New York Public Personnel Law: Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints

August 13, 2012

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints
Leonyer M. Richardson, v Commission on Human Rights, 532 F.3d 114

Does Title VII of the Civil Rights Act of 1964 bar the inclusion of an election-of-remedies provision in a collective bargaining agreement?

EEOC contended that it does; the Connecticut Commission on Human Rights and Opportunities [CCHRO] – a defendant in this action, argued that Title VII does not prohibit such a provision to be negotiated and included in a collective bargaining agreement.

The Circuit Court decided that the law governing contracts that provide for the release or waive Title VII rights is independent of the law governing employer actions taken in retaliation for, and intended to deter, employee opposition to unlawful employment practices, including the filing of charges with the EEOC or its state counterpart.

Although there are limits regarding what a union may agree to in the course of collective bargaining, in this instance the court decided that Richardson’s union “has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances.*

The collective bargaining agreement in question merely provided that an aggrieved employee could either arbitrates her grievance or file a charge with the CCHRO.

Accordingly, the Circuit Court ruled that the Union had not discriminated against Richardson by its adhering to the election-of-remedies provision after she chose to file a charge with the CCHRO as the collective bargaining agreement “does not constitute a waiver of any statutory rights” and dismissed her appeal.

The full text of the decision is posted on the Internet at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTA0NzQtY3Zfb3BuLnBkZg==/06-0474-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/10/hilite

* New York courts have held that an employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual [Matter of Hickey v New York City Dept. of Education, 17 NY3d 729. See, also, Antinore v State, 40 NY2d 6].

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.