A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation

Abstract

This article presents data from a novel survey of 1,256 employment plaintiff attorneys to test whether employee rights and remedies are affected by mandatory employment arbitration. By surveying attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, the author presents a systematic empirical comparison of outcomes between civil courts and arbitration with robust controls. The ability to control for the legal basis of the claim, defendant size, use of summary judgment, and attorney and plaintiff characteristics significantly improves on previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower than those found in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to employees who prevail in their cases are significantly lower in arbitration compared to outcomes in state and federal jury trials.