Higgins v. Superior Court of Los Angeles County Application for Leave to File and Brief Amicus Curiae

    2 Civil No. B057028
(LASC Case No. BC 015994)

IN THE COURT OF APPEAL 
OF THE STATE OF CALIFORNIA 
SECOND APPELLATE DISTRICT 

DIVISION FOUR

CYNTHIA HIGGINS, et al., )
)Petitioners, )
)
)vs. )
)THE SUPERIOR COURT OF )

LOS ANGELES COUNTY, )
)Respondent, )
)GREAT WESTERN FINANCIAL )

SECURITIES, )
)Real Party In Interest. ) 

___________________________ )

Case No. 2 Civil B057028 
(Los Angeles No. BC 015994)

APPLICATION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAE ON BEHALF 
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF PETITIONERS

Petition for Writ of Mandate to Overturn 
Order of the Superior Court of the State of California for the

County of Los Angeles,
Honorable Robert W. Zakon, Commissioner and Judge Pro Tem

Bill Lann Lee 
Constance L. Rice 
Kevin S. Reed 
NAACP Legal Defense and 
Educational Fund, Inc. 
315 West Ninth Street 
Suite 208
Los Angeles, CA 90015 
(213) 624-2405
Attorneys for Amicus Curiae
NAACP Legal Defense and
Educational Fund, Inc.



2 Civil No. B057028
(LASC Case No. BC 015994)

IN THE COURT OF APPEAL 
OF THE STATE OF CALIFORNIA 
SECOND APPELLATE DISTRICT 

DIVISION FOUR

CYNTHIA HIGGINS, et al., )
)Petitioners, )
)
)vs. )
)THE SUPERIOR COURT OF )

LOS ANGELES COUNTY, )
)Respondent, )
)GREAT WESTERN FINANCIAL )

SECURITIES, )
)Real Party In Interest. ) 

___________________________ )

Case No. 2 Civil B057028 
(Los Angeles No. BC 015994)

APPLICATION FOR LEAVE TO FILE BRIEF AMICUS CURIAE ON BEHALF 
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF PETITIONERS

Petition for Writ of Mandate to Overturn 
Order of the Superior Court of the State of California for the

County of Los Angeles,
Honorable Robert W. Zakon, Commissioner and Judge Pro Tern

Bill Lann Lee 
Constance L. Rice 
Kevin S. Reed 
NAACP Legal Defense and 
Educational Fund, Inc. 
315 West Ninth Street 
Suite 208
Los Angeles, CA 90015 
(213) 624-2405
Attorneys for Amicus Curiae
NAACP Legal Defense and
Educational Fund, Inc.



TO THE HONORABLE PRESIDING JUSTICE AND THE ASSOCIATE JUSTICES OF
THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION FOUR:

The NAACP Legal Defense and Educational Fund, Inc. ("LDF"), 
seeks leave to file the enclosed brief amicus curiae on behalf of 
petitioners Cynthia Higgins, et al. Leave should be granted for 
the following reasons.

LDF is a civil rights legal organization formed to assist 
black persons to secure their constitutional and civil rights 
through litigation. Since its founding in 1940, LDF has prosecuted 
lawsuits on behalf of African-Americans seeking vindication of 
their civil rights in federal and state courts involving a wide 
range of race discrimination issues, including discrimination in 
employment and housing. (See, e.g., Brown v. Bd. of Ed. (1954) 347 
U.S. 483 [98 L.Ed.2d 873, 74 S.Ct. 686]; Griggs v. Duke Power Co. 
(1971) 401 U.S. 424 [28 L.Ed.2d 158, 91 S.Ct. 849]; Albemarle Paper 
Co. v. Moodv (1975) 422 U.S. 405 [45 L.Ed.2d 280, 95 S.Ct. 2362].) 
LDF's Western Regional Office, located in Los Angeles, currently 
represents individuals and organizations in a number of lawsuits 
and administrative proceedings challenging racial discrimination 
in employment and housing. LDF believes that its experience in 
this area may assist the Court in this case.

1



LDF, therefore, requests that the Court grant leave to file
the enclosed brief amicus curiae.
Dated: August 1, 1991 Respectfully submitted,

Bill Lann Lee 
Constance L. Rice 
Kevin S. Reed'
NAACP Legal, Defense and Educational

'  ' "  "  / SxyFund,/Inc;
( / 1 />'/By

i Bill Lann Lee
Attorneys for the NAACP Legal Defense and 
Educational Fund, Inc., as Amicus Curiae

2



2 Civil No. B057028
(LASC Case No. BC 015994)

IN THE COURT OF APPEAL 
OF THE STATE OF CALIFORNIA 
SECOND APPELLATE DISTRICT 

DIVISION FOUR

CYNTHIA HIGGINS, et al., )
)Petitioners, )
)
)vs. )
)THE SUPERIOR COURT OF )

LOS ANGELES COUNTY, )
)Respondent, )
)GREAT WESTERN FINANCIAL )

SECURITIES, )
)Real Party In Interest. ) 

___________________________ )

Case No. 2 Civil B057028 
(Los Angeles No. BC 015994)

BRIEF AMICUS CURIAE ON BEHALF 
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF PETITIONERS

Petition for Writ of Mandate to Overturn 
Order of the Superior Court of the State of California for the

County of Los Angeles,
Honorable Robert W. Zakon, Commissioner and Judge Pro Tern

Bill Lann Lee 
Constance L. Rice 
Kevin S. Reed 
NAACP Legal Defense and 
Educational Fund, Inc. 
315 West Ninth Street 
Suite 208
Los Angeles, CA 90015 
(213) 624-2405
Attorneys for Amicus Curiae
NAACP Legal Defense and
Educational Fund, Inc.



TABLE OF CONTENTS
Page

QUESTION PRESENTED ............................................ 1
STATEMENT OF THE C A S E .........................................  1
SUMMARY OF ARGUMENT ............................................ 2
ARGUMENT ....................................................... 3

I. THE RIGHT TO SEEK JUDICIAL REMEDIES UNDER THE 
FEHA MAY NOT BE WAIVED BY A PRIVATE ARBITRATION 
AGREEMENT BECAUSE CONGRESS HAS EVINCED ITS 
INTENT TO PRESERVE INDEPENDENT STATE RIGHTS 
AGAINSTEMPLOYMENT DISCRIMINATION IN ENACTING
TITLE V I I ............................................ 3
A. Title VII'S Enforcement Scheme Preserves the

Independence of the F E H A ...................... 3
B. Congress Intended to Preserve the Additional 

Remedies for Employment Discrimination 
Provided Under the FEHA When it Enacted Title
V I I ............................................ 7

II. THE COMPULSORY ARBITRAL WAIVER OF THE RIGHT TO
JUDICIAL REMEDIES UNDER THE FEHA CONTRAVENES THE 
CALIFORNIA CONSTITUTION AND PUBLIC POLICY ......... 9
A. The Right to a Judicial Remedy For a Claim 

Arising Under The FEHA May Not Be Waived 
Compulsorily Without Contravening the 
Constitutional Protections And California 
Public Policy Inherent in the FEHA...............11
1. The FEHA Seeks To Remedy Employment

Discrimination By Providing More 
Comprehensive Remedies Than Title VII . . 12

2. Compelling Arbitration of FEHA Claims May
Deprive Victims of Employment 
Discrimination of Substantive Rights . . 15

3. Disallowing Compulsory Arbitration of
FEHA Claims Would Not Disserve the Public 
Policy Behind Arbitration Because of the 
FEHA's Administrative Remedies ......... 18

l



B. Courts Which Have Addressed this Question 
Directly Have Agreed That the Right to 
Prosecute State-Based Claims for Sex or Race 
Discrimination Cannot Be Compelled By a 
Private Arbitration Agreement ...............  20

C O N C L U S I O N .....................................................22

ii



TABLE OF AUTHORITIES
Cases Page
Ackerman v. Western Electric Co., Inc. (1986)
643 F.Supp. 836 ................................................  14

Agarwal v. Johnson (1979) 25 Cal.3d 932
[160 Cal.Rptr. 141, 603 P.2d 58] ............................ 14
Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36
[39 L. Ed. 2d 147, 94 S.Ct. 1 0 1 1 ] ...................... 1, 3, 4, 6
Anderson v. Dean Witter Reynolds, Inc. (Minn.App. 1989)
449 N.W.2d 468, review den. (1990) ........................  20-22
Benestad v. Interstate/Johnson Lake Corp.
(S.D.Fla. 1990) 752 F.Supp. 1054 ............................... 1
Bierdeman v. Shearson Lehman Hutton, Inc.
(N.D.Cal. 1990) 744 F.Supp. 211 .................................  1

Bohemian Club v. Fair Employment and Housing Commission
(1986) 187 Cal. App. 3d 1 [231 Cal.Rptr. 7 6 9 ] ....................8
Brown v. Super. Ct. (1984) 37 Cal.3d 477
[208 Cal.Rptr. 724, 691 P.2d 2 7 2 ] ....................10, 12, 18
Cal. Federal Savings & Loan Assn. v. Guerra (1985)
758 F. 2d 390 .................................................... 8
Cal. Federal Savings & Loan Assn. v. Guerra (1987)
479 U.S. 272 [93 L.Ed.2d 613, 107 S.Ct. 6 8 3 ] ...........4, 7, 8
Commodore Home Systems, Inc. v. Super. Ct. (1982)
32 Cal.3d 211, 213 [185 Cal.Rptr. 270, 649 P.2d 912] ........  9
Cook v. Barratt American, Inc. (1990) 219 Cal.App.3d 1004 
[268 Cal.Rptr. 629], cert. den. (1991) 500 U.S.
[114 L. Ed. 2d 458, 111 S.Ct. 2 0 5 2 ] .......................... 1, 2
Copley v. NCR Corp. (W.Va. 1990) 394 S.E.2d 751 ......... 20, 21
Dyna-Med, Inc. v. Fair Employment and Housing Commission
(1987) 43 Cal.3d 1379 [241 Cal.Rptr. 67, 743 P.2d 1323] . . .  10
Equal Employment Opportunity Commission v. Commercial
Office Products Co. (1988) 486 U.S. 107
[100 L. Ed. 2d 96, 108 S.Ct. 1666] ...............................6
Feinberg v. Bear, Stearns & Co., Inc. (S.D.N.Y. 1991)
55 FEP Cases 1206 ..............................................  21

ill



Gilmer v. Interstate/Johnson Lake Corp. (1991)
500 U.S. ___ [114 L. Ed. 2d 26, 111 S.Ct. 1 6 4 7 ] ............. 1, 17
Griggs v. Duke Power Co. (1971) 401 U.S. 424
[28 L. Ed. 2d 158, 91 S.Ct. 2 3 6 2 ] ................................. 3
Hall v. Nomura Securities Internat. (1990)
219 Cal.App.3d 4 3 .............................................. 20
Harrington v. Vandalia-Butler Bd. of Ed. (6th Cir. 1978)
585 F. 2d 1 9 2 ......................................................
Hartman v. Mathis & Bolinger Furniture Co., Inc. (1991)
230 Cal. App. 3d 1163 [282 Cal.Rptr. 3 5 ] ...................... 12
Jacobsen v. ITT Fin. Services Corp. (E.D.Tenn. 1991)
55 FEP Cases 1189 .......................................... 20, 21
Kremer v. Chemical Construction Corp. (1982) 456 U.S. 461
[72 L. Ed. 2d 262, 102 S.Ct. 1883] ...............................5
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc.
(1985) 473 U.S. 614 [87 L.Ed.2d 444, 105 S.Ct. 3346] . . 16, 19
Monge v. Super. Ct. (1986) 176 Cal.App.3d 503
[222 Cal.Rptr. 64] ............................................ 14
N.Y. Gaslight Club, Inc. v. Carey (1980) 447 U.S. 54
[64 L. Ed. 2d 723, 100 S.Ct. 2024] ...................... 2, 5, 18
Nicholson v. CPC Internat., Inc. (3d Cir. 1989)
877 F. 2d 2 2 1 .................................................. ...
Pearson v. Western Electric Co. (10th Cir. 1976)
542 F. 2d 1 1 5 0 .................................................. ...
Peralta Community College Dist. v. Fair Employment 
and Housing Commission (1990) 52 Cal.3d 40
[276 Cal.Rptr. 130, 801 P.2d 3 5 7 ] ...................... 13-16, 19
Richerson v. Jones (3rd Cir. 1977) 551 F.2d 9 1 8 ............. 15
Rojo v. Kliger (1990) 52 Cal.3d 65
[276 Cal.Rptr. 130, 801 P.2d 373] ......... 10-12, 14, 16-17, 19
Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1
[95 Cal.Rptr. 329, 485 P.2d 529] ............................ 10
Shah v. Mt. Zion Hospital & Medical Center (9th Cir. 1981)
642 F. 2d 268 ......................................................
Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85

IV



[77 L.Ed.2d 490, 103 S.Ct. 2890] 8, 15
Shearson American Express Inc. v. McMahon (1987)
482 U.S. 220 [96 L.Ed.2d 185, 107 S.Ct. 2 3 3 2 ] ............... 17
State Personnel Bd. v. Fair Employment and Housing 
Commission (1985) 39 Cal.3d 422 [217 Cal.Rptr. 16,
703 P . 2d 3 5 4 ] ....................................... 2, 9, 12, 14
Swenson v. Management Recruiters Internat., Inc.
(8th Cir. 1988) 858 F.2d 1304, cert. den. (1989)
493 U.S. ___ [107 L. Ed. 2d 102, 110 S.Ct. 1 4 3 ] .........1, 20-21
Univ. of Tenn. v. Elliott (1986) 478 U.S. 788
[92 L. Ed. 2d 635, 106 S.Ct. 3 2 2 0 ] ...............................5
Utley v. Goldman Sachs & Co. (1st Cir. 1989) 883 F.2d 184, 
cert. den. (1990) ___ U.S. ___ [107 L.Ed.2d 836,
110 S.Ct. 842] .................................................. 1
Willis v. Dean Witter Reynolds, Inc. (E.D.Ky. 1990)
7 53 F.Supp. 2 0 6 .................................................. 1
Yellow Freight System, Inc. v. Donnelly (1990)
494 U.S. ___ [108 L. Ed. 2d 834, 110 S.Ct. 1566] ............... 5

Statutes and Constitutional Provisions
Cal. Admin. Code, tit. 2, § 7286.9, subd. ( a ) ............... 14
Cal. Civ. Code, § 3294, subd. ( a ) ............................ 14
Cal. Const.

Article I, Section 8 ......................................... 9
Article I, Section 1 6 ...................................... 17

Fair Employment & Housing Act,
Cal. Gov. Code, § 12900 et seq. , ........................ passim
Federal Arbitration Act, 9 U.S.C. § 1 et seq., ............. 17
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000-e et seq., ........................................  passim

v



Miscellaneous Authority
110 Cong. Rec. 2788 (1964)  4
110 Cong. Rec. 7205 (1964)  5
110 Cong. Rec. 7207 (1964)  3
110 Cong. Rec. 9790 (1964)  6
110 Cong. Rec. 13650-13652 (1964) ............................... 4
H.R. Rep. No. 92-238 (1971)..................................... 4
H.R. No. 9247, 92d Cong., 1st Sess. (1971) ....................4
S. Rep. No. 415, 92d Cong., 1st Sess. 24 (1971)............... 4
Gelb & Frankfurt, California's Fair Employment and Housing 
Act: A Viable State Remedy For Employment Discrimination 
(1983) 34 Hastings L.J. 1055 ............................. 12, 13
Oppenheimer & Baumgartner, Employment Discrimination and 
Wrongful Discharge: Does the California Fair Employment 
and Housing Act Displace Common Law Remedies? (1989)
23 U.S.F. L.Rev. 1 4 5 ............................................ 9

vi



QUESTION PRESENTED
Whether the right to prosecute a judicial claim under 

California's Fair Employment and Housing Act may be waived by a 
private arbitration agreement.

STATEMENT OF THE CASE
LDF adopts the petitioners statement of the case. In 

addition, LDF notes that in contrast to Gilmer v. Interstate/
Johnson Lake Corp.1 (1991) 500 U.S. ___ [114 L.Ed.2d 26, 111
S.Ct. 1647], a recent Supreme Court case involving the compulsory 
arbitration of an age discrimination claim brought under the 
federal Age Discrimination in Employment Act ("ADEA"), this case 
involves the compulsory arbitration of a state statutory claim for 
discrimination brought under the California Fair Employment and 
Housing Act ("FEHA"). The issue presented in this case is one of 
first impression.2

1 While Gilmer held that the right to prosecute age 
discrimination claims under the ADEA in a judicial forum could be 
waived compulsorily through a private arbitration agreement, the 
Court did not address the overwhelming authority among federal 
circuit courts that sex and race discrimination suits brought under 
Title VII could not be compulsorily arbitrated. (See, e.g., 
Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36 [39 L.Ed.2d 147, 
94 S.Ct. 1011] [hereinafter "Alexander111 ; Utley v. Goldman Sachs
& Co. (1st Cir. 1989) 883 F.2d 184, cert. den. (1990) ___ U.S. ___
[107 L.Ed.2d 836, 110 S.Ct. 842; Swenson v. Management Recruiters 
Internat. . Inc. (8th Cir. 1988) 858 F.2d 1304, cert. den. (1989)
493 U.S. ___ [107 L. Ed. 2d 102, 110 S.Ct. 143]; Bierdeman v.
Shearson Lehman Hutton. Inc. (N.D.Cal. 1990) 744 F.Supp. 211;
Benestad v. Interstate/Johnson Lake Corp. (S.D.Fla. 1990) 752
F.Supp. 1054; Willis v. Dean Witter Reynolds, Inc. (E.D.Ky. 1990) 
753 F.Supp. 206.)

2 The one case which addressed this issue, Cook v. Barratt 
American. Inc. (1990) 219 Cal.App.3d 1004 [268 Cal.Rptr. 629], held 
that arbitration for a discrimination claim arising under the FEHA

1



SUMMARY OF ARGUMENT
In enacting Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000-e et seq., Congress intended to protect state 
autonomy in the anti-discrimination enforcement scheme. The 
Supreme Court has interpreted the congressional mandate as 
encouraging states to exercise their prerogative to provide 
independent protections against employment discrimination. (See
N. Y. Gaslight Club, Inc, v. Carev (1980) 447 U.S. 54, 67 [64
L.Ed.2d 723, 100 S.Ct. 2024].) As a manifestation of its
constitutional guarantees and strong public policy, California has 
enacted the Fair Employment and Housing Act ("FEHA"), Government 
Code section 12900 et seq., "to provide effective remedies for the 
vindication of constitutionally recognized civil rights" (State 
Personnel Bd. v. Fair Employment and Housing Commission (1985) 39 
Cal.3d 422, 439 [217 Cal.Rptr. 16, 703 P.2d 354]), including those 
available in a judicial forum.

Compelling arbitration of petitioners’ claim of discrimination 
under the FEHA would deprive them of independent state rights and 
remedies that Congress intended to preserve when enacting Title VII 
and would contravene California's constitution and public policy. 
Compelling arbitration would deprive plaintiffs of substantive 
remedial rights, including punitive and compensatory damages 
available only in judicial proceedings, the right to trial by jury,

could be compelled. However, the case was subsequently decertified 
by the California Supreme Court, and the U.S. Supreme Court denied
certiorari (1991) 500 U.S. ___ [114 L.Ed.2d 458, 111 S.Ct. 2052],
after its decision in Gilmer.

2



and effective judicial review.
ARGUMENT

I.
THE RIGHT TO SEEK JUDICIAL REMEDIES UNDER THE FEHA MAY NOT BE 
WAIVED BY A PRIVATE ARBITRATION AGREEMENT BECAUSE CONGRESS HAS 
EVINCED ITS INTENT TO PRESERVE INDEPENDENT STATE RIGHTS AGAINST 

EMPLOYMENT DISCRIMINATION IN ENACTING TITLE VII.
Title VII of the Civil Rights Act of 1964 was enacted "to 

achieve equality of employment opportunities and remove barriers 
that have operated in the past to favor an identifiable group of 
. . . employees over other employees." (Griggs v. Duke Power Co.
(1971) 401 U.S. 424, 429-30 [28 L.Ed.2d 158, 91 S.Ct. 2362].) In 
passing Title VII, however, Congress evinced its intent to preserve 
state efforts aimed at remedying employment discrimination. As 
Title VII co-sponsor Joseph Clark noted in an interpretive 
memorandum of the 1964 bill, "[T]itle VII is not intended to and 
does not deny to any individual, rights and remedies which he may 
pursue under other federal and State statutes." (110 Cong. Rec. 
7207 (1964), cited in Alexander, supra. 415 U.S. 36, 48 n.9.)

A. Title VII'S Enforcement Scheme Preserves the 
Independence of the FEHA

Congress manifested its intent to preserve the independence 
of state anti-discrimination statutes in the text of Title VII 
itself. For example, section 708 of Title VII provides that 
nothing in Title VII shall "exempt or relieve any person from any 
liability, duty, penalty, or punishment provided by any present or

3



future law of any State or political subdivision of a State," 
unless such a law requires or permits an unlawful employment 
practice. (42 U.S.C. § 2000e-7.) Likewise, section 1104 of 
Title XI of the Civil Rights Act mandates that Title VII share the 
field of employment discrimination law and only preempt state anti- 
discrimination statutes if they are "inconsistent" with Title VII's 
purposes. (See 42 U.S.C. § 2000h-4. See also Cal. Federal Savings 
& Loan Assn, v. Guerra (1987) 479 U.S. 272, 281-82 [93 L.Ed.2d 613, 
107 S.Ct. 683] [hereinafter "Guerra"].) Moreover, Representative 
Meader, a sponsor of the Civil Rights Act of 1964, remarked that 
the purpose of section 1104 was to "assert the intention of 
Congress to preserve existing civil rights laws." (110 Cong. Rec. 
2788 (1964), cited in Guerra. supra. at p. 282.)

Congress also exhibited its intent to preserve independent 
state remedies against employment discrimination by defeating 
proposed amendments both in 1964 and in 1971, during the passage 
of the Equal Opportunity Act of 1972, to make Title VII the 
exclusive federal remedy for discriminatory employment practices. 
(See Alexander, supra, 415 U.S. 36, 48 n.9 (citing 110 Cong. Rec. 
13650-13652 (1964); H.R. No. 9247, 92d Cong., 1st Sess. (1971); 
H.R. Rep. No. 92-238 (1971)).) The 1972 Senate Committee report 
on the Equal Opportunity Act stated that "neither the 'provisions 
regarding the individual's right to sue under the title VII, nor 
any of the other provisions of this bill, are meant to affect 
existing rights granted under other laws."' (S. Rep. No. 415, 92d 
Cong., 1st Sess. 24 (1971), cited in Alexander, supra, at p. 48

4



n.9.) Based on its belief that the anti-discrimination enforcement 
scheme would be an area in which " [t]he Federal Government and the 
State governments could cooperate effectively," (Remarks of Senator 
Clark, 110 Cong. Rec. 7205 (1964), cited in Gaslight. supra. 
447 U.S. 54, 63-64), Congress made a deliberate decision to protect 
state remedies.

Congress strengthened its commitment to preserving state 
autonomy under Title VII by including in its enforcement structure 
jurisdictional and claim deferral provisions premised on state 
participation and authority. In providing states with concurrent 
jurisdiction over Title VII claims, (see Yellow Freight System,
Inc, v. Donnelly (1990) 494 U.S. ___ [108 L.Ed.2d 834, 839, 110
S.Ct. 1566]), for example, section 2000e-5, subdivision (f)3 of 
Title VII demonstrates congressional faith in the ability of state 
courts to adjudicate employment discrimination claims. (See 
generally Yellow Freight, supra. at p. 841 ("[There is] no reason 
to question the presumption that state courts are just as able as 
federal courts to adjudicate Title VII claims").) Moreover, state 
court proceedings to enforce comparable state statutes are accorded 
preclusive effect in Title VII actions. (See Kremer v. Chemical 
Construction Corp. (1982) 456 U.S. 461 [72 L.Ed.2d 262, 102 S.Ct. 
1883]. Cf. Univ. of Tenn. v. Elliott (1986) 478 U.S. 788 [92

Section 2000e-5, subdivision (f) mandates that "[e]ach 
United States district court and each United States court of a 
place subject to the jurisdiction of the United States shall have 
jurisdiction of actions brought under this subchapter." (42 U.S.C. 
§ 2000e-5, subd. (f).)

5



L.Ed.2d 635, 106 S.Ct. 3220] (state administrative proceedings 
reviewed by state courts entitled to preclusive effect).)

Similarly, by mandating that discrimination claims be deferred 
for sixty days to state authorities in states where a state or 
local law prohibits the alleged discrimination, section 2000e-5 
accords a first priority to state anti-discrimination measures. 
(See 42 U.S.C. § 2000e-5, subd. (c).)4 States may even choose to 
waive their jurisdiction during the sixty-day deferral period and 
then reactivate it at the conclusion of federal proceedings.5 (See 
Equal Employment Opportunity Commission v. Commercial Office 
Products Co. (1988) 486 U.S. 107, 120 [100 L.Ed.2d 96, 
108 S.Ct. 1666].) As Senator Dirksen noted in 1964, the deferral 
provisions were intended "to promote efficiency while balancing 
state prerogatives." (110 Cong. Rec. 9790 (1964), cited in 
Commercial. supra. at p. 118 n.6.)

The Supreme Court in Alexander concluded from its 
investigation of the congressional record that "Title VII was 
designed to supplement, rather than supplant, existing laws and 
institutions relating to employment discrimination." (Alexander. 
supra. 415 U.S. 36, 48-49.) In subsequent cases, the Court has

Title VII's administrative agency, the Equal Employment 
Opportunity Commission (EEOC), may not process a claim until "sixty 
days after proceedings have been commenced under the State or local 
law, unless such proceedings have been earlier terminated." (42 
U.S.C. § 2000e-5, subd. (c).)

5 Allowing them to reactivate their jurisdiction "ensure[s] 
state and local agencies the opportunity to employ their expertise 
to resolve discrimination complaints." (Commercial. supra. 486 
U.S. 107, 120.)

6



affirmed its conclusion in Alexander. In Guerra. for example, the 
Court determined that the explicit preservation of state regulatory 
power over discrimination in Title VII "reflects the importance 
Congress attached to state antidiscrimination laws in achieving 
Title VII's goal of equal employment opportunity [Citations]" 
(Guerra, supra. 479 U.S. 272, 282-83), and even construed Title VII 
as "merely provid[ing] a supplemental right to sue in federal court 
if satisfactory relief is not obtained in state forums." (Guerra, 
supra. at p. 67 .)

B. Congress Intended to Preserve the Additional 
Remedies for Employment Discrimination Provided 
Under the FEHA When it Enacted Title VII

By creating the Title VII enforcement scheme, Congress 
intended to encourage states to enact independent anti- 
discrimination legislation like the FEHA. Within this scheme, the 
FEHA provides additional remedies for employment discrimination 
than those available under Title VII. In Guerra. the Supreme Court 
specifically ruled that the FEHA may properly provide broader 
protections than the federal statute. (Guerra, supra,
479 U.S. 272, 285, 292.)

The plaintiff in Guerra alleged that her employer had 
discriminated against her in violation of Government Code section 
12945, subdivision (b) (2) of the FEHA, which provides that a female 
employee taking unpaid pregnancy disability leave of up to four 
months generally must be reinstated in her previous position. (See 
Gov. Code, § 12945, subd. (b); Guerra. supra. 479 U.S. 272, 276.)

7



Although the FEHA provides broader protections for pregnancy 
disability than Title VII, the Supreme Court determined that 
Congress intended to preserve the broader protections of state 
anti-discrimination statutes and "'to construct a floor beneath 
which pregnancy disability benefits may not drop— not a ceiling 
above which they may not r i s e . ( Guerra, supra. at p. 280 (quoting 
the lower court's decision, Cal. Federal Savings & Loan Assn, v. 
Guerra (1985) 758 F.2d 390, 396).)

In Bohemian Club v. Fair Employment and Housing Commission 
(1986) 187 Cal.App.3d 1 [231 Cal.Rptr. 769], the Court concluded 
that the FEHA could provide broader protections than Title VII 
because "Title VII is neutral on the subject of all employment 
practices it does not prohibit." (Bohemian Club, supra. at p. 18 
(quoting Shaw v. Delta Air Lines. Inc. (1983) 463 U.S. 85, 103 
[77 L.Ed.2d 490, 103 S.Ct. 2890].) Thus, independent state rights 
and remedies are always preserved unless the statutes granting them 
are "inconsistent with the purposes of," or "require the doing of 
an act which is unlawful under," Title VII. (Guerra. supra. 
479 U.S. 272, 292.)

8



II.
THE COMPULSORY ARBITRAL WAIVER OF THE RIGHT TO JUDICIAL 

REMEDIES UNDER THE FEHA CONTRAVENES THE CALIFORNIA CONSTITUTION
AND PUBLIC POLICY.

The FEHA was enacted in 1959,6 five years before Title VII, as 
the Fair Employment Practice Act ("FEPA") (former Lab. Code, § 1410 
et seq.), "to provide effective remedies for the vindication of 
constitutionally recognized civil rights, and to eliminate
discriminatory practices that violate those rights." estate 
Personnel. supra. 39 Cal.3d 422, 439. See also Gov. Code,
§ 12920.) In 1980, the FEPA was recodified as part of the FEHA 
(see Commodore Home Systems, Inc, v. Super. Ct. (1982) 32 Cal.3d
211, 213 [185 Cal.Rptr. 270, 649 P.2d 912]), which prohibits
discrimination in employment and housing on the basis of race, 
religious creed, ethnicity, color, national origin, ancestry,
physical handicap, medical condition, marital status, sex, age over 
forty, or pregnancy. (Gov. Code, §§ 12940, 12941, 12945.)

The "constitutionally recognized" rights embodied by the FEHA 
are provided in Article I, Section 8 of the California Constitution 
which states: "A person may not be disqualified from entering or 
pursuing a business, profession, vocation, or employment because

6 The FEPA was enacted originally to prohibit employment 
discrimination on the basis of race, religious creed, or ethnicity. 
(See generally Oppenheimer & Baumgartner, Employment Discrimination 
and Wrongful Discharge: Does the California Fair Employment and 
Housing Act Displace Common Law Remedies? (1989) 23 U.S.F. L.Rev. 
145, 145-46 [hereinafter "Employment Discrimination"].)

9



of sex, race, creed, color, or national or ethnic origin."' 
Recently, the California Supreme Court declared in Rojo v. Kliqer 
(1990) 52 Cal.3d 65 [276 Cal.Rptr. 130, 801 P.2d 373], a case
involving a claim for sex discrimination in violation of the FEHA, 
that article I, section 8 "unguestionably reflects a fundamental 
public policy against discrimination in employment— public or 
private— on account of sex. [Citations] Regardless of the precise 
scope of its application, article I, section 8 is declaratory of 
the state's fundamental public policy against sex discrimination." 
(Rojo, supra. at p. 90, emphasis in original.)

The FEHA declares employment discrimination to be an unlawful
employment practice (Gov. Code, § 12940), and provides that "[t]he
opportunity to seek, obtain and hold employment without
discrimination . . . [is] a civil right." (Gov. Code, § 12921.)
The FEHA also prioritizes, as a matter of the highest public
policy, the need for protections against employment discrimination:

[T]he practice of denying employment opportunity and 
discriminating in the terms of employment for such 
reasons foments domestic strife and unrest, deprives the 
state of the fullest utilization of its capacities for 
development and advance, and substantially and adversely 
affects the interest of employees, employers, and the 
public in general. (Gov. Code, § 12920.)

The California Supreme Court has called this policy against
employment discrimination "fundamental." (See Brown v. Superior

The Court in Dvna-Med. Inc, v. Fair Employment and Housing 
Commission (1987) 43 Cal.3d 1379 [241 Cal.Rptr. 67, 743 P.2d 1323] 
noted as well that "'[t]he right to work and the concomitant 
opportunity to achieve economic security and stability are 
essential to the pursuit of life, liberty and happiness.'" (Dvna- 
Med. supra. at p. 1419 (quoting Sail'er Inn, Inc, v. Kirby (1971) 
5 Cal.3d 1, 17 [95 Cal.Rptr. 329, 485 P.2d 529]).)

10



Court (1984) 37 Cal.3d 477, 485 [208 Cal.Rptr. 724, 691 P.2d 272];
Commodore. supra. 32 Cal.3d 211, 220. See also Rojo, supra.
52 Cal.3d 65, 90 ("No extensive discussion is needed to establish 
the fundamental public interest in a workplace free from the 
pernicious influence of sexism. So long as it exists, we are all 
demeaned") (original emphases).) Thus, the administrative and
judicial remedies of the FEHA enforce California's fundamental 
constitutional and public policy against employment discrimination. 
(See Roio. supra. at p. 74; Gov. Code, §§ 12920, 12965, 12970.)

A. The Right to a Judicial Remedy For a Claim 
Arising Under The FEHA Hay Not Be Waived 
Compulsorily Without Contravening the 
Constitutional Protections And California 
Public Policy Inherent in the FEHA.

The right to prosecute a judicial claim under the FEHA may not 
be waived without contravening the Legislature's manifest "intent 
to amplify, not abrogate, an employee's common law remedies for 
injuries relating to employment discrimination." (Rojo, supra. 52 
Cal.3d 65, 75.) Indeed, section 12993, subdivision (a), mandates 
that the FEHA "be construed liberally for the accomplishment of 
[its] purposes" (Gov. Code, § 12993, subd. (a),8 and courts have

o Section 12993, subdivision (a), provides in full: "The
provisions of this part shall be construed liberally for the 
accomplishment of the purposes thereof. Nothing contained in this 
part shall be deemed to repeal any of the provisions of the Civil 
Rights Law or of any other law in this state relating to 
discrimination because of race, religious creed, color, national 
origin, ancestry, physical handicap, medical condition, marital 
status, sex, or age." (Gov. Code, § 12993, subd. (a).)

11



interpreted this provision to offer more expansive remedies to 
claimants than Title VII. The California Supreme Court has stated, 
for example, that the remedies provided by the FEHA were intended 
"to supplement, not supplant or be supplanted by, existing 
antidiscrimination remedies, in order to give employees the maximum 
opportunity to vindicate their civil rights against
discrimination." (Rojo, supra. at pp. 74-75 (guoting State
Personnel. supra. 39 Cal.3d 422, 431). See also Hartman v. Mathis 
& Bolinqer Furniture Co. , Inc. (1991) 230 Cal.App.3d 1163, 1173-
74 [282 Cal.Rptr. 35].)

1. The FEHA Seeks To Remedy Employment 
Discrimination By Providing More 
Comprehensive Remedies Than Title 
VII

Since its enactment, the FEHA has expanded beyond the "floor" 
of Title VII described in Guerra to fill "gaps that have developed 
under the federal law." (See Gelb & Frankfurt, California's Fair 
Employment and Housing Act: A Viable State Remedy For Employment 
Discrimination (1983) 34 Hastings L.J. 1055, 1056 [hereinafter
"Viable State Remedy"!. See also Employment Discrimination.
supra, 23 U.S.F. L.Rev. 145, 146.) While the FEPA originally did 
not allow the prosecution of private claims, it was amended in 
1977 to include an express right of private action.9 (See

9 The statute also provides plaintiffs with flexible rules 
for selecting venue (see Gov. Code, § 12965, subd. (b) ; see 
generally Employment Discrimination, supra. 23 U.S.F. L.Rev. 145, 
153), a significant consideration for claimants and their 
attorneys. (See Brown. supra. 37 Cal.3d 477, 486 ("An attorney is

12



Employment Discrimination, supra. at pp. 153, 153 n.57; Gov. Code,
§ 12965, subd. (b).) Now, after receiving a right-to-sue letter 
from the DFEH,10 individuals may commence a civil suit in any of 
the state's superior, municipal, or justice courts. (See Gov. 
Code, § 12965, subd. (b).)

The remedies available to plaintiffs prosecuting private 
claims under the FEHA are significantly broader than those 
available under Title VII. (See Viable State Remedy, supra. 34 
Hastings L.J. 1055, 1056.) While the FEHC has the authority to 
enjoin discriminatory employment practices, award backpay, and 
order the hiring, reinstatement or upgrading of employees, Title 
VII's investigative agency, the EEOC, itself may not provide 
injunctive relief or award back pay. (See Gov. Code, § 12970; 
Viable State Remedy, supra. at p. 1065.) More importantly, in 
addition to all the remedies available through the FEHC, 
plaintiffs bringing a private action under the FEHA are entitled 
to "all relief generally available in noncontractual actions," 
including compensatory and punitive damages, and attorneys fees 
and costs. (See Commodore. supra. 32 Cal.3d 211, 221; Gov. Code,
§ 12965, subd. (b) . See also Peralta Community College Dist. v. 
Fair Employment and Housing Commission (1990) 52 Cal.3d 40, 48

more likely to accept representation in an FEHA case if venue is 
available in a location that facilitates prosecution of the action 
and minimizes travel and other costs").)

10 If the FEHC determines that it will not file an accusation, 
or if it does not file an accusation within 150 days of the 
complaint, the DFEH must issue a right-to-sue letter to the 
complainant. (See Commodore. supra, 32 Cal.3d 211, 213-14.)

13



[276 Cal.Rptr. 130, 801 P.2d 357]; Roj o , supra, 52 Cal.3d 65, 74 ; 
State Personnel, supra, 39 Cal.3d 422, 434; Monge v. Super. Ct. 
(1986) 176 Cal.App.3d 503 [222 Cal.Rptr. 64].) The purpose of the 
FEHA remedies "is to restore [the] plaintiff as nearly as possible 
to the position or status she would have enjoyed but for the 
defendant's wrongful conduct." (Ackerman v . Western Electric Co.. 
Inc. (1986) 643 F.Supp. 836, 852. See also Cal. Admin. Code, 
tit. 2, § 7286.9, subd. (a).) Plaintiffs suing under the FEHA are 
also entitled to a jury trial because "the jury, as the trier of 
fact, is in the best position to determine just compensation for 
emotional and mental distress." (Peralta, supra. at p. 57 
(guoting Agarwal v. Johnson (1979) 25 Cal.3d 932, 953 [160 
Cal.Rptr. 141, 603 P.2d 58]).)

A prevailing plaintiff under the FEHA may receive 
compensation for his emotional distress and mental suffering, and 
exemplary damages if the offending employer also demonstrated 
oppression, fraud, or malice in her discriminatory practices. 
(See, e.g., Peralta, supra, 52 Cal.3d 40, 55; Monge, supra. 176 
Cal.App.3d 503, 509-10. See also Civ. Code, § 3294, subd. (a).)11 
Such additional remedies are clearly responsive to the emotional 
toll on employees who suffer discrimination on the basis of their 
race or sex. (See generally Commodore. supra, 32 Cal.3d 211, 220;

In Commodore. the Court noted that "[f]ederal law includes 
no provision comparable to California Civil Code section 3294 that 
punitive damages are available in all noncontractual civil actions 
unless otherwise limited." (Commodore. supra. 32 Cal.3d 211, 217.)

14



Peralta, supra. 52 Cal.3d 40, 62 (Broussard, J., dissenting).) 
Moreover, the FEHA remedies further Title VII's goal of equal 
employment opportunity by providing an even greater disincentive 
for employers to conduct discriminatory employment practices than 
exists under Title VII. (See generally Dyna-Med. supra. 43 Cal.3d 
1379, 1387, 1408.)

By contrast, the federal courts have interpreted 
section 706(g) of Title VII as limiting available remedies under 
Title VII to those that are "equitable in nature" only. (See Shah 
v. Mt. Zion Hospital & Medical Center (9th Cir. 1981) 642 F.2d 268, 
272.) Thus, neither compensatory nor punitive damages are 
available under Title VII. (See Shah at 272; Harrington v. 
Vandal ia-Butler Bd. of Ed. (6th Cir. 1978) 585 F.2d 192, 194 ; 
Richerson v. Jones (3rd Cir. 1977) 551 F.2d 918, 926; Pearson v. 
Western Electric Co. (10th Cir. 1976) 542 F.2d 1150, 1151.) 
Because Title VII only provides for equitable remedies, jury trials 
are not available for claims brought under the federal statute. 
(See Shah at 272.)

2 . Compelling Arbitration of FEHA
Claims May Deprive Victims of
Employment Discrimination of
Substantive Rights

In establishing an administrative-judicial system for 
remedying employment discrimination under the FEHA, the 
Legislature demonstrated its intent to make the right to prosecute 
claims in a judicial forum an integral part of the FEHA's

15



Peralta. a recent case involving a claim of sexual harassment and
discrimination under the FEHA, for instance, the Court stated:

[W]e believe a primary purpose of the alternate systems 
of redress for employment discrimination [under the FEHA] 
is to permit efficient and prompt administrative 
disposition--without cost to the victim--of claims that 
are amenable to conciliation or corrective equitable 
remedies, and thus do not warrant a full-scale judicial 
proceeding with its attendant expense and delay 
[Citation], while reserving to the judicial system, with 
its attendant constitutional and statutory safeguards, 
those statutory claims that seek significant 
nonquantifiable monetary recompense or that the 
complainant wishes to join with nonstatutory causes of 
action. (Peralta, supra. 52 Cal.3d 40, 55.)

Thus, the "constitutional and statutory safeguards" of the judicial
system are inherent to the anti-discrimination scheme of the FEHA.

In addition, administrative remedies alone might not fully
redress the victims of employment discrimination. Many claims
require a judicial remedy of compensatory or punitive damages "to
make the victim whole and to deter future misconduct." (Peralta,
supra. 52 Cal.3d 40, 63 (Broussard, J., dissenting).) As the Rojo
Court noted,

Although conference, conciliation and persuasion, 
together with the available administrative remedies of 
injunctive relief, upgrading and reinstatement, with or 
without backpay, may prove effectual in many cases, in 
others the employer's conduct or the employee's injuries 
may be such that judicial remedies, including punitive 
and compensatory damages, can provide the only adequate 
form of relief. (Rojo, supra. 52 Cal.3d 65, 80-81.)

Compulsory arbitration of FEHA claims would thus deny to plaintiffs
the substantive right to pursue judicial remedies provided under
the FEHA only in judicial proceedings. (Cf. Mitsubishi Motors
Corp. v. Soler Chrvsler-Plymouth Inc. (1985) 473 U.S. 614

comprehensive scheme for remedying employment discrimination. In

16



105 S.Ct. 3346][87 L.Ed.2d 444, 105 S.Ct. 3346] ("By agreeing to arbitrate a 
statutory claim, a party does not forgo the substantive rights 
afforded by the statute; it only submits to their resolution in an 
arbitral, rather than a judicial, forum") (emphasis added).)

Besides denying plaintiffs judicial remedies guaranteed to 
them by statute, compulsory arbitration of FEHA claims would 
deprive victims of employment discrimination of their 
constitutional right to a trial by jury12 (see California 
Constitution, Article I, Section 16), and the remedial and 
deterrent effect of public vindication inherent in a successful 
lawsuit. Moreover, compulsory arbitration of FEHA claims would 
inhibit the courts from exercising the important safeguard of
judicial review of discrimination claims 13 (See Nicholson v. CPC
Internat.. Inc. (3d Cir. 1989) 877 F.2d 221.) The fact that the 
Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., allows the 
judiciary to overturn arbitration decisions in highly exceptional 
cases, such as those where the arbitrators were biased or corrupt 
(see 9 U.S.C. § 10, subd. (b)), renders such decisions virtually

*12 While arbitrators might arguably bring greater expertise 
to resolving a complaint than a jury, the California Supreme Court 
has recently commented, "[N]or are the factual issues in an 
employment discrimination case of a complex or technical nature 
beyond the usual competence of the judicial system. Rather 
a . . . jury is fully capable of determining whether discrimination 
has occurred." (Rojo, supra, 52 Cal.3d 65, 88.)

The Supreme Court has recognized that "judicial scrutiny 
of judicial awards is necessarily limited." (See Gilmer, supra. 
114 L.Ed.2d 26, 41 n. 4 (quoting Shearson American Express Inc, v. 
McMahon (1987) 482 U.S. 220, 232 [96 L.Ed.2d 185, 107 S.Ct.
2332]) . )

17



unreviewable and does not compensate for the forfeiture of 
constitutional and statutory rights that victims of employment 
discrimination suffer.

Indeed, it must be noted that even if plaintiffs are able to 
prosecute judicial claims de novo upon the conclusion of the 
arbitration, the additional burden in time and money may 
nevertheless deter them substantially even from "the pursuit of 
meritorious claims." (See Commodore. supra. 32 Cal.3d 211, 220-
21.) Without considering the added expense of arbitration, the 
California Supreme Court has noted that "the costs of litigation 
pose a formidable barrier to the filing and prosecution of an FEHA 
action." (Brown, supra, 37 Cal.3d 477, 486.)

Clearly, compulsory arbitration of FEHA claims would provide 
a greater disincentive to the full prosecution of employment 
discrimination cases as well as deny plaintiffs constitutional and 
statutory protections. Denying complainants access to all the 
remedies available to them under the FEHA, moreover, would 
"undermine Congress' intent to encourage full use of state 
remedies" (Gaslight. supra. 447 U.S. 54, 66, n. 6), under the Title 
VII enforcement scheme.

3. Disallowing Compulsory Arbitration 
of FEHA Claims Would Not Disserve 
the Public Policy Behind Arbitration 
Because of the FEHA's Administrative 
Remedies

Because the FEHA requires that administrative procedures be

18



exhausted before a complainant may file a civil claim under the
statute (Gov. Code, § 12965, subd. (b)), the policies implicit in
the FAA of promoting "simplicity, informality, and expedition [of
claims]" (see Mitsubishi. supra. 473 U.S. 614, 628), would not be
undermined by disallowing compulsory arbitration of FEHA claims.
In Rojo, the Court noted the significant policy served by the
FEHA's administrative scheme:

In cases appropriate for administrative resolution, the 
exhaustion reguirement serves the important policy 
interests embodied in the act of resolving disputes and 
eliminating unlawful employment practices by 
conciliation, [citation], as well as the salutary goals 
of easing the burden on the court system, maximizing the 
use of administrative agency expertise and capability to 
order and monitor corrective measures, and providing a 
more economical and less formal means of resolving the 
dispute [citation]. (Rojo, supra. 52 Cal.3d 65, 83.)

Administrative remedies under the FEHA may "serve to eliminate the
unlawful practice or mitigate damages" (Rojo, supra. at p. 83; see
also Peralta. supra. 52 Cal.3d 40, 47; Dyna-Med, supra, 43 Cal.3d
1379, 1404), encourage cooperation, and "deter strategies of
'holding out' for court damages in inappropriate cases" (Commodore.
supra, 32 Cal.3d 211, 218). As respondent states in his brief,
"there is no material difference between the state's proceeding and
the arbitral process." (Respondent's Brief at 30.) The existing
administrative-judicial remedial scheme provided under the FEHA,
in short, fully promotes the goals of judicial efficiency and
preservation of resources purportedly served by compulsory
arbitration.

19



B. Courts Which Have Addressed this Question 
Directly Have Agreed That the Right to 
Prosecute State-Based Claims for Sex or Race 
Discrimination Cannot Be Compelled By a Private 
Arbitration Agreement

While there is no controlling California case law on the issue 
of whether the right to judicial remedies under the FEHA may be 
waived compulsorily by an arbitration agreement, other 
jurisdictions have not compelled arbitration for employment 
discrimination claims in similar circumstances.14 (See, e.g.,
Swenson, supra, 858 F.2d 1304; Jacobsen v. ITT Fin. Services Corp. 
(E.D.Tenn. 1991) 55 FEP Cases 1189; Copley v. NCR Corp. 
(W.Va. 1990) 394 S .E .2d 751; Anderson v. Dean Witter Reynolds, Inc. 
(Minn.App. 1989) 449 N.W.2d 468, review den. (1990).) In Swenson, 
a case involving the arbitrability of sex discrimination claims in 
violation of state law and Title VII, the Court declared that, in 
enacting Title VII, Congress "intended the federal
antidiscrimination system to defer to state systems where

Respondent cites Hall v. Nomura Securities Internat. (1990) 
219 Cal.App.3d 43 [268 Cal.Rptr. 45], involving a complaint of age 
discrimination, as a California case upholding compulsory 
arbitration of an FEHA claim. (See Respondent's Brief at 25.) 
However, unlike the case at bar, which implicates the enforcement 
scheme of Title VII, the Nomura decision was based on the Court's 
analysis of the ADEA, a federal statute with a very different 
legislative history. In addition, the Nomura Court itself cited 
with approval the language of the Court in Swenson that 
"[cjompelling arbitration in race and gender discrimination cases 
as a preemptive forum to state enforced claims runs contra to the 
intended scheme Congress has provided in Title VII." (Nomura. 
supra, at p. 50 (citing Swenson, supra. 858 F.2d 1304, 1309 n.12).)

20



well thatpossible." (Swenson. supra. at p. 1309.) Determining as 
Congress had intended "to preclude waiver of judicial remedies" 
(Swenson. supra. at p. 1309), the Court concluded that state anti- 
discrimination statutes were "exempt" from the FAA. (See Swenson. 
supra. at p. 1309.)

In Jacobsen. a plaintiff claiming sex discrimination in 
violation of the Tennessee Human Rights Act did not "prospectively 
waive the right to have her claims . . . adjudicated in federal
district court" by signing an employment contract containing an 
arbitration clause. (Jacobsen, supra. 55 FEP Cases 1189, 1192.)
Similarly, the plaintiff's agreement to arbitrate in Copley 
"c[ould] not defeat a human rights action [for sex and age 
discrimination] filed . . . pursuant to W.Va.Code, 5-11-13(b)
[statute governing the issuance of right-to-sue letters by the 
Human Rights Commission]." (Copley. supra. 394 S.E.2d 751, 756.)15

In Anderson, a suit very much like the one at bar,16 an 
employee was required to execute a Uniform Application for

The Court in Copley addressed as subsidiary the issue of 
compelling arbitration for a state-based human rights law claim. 
The Court dispensed with the issue of compulsory arbitration 
initially by finding that the contract signed by the complainant 
fell within the "contracts of employment" exception under section 
1 of the FAA. (Copley, supra. 394 S.E.2d 751, 755.)

16 In one other similar case cited by respondent, Feinberq v. 
Bear, Stearns & Co.. Inc. (S.D.N.Y. 1991) 55 FEP Cases 1206 (cited 
in Respondent's Brief at 17), the Court compelled arbitration of 
a discrimination claim arising under Title VII and the New York 
State Human Rights Law. Feinberq may be distinguished from the 
present case in that the Court did not address a number of 
significant issues pertinent to FEHA claims, including the express 
or implicit policies embodied in the state statute, or the 
deprivation of substantive rights that claimants might incur.

21



Securities Administration form, filed with the National Association 
of Securities Dealers (NASD), which contained an arbitration 
clause. The employee subsequently brought a claim of sex 
discrimination in violation of the Minnesota Human Rights Act, and 
her employer attempted to compel arbitration. In holding that 
arbitration could not be compelled for state discrimination claims, 
the Court noted the importance of independent state remedies under 
the Title VII enforcement scheme and stated that "[t]his 
independent pursuit of statutory rights allows an individual or 
aggrieved employee to completely avoid a predispute agreement to 
use the arbitral forum." (Anderson, supra, 449 N.W.2d 468, 470.) 
Given the similarities to Anderson, the case at bar should reach 
a similar conclusion.

CONCLUSION
For the foregoing reasons, the order compelling arbitration 

of petitioners' FEHA claims should be overturned and the writ of 
mandate should be granted.

Dated: August 1, 1991 Respectfully submitted,
Bill Lann Lee 
Constance L. Rice 
Kevin S..--Reed
NAACP Legal Defense and Educational 
Fund, Inc.

/ Bill Lann Lee
Attorneys for NAACP Legal Defense and 
Educational Fund, Inc., as Amicus Curiae

22



PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,

I am employed in the County of Los Angeles, State of 
California. I am over the age of 18 years and not a party to 
the within action. My business address is 315 West Ninth 
Street, Suite 208, Los Angeles, California 90015.

On the 1st day of August 1991, I served on the parties 
the foregoing document described as:

APPLICATION FOR LEAVE TO FILE AND 
BRIEF AMICUS CURIAE ON BEHALF OF THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.
IN SUPPORT OF PETITIONERS

by placing a true copy thereof in a sealed envelope, in the 
outgoing mail tray located in my office for deposit in the 
United States mail at Los Angeles, California, with first- 
class postage fully prepaid, addressed as follows:

SEE ATTACHED SERVICE LIST
I declare under penalty of perjury under the laws of the 

State of California that the foregoing is true and correct.
Executed this 1st day of August 1991, at Los Angeles, 

California.



SERVICE LIST

CARLA BARBOZA
Allred, Maroko, Goldberg & Ribakoff 
6330 Wilshire Blvd., Suite 1404 
Los Angeles, CA 90048
COMMISSIONER ROBERT W. ZAKON 
Los Angeles County Superior Court 
111 N. Hill Street, Dept. 80 
Los Angeles, CA 90012 
(Respondent)
MICHAEL WOLFRAM
Morgan, Lewis & Bokius
801 S. Grand Ave., 22nd Floor
Los Angeles, CA 90017
(For Real Party in Interest)
VIBIANA ANDRADE 
LIZ ATLEE 
MALDEF
634 S. Spring St., 11th Floor 
Los Angeles, CA 90014 
(Amicus for Petitioners)
JON DAVIDSON 
MITCH KAMIN 
ACLU
633 S. Shatto Place 
Los Angeles, CA 90005 
(Amicus for Petitoners)
PETER LAURA
Law Offices of Leroy Walker 
CELA 6300 Wilshire Blvd., Suite 1455 
Los Angeles, CA 90048 
(Amicus for Petitoners)
CALIFORNIA SUPREME COURT (5 copies) 
300 S. Spring Street 
Los Angeles, CA 90013