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The Supreme Court ruled in Wright v. Universal Maritime Service in 1998 that an employee may seek a judicial remedy for a claim of employment discrimination even if the employee's union entered into a collective bargaining agreement (CBA) requiring such claims be arbitrated. The Court said a union's waiver of the right to litigate must be 'clear and unmistakable.' Most CBA mandatory arbitration clauses will be insufficiently specific under this ruling.

Compulsory arbitration of statutory antidiscrimination rights should be barred through enactment of an amendment to the 1991 Civil Rights Act. Pre-dispute employment agreement arbitration clauses, typified by the clause in question in the Gilmer case, are improper public policy and should be challenged. The Supreme Court's finding of an assumption favoring discrimination claim arbitration in Gilmer inappropriately expanded the use of compulsory arbitration into the area of statutory rights, such as freedom from discrimination.

Agreements reached through industrial grievance arbitration are generally viewed by the courts to be binding and final, provided the dispute is arbitrable and the arbitrator does not exceed his or her contractual authority. An exception, however, is in the area of discrimination; protection from discrimination is a right that supersedes the collective rights of a labor contract. Discrimination arbitration may be subject to judicial review. Discrimination grievances are rare; only about 2 percent of all arbitration involves discrimination, because employees who feel discriminated against are more likely to sue in court. The nature of discrimination cases, the use of law in arbitrating discrimination grievances, and arbitrators' standards when faced with discrimination cases are discussed.

The US Supreme Court ruled in the 1998 case of Wright v. Universal Marine Service Corp. that a longshoreman could sue for disability discrimination because there was not an unmistakable waiver of court action in his labor contract. The Court declined by this ruling to extend Gilmer v. Interstate/Johnson Lane Corp. and the seemingly contradictory Alexander v. Gardner-Denver Co. by adopting clear rules in favor of labor arbitration.