DESIDERIO v. NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., 1999 U.S. App. LEXIS 23269 (2nd Cir. September 22, 1999)-Plaintiff sought to register with the National Association of Securities Dealers, Inc. (NASD), as required by her new employer, but objected to one form’s provision that required mandatory arbitration of employment disputes, which she claimed violated her statutory rights under Title VII, 42 U.S.C. §§ 2000e to e-17, her constitutional rights under the Fifth Amendment Due Process Clause to an Article III judicial forum, and her right to a jury trial under the Seventh Amendment.
Because federal policy favors arbitration, the burden was on plaintiff to show that Congress sought to exempt Title VII from mandatory arbitration. This Court found that the language of Title VII, Civil Rights Act of 1991 § 18, evinced a clear and unambiguous intent to "encourage" the use of arbitration. The Court therefore did not consider legislative history showing that House committees believed § 18 meant that arbitration was available to "supplement, rather than supplant, the rights and remedies provided by Title VII." Plaintiff’s Constitutional claims failed because there was no state action. NASD is not a state actor, and the Securities and Exchange Commission’s "mere approval" of NASD rules was not enough to qualify as state action. The Court further found that the mandatory arbitration clause was not an unconscionable contract of adhesion because requiring arbitration of both parties does not unfairly favor either side.
