Chief Circuit Judge Thomas Concurs, But Writes That Earlier Case Law Was Wrongly Decided.
The Ninth Circuit has affirmed the district court's order compelling arbitration of racial discrimination claims under section 1981. Lambert v. Tesla, Inc., DBA Tesla Motors, Inc., No. 18-15203 (9th Cir. 5/17/19) (Opn. by Smith, Thomas conc.).
Lambert, an African-American, sued Tesla for racial discrimination. Tesla moved, successfully, to compel arbitration, and Lambert appealed. Following EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003), holding that Title VII claims were arbitrable, the Ninth Circuit panel held that section 1981 claims also can be arbitrated.
Chief Circuit Judge Thomas concurred, believing that the result was compelled by the earlier decision in EEOC v. Luce, Forward, Hamilton & Scripps. However, he believed that case was wrongly decided.
His explanation is that the statutory text merely stating "that arbitration should be 'encouraged' to the extent it is 'appropriate' and 'authorized by law'" is ambiguous. And that if the statutory language is ambiguous, then the court should have looked further at legislative history and purpose. He sees a contradiction between enforcing arbitration and carrying out Congressional intent "to supplement, rather than supplant, the rights and remedies provided . . . "
COMMENT: As this opinion, and others, acknowledge, "We have become an arbitration nation." Many opinions, including this one, reason that compelling arbitration merely means a change of forum, not a diminishment of rights. The opinion's author, Judge Smith, explains, "The question before us is whether claims under section 1981 should be added to the ever-expanding list of statutory causes of action already subject to arbitration." To which Smith responded yes, and to which Thomas responded with a qualified yes, only because the result is compelled by earlier Ninth Circuit case law.
Dean Erwin Chemerinsky wrote a book published in 2017 and entitled: Closing the Courthouse Door: How Your Constitutional Rights Become Unenforceable." The Lambert case, according to Thomas, is a decision that "signifies a further departure from the increased choice of fora Congress intended to bring about in the 1991 [Civil Rights] Act."
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