In 2009, the U.S. Supreme Court in 14 Penn Plaza LLC v. Pyett decided that a provision in a collective bargaining agreement (CBA) entered into between an employer and a union that waives the right of covered employees to pursue statutory claims of discrimination in a judicial forum is enforceable, provided that the waiver is both specific and clear and provided that the bargaining agreement creates a sufficient alternative forum for the pursuit of those claims. The Court's holding has been cheered by some and denigrated by others. Those who have welcomed the decision emphasize that (1) the decision authorizes the use of arbitration, a cost-effective and speedy forum, for employers and employees to resolve employment discrimination disputes by a neutral party; (2) the decision will have the salutary effect of easing the burden on an already crowded judicial system; and (3) the Court honored the abilities of arbitrators to hear and rule on these matters.

The Supreme Court's ruling left open a vexing question, however. In Pyett, the employees argued that the bargaining agreement's arbitration provision provided the union with the exclusive right to determine whether to bring their discrimination claim to arbitration. They asserted that, because the union had declined to bring the claim to arbitration, they had to be afforded the opportunity to pursue the claim in court; otherwise the mandatory arbitration provision would have effectively extinguished altogether their right to vindicate the protections guaranteed by the statute. The Court did not decide this issue.