In Richardson vs. Commission on Human Rights, Case No. 06-0474-cv (July 7, 2008), the Court of Appeals for the Second Circuit upheld a lower court's ruling that the employer and union did not violate Title VII by agreeing on and complying with a contract provision requiring employees to choose between grievance arbitration of discrimination claims, or administrative and judicial remedies.

The Plaintiff had filed various employment discrimination complaints with the Connecticut State Commission on Human Rights (CHRO) against her employer -- coincidentally, the Connecticut State Commission on Human Rights. Ultimately, Plaintiff was terminated, and amended her most recent charge to include claims arising out of her termination. Her union initially filed a grievance on her behalf challenging the termination, but when it discovered that Plaintiff had also filed CHRO and EEOC charges, they withdrew the grievance and refused to process it further. The union based its action on a collective-bargaining agreement provision which read:

[D]isputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities arising from the same common nucleus of operative fact.

Plaintiff, supported by the EEOC, argued that the employer and union's maintenance and enforcement of this provision constituted unlawful retaliation. The Second Circuit decision, however, clearly holds otherwise:

While there are limits on what a union may agree to in collective bargaining, Plaintiff's union has not transgressed them by contracting to limit an employee's legal recourse under certain circumstances. The collective bargaining agreement about which Plaintiff complains simply stipulates that an aggrieved employee may either arbitrate her grievance or file a charge with the CHRO describing that grievance.

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[T] he defendants' withdrawal from arbitration did not constitute retaliation because the forum-selection clause was a reasonable defensive measure to avoid duplicative proceedings in the two fora Richardson's employer maintained for addressing discrimination complaints.

The Court distinguished this case from those arising under the Garndner-Denver line of precedent, in that the CBA provision did not foreclose statutory avenues of relief -- such as the right to file administrative charges or to pursue claims in federal court:

It only requires that the employee make a concrete choice, at a specific time, between filing a state claim with the CHRO and having the union pursue his or her grievance in arbitration.

The Second Circuit acknowledged in the decision that its case law is at odds with the Seventh Circuit's, as set forth in EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.1992). Employers should watch Richardson to follow possible appeal to the U.S. Supreme Court to resolve this split between the Circuits.