The late comedian George Carlin once asked: “If you try to fail, and succeed, which have you done?” A question that, similarly, turns back on itself was addressed this past term by the U.S. Supreme Court in Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010): “If an arbitration agreement gives arbitrators authority to decide the validity of the agreement giving them authority to arbitrate, is it a valid agreement?” A divided Court said it was, but considering the unique circumstance of the case, there is some doubt that many such agreements will actually be upheld.

It was long ago recognized that the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., was intended by Congress to counteract judicial hostility to arbitration. See Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974). The unspoken truth, though, is that many lower federal courts are hostile to the idea of arbitration of employment discrimination disputes. Constrained by the FAA, they cannot refuse to compel arbitration of such disputes if they arise under a valid arbitration agreement, but they can if the arbitration agreement itself is not valid under generally applicable contract law. Frequently, in recent years, lower federal courts have refused to compel arbitration of employment disputes, notwithstanding the FAA, because they had found such agreements to be unconscionable under state law — and, hence, not enforceable because no valid agreement was ever formed.

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