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Benefits Communication Corp. v. Klieforth


June 9, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. George W. Mitchell, Trial Judge)

Before Ferren,* Acting Chief Judge, and Steadman and King, Associate Judges.

The opinion of the court was delivered by: King

Opinion for the court by Associate Judge KING.

Concurring opinion by Acting Chief Judge FERREN.

KING, Associate Judge: Appellee Laurette C. Klieforth ("employee") filed a complaint against appellants Great West Life Assurance Co. ("Great West") and its subsidiary Benefits Communication Corporation ("BCC"), who was her employer, alleging appellants had denied her a promotion on the basis of her sex in violation of the District of Columbia Human Rights Act ("Human Rights Act"). *fn1 Shortly after the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., *fn2 which upheld an arbitration provision for an age discrimination claim, appellants moved to compel arbitration of Klieforth's discrimination claim. After extensive briefing and argument, Judge Mitchell denied the motion, concluding the Civil Rights Act of 1991 ("the 1991 amendments") *fn3 retroactively overruled the Supreme Court's Gilmer decision. Concluding that the trial court erred in so doing, we reverse and remand for further proceedings.


On October 30, 1985, the employee executed a "Uniform Application for Securities Industry Registration or Transfer" ("Form U-4") *fn4 in contemplation of beginning employment with BCC as a securities dealer. *fn5 On January 2, 1986, the employee was hired by BCC as an account executive, an office support position. After passing an examination that qualified her to sell securities, Klieforth was promoted to the position of "Employer Sponsored Specialist" selling retirement related registered insurance products and securities. Some time thereafter, although the record is not clear on this point, the position of vice president of sales of the Washington, D.C. office became available and the employee, having already assumed many of the duties of that position, became a candidate for that post and expected to be promoted to it, Her expectations were not realized, and the vice president of sales for the Detroit office, a male, was actually appointed.

On October 10, 1990, the employee filed a complaint in the Superior Court alleging she was denied the promotion because of her sex in violation of the Human Rights Act. On June 24, 1991, just six weeks after Gilmer was decided, appellants filed a motion to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), *fn6 the District of Columbia Uniform Arbitration Act, *fn7 and section 8 (a) of the National Association of Securities Dealers ("NASD") Code of Arbitration Procedures. *fn8 The employee opposed, contending: (1) sections 1 and 8 (a) of the NASD code only provide for the arbitration of disputes relating to the business activities of NASD members; (2) the NASD code does not address employment discrimination claims; (3) appellants waived any right to arbitration by participating in the law suit; and (4) sex discrimination claims under the Human Rights Act are not subject to mandatory arbitration. *fn9

On July 10, 1992, Judge Mitchell, ruling from the bench, denied the motion to compel submission to arbitration. Judge Mitchell concluded:

We . . . have examined the legislative history surrounding the Civil Rights Act of 1991, and that legislative history clearly says that . . . they encourage alternative methods of resolving disputes, but they do not mean to supplant those rights as found under Title VII.

In other words, they may give it up after they enter into negotiations and decide that we will submit this matter to arbitration, and the Court encourages that. And the legislative history encourages it.

But . . . the [Gilmer court] . . . indicated that the -- if it had legislative history [of the Age Discrimination in Employment Act] which indicated something separate from . . . the Conclusion reached in , that it would more or less follow that legislative history . . . . The Congress seemed to have taken extra and unusual steps to make it clear that they did not intend . . . the 1991 Civil Rights Act to be . . . governed by the principle purportedly espoused in the case.

We read this passage as a ruling by the trial Judge that the 1991 amendments overrule the holding of Gilmer. The trial Judge did not, however, reach any of the other grounds raised by the employee in opposition to the motion to compel arbitration. This appeal followed. *fn10


In this case the employee's claim is based on an alleged violation of the Human Rights Act. In interpreting that act we have generally looked to cases from the federal courts involving claims brought under the Civil Rights Act of 1964 for guidance and have adopted those precedents when appropriate. See, e.g., Atlantic Richfield Co. v. District of Columbia Comm'n on Human Rights, 515 A.2d 1095, 1102-03 (D.C. 1986) (holding that Office of Human Rights' failure to timely amend complaint to include constructive discharge claim does not bar Human Rights Commission from ruling on claim is in accord with federal rule on the issue); RAP, Inc., v. District of Columbia Comm'n on Human Rights, 485 A.2d 173, 176-77 (D.C. 1984) (following apportionment of burdens and orders of proof prescribed for sex discrimination claims under Title VII); Howard Univ. v. Best, 484 A.2d 958, 978 (D.C. 1984) (following federal precedent in holding that faculty member presented prima facie case of sex discrimination) (citations omitted). We have also followed, when applicable, precedent from the federal courts involving claims under other civil rights statutes. See, e.g., Miller v. American Coalition of Citizens with Disabilities, Inc., 485 A.2d 186, 190-91 (D.C. 1984) (relying on federal precedent interpreting Rehabilitation Act of 1973 in holding that physically handicapped woman failed to make prima facie case of employment discrimination under District's Human Rights Act) (citation omitted).

In Gilmer, the Supreme Court, applying the FAA, held that an employment discrimination claim filed pursuant to the Age Discrimination in Employment Act ("ADEA") *fn11 was subject to a compulsory arbitration agreement contained in a securities registration application executed by an employee. *fn12 Gilmer, (supra) , 500 U.S. at 27. With a single exception (later reversed), every federal circuit court of appeals addressing the issue has extended the Gilmer holding to employment discrimination claims brought under Title VII. *fn13 See, e.g., Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 700 (11th Cir. 1992); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir. 1992); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 307 (6th Cir. 1991). Thus, the uniform and overwhelming federal court precedent holds that compulsory arbitration agreements are binding for employment discrimination claims such as those presented in this case.

The employee contends that since the Council of the District of Columbia ("Council"), in drafting the Human Rights Act, recognized the importance of a jury trial in actions brought pursuant to that statute, she would be deprived of this important right if we follow Gilmer, and hold that the arbitration provision can be enforced by the employer. *fn14 However, as with the ADEA and Title VII of the Civil Rights Act of 1964, there is no provision in the District's Human Rights Act precluding an employer and employee from voluntarily agreeing to arbitrate employment discrimination claims. Given this silence, Gilmer, and the Title VII cases following Gilmer, holds that employment discrimination claims can be subject to arbitration if the employer and employee have agreed to arbitrate disputes of that nature. Moreover, other District legislation endorses arbitration as an acceptable dispute resolution alternative. *fn15

The employee also objects to the adequacy of arbitration procedures with respect to disputes arising under the Human Rights Act. We agree with the Gilmer Court's observation that "such generalized attacks on arbitration rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants." Gilmer, supra, 500 U.S. at 30(citation, internal quotation, and alteration omitted). Time and again this court has observed that there is a well-established preference to arbitrate disputes when the parties have so agreed. See generally Carter v. Cathedral Ave. Coop., Inc., 566 A.2d 716, 719 n.9 (D.C. 1989); Poire v. Kaplan, 491 A.2d 529, 534 n.8 (D.C. 1985); Sindler v. Batleman, 416 A.2d 238, 343 (D.C. 1980). Thus, arbitration has been recognized as a highly desirable and sound alternative to litigation.

Finally, although the Human Rights Act cases cited in the text, (supra) p. 6, mainly address procedural issues, we see no reason for departing from our practice of considering applicable federal court precedent as persuasive authority when interpreting a local provision that is substantially patterned on a federal statute. *fn16 When interpreting other local statutes, we ordinarily "look to the interpretation of the federal statute for guidance in determining the construction of our own statute since it was based on the federal provision," Corley v. United States, 416 A.2d 713, 714 (D.C. 1980), and we have continued that practice with respect to previous cases arising under the Human Rights Act. See supra p. 6; see generally 2B NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 52.02 (5th ed. 1992). For the reasons stated, therefore, we conclude that the principle set forth in Gilmer should apply to employment discrimination disputes under the Human Rights Act, and we thus hold that agreements to arbitrate employment discrimination nation claims are enforceable.


Having concluded that the principle set forth in Gilmer applies to employment disputes such as this one does not end our inquiry. We must now consider what effect, if any, the 1991 amendments have on the principle set forth in Gilmer. The trial Judge held that the 1991 amendments retroactively overruled Gilmer. *fn17 We have no need to decide the retroactivity issue, however, because we conclude that the trial court erred in ruling that the 1991 amendments modified the holding reached in Gilmer and the Title VII cases that follow it. *fn18

We start our analysis with an examination of the language of the statute itself. The only provision in the 1991 amendments that even remotely applies to the issue presented here is section 118: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including . . . arbitration, is encouraged to resolve disputes under the Acts or provisions of Federal law amended by this title." Pub. L. No. 102-166, 105 Stat. 1071, 1081, Title I, § 118. We find nothing in that provision which can be construed as modifying or undermining the holding of Gilmer. Indeed, if anything, the opposite is true; i.e.; arbitration is an alternative to litigation expressly encouraged by the statute. See Hirras v. National R.R. Passenger Corp., 10 F.3d 1142, 1146 (5th Cir. 1994) ("§ 118 of the 1991 Civil Rights Act encourages the use of 'alternative means of dispute resolution,' including arbitration, to resolve disputes arising under Title VII") (quoting 42 U.S.C.A. § 2000e note (West Supp. 1993)).

The employee contends, nonetheless, that the legislative history of the 1991 amendments supports her contention that Gilmer does not apply to employment discrimination claims. She relies on an isolated remark *fn19 by the chairman of the House Committee on Education and Labor during the floor debate, *fn20 and on a Discussion of alternative means of dispute resolution, contained in the first House report on the 1991 amendments. *fn21 Assuming that, in this instance, examination of legislative history is necessary to determine Congress' intent, we note that "it is only the statute itself that is law. A statement by a single member of the legislature or a report by a single committee (or even by an entire house) is not." Gersman v. Group Health Ass'n, 298 U.S. App. D.C. 23, 28, 975 F.2d 886, 891 (1992). See also 2A SUTHERLAND STATUTORY CONSTRUCTION § 48.13. Here, however, we find no need to consider the legislative history since the language of the statute in no way suggests that the rule of Gilmer should no longer apply. See Butler v. Butler, 496 A.2d 621, 622 (D.C. 1985) ("Where a statute is clear on its face, there is no need to engage in an analysis of legislative intent.") (citations omitted). We conclude, therefore, that the employee's reliance on legislative history is misplaced. Thus, we hold that the trial Judge erred as a matter of law in ruling that the 1991 amendments overruled Gilmer.

We do not reach the other arguments raised by the employee since they were either not presented to the trial court or were presented but not decided. *fn22 See Ealey v. Ealey, 596 A.2d 43, 46 (D.C. 1991) ("A trial Judge must make findings of fact and Conclusions of law with respect to every issue that is raised; otherwise meaningful appellate review cannot occur and this court must remand . . . .") (citations omitted). Accordingly, we reverse and remand to the trial court for further proceedings consistent With this opinion.

Reversed and remanded.

FERREN, Acting Chief Judge, Concurring: I join in the opinion for the court because I can discern no basis in the Human Rights Act or in its legislative history for concluding that the Council of the District of Columbia intended to bar voluntary agreements to arbitrate employment discrimination claims. I am concerned, however, that such agreements could, in some circumstances, amount to contracts of adhesion forced on employees, with the result that enforcement of the arbitration provision would be unconscionable. In such circumstances, the employee may well have a basis for asking the court to void the arbitration clause and to permit a jury trial on the discrimination claim. Nothing we say today precludes that possibility.

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