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Abstract

Mandatory arbitration agreements subvert an employee's constitutional right to a judicial forum and generally place unfair burdens on plaintiffs. An employee faced with the option of either signing a mandatory arbitration agreement or losing a job often has no meaningful choice. The Supreme Court, however, has failed to recognize first that Congress did not intend for mandatory arbitration to extend to Title VII claims and second, that employers often leave employees with no meaningful choice regarding mandatory arbitration. Nonetheless, state and federal judges are increasingly recognizing that arbitration agreements may be the product of procedural unconscionability. Accordingly, when employees are forced to sign mandatory arbitration agreements and express reservations about being forced to do so, courts examine the doctrine of procedural unconscionability to determine whether such agreements are enforceable. Part II of the article provides some background on the problems employees face with respect to mandatory arbitration agreements. Part III introduces relevant federal statutes, the Federal Arbitration Act, and Title VII of the Civil Rights Act of 1964. Part IV looks at the intersection of arbitration and employee Title VII claims in federal courts, paying particular attention to the Supreme Court and the Ninth Circuit Court of Appeals. Part V examines these courts' repeated misinterpretations of congressional intent and the legislative attempts to remedy the problem, and argues that employee plaintiffs should scrutinize recent state court decisions that have found arbitration agreements substantively and procedurally unconscionable for potential assistance in defending against the enforcement of arbitration clauses. Part VI concludes with the recommendations that courts should reexamine Congress' intent with respect to mandatory arbitration clauses and scrutinize the enforcement of such clauses under the state law doctrine of unconscionability.

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