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S. HRG. 111–396 

‘‘WORKPLACE FAIRNESS: HAS THE SUPREME 

COURT BEEN MISINTERPRETING LAWS DESIGNED TO PROTECT AMERICAN WORKERS 

FROM DISCRIMINATION?’’ 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 7, 2009 

Serial No. J–111–55 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 185 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

de Bernardo, Mark A., Partner, Jackson Lewis, LLP, Washington, DC ............. 8 

Foreman, Michael, Professor & Director, Civil Rights Appellate Clinic, Dickinson Section of Law, Pennsylvania State University, University Park, Pennsylvania ................................................................................................................. 12 

Fox, Michael W., Shareholder, Ogletree, Deakins, Nash, Smoak & Steward, 

P.C., Austin, Texas ............................................................................................... 10 

Gross, Jack, Des Moines, Iowa ............................................................................... 7 

Jones, Jamie Leigh, Founder/Chief Executive Officer, The Jamie Leigh Foundation, Spring, Texas ........................................................................................... 5 

QUESTIONS AND ANSWERS 

Responses of Mark A. de Bernardo to questions submitted by Senator Sessions ...................................................................................................................... 28 

Responses of Michael W. Fox to questions submitted by Senator Sessions ....... 42 

SUBMISSIONS FOR THE RECORD 

Coleman, Francis T., Waffling Circuits, article ..................................................... 46 

Davis, Daniel J., Gibson, Dunn & Crutcher, LLP, Washington, DC, article ...... 53 

de Bernardo, Mark A., Partner, Jackson Lewis, LLP, Washington, DC ............. 59 

Foreman, Michael, Professor & Director, Civil Rights Appellate Clinic, Dickinson Section of Law, Pennsylvania State University, University Park, Pennsylvania ................................................................................................................. 81 

Fox, Michael W., Shareholder, Ogletree, Deakins, Nash, Smoak & Steward, 

P.C., Austin, Texas ............................................................................................... 95 

Gross, Jack, Des Moines, Iowa ............................................................................... 136 

Hill, Elizabeth, Dispute Resolution Journal, May/July 2003, article .................. 142 

JAMS, Washington, DC: 

June 26, 2009, article 150 

August 2002, article 153 

July 15, 2009, article 156 

Jones, Jamie Leigh, Founder/Chief Executive Officer, The Jamie Leigh Foundation, Spring, Texas ........................................................................................... 176 

LexisNexis, New York University Law Review, Albany, New York: 

Estreicher, Samuel, December 1997, article .................................................. 187 

Maltby, Lewis L., Fall 1998, article ................................................................ 213 

Mogilnicki, Eric J. and Kirk D. Jensen, Spring 2003, article .............................. 237 

Townsend, John M., U.S. Chamber Institute for Legal Reform, Washington, 

DC, October 2006, agreements ............................................................................ 257 

U.S. District Court, Judicial Case load Profile, report ......................................... 286 

Westlaw, Dianne LaRocca, report .......................................................................... 287 

(1) 

‘‘WORKPLACE FAIRNESS: HAS THE SUPREME 

COURT BEEN MISINTERPRETING LAWS DESIGNED TO PROTECT AMERICAN WORKERS 

FROM DISCRIMINATION?’’ 

WEDNESDAY, OCTOBER 7, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, Pursuant to notice, at 10 a.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. 

Present: Senators Specter, Franken, Sessions, and Grassley. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. This week the U.S. Supreme 

Court met to officially begin its new term. While I talked about this 

yesterday at another Committee I thought we would have this 

hearing to highlight how decisions of the Supreme Court affect the 

everyday lives of Americans. And what we see on the headlines 

about a U.S. Supreme Court decision may look one way, but with 

the average Americans it can have quite an effect. 

Our hearing will focus on how a bare majority of the Supreme 

Court has overridden statutory protections to make it more difficult 

to prove age discrimination in the workplace. In two narrowly divided 5/4 decisions the conservative majority of the court threatens 

to eliminate more of America’s civil rights in the workplace. Just 

as it eliminated Lilly Ledbetter’s claim to equal pay, basically said 

a woman does not have to be paid the same as a man until Congress stepped in to set the law right. 

It is difficult that we have these laws on the books. For some 

time it worked very well to protect Americans and then time and 

time again, the very, very activist, Supreme Court, overturns them. 

Their recent decisions make it more difficult for victims of employment discrimination to seek relief in court, more difficult for those 

victims to get their day in court to vindicate their rights. 

For anyone that doubts that there is this activism in our courts 

and the effect it is having, they need to look no further than the 

decisions that are affecting two of our witnesses, Jamie Leigh 

Jones and Jack Gross. 

The Supreme Court’s misinterpretation of the Federal Arbitration Act in the Circuit City case threatens to undermine the effective enforcement of our Civil Rights laws. 

2 

When Congress passed the Arbitration Act, passed by a bipartisan majority, it intended to provide sophisticated businesses an 

alternative venue to resolve their disputes. That is what was intended. 

I know what was not intended. Congress never intended the law 

to become a hammer for corporations to use against their employees. But in Circuit City the Supreme Court allowed for just that. 

Now, after the Circuit City decision, employers are able to unilaterally strip their employees of their Civil Rights by including arbitration clauses in every employment contract they draft. Some have 

estimated that at least 30 million workers have unknowingly 

waived their constitutional and guaranteed right to have Civil 

Rights claims resolved by a jury by accepting employment which 

necessarily meant signing a contract that included such a clause in 

the fine print. 

There is no rule of law in arbitration. There are no juries, there 

are no independent judges in the arbitration industry. There is no 

appellate review. There is no transparency. And we are going to 

hear from Jamie Leigh Jones today, there is no justice. 

We will also hear from Mr. Gross. His case shows that for those 

employees who are able to preliminary open the courtroom doors, 

the Supreme Court then placed additional obstacles on the path to 

justice. 

Let me just tell you a little bit about it. After spending 32 years 

working for an Iowa subsidiary of a major financial company, Jack 

Gross was demoted, and his job duties were reassigned to a younger worker who was significantly less qualified. 

In his lawsuit under the Age Discrimination Act, a jury concluded that age had been the motivating factor in his demotion and 

they awarded him nearly $50,000 in lost compensation. But a slim, 

activist, conservative majority of the Supreme Court overturned 

the jury verdict and decided to rewrite the law. The five justices 

adopted a standard that the Supreme Court itself had rejected in 

a prior case and the Congress had rejected when we enacted by bipartisan majority the Civil Rights Act of 1991. 

So I am concerned that the Gross decision will allow employers 

to discriminate on the basis of age with impunity as long as they 

‘‘get other reasons.’’ I fear in the wake of Gross, few, if any, of these 

victims of age discrimination will achieve justice. 

The worst part about it, the lower courts have been applying the 

rationale endorsed in this case to weaken other anti-discrimination 

statutes as well. 

When President Obama signed the Lilly Ledbetter Fair Pay Restoration Act into law earlier this year, he reminded us of the real 

world impact of Supreme Court decisions on workplace rights. He 

said that economic justice isn’t about some abstract legal theory or 

footnote in a casebook. It is about how our laws affect the daily reality of people’s lives, their ability to make a living and care for 

their families, achieve their goals. He also reminded us of making 

our economy work. That means making sure it works for everyone. 

In that case he was saying that women should be paid the same 

as men, contrary to what the Supreme Court has said. 

Senator Sessions. 

3 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Chairman Leahy. I look forward 

to this panel. We are talking about some important issues. Fairness in courts is essential for justice in America. It is what people 

expect. The small person, the individual, should have clear protections and rights that they can assert in an employment case. We 

all believe in that. 

But we do set up rules. And employers do, on occasion, have to 

reduce work forces, no matter how painful that might be. And it 

causes pain for people who lose their jobs and often they assert 

whatever rights they believe they have to maintain their employment. 

So I think those are things that are just inevitable in our business community today. Having clarity, having appropriate principles to guide employers and the courts in deciding these matters 

is important. 

So this kind of discussion, I believe, is worthwhile, Mr. Chairman. I just do not believe that we should see every decision on termination of employment or other business-related matters as somehow necessarily a discrimination. It’s just a choice of how to go forward. 

I also would object to a view that arbitration is not a healthy 

way to handle many of these cases. One survey by the American 

Arbitration Association showed that employees won 63 percent of 

the cases in arbitration and that same year only 14 percent of the 

employees bringing claims in Federal court prevailed. The results 

of arbitration are similar to jury verdicts in terms of value to the 

employee and also can be less expensive for the employee and the 

legal fees can be less in sizeable than the employee. 

So I think the idea that is assumed that arbitration automatically is a disadvantage to an employee is not true. And, in fact, the 

opposite may well be the case. So the Supreme Court has affirmed 

arbitration and I hope that as we move forward we do not 

undevelop ideas and strategies and legislation that undermines 

something that is important. 

If every employment dispute, employee/employer dispute, ends 

up in Federal court, I would just note parenthetically, we are really 

going to have a problem with the case loads in Federal court. And 

that is really not what Federal courts are for, to settle every employment dispute that exists out there, and there are so many of 

them. 

So, Mr. Chairman, I look forward to this panel. 

Senator Grassley has got a meeting he has to go to in a few minutes and I believe he would like to introduce one of the panelists 

early on in this process if you could do that. 

I would note that I am going to have to slip out in a little bit 

because Alabama will be adding to the Statuary Hall a statue of 

Helen Keller, the person who has done more, I think, than any 

other person in history throughout her life to highlight the abilities 

of the disabled. So it is an exciting day for us today and we will 

do that at 11. I will need to get over there a few minutes early. 

So I thank you for that. And you know as we review her life and 

that great movie and all that developed out of her life story, you 

4 

really do realize that persons who may not be able to do everything 

can do so many things exceedingly well. And, they can contribute 

so fabulously to our National productivity. The Disabilities Act that 

many of you worked on to pass has really given so many employees 

a right to full participation in the American economy. 

So, thank you, Mr. Chairman, I look forward to the hearing. 

Chairman LEAHY. I appreciate that and you should be there. I 

walked through the Rotunda late last night and it is all set up for 

that statue. 

I would say, as a child I sometimes, as a child will, felt badly because I had been born blind in one eye. Then I saw the Helen Keller story and I realized how greatly advantaged I was, but also 

what she did for all the rest of us. 

Senator Grassley, you wanted to introduce the panel. Please, go 

ahead, sir. 

Senator GRASSLEY. If I could. I will not take any time to discuss 

policy because we will have a chance to review the testimony of all 

the witnesses. But one of the witnesses is a constituent with a famous political name in Iowa, even though he is not politically inclined, maybe himself. But Mr. Gross is with us today. So I wanted 

to say a couple words because of him and show him the courtesy. 

I will also be meeting with him in my office this afternoon at my 

appointment schedule. 

Jack Gross now lives in Creston, Iowa, and he is here today to 

testify about his case before the Supreme Court last year. He is 

still living in the part of the state he was born in. He was born 

near the community of Material. Ayr, Iowa. Mr. Gross is a graduate of Drake University and was employed by the Iowa Farm Bureau for over 30 years. 

His great uncle happened to be Have. R. Gross. Your first 2 

years in the Senate would have been Mr. Gross’ 25th and 26th year 

in the U.S. House of Representatives. Then he retired and I took 

his place in the House of Representatives. 

Mr. Gross is here today to testify about his experience in litigating the age discrimination employment case from Iowa Federal 

District Court to the Eighth Circuit Court and then to the U.S. Supreme Court just very recently. Unfortunately, because of Finance 

Committee work, I won’t be able to be here beyond about 10:27. 

But I look forward to either hearing his testimony or else reading 

about it and visiting with him in the afternoon to find out firsthand how he has been impacted by his employer and by the courts. 

Chairman LEAHY. Thank you. 

Senator GRASSLEY. And thank you, Mr. Chairman. 

Chairman LEAHY. I know I enjoyed meeting both Mr. and Mrs. 

Gross yesterday. 

Our first witness will be Jamie Leigh Jones, the founder and 

CEO of the Jamie Leigh Jones—is it Lee or Leigh? 

Ms. Jones. Leigh. 

Chairman LEAHY. Leigh Jones—Jamie Leigh Jones Foundation. 

It is a nonprofit ‘‘organization’’ wanted dedicated to helping Americans who are victims of crime while working abroad for government contractors and subcontractors. 

Ms. Jones currently teaches math, science, and social studies to 

middle school children. 

5 

My children are all grown up and now I have at least one grandchild and soon a second one in that. I know how important the 

middle school is. 

So, please, Ms. Jones, go ahead. 

STATEMENT OF JAMIE LEIGH JONES FOUNDER/CHIEF EXECUTIVE OFFICER THE JAMIE LEIGH FOUNDATION SPRING, 

TEXAS 

Ms. JONES. Chairman Leahy, Ranking Member Sessions, distinguished members of the committee, thank you for the opportunity 

to testify before you today. I am here today to share with you a 

personal tragedy. I do this to bring awareness to legislation—the 

Arbitration Fairness Act—introduced by Senator Feingold, which is 

designed to ensure that no American will be deprived of their constitutionally guaranteed right to the fair administration of justice. 

At an age barely old enough to vote I took a job in Iraq with Halliburton. When hired I signed an employment contract. Days later 

I was sent to Camp Hope in the Green Zone in Baghdad, Iraq to 

support Operation Iraqi Freedom. Before my deployment 

Haliburton showed me photographs of the trailer I would live in, 

a suite with one other woman and a shared bathroom. 

Upon arrival I was assigned to a barracks which was predominantly male. I found myself subject to repeated catcalls and partially dressed men while I was walking to the restroom. I complained to Halliburton managers about these living conditions and 

asked them to move me into the quarters that I had been promised. My requests were not only ignored, they were mocked. 

On the fourth day in Iraq I was socializing outside the barracks 

with several other contractors Halliburton had sent to the Green 

Zone. The men known only to me as Halliburton firefighters offered 

me an alcoholic drink which I took. I remember nothing after taking a couple of sips. 

When I awoke in my room, I was naked, sore, bruised, and bleeding. As the grogginess wore off, and I returned from the bathroom—where evidence that I had been raped was abundantly clear 

to me—I found a naked firefighter still laying in the bunk bed. I 

was shocked. How could he have raped me like that and not even 

bothered to leave. 

I know now that this is because he knew there would not likely 

be punishment for his crime. There had never been before. 

After reporting the rape to KBR operations coordinator I was 

taken to the Army CASH where a rape kit confirmed that I had 

been assaulted both vaginally and anally by multiple perpetrators. 

The Army doctor then handed my rape kit to KBR security personnel. 

I was then taken to a container where I was held captive by two 

armed guards. I requested a phone from KBR officials who denied 

me this request. 

Eventually one of the guards gave in to my pleading and allowed 

me to use his cell phone. I called my father who then contacted 

Congressman Ted Poe. Congressman Poe dispatched the State Department officials to ensure my release and safe return to the 

United States. 

6 

Prior to my return to the U.S. Halliburton management told me 

that I could either stay and get over it or go home with no guarantee of a job in Houston or Iraq. 

The severity of my physical injuries necessitated my decision and 

I went home in the face of threats of termination, which later 

proved to be true. 

When I returned home the pains in my chest continued and I 

sought medical help. It was confirmed that my breasts were disfigured and my pectoral muscles had been turned. Reconstructive 

surgery was required. 

After I filed a complaint with the Equal Employment Opportunity Commission they conducted an investigation and concluded 

that I had been sexually assaulted, that the physical trauma was 

evident, that Halliburton’s investigation and response had been inadequate. 

I turned to the civil court system for justice when the criminal 

justice system was slow to respond. When my lawyers filed the suit 

they were met with Halliburton’s response that all of my claims 

were to be decided in arbitration because I had signed away my 

right to a trial by jury at such an early age. Halliburton said that 

my employment contract included a pre-dispute, binding arbitration clause that required me to submit all my claims in mandatory, 

secret arbitration. I didn’t even know that I had signed such a 

clause. But even if I had known, I would never have guessed that 

it would cover claims of sexual assault and false imprisonment. 

Also, I had no choice but to sign this contract because I needed 

this job. I had no idea that the clause was part of the contract, 

what the clause actually meant, or that I would eventually end up 

in this horrible situation. 

I fought the forced arbitration clause and just last month after 

almost 4 years of litigation, the Fifth Circuit ruled that my—that 

four of my claims against Halliburton relating to the rape were not 

covered by the clause in my employment contract. The rest of my 

claims, including my discrimination claims under Title V—Title 

VII, sorry, had been forced into binding arbitration. Just yesterday 

Halliburton filed an appeal to this decision. 

The problem of forcing claims like mine into a secret system of 

binding arbitration goes well beyond me. Numerous other women 

who were assaulted or raped then retaliated against for reporting 

those attacks and forced into secret arbitration have contacted me 

for help through the Jamie Leigh Foundation. Even when victims 

pursue their claims in arbitration, the information is sealed and 

kept confidential. The system of arbitration keeps this evidence 

from ever coming to public light and allows companies like Halliburton to continue to allow the abuse of their employees without 

repercussion or public scrutiny. 

Distinguished members of the committee, you have the power to 

stop these abuses that hide behind the veil of arbitration. And I 

hope that you take this opportunity to protect employees and stop 

this practice from continuing. 

Thank you for your time. 

Chairman LEAHY. Thank you. And we will go through each of the 

witnesses and then back to questions. And I will have some about 

obviously Halliburton acting as a government and law unto itself, 

7 

something they did in a number of areas, as we have known, in 

Iraq. 

Mr. Gross, you have already been introduced by Senator Grassley. I had the opportunity of meeting you and your wife yesterday. 

Please, go ahead, sir. 

STATEMENT OF JACK GROSS DES MOINES, IOWA 

Mr. GROSS. Thank you, Senator or Chairman Leahy. I really appreciate the opportunity to be here. Thank you, Senator Grassley 

for your remarks. I join many Iowans in saying how proud we have 

been to have you as our Senator for a great many years. 

Mr. Franken, I appreciated your remarks about my case during 

the Sotomayor debate. I was very impressed with the detailed 

knowledge that you exhibited in such a short time about what had 

happened. 

Mr. Sessions, I appreciate your comments also. I kind of come 

from the white, corporate world and was asked a question during 

our trial if I didn’t really think that corporate management should 

have the right to make decisions that affected the bottom line for 

their shareholders and their employees. And my answer was, absolutely, I believe that; as long as they stay within the confines of 

the law. And that was why we were there. 

I wanted to participate in the process. I feel like I’m a little bit 

of an unlikely candidate simply because mine is not the face that 

is normally associated with discrimination. But age is discrimination in its own right. 

I certainly never imagined that my case would end up here when 

it all started nearly 7 years ago. That’s when my employer, Farm 

Bureau Insurance, or FBL merged with the Kansas Farm Bureau. 

Apparently not wanting to add any more older workers to their 

workforce, when Kansas came on board, they bought out all the 

Kansas employees, claims employees who were over 50 years of 

age. At the same time, in the Iowa Farm Bureau and the other 

original states they simply demoted every one of us who were over 

50 and had a supervisory level or above. A pretty clear signal to 

all of us that if you are over 50 they would kind of like to get us 

out of there. 

I was 54 at the time and I was swept out with the whole thing. 

Even though I had 13 consecutive years of performance reviews in 

the top 5 percent of the company, and had dedicated my working 

life to making Farm Bureau a better company. 

My contributions were very well documented including I had just 

completed the development of taking all of our policies, combining 

them into one unique policy, a package policy. It’s a policy that 

Farm Bureau is now using to base all of their future growth upon. 

My position was, as stated, given to a much younger and newer 

employee with far less experience and education. Age was the obvious reason that I filed a complaint and two years later a Federal 

jury spent an entire week listening to all the testimony, seeing all 

the evidence, being instructed on the law, the ADEA, and they 

were even admonished to rule against me and in favor of Farm Bureau if they could find any reason, other than age, for Farm Bureau’s actions. Still the verdict came back in my favor and I 

thought in 2005 that my ordeal was over. 

8 

Then it started getting lawyered to death. Eventually ending up 

in at the Supreme Court in March of this year over one single issue 

in the jury instruction. And that was whether direct evidence was 

required in a mixed motive context. That’s what—that’s the question that the Supreme Court accepted sui juris on, the one that we 

expected to get addressed. 

However, instead of addressing that one issue, the court broke 

with its own protocol and precedent to literally hijack my case and 

use it as a vehicle to water down the law written by the branch 

of government closest to the people, yourselves. 

We came here in March believing in the rule of law and its consistent application to all areas of discrimination. We were disappointed and I was personally disillusioned by a lot of what I observed at the court level. 

We believe that this issue does transcend partisan politics and 

presents an opportunity for both parties to come together to protect 

their aging constituents back home in the workforce. 

On a personal level, this has been a rough ride. But what is becoming even harder is watching the collateral damage being inflicted by older workers on the courts by this ruling. Because of 

their decision my legacy to working Americans will be having my 

name associated with pain and injustice inflicted on older workers 

because it will be nearly impossible to provide the level of proof 

now ascribed to this one type of employment discrimination. 

That is a heavy burden to place on one guy who simply sought 

to right one act of discrimination. I wasn’t the one who changed the 

law, five justices did. I can only urge Congress to step up, like they 

did in the Ledbetter case and restore the ADEA to its original intent. 

Thank you very much. 

Chairman LEAHY. Thank you very much, Mr. Gross. 

Mark de Benardo is a partner at Jackson Lewis here in Washington, am I correct on that? 

Mr. de Bernardo. That’s right. 

Chairman LEAHY. And he served as Director of Labor Law for 

the U.S. Chamber of Commerce. Please go ahead. 

STATEMENT OF MARK A. DE BERNARDO PARTNER, JACKSON 

LEWIS, LLP WASHINGTON, DC 

Mr. DE BERNARDO. Thank you, Mr. Chairman. Thank you, members of the committee, and Ranking Minority Sessions. 

I am pleased to be here today to testify in strong support of the 

use of mediation and arbitration as an adjunct to our jurisprudence 

system in America, in support of ADR in employment, in support 

of the Supreme Court’s decision in Circuit City v. Adams, and in 

opposition to S. 931. 

The reason that we oppose S. 931 is that if this legislation were 

enacted, effectively arbitration in employment in America and in 

other contexts would end. That is the net effect. 

It is my firm and unequivocal belief that the use of ADR is both 

pro employer and pro employee. And when implemented appropriately, it’s a tremendous asset to both employee relations and our 

system of justice. 

9 

Jackson Lewis has a long and proud record of support for effective and equitable ADR programs as an alternative to costly, timeconsuming, deleterious, and relationship destructive litigation. 

I want to underscore that the reality is, again, that S. 931, if it 

were enacted, effectively would end arbitration in America, would 

abolish this practice in the non-union sector. Organized labor has 

long embraced binding arbitration as a foundation of union representation. And my law firm and the organization I represent 

agree in that context. 

The seminal question is, should employers and employees be able 

to engage in mediation and mandatory, binding arbitration for employment disputes as alternatives to litigation. The seminal answer 

is, absolutely. ADR in employment programs are flourishing. When 

implemented appropriately they are decisively in employees’ best 

interests, and yes—and yet S. 931 would effectively deny this option to employers and employees. 

Given the costs, delays, and divisiveness of employment litigation 

the more sensible and conciliatory options preferable for employers 

and for their employees, the net result of the use of ADR is more 

employee complaints resolved and addressed. 

As many as 20 times, if you take a look at the experience in ADR 

programs, dispute resolution programs across the country, what 

you have is many more complaints that are raised by employees, 

grievances that are addressed, they are addressed in a much more 

civil fashion, they are addressed much more comprehensively, and 

are resolved on a much quicker basis. Thus, again, complaints addressed sooner with less tension, less turnover. 

What you have is that litigation is a job destroyer. Arbitration 

is a job preserver. In the typical situation as discussed in the testimony at length, arbitrations take 104 days. Litigation in the Southern District of New York if you have an employment law case, typically takes 2.8 years for that case to be heard. The backlog in the 

Federal court system is huge. One-third of the backlog in the Federal court system are employment law cases. 

The old adage that ‘‘justice delayed is justice denied’’ certainly is 

true in this case. So you have many more employee grievances that 

are addressed, as many as 20 times as many addressed much sooner and addressed in a context which is much more amicable and 

more likely to resolve the situation and preserve the job. 

It improved morale; 83 percent of employees support ADR in the 

workplace. It is a popular concept for those employers who have 

adopted it and adopted it appropriately. It provides for more effective communication. 

Chairman LEAHY. In your comments—— 

Mr. DE BERNARDO. Sure. 

Chairman LEAHY.—you also tell how arbitration would be helpful 

to somebody like Ms. Jones when her employer Halliburton, in effect, said that rape and sexual assault has to just be considered 

part of the job. 

Mr. DE BERNARDO. There are literally millions of employees that 

are covered by ADR programs in the United States. There are 160 

million workers in the United States. I understand the situation alleged by Ms. Jones is awful, tragic. I agree with her that it was 

a tragedy that she alleged. This is a terrible situation. This is an 

10 

assault. I think those that are engaged in rape or heinous crimes 

such as rape should be punished—— 

And, in fact, there is recourse. I am not here representing anyone 

involved in that case, I am not involved in that case. Like Mr. 

Gross, Ms. Jones has had her day in court and maybe more than 

she wanted, it goes on and on and on, I understand that. 

What we are talking about is the concept of Alternate Dispute 

Resolution programs overall. In that regards what you have is a 

concept that is fully entrenched in the American workplace and is 

popular across the board with almost all constituencies; employers, 

employees, parties to arbitration. You know, more than 70 percent 

of those surveyed—as discussed in the testimony, Mr. Chairman— 

more than 70 percent of those who have engaged in employment 

arbitration favor the system and nearly two-thirds say that they 

would do it again. 

So, you know, it has a very positive role to play. The facts of one 

incident and one individual incident, as terrible as they may be, 

don’t necessarily reflect on whether or not as a concept in America 

today we should embrace or withdraw from the concept of arbitration in employment. 

And this was my final point that I was saying in this one section 

is that ADR in employment results in better work places. It’s an 

early warning system to employers on what may be bothersome in 

the workplace. Typically the types of complaints that come in, employees have a situation where they are concerned, you have informal mediation, formal mediation, if necessary, arbitration, those 

issues are resolved. Employers might end up being better employers and addressing and correcting situations that need to be addressed and corrected. 

Circuit City, I know we are going to talk about that. But Circuit 

City was a decision that was wholly consistent with past precedent. 

It was wholly consistent with all of the other Circuits except for the 

Ninth Circuit decision and appropriately decided. 

And I mentioned how litigation results in—— 

Chairman LEAHY. I know I interrupted your testimony. So I’ve 

given you two extra minutes. 

Mr. DE BERNARDO. OK. Thank you, Mr. Chairman. 

Chairman LEAHY. Your whole statement will, of course, be made 

a part of the record. 

Mr. DE BERNARDO. I appreciate that. 

Chairman LEAHY. Michael Fox is an attorney in the Austin 

Branch of the firm of Ogletree, Deakins, Nash, Smoak, and Stewart 

in Texas. Mr. Fox, it is good to have you here. 

STATEMENT OF MICHAEL W. FOX, SHAREHOLDER, OGLETREE, 

DEAKINS, NASH, SMOAK, & STEWART, P.C., AUSTIN, TEXAS 

Mr. FOX. Thank you, Chairman Leahy, Ranking Member Sessions, and members of the committee, I am pleased and honored to 

be here today. 

I am a trial lawyer from Texas. 

Chairman LEAHY. Mr. Fox, is your microphone on? 

Mr. FOX. Sorry about that. Chairman Leahy, thanks for the invitation. I am honored to be here. 

11 

I am a trial lawyer from Texas. For more than 30 years I have 

represented employers in labor and employment law matters. I 

have handled discrimination claims against employers in jury trials 

and non-jury proceedings. A distinction that I think is important 

and one reason I strongly believe that reversing the Gross v. FBL 

Services case would be a tragic mistake. 

I have had a ring-side seat to the changing American workplace. 

There is no question that it is not only changed, but is significantly 

better particularly for women and minorities than when I was licensed to practice law in 1975. 

There is also no question that the Civil Rights Act of 1964 and 

the other Federal legislation that followed have been significant 

and positive factors in that change. 

More germane to today’s discussion there should also be no question that the law which has provided the base for the improved 

workplace has developed and flourished under the interpretation 

and guidance of the Supreme Court. 

Turning to the Gross decision and the proposed legislative remedy, there has been much written about the Supreme Court’s holding that age discrimination plaintiffs are not entitled to a mixed 

motive instruction. But almost all of the criticism fails to acknowledge the significance of the difference between the ADEA and Title 

VII and the spotty history of the mixed motive theory. 

More importantly, none makes the distinction between a theory 

that was developed for cases that were to be tried by judges and 

is now being applied to cases that are tried before juries. 

I have covered it more extensively in my written testimony, but 

briefly, the mixed motive analysis was first introduced in Price 

Waterhouse v. Hopkins, at a time when Title VII cases were nonjury. 

Two years later Congress codified it for Title VII, but did not include the Age Act in that section of the amendment. Congress also 

provided, for the first time ever, that Title VII cases would now be 

tried to juries, not to judges. The end result is, that when the Gross 

case came before the court this past summer, it had the advantage 

of seeing how a theory that was developed for cases to be tried by 

judges had worked in the real world of jury trials and adopted a 

more common-sense rule that actually does little to alter the real 

world of age discrimination litigation. 

One reason why I say the court adopted a common-sense rule is 

because of the difficulties the courts have had in trying to adjust 

the mixed motive analysis to jury trials. From my experience in the 

courtroom, the most important thing for the effective enforcement 

of anti-discrimination laws through jury trials is a method of instructing the jury which is simple, not complex; practical, not theoretical. The mixed motive instruction is the opposite. It focuses attention on legal theories, not the facts, and is both complex and 

theoretical. In short, it is the antithesis of what makes for an effective jury instruction. 

The net result is that the mixed motive analysis created for a 

non-jury system which is applicable to Title VII does not work for 

jury trials. In the real world the courts have had significant difficulty in applying it. It is not widely used by plaintiffs and may 

not really be needed. 

12 

According to one plaintiff’s lawyer who does still advocate the 

legislative overturning of Gross, as far as the loss of getting a 

mixed motive instruction in an age discrimination case, most plaintiffs’ lawyers don’t care. It’s too confusing to the jury. 

In closing, before using Gross as a reason to expand the use of 

the mixed motive analysis, which the proposed legislation introduced yesterday, would do to the entirety of Federal employment 

laws, not just age discrimination, I would respectfully suggest that 

all those interested in the enforcement of the anti-discrimination 

laws, which includes people on both sides of the docket would be 

better served by a closer examination of how successful and necessary the concept of a mixed motive instruction created in a nonjury world has actually worked in the real world of jury trials, the 

one that we actually have, before taking any action to extend this 

concept to the entire body of Federal employment law. 

I would also say that having participated in arbitration I totally 

support the testimony of Mr. de Bernardo about its good impact on 

the workplace. 

Chairman LEAHY. Thank you very much. And with everybody, 

the whole statement, of course, will be part of the record. 

Our last witness is Professor Michael Foreman who is the Director of the Civil Rights Clinic at Penn State’s Dickinson Section of 

Law. I understand, Professor, you teach a course on employment 

discrimination there; is that correct? 

Mr. FOREMAN. Yes, I teach advanced employment discrimination 

law. 

Chairman LEAHY. Thank you very, very much. 

Please go ahead, sir. 

STATEMENT OF PROFESSOR MICHAEL FOREMAN, DIRECTOR, 

CIVIL RIGHTS APPELLATE CLINIC, DICKINSON SCHOOL OF 

LAW, PENNSYLVANIA STATE UNIVERSITY, UNIVERSITY 

PARK, PENNSYLVANIA 

Mr. FOREMAN. Chairman Leahy, Ranking Member Sessions, and 

members of the committee, I welcome this opportunity to address 

these important issues and particularly the Gross decision and the 

Pyett decision and that line of cases that deal with pre-dispute 

binding arbitration. And particularly with an eye to has the court 

been misinterpreting Congressional intent and the meaning of 

these statutes? In my view that’s a resounding yes in these cases 

they misinterpreted Congressional intent and they distort the purposes of these laws. 

I want to turn first to Gross. And I would be remiss if I don’t 

point out that in Gross the majority of the Supreme Court took on 

an issue that was not before them. It was not in the petition for 

cert. It was not briefed. It was not briefed by either side. And, indeed, it was exactly opposite of what the Federal Government and 

the Solicitors Office recommended that they do. 

Despite all that, they chose to take on this case. And they sent, 

I think, a very important message to the Senate that if you want 

specific protections against discrimination in the workplace you, 

Congress, have to be very, very specific. 

And many of us believe you have been specific. But for this majority they say, no, not specific enough. It is very clear that ConVerDate Nov 24 2008 07:39 May 11, 2010 Jkt 056089 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56089.TXT SJUD1 PsN: CMORC
13 

gress did not intend age discrimination to be treated differently 

from any of the other types of discrimination. But despite that, the 

majority concluded, in Gross, that you could no longer prove that 

age was a motivating factor. That is not enough any more in an 

age context. 

And in Mr. Gross’ case he proved this was not discrimination in 

the area—in the air. He proved that this was a motivating factor 

and the jury made that conclusion. So contrary to my colleague’s 

belief, the jury can deal with these issues and they deal with them 

every day. They had dealt with them. 

This is a standard that the Supreme Court rejected in Price 

Waterhouse, that Congress rejected in the Civil Rights Act of 1991 

and indeed they rejected almost 45 years ago when the Title VII 

and they rejected it solely because of language. 

Now, Chairman, you indicated one of the things we are trying to 

sort through is how do we sort the difference between what the 

headlines say and the reality. Well, the headlines were very clear, 

‘‘Gross makes it much more difficult for Plaintiffs to prevail in age 

discrimination cases.’’ Another, ‘‘Supreme Court majority makes it 

harder to prove discrimination.’’ Another quote, ‘‘The plaintiffs’ job 

in court will be much more difficult.’’ 

Now, how do these headlines match reality? Well, the court cases 

following that match perfectly. A case out of the Sixth Circuit 

which I have cited in my materials, ‘‘In the Wake of Gross’’ and 

this is a quote, ‘‘it is not enough to show that age was a motivating 

factor.’’ Another court quote, ‘‘This court interprets Gross as elevating the quantum of causation required under the ADA.’’ 

So it is very clear that what we heard about raising the burden 

of proof is in fact what happened. And it is leading to very strange, 

nonsensical results. I will cite just two quick cases. Because many 

courts are taking what the Supreme Court said and now saying, it 

must be the sole factor. 

In the Culver case where a person alleged discrimination because 

they were over 40 years old and race, the court says, well, you cannot win your age claim because you’ve pled another claim over 

here. You were out of court at the get-go. There is another line of 

cases that follow that line of cases. 

The third thing it does is it calls into question the jurisprudence 

under hundreds of discrimination statutes in Federal law and state 

law that used the term ‘‘because of’’. They had been interpreted 

consistently to mean, if the protected classification infecting the decision was a motivating factor, that is a violation of law, we will 

fight about damages. After Gross that is no longer the case. 

Turning quickly to the pre-dispute binding arbitration issue, this 

Congress worked for decades to come up with discrimination laws 

that provided open-forum, jury trials damages. You’ve also recognized that pre-dispute—that arbitration may have a role when you 

passed the Civil Rights Act. But I don’t believe Congress ever envisioned that role to be pre-dispute, binding arbitration agreements 

placed in employee handbooks, in applications for employment, and 

basically shoved down employees’ throats with no—no—and I 

stress that—consent. 

I want to address, very quickly, some of the statistics that I 

know my colleagues laid out about the importance of binding arbiVerDate Nov 24 2008 07:39 May 11, 2010 Jkt 056089 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56089.TXT SJUD1 PsN: CMORC
14 

tration and how it is good for employees. Those studies deal with 

situations where a dispute has arisen and the person voluntarily 

enters into the agreement. And in those cases it is usually senior 

managers that have done this. They find arbitration to be good, but 

they have a dispute and they have volunteered to do it. That is not 

the case for most blue-collar workers. They have no choice. They 

have to give up a paycheck. In today’s economy, they may have to 

choose between having a job and not having health care because 

they won’t get the job if they refuse to sign a binding arbitration 

agreement. 

In this area, also, the court has sent a message to Congress that 

we are going to force people into employment binding arbitration 

unless you, Congress, tell us differently. They said that explicitly 

in the Pyett case. And to paraphrase Justice Ginsberg from the 

Ledbetter case, when you get that challenge thrown down, ‘‘the ball 

is in Congress’ court.’’ 

I stand here ready to answer any questions on either the binding 

arbitration or on the Gross decision. And I thank you for the opportunity to address the committee. 

Chairman LEAHY. Thank you very much, Professor. You echoed 

a point I had made earlier and actually made yesterday and actually made a number of times on the Gross case that the Supreme 

Court seemed to be looking for an ability to come out with law that 

they wanted to make. I’m not trying to put words in your mouth, 

but, don’t you find it unusual that a CERT was granted on a different reason, the sides did not argue this issue, it was not part 

of the debate, the Solicitor General did not, and yet they reached 

the decision they did. Is that a typical thing in the Supreme Court? 

Mr. FOREMAN. That is extremely atypical to the extent that the 

majority dropped a footnote to try to explain why they were talking 

away from this and they were called to task appropriately by the 

dissent in that case. That the Supreme Court grants CERT on a 

very specific issue. The issue was—I don’t want to say, ‘‘a no 

brainer’’ but the issue that they granted CERT on was this whole 

issue on the age context. You need direct evidence in order to get 

a mixed motive instruction to the jury. That was what they granted 

CERT on. That’s what—there were probably 40 briefs filed. That’s 

what everyone briefed. No one saw this decision coming. And a 

five-person majority walked out of their way to take this on and 

change the burden of proof in all age cases and change possibly the 

burden of proof on all employment discrimination cases where you 

have not specifically said there is a motivating factor standard of 

proof. 

Chairman LEAHY. I know at the time I was pretty surprised with 

such an activist court. And it acting as a legislative body and a judicial body all at once. 

And I guess maybe as a Vermonter I am somewhat old fashioned. 

I think of the judiciary acting as a judiciary, the legislative body 

acting as a legislative body, the executive is the executive body and 

not have the judiciary become the legislative body too. It makes 

it—having argued an awful lot of appellate cases in the Second Circuit in the Vermont Supreme Court, I would find myself at somewhat of a disadvantage if court decided that, gosh you have a nice 

case. We know what you are supposed to talk about, but we’ve deVerDate Nov 24 2008 07:39 May 11, 2010 Jkt 056089 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56089.TXT SJUD1 PsN: CMORC
15 

cided to do something entirely different. It puts both sides pretty 

much at a disadvantage unless they have already made up their 

mind to rule for one side. 

Mr. FOREMAN. And, if I may, it raises this other issue that—and 

I need to be delicate because I’m talking to the Senate, but by the 

same token, that the court, the majority specifically says, you did 

not say in 1991 that this would be the causation standard in the 

age context. Therefore we are not going to adopt what virtually 

every court had said the standard was. We are going to ignore 

what the meaning of the 1991 law is. 

Chairman LEAHY. Of course that—don’t worry about being delicate with the Senate. 

[Laughter.] 

Chairman LEAHY. The hundred of us certainly aren’t with each 

other at all. 

[Laughter.] 

Chairman LEAHY. You should sit in on some of our private meetings. 

Mr. FOREMAN. Well, they took you to task and said, go ahead and 

move forward and change the law if you don’t like what we’ve done. 

Chairman LEAHY. But they also overruled the precedent of every 

other court including some of their own decisions. I had never had 

any problem with the law as written. I mean, this came out of the 

blue. It overturned a whole lot of cases. Everybody else seemed to 

understand what the—as did four of the nine members of the Supreme Court what the law was. Am I correct? 

Mr. FOREMAN. Yes, you are correct in a point. But I don’t want 

us to lose sight of the tentacles of the Gross decision because they 

reach very deep. And I don’t want to get bogged down on legalese 

but there is a case—— 

Chairman LEAHY. I just have a—— 

[Simultaneous conversation.] 

Mr. FOX. Mr. Chairman—— 

Chairman LEAHY. If I wasn’t worried about the tentacles of the 

case, we wouldn’t be holding this hearing today. 

Mr. FOX. Mr. Chairman. 

Mr. FOREMAN. There’s a case called McDonnell Douglas v. Greene 

that has been cited thousands, tens of thousands, it is a standard 

way to prove discrimination cases, age, race, sex, we teach it in law 

school every day. The Supreme Court dropped a footnote and said, 

we don’t acknowledge whether the McDonnell Douglas standard 

even applies to these age cases. And the lower courts are now taking that and running with it and putting a different burden on age 

discrimination cases and ignoring the McDonnell Douglas. It is so 

deep that the Congress really must act to fix it. 

Chairman LEAHY. Mr. Fox, you wanted to say something? 

Mr. FOX. Yes. It is not really my role to defend the Supreme 

Court. I think they can do it capably themselves. But I would point 

out that if they had answered the question that they granted CERT 

on, that would have presumed the answer to the question that they 

ultimately answered in the reverse. Since they decided that it was 

not a proper instruction for age cases, it made no sense to decide 

under what standard you would give that instruction. So their really only choice was to either rule as they did or to say that writ was 

16 

improvidently—writ was improvidently granted and that would 

have then just delayed the inevitable. 

Also, the issue was raised in the respondent’s brief when they 

asked that Price Waterhouse be overruled, if necessary. And with 

respect to the McDonnell Douglas test, although that is in the footnote, I don’t think there is any question that the McDonnell Douglas standard remains the same. And, in fact, that is what I would 

say 99 percent of all cases including age cases are tried under. 

The mixed motive analysis is not used in the real world. And 

when it is used, it causes complexity and complication and ends up 

with situations like happened to Mr. Gross. If he had gone in with 

a straightforward instruction I have no doubt he would have won 

the trial, just as he did. But what would have been avoided were 

two appeals and now the possibility of having to retry it again. 

Chairman LEAHY. We could differ on that. We’ll get back to that 

later. But I want to go to—and I will—and I appreciate you stepping forward. But I will let you and Mr. Foreman speak to this 

again. 

Ms. Jones, the Fifth Circuit recently ruled that you actually 

could pursue some of your claims before a jury. Those are the 

claims related to sexual assault. 

I was a prosecutor and proud to be. The people involved in that 

I couldn’t help but think I would be charging them with numerous 

kinds of assault. And I have to feel that if convicted our courts in 

Vermont would send them to prison for a long time. But your 

former employer KBR or Halliburton argued the brutal sexual assault was somehow related to your employment and therefore had 

to be handled in arbitration tends to defy common sense. That’s the 

argument they took, you had to appeal to the Fifth Circuit. And 

now they are actually moving to rehear. What kind of a signal does 

this send to women in the workplace? 

Ms. JONES. Well, first of all, corporations do this by—— 

Chairman LEAHY. Is your—— 

Ms. JONES. It is very apparent to me through working with the 

Foundation and working with other women and my past experience, that corporations can adopt arbitration as a way to wipe 

clean the record of all disputes that have arisen. And if women before me that had been sexually assaulted working overseas in Iraq 

or Afghanistan or anyplace that we were deployed, if they were 

able to go and sit in front of a trial by jury, that would have been 

public record. I would have known before going to Iraq what I was 

getting into and likely this would have never occurred. 

I feel like this sends a clear message that the corporations are 

able to have more power than the individual. And I don’t think it’s 

right. And I think that it’s important for people to be aware of such 

practices that arbitration has cast upon the workers. 

Chairman LEAHY. Considering the position that Halliburton has 

taken on this, is it safe to say you would much rather the decision 

of how you might be treated would be done by an impartial court 

and jury rather than an arbitration system they might have helped 

set up? 

Ms. JONES. Well, Halliburton would hire my arbitrator. And they 

are taking the position that a sexual assault is part of employment. 

Why would I ever want to walk into an arbitration knowing that 

17 

they hired the arbitrator and knowing that that’s how they feel 

about sexual assault? Do you think I’m going to win? And if I win, 

do you think I’ll win much? Or do you think I will win just to be 

quiet? 

Chairman LEAHY. We are agreeing with each other, Ms. Jones. 

Ms. JONES. Exactly. 

[Laughter.] 

Chairman LEAHY. And if we weren’t, I wouldn’t be holding this 

hearing. 

[Laughter.] 

Chairman LEAHY. And Mr. Gross, Senator Franken has had to 

go vote another Committee and I was going to ask you one more 

question and then I’m going to have to step out for a moment, myself and turn the gavel over to Senator Franken, but I’ll be right 

back. 

Do you think it’s fair to ask victims of discrimination to prove 

that age was the decisive factor for discrimination; especially when 

they often lack access to necessary records that employers possess 

that might help them prove their case? 

Mr. GROSS. Senator Leahy, I don’t think there is anything particularly complicated about the jury instruction. My fellow Iowans 

who served on the jury, I believe, understood the rule of law perfectly and came to the sound understanding, especially with the 

final thing they heard was that if you can find any reason other 

than age for their actions, you have to find in favor of Farm Bureau. 

Now, that’s pretty clear. To me that just eliminates everything 

else. I had made the prima facie case. There was age discrimination, they could find no other reason after a week of testimony evidence. They boiled it down to this, there is one sole cause for what 

happened here. And as Justice Souter said during the hearings, a 

lot of times, juries are just smarter than judges. And I tend to believe that was the case. 

They knew that age was not only a motivating factor, they knew 

that—actually, I think if we had to go back and try this, and it’s 

been 7 years already, 10 percent of my life is invested in this. I 

really don’t want to start over. But if we had to start over, even 

under this new one, I’m confident that we would win. However, 

that does not mean that it was a good decision. 

I was terribly disillusioned about how they broke with their own 

protocol to come to their conclusion. As has already been mentioned, they almost ignored the issue that the CERT was granted 

on. They allowed new evidence—a new argument to be introduced 

right at the last minute. I don’t think that—well, there’s just a 

number of things that I think broke with protocol. 

As the claims guy, I taught a lot of adjusters over the years, and 

the first thing I taught them and the most important thing was to 

never do anything that could create any appearance of impropriety 

or self-conflict. And I expected no less than that from the highest 

court in the land. And I thought I saw a lot of things that just 

plain disillusioned me about how our Supreme Court system functioned in my case. 

Chairman LEAHY. I am glad of the comment by my fellow New 

Englander, Justice Souter. 

18 

But let’s go back to the Midwest, Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. Thank you, for 

calling this hearing. Thank you to all the witnesses. 

I am sorry I had to make a vote on another Committee so I 

missed Mr. Fox and Mr. Foreman. 

First, I just want to say something to Ms. Jones. 

Yesterday we had an amendment to the Department of Defense 

Appropriations and we passed the bill, quite handily, saying that 

we are not going to hire contractors who do mandatory, 

binding arbitration on things like sexual assault. 

Ms. JONES. Uh-huh. 

Senator FRANKEN. We had a little press thing afterwards and I 

talked about your courage and your persistence. One thing I left 

out is your strength, and I want to thank you for that. 

Ms. JONES. Thanks. 

Senator FRANKEN. You are an amazing young woman. 

Ms. JONES. Thank you. 

Senator FRANKEN. Mr. de Bernardo said that you have had your 

day in court. 

Ms. JONES. He did say that. 

Senator FRANKEN. Isn’t it true that what you have been in court 

doing is trying to get your day in court? 

Ms. JONES. Exactly. I wanted to quote him, actually, justice denied is—wait, ‘‘justice delayed is justice denied.’’ 

Senator FRANKEN. He did say that in his testimony. 

Ms. JONES. I totally agree with that. I have been fighting arbitration for 4 years. I have been wanting my day in front of a trial by 

jury for 4 years. I don’t believe that claims like this should ever 

be in front an arbitrator. They need to be public knowledge. They 

don’t need to be private, discrete, and binding. 

So I feel that what Bernardo said was accurate about justice delayed is justice denied. But those of us that need this as public 

knowledge need to not go in front of a secret arbitrator. 

I was also curious if Bernardo represents individuals or corporations. And also if the polled employees represented likely include 

people who have gone through the process or have not gone 

through the process. 

Senator FRANKEN. Well—— 

Ms. JONES. So I was kind of curious about that. 

Senator FRANKEN.—I’ll ask the questions here, Ms. Jones. 

[Laughter.] 

Senator FRANKEN. And I do have a question for Mr. Bernardo. 

[Laughter.] 

Senator FRANKEN. You put in your written— 

Mr. DE BERNARDO. It’s de Bernardo. 

Senator FRANKEN. Oh, I’m sorry, Mr. de Bernardo. Excuse me. 

You said in your written testimony—you write in your written 

testimony you cite something which, by the way in the footnotes I 

can’t—you cite essentially page 30 of a 10-page report. That employees have a 63 percent chance of prevailing in arbitration and 

a 43 percent chance of prevailing in employment litigation, forgetting the fact that the Committee couldn’t actually look that up. 

Would you consider if Jamie Leigh had gotten a settlement of $50 that she would have prevailed under this definition? 

19 

Mr. DE BERNARDO. Senator Franken—— 

Senator FRANKEN. Please answer yes or no, sir. 

Mr. DE BERNARDO. Not yes or no, let me just say—— 

Senator FRANKEN. Please answer yes or no, sir. Are you saying 

no? 

Mr. DE BERNARDO. I say no. 

Senator FRANKEN. So, in other words, if the statistics on who 

prevailed and who didn’t prevail, what would she have needed to 

have gotten? $100? Would she have prevailed if she had gotten 

$100? 

Mr. DE BERNARDO. You know, I think this is a distinction without a difference. What we are talking about—— 

Senator FRANKEN. Answer yes or no, please, sir. 

Mr. DE BERNARDO. The question is, what is the number that 

counts as prevailing? 

Senator FRANKEN. I think that is sort of the question; isn’t it? 

Mr. DE BERNARDO. You know, what I am looking at is the research that’s been done, the studies that have been done on who 

prevails in—— 

Senator FRANKEN. Yeah. And I’m saying, what’s prevailing? 

Mr. DE BERNARDO. I don’t know what their definition is going to 

be. 

Senator FRANKEN. So you don’t know what their definition is. So 

when you said, ‘‘no’’ you didn’t know whether that was true or not, 

did you? 

Mr. DE BERNARDO. Well—— 

Senator FRANKEN. Did you? 

Mr. DE BERNARDO.—Senator, if we are talking about an assault 

or a sexual assault or assault and battery or false imprisonment, 

that is not what I am here to address. What I am here to address—— 

Senator FRANKEN. That’s what this case was about, sir. 

[Simultaneous conversation.] 

Senator FRANKEN. And the company—sir, please. 

The company asserted that it had the right to arbitrate. In fact, 

she’s been in court 4 years because this—and, by the way, they are 

appealing again. 

So you write something that you didn’t know about, that 63 percent of the time the employees prevail. So, presumably if they, as 

far as you know, if she had gotten $50, that would have counted 

under your 63 percent. 

And would she also have prevailed if she got $50 and that the 

price of that was her silence? 

Mr. DE BERNARDO. You know, Senator, I would like to respond, 

not in yes or no, but a little bit more broadly. 

Senator FRANKEN. Go ahead. 

Mr. DE BERNARDO. And the answer is we go to the research that 

is out there. We go to the statistics that are available. They’re reliable statistics from credible, neutral sources. As for prevailing, this 

is an awful set of facts that Ms. Jones alleges—— 

Senator FRANKEN. I just asked you a question, would that be 

considered onerous to say that she prevailed? Because that seems 

to be part of your case that this is better for employees. That’s your 

20 

case. So I am asking, what do those statistics mean? And you don’t 

seem to know what they mean. 

Mr. DE BERNARDO. Well, I do know what they mean—— 

Senator FRANKEN. OK. For example—— 

Mr. DE BERNARDO.—because the overwhelming majority of times, 

99.9999 percent of the time the facts aren’t going to be anything 

near what we are talking about here. It’s not going to—— 

Senator FRANKEN. But here they are the facts here and she’s 

been in court for 4 years, sir. 

Mr. DE BERNARDO. There’s a criminal situation, there’s a civil action that—— 

Senator FRANKEN. She had no criminal—this took place in Iraq. 

So at that time she had no recourse, sir. 

Mr. DE BERNARDO. All right. 

Senator FRANKEN. She has not had her day in court, sir. She has 

litigated to have her day in court, sir, Mr. de Bernardo. 

Mr. DE BERNARDO. I would like to address that issue. 

I would like to address that issue in terms—— 

Senator FRANKEN. No. No, please answer my question, sir. 

Mr. DE BERNARDO. OK. 

Senator FRANKEN. I read some of your testimony to Ms. Jones. 

You said, ‘‘the net result of the use of arbitration is better work 

places.’’ 

Mr. DE BERNARDO. Correct. 

Senator FRANKEN. Better work places. 

Mr. DE BERNARDO. Correct. 

Senator FRANKEN. She was housed with 400 men. She told KBR 

twice that she was being sexually harassed. She was drugged by 

men that the KBR employment people knew did this kind of thing. 

She was raped, gang raped. She had to have reconstructive surgery, sir. 

They had this arbitration. Now, if that created a better work 

place. And then she was locked in a shipping container with an 

armed guard. 

Now, my question to you is, if that’s a better work place, what 

was the work place like before? That’s a rhetorical question. I am 

not really asking that question. 

They had binding arbitration at KBR. And because of that, and 

they asserted it on cases like this. 

Ms. Jones, in your foundation, you have heard from other women 

who were raped; is that not true? 

Ms. JONES. Yes, sir, I have. 

Senator FRANKEN. And women who under arbitration—— 

Ms. JONES. Yes, sir. 

Senator FRANKEN.—were told to keep silent; is that right? 

Ms. JONES. Exactly. 

Senator FRANKEN. And because of that silence you didn’t know 

about anything like this, did you? 

Ms. JONES. Exactly. I didn’t know. It was not public knowledge, 

unfortunately. I think it was a very big injustice for it not to be 

public knowledge. It was an injustice for me and all future mothers, wives, daughters, sisters, who want to go to Iraq that don’t 

know about all of the crimes that have occurred overseas. Because 

it’s been in secret arbitration, it’s a big injustice. 

21 

Senator FRANKEN. And when Mr. de Bernardo said that you had 

your day in court, what was your reaction? 

Ms. JONES. I was livid, sir. Four years to fight to get in court is 

not a day in court. 

Senator FRANKEN. I was livid too. 

This is the result of your binding, mandatory arbitration, Mr. de 

Bernardo. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Mr. de Bernardo, you wanted to say more and I don’t want to cut 

you off. Obviously I’ll give you a chance to do that. But let me ask 

you this question. 

Mr. DE BERNARDO. I do want to say more when we have a 

chance. 

Chairman LEAHY. I’ll give you that. But when you do it could you 

also answer this. If arbitration is cheaper for both sides, it’s fair 

for both sides, it’s easier for both sides, then why not have voluntary arbitration? 

Mr. DE BERNARDO. OK. Should I make my comment or respond 

to that first? 

Chairman LEAHY. Do both. Whatever you—— 

Mr. DE BERNARDO. I guess I’ll start with your question, Mr. 

Chairman, which is, this is the issue of pre-dispute versus post-dispute. And there is the option of doing post-dispute now, but it is 

not used. Because as a practical matter, once you’ve gone through 

the process by which an individual approaches a plaintiff’s lawyer, 

secures a plaintiff’s lawyer, and they accept less than 5 percent of 

the people who go in who wish for representation, they’re convinced—that plaintiff’s lawyer is convinced that this case has a significant enough chance of receiving either a settlement or damages 

that would entice them to carry it forward and work on this case. 

We all have limited time and resources, I understand that. 

A complaint has been filed and either the lawsuit or the charge 

has been filed. And, in effect, the individual has reconciled to this 

point that they’re—mentally that they’re going to do battle with 

their employer. You know, it’s too late at that point post-dispute 

arbitration as a practical matter doesn’t occur. It’s very, very rare 

in the United States now when there is the option for that. 

Chairman LEAHY. But, it would be—— 

Mr. DE BERNARDO. Of course it would be rare later—— 

Chairman LEAHY. If there’s no option it’s a moot point. That’s my 

question. I mean, why not give the alternative? You’ve testified, if 

I understand your testimony correctly, in favor of these arbitrary 

arbitration clauses—— 

Mr. DE BERNARDO. Correct. 

Chairman LEAHY.—like the one that Ms. Jones faced. And I 

would be one of the first to agree that there are many, many times 

arbitration makes a great deal of sense. 

In private practice, I was involved at different times in arbitration and it made a lot of sense. But, shouldn’t that be something 

where each of the parties has that option? Not that requirement, 

but that option? 

Mr. DE BERNARDO. Well, if it is a post-dispute vis-a-vis pre-dispute, it hasn’t been used and it’s not going to be used. So, you 

22 

know, should it be an option? As a practical matter it wouldn’t be 

an option that would be in use. That’s the bottom line. That’s why 

I say that this legislation, the Arbitration Fairness Act, if it were 

enacted, would end arbitration employment in the United States. 

Effectively it would abolish it because the overwhelming majority 

of arbitrations which occur are based on pre-dispute agreements. 

Chairman LEAHY. Now, you wanted to say something further 

to—— 

Mr. DE BERNARDO. Well, yeah, you know—— 

Chairman LEAHY.—Senator Franken—— 

Mr. DE BERNARDO.—we’re not a court of law. We are not here 

to—I am not familiar with many, most, the entire record in terms 

of the situation involving Ms. Jones. I have said how I thought that 

this is a terrible situation with terrible facts. 

What I do want to say is, if we’re talking about justice in the 

United States and who has access to justice, arbitration provides 

a means by which employees, most specifically employees, have tremendous access that they otherwise would not have. If S. 931 were 

enacted, those 95 percent plus of employees who now have their 

issues addressed and resolved would not have that option. Because, 

you know, the first threshold that I talk about is the fact that the 

plaintiffs’ bar is only going to accept less than 5 percent of the 

cases that are brought to them. 

The second thing is, the motions practice, there was some reference to that earlier, and as cited in the testimony a study by the 

National Work Rights Institute, 3,400 cases, 60 percent of those 

were decided by pre-trial motions, motions for summary judgment, 

motions for dismissal. And in 98 percent of the time the employers 

prevailed. So you can’t get that threshold to get to court. If you get 

to court it’s likely you are going to have it dismissed. Even if it 

goes to—you know, 1.3 percent of the cases in the Federal court 

system go to trial. The vast majority of those are not jury trials. 

So, you know, this idea that everybody has their day—— 

Chairman LEAHY. Of course, a great number of them are settled 

too. 

Mr. DE BERNARDO. What’s that? 

Chairman LEAHY. A great number of them are settled. 

Mr. DE BERNARDO. Correct. 

Chairman LEAHY. OK. 

Senator Franken. 

Senator FRANKEN. I just want to—— 

Chairman LEAHY. We can be a little more flexible on the time because there is only the two of us here because there are so many 

other committees meeting. 

Senator FRANKEN. So does this 5 percent include the ones that 

have been settled or not? 

Here’s my—I guess then I have a bigger—larger question. 

Mr. DE BERNARDO. OK. 

Senator FRANKEN. In the statistics you cite in your written testimony and in your present testimony, are these things that you are 

actually familiar with? 

Mr. DE BERNARDO. Yes, I would say—— 

Senator FRANKEN. Well, you weren’t familiar with the other statistic and what 67 percent prevailing meant. 

23 

Mr. DE BERNARDO. Sixty-three percent. 

Senator FRANKEN. Now, I’m asking you another question and you 

seem stymied. 

Does the 5 percent include those that have been settled? 

Mr. DE BERNARDO. You know, I have many, many statistics that 

are cited in many footnotes. And I will say, if that’s from the National Work Rights Institute instant survey, many of these statistics are from the National Work Rights Institute. That is headed 

up by the former head of—— 

Senator FRANKEN. I just want to know what the statistic—— 

[Simultaneous conversation.] 

Mr. DE BERNARDO.—the employee rights—— 

Senator FRANKEN.—means. 

[Simultaneous conversation.] 

Senator FRANKEN. I want to know if—— 

Mr. DE BERNARDO.—reliable statistic, Senator, yes, I do. 

Senator FRANKEN. That’s not what I asked. I didn’t ask if it was 

a reliable statistic. Reliable about what? That’s what I’m asking, 

what is it reliable about? You’re talking about—you’re saying that 

employees don’t have access to hearing their case because only 5 

percent get heard. And I’m asking what that means? What that 5 

percent means and you don’t seem to know. 

Mr. DE BERNARDO. No, what it means is that plaintiffs’ attorneys 

are not going to take every case that comes into their offices—— 

Senator FRANKEN. I want to know what the 5 percent statistic 

means, sir. If you don’t know, just say you don’t know. Could you 

do that, at least? 

Mr. DE BERNARDO. Well, I do know. There’s a survey that says 

that less than 5 percent of the time plaintiffs’ attorneys are going 

to accept the cases that come to them. The plaintiffs’ bar, the plaintiffs’ attorneys that I deal with would readily admit that. There are 

many, many cases that come in and they’re going to say no unless 

they’re convinced that—— 

Senator FRANKEN. What if you went to 20 attorneys, would that 

mean 100 percent of the cases are taken? 

Mr. DE BERNARDO. You know—— 

Senator FRANKEN. Let me—let me—— 

Mr. DE BERNARDO.—100 percent of the grievances—Senator, if I 

could respond? One hundred percent of the grievances that are 

filed in arbitration programs and dispute resolution programs are 

addressed. 

Senator FRANKEN. Yeah, and you told me that—— 

Mr. DE BERNARDO. Less than 5 percent of litigation—— 

[Simultaneous conversation.] 

Senator FRANKEN.—that you don’t know if $50 to Ms. Jones 

would be considered in your statistic of whether that would be her 

prevailing. So you don’t really know too much about your statistics. 

Mr. DE BERNARDO. There are two studies—— 

Senator FRANKEN. Here’s another statistic, sir, from the National 

Work Rights Institute. 

Mr. DE BERNARDO. Senator, could I respond? 

Senator FRANKEN. No, give me a second here. 

Mr. DE BERNARDO. OK. 

24 

Senator FRANKEN. Found that the mean damages awarded by arbitrations was 49,000, the mean damages awarded by district 

courts is $530,000. That seems to be more beneficial to the employee; doesn’t it? 

Mr. DE BERNARDO. Sure. Those numbers would be more beneficial to the employee. 

Senator FRANKEN. Thank you, sir. 

Chairman LEAHY. Thank you. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Mr. DE BERNARDO. I would respond, if I can? 

Chairman LEAHY. Go ahead. 

Mr. DE BERNARDO. That there are two surveys that I am familiar 

with. I am not familiar with that survey. The two surveys that are 

detailed and discussed and cited in my testimony both found that 

the median or the mean or the average awards given in arbitration 

in fact either exceed or are just slightly less than what happens in 

litigation. 

And, in fact, in the vast majority of times, if you are talking 

about arbitration, you also don’t have the 33 to 40 percent that has 

to go to the plaintiffs’ attorney plus expenses as well. So in fact the 

net—— 

Chairman LEAHY. Mr. de Bernardo—— 

Mr. DE BERNARDO.—I’m talking about for the average employee. 

Chairman LEAHY. Those studies—— 

Mr. DE BERNARDO. The average situation, the average employee, 

they are more likely to get their issue addressed. They are more 

likely to prevail and they are more likely to receive a larger return 

if they go to arbitration than if they go to litigation. 

Chairman LEAHY. And those statistics are in your testimony? 

Mr. DE BERNARDO. They are, Senator. 

Chairman LEAHY. Thank you. So they will be before the Committee. Appreciate that. 

Mr. DE BERNARDO. Thank you, Senator. 

Chairman LEAHY. Professor Foreman, Circuit City and Gross, do 

these make it more difficult for victims of employment discrimination to seek relief in the court and does it—and if you do get into 

court, does it put further obstacles in your path in going before a 

jury? 

Mr. FOREMAN. I mean, without a doubt. And I think there is a 

consensus opinion that Gross makes it harder for people to prove 

age discrimination. The courts have all said that, the media have 

said that, the academic literature said that. There is no debate. It 

is harder if you are a victim of age discrimination after Gross to 

prove your burden. 

And on the binding arbitration, Circuit City opened the doors for 

arbitration of employment discrimination claims and what happened is employers en mass adopted these. Almost 30 percent of 

employers now have some type of pre-dispute binding arbitration. 

And I really want the Committee to focus on what we heard from 

the employment community today. And what this Committee was 

told was, well, you couldn’t give the employee a choice because they 

would choose not to go into binding arbitration. When arbitration 

works is when we put it in employee applications and handbooks 

where they don’t really see it, they don’t have any ability to react. 

25 

But the comment was made once they know their rights, once 

they get an attorney, then maybe they will choose not to go into 

binding arbitration because they know there is not as much discovery, they don’t have as many appeal rights, and sort of combining the two issues there’s limited discovery in arbitration. 

Under the Gross decision the plaintiff has the burden of proof 

and they have the burden of proving by some courts that age was 

the sole motive. Well, with limited discovery and a higher burden, 

how does a plaintiff ever win in these claim cases? 

And a bit on the statistics and Senator Franken, I think you covered the prevailing party issue. I am not going to touch on that at 

all. 

Senator FRANKEN. Please. 

[Laughter.] 

Mr. FOREMAN. But the statistics that the employment community 

relies on are those bargained-for exchanges. They are not pre-dispute binding arbitration by blue-collar workers. If you want statistics that have done that analysis, they’re cited in footnote 50 of my 

materials. They are not my statistics, they are not a think tank’s 

statistics, they are an analysis and it comes out two ways. 

One, plaintiffs win less in arbitrations, and they win less money 

in arbitrations across the board. And I think that’s what this Senate needs to deal with is how do you do this balance to allow employees to have a free choice. After a dispute has arisen is a different category than in pre-dispute binding arbitration where there 

is no agreement. 

And I think, Senator Franken, you raise a very good point in the 

bill that you’ve introduced. Is it a time to revisit Circuit City and 

determine whether when Congresses passes these very meaningful 

statutes, freedom from discrimination based on race and sex, they 

should be subject to binding arbitration at all. 

Chairman LEAHY. Well, I’m going to have to be leaving, but Senator Specter is here. I am going over to him to ask questions. So 

that nobody will feel that they have been in any way cutoff, any 

one of you, I will keep the record open for 1 week for you to add 

to any statement you have made or wish to add to this so the 

record will be complete. I have found this to be a very good and 

very worthwhile hearing. 

Senator Specter, I will yield to you. 

Senator SPECTER. Thank you, Mr. Chairman. I came to meet 

with you and I will stay around for that. I am going to ask just 

one question. I came in late, but I have been very deeply involved 

in this issue as it’s been percolating for a long time. 

As you professionals know, there has been a lot of talk about the 

arbitration provision in the Employee Free Choice Act. And my 

question is for you, Mr. de Bernardo. I heard your last response to 

Senator Franken’s question. The business interests have been very 

much opposed to any kind of arbitration in the Employee Free 

Choice Act even last best offer, which very sharply restricts the arbitrator’s choice. Of the arguments which you have made, I heard 

the tail end, of the advantages of arbitration and how much you 

are pushing it, obviously in the context as an alternative to litigation. But in the context of all of the virtues you extol as to arbitration, doesn’t that pretty much cut out the efficacy or weight of busiVerDate Nov 24 2008 07:39 May 11, 2010 Jkt 056089 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56089.TXT SJUD1 PsN: CMORC
26 

ness’ opposition to arbitration in the context in the Employee Free 

Choice Act proposals? 

Mr. DE BERNARDO. Senator, I think we are talking about apples 

and oranges. I would say no as my response. 

One is arbitration—— 

Senator SPECTER. I am not surprised at your response. Now tell 

me why? 

Mr. DE BERNARDO. One is arbitration in lieu of litigation the 

other is arbitration in lieu of collective bargaining. They are totally 

different situations. 

What is analogous in a union sector to what happens in the nonunion sector in terms of employment arbitration is the arbitrations 

that occur when there is a collective bargaining agreement for employee disputes which are common, and is sacrosanct to the labor 

movement. When the labor movement, has tried to—when they’ve 

tried to export unionization to Mexico, Central America, and South 

America, they call for arbitration of employment disputes. So in an 

organized labor setting, arbitration of employment disputes is in 

fact as entrenched as it is in our jurisprudence system in the nonunion sector. 

In EFCA, the Employee Free Choice Act, what we are talking 

about there is arbitration in lieu of collective bargaining, a totally 

different situation whereby you would have very, very little incentive or no incentive for the union representative to reach agreement with the employer because they would rather go to an arbitrator on a very expedited, quicky basis and have a third party 

make a decision in terms of what the terms and conditions of employment are long term including wages, benefits, and a whole host 

of other terms and conditions of employment. They are really not 

analogous situations. 

Senator SPECTER. Just a concluding comment, I am aware of that 

distinction. I am aware of that argument. 

Mr. DE BERNARDO. I am sure you are, Senator. Appreciate that. 

Senator SPECTER. The consequence of collective bargaining has 

been unsuccessful about half of the cases where there is no first 

contract and a year passes and then a move is made for decertification and sometimes better resourced employers are able to outweigh the union. So what the Congress has to decide is whether 

you need a little push on collective bargaining. And if there is arbitration even limited to the last best offer, which restricts the arbitrator’s discretion, that isn’t an appropriate conclusion to implement collective bargaining with the thought that if there is that 

end product that people will be a lot more anxious to come to 

agreements without even having the limited last best offer. 

But these are weighty issues and I compliment the Chairman 

and the Committee for taking it up and we will be spending a lot 

of attention. 

Mr. DE BERNARDO. Sir, if I could respond just briefly, I would say 

that EFCA doesn’t represent a little push, it’s a huge push, it’s a 

knock-down, drag-out push. So, you know, if there are problems 

that need to be addressed that is an over response, frankly, analogous to what I think is with S. 931, which is an over response to— 

you know, are there reforms that are necessary? Certainly that’s a 

possibility. Are there reforms that I would support? Yes, there are. 

27 

But it is not to completely abolish arbitration in employment in 

America today. 

Senator SPECTER. I will use the prerogative of the chair to have 

the last word. You say there are possibly reforms. I look at Mr. 

Gross and Ms. Jones I’d say that’s a good possibility. Thank you. 

We stand in recess. 

[Whereupon, at 11:38 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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