Page 12 - JanuaryFebruary25 CBA Report

Explore a regular feature that
highlights our experienced
attorneys and the unique
paths that lead them
to this chapter of their
legal career.
A Look Back
With Mike Hawkins
How Landmark Laws Transformed the Practice
of Employment Law
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 Discrimina-
tion 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, compen-
satory 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 employ-
ment 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 Rela-
tions 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 insur-
ance 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 discrimi-
nation and an increase in lawsuits in federal court. As states began
implementing legislation following the federal employment laws,
Hawkins
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 devel-
oped 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 manda-
tory 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 Arbi-
tration 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.
12 THE REPORT | January/February 2025 | CincyBar.org