Lamont E. Stallworth and Daniel J. Kaspar
Abstracted from: Lamont E. Stallworth and , Employing the Presidential Executive Order and the Law to Provide Integrated Conflict Management Systems and Adr Processes: The Proposed National Employment Dispute Resolution Act (Nedra), 28 Ohio State Journal on Dispute Resolution 171 -239 (2013) (240 Footnotes)
When Sigmund Freud was once asked what the most important thing in life was, he responded: “Love and work.” Similarly, Shakespeare once said “You take my life when you take the means whereby I live.” When read together, the quotes of Sigmund Freud and William Shakespeare underscore the importance of work, particularly the loss of work due to race-based discrimination. These statements further underscore the importance of laws and public policies that are designed and intended to prohibit workplace discrimination based on immutable characteristics such as race, sex, national origin, religion, disability, age, marital status, and sexual orientation.
The first purpose of this article is to provide the reader with a “mini-primer” on the history and overview of the use of private conflict management systems and alternative dispute resolution (“ADR”) processes such as labor and employment arbitration and mediation within the context of resolving race- or ethnicity-based discrimination in the workplace.
The second purpose of this article is to introduce the relatively recent concepts of “modern racism or discrimination,” “unconscious,” and “subtle discrimination” in the workplace. The third purpose is to discuss a number of the realities related to the current way Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and Section 1981 of the Civil Rights Act of 1866 are being enforced, and how the various courts of appeal are *174 reversing a disproportionately greater number of verdicts favorable to plaintiffs than appealed cases of respondent employers.
The fourth purpose is to provide the reader with the legal and ADR public policy context within which employment discrimination disputes have been and are currently being resolved, pursuant to relevant court decisions, policies, and protocols implemented by the EEOC, the federal courts, and private employers. This includes the Supreme Court's decisions in Alexander v. Gardner-Denver, Gilmer v. Interstate Johnson/Lane, Circuit City, Inc. v. Adams, and 14 Penn Plaza LLC v. Pyett.
Lastly, with this background and through this experiential-based prism, the authors recommend the enactment of legislation entitled the “National Employment Dispute Resolution Act” (NEDRA). NEDRA would require certain covered federal contractors and recipients of federal funds to implement legitimate internal conflict management systems designed to afford EEO/employment disputants early access to ADR processes such as ombudspersons, private fact-finders, and mediators. Because NEDRA would apply to certain federal contractors and recipients of federal funds, the authors further propose that NEDRA be enacted as a Presidential Executive Order.
. Dr. Stallworth is Professor of Human Resources and Employment Relations, Loyola University Chicago, Graduate School of Business.
. Mr. Kaspar is Assistant Counsel at the National Treasury Employees Union and a 2011 graduate of the Chicago-Kent College of Law, Illinois Institute of Technology.