Closing a discrimination loophole: Using Title VII's anti-retaliation provision to prevent employers from requiring unlawful arbitration agreements as conditions of continued employment

Courts have long viewed mandatory arbitration agreements (MAAs) as contract provisions that employees may accept or decline based on the common law do ctrine of employment at-will. However, employees may see such MA-As as atte mpts to curtail Title VII rights and may refuse to sign them. Title VII pro hibits employers from retaliating against employees who oppose discriminato ry employment practices. A legal loophole has developed where some employer s seek explicitly or implicitly to exempt themselves from Title VII's provi sions by drafting MAAs that eliminate statutory rights and remedies from th e arbitration process or deter employees from filing discrimination claims altogether. The U.S. Supreme Court has declared such MAAs to be contrary to the policies and purposes of Title VII. At the same time, courts have broa dly construed Title VII's anti-retaliation provision to protect employees w ho might not be protected under the plain language of the provision. This C omment argues that Title VII's anti-retaliation provision should protect em ployees who have a reasonable belief that the MAAs they oppose are unlawful under Title VII and its policies and purposes.