Jonathan Ross Harkavy has posted Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate on SSRN. Here is the abstract:
The Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 570 U.S. -- 186 L. Ed. 2d 417, 133 S. Ct. 2403 (2013), that class action waivers ordinarily must be enforced under the Federal Arbitration Act even when the cost of an arbitration exceeds a claimant's potential recovery. This essay suggests, however, that employee waivers of class treatment in arbitrations are not appropriate for claims under Title VII of the Civil Rights Act of 1964 because of enforcement provisions unique to that statute. Because Congress has effectively set its legislative face against limits on employee access to class treatment, employee class treatment waivers are unenforceable as to Title VII status discrimination and retaliation claims.
