In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory predispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's rights with respect to a pending Equal Employment Opportunity Commission ("EEOC") claim by instituting a mandatory arbitration provision will be seen as impermissibly retaliatory. Amid the backdrop of a case in which supervisors routinely called black employees "monkeys," "slaves," and "niggers," the court makes a well-meaning attempt at preserving employees' statutorily protected "day in court" for already-filed discrimination claims. However, by reaffirming the universal judicial acceptance of the validity of pre-dispute mandatory arbitration provisions in employment contracts, even for discrimination claims, Goldsmith creates confusion about the purpose of distinguishing between pre-dispute agreements and those that apply to pending claims. The case unwittingly reopens the door for additional inquiry into whether an arbitral forum can ever adequately address the most heinous of civil rights violations.



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