A day late and an age discrimination claim short


A 30-plus-year employee found out the hard way that missing a deadline — by just 24 hours — to arbitrate her claim against her former employer under the Age Discrimination in Employment Act is enough to lose it forever when her brief delay violates the plain terms of an arbitration agreement.

Here’s what happened.

The company conducted a RIF in 2020. The employee, age 54, signed a separation agreement under which she received certain benefits in exchange for agreeing to arbitrate individually any claims of age discrimination under the ADEA, among other things.

The separation agreement contained a provision specifying the time limits and procedure for initiating arbitration. According to this timing provision, she had to submit a written demand for arbitration to the company no later than the deadline for filing with the EEOC.

Under the ADEA, some employees have as little as 180 days from when the “alleged unlawful practice occurred” to file a charge of discrimination with the EEOC.

On November 17, 2020, the 180th day after receiving notice of her termination, the employee filed an arbitration demand directly with JAMS, raising an ADEA claim. But the employee did not mail a written demand for arbitration to the company until the next day, November 18, 2020, at the earliest. As a result, the company moved to dismiss the arbitration, claiming her demand was one day too late.

The arbitrator granted the company’s motion, finding that the timing provision required the employee to submit a written arbitration demand to her employer by the deadline of November 17, but that she failed to do so. The JAMS filing did not count, the arbitrator explained, because the arbitration agreement plainly required the written demand to be sent to the employer.

In an opinion released last month, the Eleventh Circuit affirmed.

Courts recognize that arbitration is a matter of contract under the Federal Arbitration Act, and they must rigorously enforce arbitration agreements according to their terms.

And if an arbitrator won’t cut any slack, good luck getting a federal court to overturn the arbitrator’s decision. Judicial review of arbitration decisions is among the narrowest known to the law, with a heavy presumption in favor of confirming arbitration awards, except for cases of arbitrator misconduct or when they exceed their powers.  Neither exception would apply here.

Indeed, the arbitrator considered that the employee “timely file[d] her arbitration demand with JAMS” and then “promptly mailed out [the demand] to [the employer] on the following day.” The arbitrator found these facts did not amount to timely filing since the arbitration agreement required her to submit the written demand to the employer, not to JAMS, by the filing deadline.

“Word is bond,” as many of my favorite rappers would say. And that especially holds true when the words appear in an arbitration agreement. Although, I don’t recall anyone rapping about that in particular.

But if you’ll excuse me, I’m going to cut this post short and listen to some Wu Tang Clan to confirm.

See you Monday.

“Doing What’s Right – Not Just What’s Legal”
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