
particularly larger more experienced employers, will be able to obtain advantages through the
arbitrator selection process by choosing arbitrators based on critical arbitrator characteristics.
We want to recognize some limitations of our data. First, we investigate disposition data
from a single arbitration provider and there is no guarantee the data found in AAA C-filings is
representative of arbitrations generally. Future studies should include data from multiple
28
arbitration providers to determine the generalizability of our results. Of particular concern is that
ad hoc arbitration cases where there is no administering agency enforcing standard procedures
may have very different characteristics and potentially more substantial due process defects.
Second, the rudimentary reporting requirements found in Section 1281.96 of the California Code
limit our ability to draw strong casual conclusions. Without specific case information, we cannot
be certain that types or merits of cases and our predictor variables are independent. For example,
do former judges award larger damages to employees because of their past careers, or because
they are selected in higher-value cases? Lastly, we employ just one of a multitude of potential
measures for employer size, experience in arbitration, and past experience with a given
arbitrator. Future studies could, for example, model employer experience in arbitration using
data from multiple service providers.
Conclusion
The rise of mandatory arbitration represents the emergence of a major new institution for
the governance of employment relations in the individual rights era. Alternative dispute
resolution procedures such as arbitration and mediation are often viewed as relatively neutral
technique focused interventions in labor and employment relations. By contrast, we have sought
to show how the institutional structure of these procedures is a key determinant of their operation
and impact. Mandatory arbitration’s endorsement by the U.S. Supreme Court was premised on
the idea that it simply involved an alternative set of procedures for enforcing the same set of
substantive rights. In our study, we have analyzed how the outcomes of efforts to enforce
substantive employment rights in fact vary widely depending on who the decision-makers are
and what the institutional context is. Justice in mandatory arbitration is not universal in that its
29
outcomes vary both regionally across the country and depending on the characteristics of the
arbitrator deciding the case. Justice is also not blind if an employer is able to gain an advantage
from selecting an arbitrator with desirable characteristics and especially if there are gains from
doing repeat business with the same arbitrator.
30
Table One
Plaintiff Win Rates and Award Amounts
Category Counts Employee Win Rate
Award Amount ($) (Wins Only)
Award Amount ($)
(All Rulings) N (%) % Mean (Median) Mean All cases 2,211 (100) 19.99 112,855 (40,312) 22,632 Repeat employer 1,447 (65.5) 14.93** 115,228 (37,701) 17,236** Non-repeat employer
764 (34.5) 29.58 110,588 (43,060) 32,885
Repeat employer-arbitrator pairing
329 (14.8) 11.25** 107,997 (40,000) 12,146*
Non-repeat pairing 1,882 (85.2) 21.52 113,299 (40,624) 24,473 Self-represented 719 (32.5) 12.93** 60,963** (12,745) 7,896** Attorney rep’d 1,492 (67.5) 23.39 126,683 (61,488) 29,753 Salary > $100K 172 (7.8) 32.56** 202,077** (69,751) 65,793** Other Salary 2,039 (92.2) 18.93 99,911 (37,109) 18,979 NAA member 301 (13.6) 13.62** 75,710 (42,620) 10,347* Non-NAA member 1,910 (86.4) 20.99 116,653 (39,867) 24,568 Male arbitrator 1,441 (65.2) 21.65** 115,706 (39,934) 25,139+ Female arbitrator 770 (34.8) 16.88 106,013 (41,700) 17,945 Former Judge 200 (9.0) 24.50+ 184,435** (75,000) 45,187** Non-judge 2,011 (91.0) 19.54 103,930 (38,617) 20,382 California 125 (5.6) 30.40** 115,032 (46,750) 35,252+ Texas 289 (13.1) 15.57* 135,034 (65,000) 21,173 Other states 1,797 (81.3) 19.95 109,845 (37,219) 21,993
Note: Within category differences significance levels: + p<.10; * p<.05; ** p<.01.
31
Table Two Plaintiff Win and Award Amount Models
Model 1 Model 2 Model 3 Plaintiff Wins Award
Amounts (Employee wins only)
Award Amounts
(All cases)
Logit Poisson Poisson [Odds Ratio] [Award Ratio] [Award Ratio]
Repeat Employer -0.003*** -0.0003 -0.003* (0.00) (0.0007) (0.001) [0.997] [0.9997] [0.997]
Repeat Emp-Arb Pair -0.34+ 0.085 -0.175 (0.196) (0.266) (0.320) [0.712] [1.089] [0.839]
Self-represented -0.59*** -0.695+ -1.11*** (0.130) (0.377) (0.418) [0.554] [0.499] [0.329]
Salary > $100K 0.53** 0.661* 1.01*** (0.178) (0.263) (0.291) [1.704] [1.936] [2.746]
NAA member -0.45* -0.305 -0.711*** (0.183) (0.225) (0.269) [0.637] [0.737] [0.491]
Male arbitrator 0.22+ 0.019 0.163 (0.120) (0.211) (0.228) [1.249] [1.020] [1.177]
Former Judge 0.04 0.490* 0.473+ (0.181) (0.214) (0.250) [1.044] [1.632] [1.605]
California 0.36+ -0.174 0.026 (0.211) (0.276) (0.325) [1.436] [0.840] [1.027]
Texas -0.37* 0.102 -0.127 (0.177) (0.209) (0.251) [0.693] [1.107] [0.881]
Constant -1.17*** 11.57*** 10.16*** (0.118) (0.232) (0.256)
F [Chi-sq] 99.94*** 40.83*** 93.56*** Pseudo R2 0.0452 0.0993 0.1134
N 2211 442 2211 Note: + p<.10; * p<.05; ** p<.01; *** p<.001.
32
References American Arbitration Association (2012). “Qualification Criteria and Responsibilities for
members of the AAA Panel of Employment Arbitrators” http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_003881. Accessed on 6/12/2012
American Bar Association (2006). “Charting Our Progress: The Status of Women in the
Profession Today,” http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/ChartingOurProgress.authcheckdam.pdf. Accessed on 6/12/2012
Bemmels, Brian (1990). “Arbitrator characteristics and arbitrator decisions.” Journal of Labor
Research 11: 181-91. Bemmels, Brian (1988). “Gender Effects in Discharge Arbitration.“ Industrial and Labor
Relations Review 42: 63-76. Bemmels, Brian (1988a). “The Effect of Grievants' Gender on Arbitration Decisions” Industrial
and Labor Relations Review 41: 251-62. Bemmels, Brian (1988b). “Gender Effects in Discipline Arbitration: Evidence from British
Columbia.” Academy of Management Journal 31: 699-706. Bigoness, W. J. & DuBose, P. B. (1985). “Effects of Gender on Arbitrators' Decisions.”
Academy of Management Journal 28: 485-91. Bingham, Lisa B (1999). “Employment Arbitration: The Repeat Player Effect.” Employee Rights
and Employment Policy Journal 1(1): 1-38. Bingham, Lisa B. (1998). “On Repeat Players, Adhesive Contracts, and the Use of Statistics in
Judicial Review of Employment Arbitration Awards.” McGeorge Law Review 29(2): 223–259.
Bingham, Lisa B. (1998b). “An Overview of Employment Arbitration in the United States: Law,
Public Policy and Data.” New Zealand Journal of Industrial Relations 23(2): 5-19. Bingham, Lisa B. (1997). “Employment Arbitration: The Repeat Player Effect,” 1 Employee
Rights & Employment Policy J. 189. Bingham, Lisa B. & Mesch, Debra J. (2002). “Decision Making in Employment and Labor
Arbitration” Industrial Relations, 39(4): 671-694. Block, Richard & Roberts, Karen (2000). “A Comparison of labour standards in the United
States and Canada” Relations Industrielles, 55(2): 273-307.
33
Bloom, D.E. & Cavanagh C.L. (1986). “The Impact of Attorneys and Arbitrators on Arbitrator Awards.” Industrial and Labor Relations Review 40(1): 543-555.
Bureau of Labor Statistics (2012). “Union Members Summary,”
http://www.bls.gov/news.release/union2.nr0.htm. Accessed 6/12/2012. Caudill, Steven B. & Oswald, Sharon L. (1993). “A Sequential Selectivity Model of the
Decisions of Arbitrators,” Managerial and Decision Economics, 14(3): 261-267. Clermont, Kevin J. & Schwab, Stewart J. (2004). ‘How Employment Discrimination Plaintiffs
Fare in Federal Courts,” J. of Empirical Legal Studies 1(2): 429-458. Colvin, Alexander J.S. (2012). “American workplace dispute resolution in the individual rights
era,” International Journal of Human Resource Management, 23(3):459-475. Colvin, Alexander J.S. (2011). “An Empirical Study of Employment Arbitration: Case
Outcomes and Processes,” J. of Empirical Legal Studies, 3(1): 1-23. Colvin, Alexander J.S. (2008). “Empirical Research on Employment Arbitration: Clarity Amidst
the Sound and Fury?” Employee Rights and Employment Policy Journal,11(2): 405-446. Cramer, J.S. (2003). Logit Models from Economics and Other Fields. Cambridge: Cambridge
University Press. Dworkin, Harry J. (1974). “How Arbitrators Decide Cases.” Labor Law Journal 24(2):200-210. Eagley, Alice H. & Wood, Wendy (1999). “The Origins of Sex Differences in Human Behavior:
Evolved Dispositions Versus Social Roles,” American Psychologist 54(6): 408-423. Eisenberg, Theodore & Hill, Elizabeth (2003). “Arbitration and Litigation of Employment
Claims: An Empirical Comparison.” Dispute Resolution Journal 58(4): 44-54. Estreicher, Samuel (2001). “Saturns for Rickshaws: The Stakes in the Debate over Pre-Dispute
Employment Arbitration Agreements,” Ohio State Journal on Dispute Resolution 16(6): 559-570
Galanter, Marc. (1975). “Why the "Haves" Come Out Ahead: Speculations on the Limits of
Legal Change,” L. & Soc'y Rev. 95(9). Gilligan, Carol. (1982) In A Different Voice. Psychological Theory and Women's Development.
Cambridge: Harvard University Press. Hill, Elizabeth. (2003). “AAA Employment Arbitration: A Fair Forum at Low Cost.” Dispute
Resolution Journal 58(2): 8-16.
34
Klaas, Brian S., Mahony, Douglas, and Wheeler, Hoyt N. (2006). “Decision-Making about workplace Disputes: A policy-Capturing Study of Employment Arbitrators, Labor Arbitrators, and Jurors.” Industrial Relations. 45(1):68-93
Kulik, Carol R., Perry, Elissa L. & Pepper, Molly B. (2003). “Here Comes the Judge: The
Influence of Judge Personal Characteristics on Federal Sexual Harassment Case Outcomes,” Law and Human Behavior, 27(1): 69-86.
Lawson, Eric W. (1981). “Arbitrator Acceptability: Factors Affecting Selection,” The Arbitration
Journal 36: 22-29. Lewin, David (2008). “Employee Voice and Mutual Gains,” Proceedings of the 60th Annual
Meeting of the Labor and Employment Relations Association (LERA), 61-83. Long, J.S. (1997). Regression Models for Categorical and Limited Dependent Variables.
Thousand Oaks, CA: Sage. National Academy of Arbitrators (2012). “NAA Membership Guidelines”
(http://naarb.org/member_guidelines.asp. Accessed on 6/12/201. Oppenheimer, David Benjamin (2003) “Verdicts Matter: An Empirical Study of California
Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities,” 37 U.C. Davis Law Rev. 535-549.
Piore, Michael & Safford, Sean (2006). “Changing Regimes of Workplace Governance, Shifting
Axes of Social Mobilization and the Challenge to Industrial Relations Theory,” Industrial Relations, 45(3): 299-325.
Scott, Clyde & Shadoan, Elizabeth (1989). “The Effect of Gender on Arbitration Decisions.”
Journal of Labor Research 10: 429. Sherwyn, David, Samuel Estreicher, and Michael Heise (2005). “Assessing the Case for
Employment Arbitration: A New Path for Empirical Research.” Stanford Law Review 57: 1557-1591.
Steffensmeier, Darrell, and Chris Herbert (1999). "Women and men policymakers: does the
judge's gender affect the sentencing of criminal defendants?" Social Forces. 77. 3: 1163(3). Opposing Viewpoints Resource Center. Gale. CIC Penn State University.
Thorton, Robert J and Zirkel, Perry A. (1990). “The Consistency and Predictability of Grievance
Arbitration Awards.” Industrial and Labor Relations Review 43(2): 294-307.
U.S. Supreme Court Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, (1991).
U.S. Supreme Court Circuit Cirty Stores, Inc. v. Adams, 532 U.S. 105 (2001).
35
Zirkel, Perry A. (1983). “A Profile of Grievance Arbitration Cases.” Arbitration Journal 38(1): 35-38