As a lawyer who has spent over 45 years practicing labor and employment law and serving as a mediator and arbitrator, there have been trends and the passage of laws which have significantly impacted this area of the law. The most significant laws have been Title VII of the Civil Rights Act (1964); Age Discrimination in Employment Act (1967); Equal Pay Act (1963); Americans with Disabilities Act (1990); Family & Medical Leave Act (1993); Amendment to Title VII (1991) (allowing for jury trials, compensatory and punitive damages); and various state and local laws patterned after these various federal employment laws.
The impact of these laws has been that, as a labor and employment lawyer in the late 70s and 80s, we spent 75% of our practice on traditional labor law dealing primarily with the National Labor Relations Act handling cases before the National Labor Relations Board, grievances and arbitrations covered by Collective Bargaining Agreements between employers and unions, and legal matters related to union strikes. Today, we are spending 80-90% of our practice on employment related cases involving charges of discrimination and lawsuits or arbitrations related to employment discrimination claims.
With the passage of the Title VII Amendment in 1991 and allowing for jury trials, compensatory and punitive damages, we saw the development of arbitration agreements to avoid jury trials. The development of employment practices liability insurance and establishment by the American Arbitration Association of an Employment Law Panel to handle arbitrations, employers began having their employees agreeing to arbitration versus going to trial with a jury. The practice evolved into more proactive and preventative counseling of clients, many more charges of discrimination and an increase in lawsuits in federal court. As states began implementing legislation following the federal employment laws, we saw in increase in the creation of state and city employment practice agencies, as well as an increase in litigation in the state courts. Also, with the passage of many of these laws, there was a reduction in the perceived need of unions because employees’ job security was increased by these laws protecting them against various forms of discrimination.
In addition to the increase in the use of ADR agreements, I was placed on the American Arbitration Association Employment Law Panel in the mid-90s and began serving as a mediator and arbitrator of employment disputes. Other organizations developed additional panels. Our own Cincinnati Bar Association developed an ADR panel upon which I serve as a mediator and arbitrator. This ADR trend has so evolved, that most state and federal courts engage in various forms of ADR including mandatory mediation, settlement conferences and encouraging counsel to mediate. Several federal courts have also developed pro bono mediator panels and, I have had the opportunity to serve on those. With the increased emphasis on ADR, the number of cases going to trial has significantly diminished as more disputes are being resolved through mediation or arbitration.
In March of 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. As a result, federal courts are not enforcing ADR agreements where such claims are involved. This has created another shift driving such cases to litigation. So over the decades, changes in the law have significantly shifted the practice of labor and employment law and, I am certain, will continue to do so for attorneys.
Mike Hawkins is a former President of the CBA and Chair of the Labor and Employment and ADR Committees. He is a Mediator and Arbitrator and Chair of the ADR Center at Dinsmore & Shohl.