When do collective bargaining agreements that include grievance procedures foreclose a judicial forum?

The courts love sending cases to arbitration. But there are limits, as the 5th U.S. Circuit Court of Appeals reminded lawyers Sept. 13 in Ibarra v. United Parcel Service. The court sketched out the facts: A UPS employee was terminated. A collective bargaining agreement covered the terms of her job. The agreement included a multi-level grievance preceding, including — at the last stage — an evidentiary hearing. Her unjust-termination claim was denied at each level. She later sued in federal court, alleging a violation of Title VII. The trial court tossed her suit, saying that the grievance procedure was her sole remedy. The 5th Circuit disagreed, writing that she is deprived of a judicial forum only if the collective bargaining agreement explicitly waives an employee’s right to a judicial forum for statutory claims. The UPS agreement did not. The mere presence, as in the UPS agreement, of an anti-discrimination policy and a grievance policy could not, the court noted, be construed as an explicit waiver. So, she gets her day in federal court.