Nelson v. Cyprus Bagdad Copper Corp.

Opinion by Judge Reinhardt; Dissent by Judge Rymer.

We are asked on this appeal to determine whether arbitration provisions contained in an Employee Handbook unilaterally issued by an employer serve to waive an employee’s *758 rights to a judicial determination of his claims under the Americans with Disabilities Act of 1990 and the Arizona Civil Rights Act.

I. FACTS

Plaintiff Melton Nelson worked as a full-time employee of Cyprus Bagdad Copper Corporation (Cyprus) for nineteen years, most recently as a Senior Maintenance Technician in the Electrical Department at the company’s mine in Bagdad, Arizona. He asserts that he worked only day shifts prior to August 1994, when Cyprus initiated an extensive reorganization of its Bagdad mining operations. At that time, Cyprus announced its intention to eliminate over 100 salaried and hourly positions through a voluntary “Severance Enhancement Program” and, to the extent necessary, through involuntary layoffs and employee reclassifications — with those employees who volunteered receiving a better severance package than those who did not. Nelson also asserts that while considering voluntary severance he asked his supervisor how his…

dissenting:

Both parties agree that employees can be bound by an agreement to arbitrate employment discrimination claims (including claims under the ADA) if they knowingly agree to do so. This much follows from Prudential Insurance Co. v. Lai, 42 F.3d 1299 (9th Cir.1994), although Nelson does argue that employment contracts are exempt from coverage under the Federal Arbitration Act, 9 U.S.C. § 1 . The majority opinion punts the coverage question, though it is unclear to me that it can be avoided since the arbitration provisions at issue in this case are in an Employee Handbook — not a securities registration application- — and are binding (if at all) because they are part of Nelson’s employment contract with Cyprus. Cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 , 25 n. 2, 111 S.Ct. 1647 , 1651 n. 2, 114 L.Ed.2d 26 (1991) (finding no need to address the scope of the § 1 exclusion as the arbitration clause being enforced was not in a contract of employment, but in Gilmer’s securities registration application).

In any event, Lai indicates that an employee may only be obliged to arbitrate statutory claims such as those arising under Title VII if he or she has “knowingly…