14 PENN PLAZA LLC et al. v. PYETT et al.

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14 PENN PLAZA LLC et al. v. PYETT et al.
certiorari to the united states court of appeals for
the second circuit
No. 07–581. Argued December 1, 2008—Decided April 1, 2009
Respondents are members of the Service Employees International Union,
Local 32BJ (Union). Under the National Labor Relations Act, the
Union is the exclusive bargaining representative of employees within
the building-services industry in New York City, which includes building
cleaners, porters, and doorpersons. The Union has exclusive authority
to bargain on behalf of its members over their “rates of pay, wages,
hours of employment, or other conditions of employment,” 29 U. S. C.
§ 159(a), and engages in industrywide collective bargaining with the
Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer
bargaining association for the New York City real-estate industry. The
agreement between the Union and the RAB is embodied in their Col
lective Bargaining Agreement for Contractors and Building Owners
(CBA). The CBA requires Union members to submit all claims of em
ployment discrimination to binding arbitration under the CBA’s griev
ance and dispute resolution procedures.
Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and
operates the New York City office building where respondents worked
as night lobby watchmen and in other similar capacities. Respondents
were directly employed by petitioner Temco Service Industries, Inc.
(Temco), a maintenance service and cleaning contractor. After 14 Penn
Plaza, with the Union’s consent, engaged a unionized security contractor
affiliated with Temco to provide licensed security guards for the build
ing, Temco reassigned respondents to jobs as porters and cleaners.
Contending that these reassignments led to a loss in income, other dam
ages, and were otherwise less desirable than their former positions, re
spondents asked the Union to file grievances alleging, among other
things, that petitioners violated the CBA’s ban on workplace discrimina
tion by reassigning respondents on the basis of their age in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C.
§ 621 et seq. The Union requested arbitration under the CBA, but after
the initial hearing, withdrew the age-discrimination claims on the
ground that its consent to the new security contract precluded it from
objecting to respondents’ reassignments as discriminatory. Respond
ents then filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging that petitioners had violated their ADEA

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rights, and the EEOC issued each of them a right-to-sue notice. In the
ensuing lawsuit, the District Court denied petitioners’ motion to compel
arbitration of respondents’ age-discrimination claims. The Second Cir
cuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S.
36, forbids enforcement of collective-bargaining provisions requiring ar
bitration of ADEA claims.
Held: A provision in a collective-bargaining agreement that clearly and
unmistakably requires union members to arbitrate ADEA claims is en
forceable as a matter of federal law. Pp. 255–274.
(a) Examination of the two federal statutes at issue here, the ADEA
and the National Labor Relations Act (NLRA), yields a straightforward
answer to the question presented. The Union and the RAB, negotiat
ing on behalf of 14 Penn Plaza, collectively bargained in good faith and
agreed that employment-related discrimination claims, including ADEA
claims, would be resolved in arbitration. This freely negotiated con
tractual term easily qualifies as a “conditio[n] of employment” subject
to mandatory bargaining under the NLRA, 29 U. S. C. § 159(a). See,
e. g., Litton Financial Printing Div., Litton Business Systems, Inc. v.
NLRB, 501 U. S. 190, 199. As in any contractual negotiation, a union
may agree to the inclusion of an arbitration provision in a collective
bargaining agreement in return for other concessions from the em
ployer, and courts generally may not interfere in this bargained-for ex
change. See NLRB v. Magnavox Co., 415 U. S. 322, 328. Thus, the
CBA’s arbitration provision must be honored unless the ADEA itself
removes this particular class of grievances from the NLRA’s broad
sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U. S. 614, 628. It does not. This Court has squarely held that
the ADEA does not preclude arbitration of claims brought under the
statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20,
26–33. Accordingly, there is no legal basis for the Court to strike down
the arbitration clause in this CBA, which was freely negotiated by the
Union and the RAB, and which clearly and unmistakably requires re
spondents to arbitrate the age-discrimination claims at issue in this ap
peal. Pp. 255–260.
(b) The CBA’s arbitration provision is also fully enforceable under
the Gardner-Denver line of cases. Respondents incorrectly interpret
Gardner-Denver and its progeny as holding that an agreement to arbi
trate ADEA claims provided for in a collective-bargaining agreement
cannot waive an individual employee’s right to a judicial forum under
federal antidiscrimination statutes. Pp. 260–272.
(i) The facts underlying Gardner-Denver and its progeny reveal the
narrow scope of the legal rule they engendered. Those cases “did not
involve the issue of the enforceability of an agreement to arbitrate statu

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tory claims,” but “the quite different issue whether arbitration of
contract-based claims precluded subsequent judicial resolution of statu
tory claims.” Gilmer, supra, at 35. Gardner-Denver does not control
the outcome where, as here, the collective-bargaining agreement’s arbi
tration provision expressly covers both statutory and contractual dis
crimination claims. Pp. 260–264.
(ii) Apart from their narrow holdings, the Gardner-Denver line of
cases included broad dicta highly critical of using arbitration to vindi
cate statutory antidiscrimination rights. That skepticism, however,
rested on a misconceived view of arbitration that this Court has since
abandoned. First, contrary to Gardner-Denver’s erroneous assump
tion, 415 U. S., at 51, the decision to resolve ADEA claims by way of
arbitration instead of litigation does not waive the statutory right to be
free from workplace age discrimination; it waives only the right to seek
relief from a court in the first instance, see, e. g., Gilmer, supra, at 26.
Second, Gardner-Denver’s mistaken suggestion that certain informal
features of arbitration made it a forum “well suited to the resolution of
contractual disputes,” but “a comparatively inappropriate forum for the
final resolution of [employment] rights,” 415 U. S., at 56, has been cor
rected. See, e. g., Shearson/American Express Inc. v. McMahon, 482
U. S. 220, 232. Third, Gardner-Denver’s concern that, in arbitration, a
union may subordinate an individual employee’s interests to the collec
tive interests of all employees in the bargaining unit, 415 U. S., at 58,
n. 19, cannot be relied on to introduce a qualification into the ADEA
that is not found in its text. Until Congress amends the ADEA to meet
the conflict-of-interest concern identified in the Gardner-Denver dicta,
there is “no reason to color the lens through which the arbitration clause
is read.” Mitsubishi, supra, at 628. In any event, the conflict-of
interest argument amounts to an unsustainable collateral attack on the
NLRA, see Emporium Capwell Co. v. Western Addition Community
Organization, 420 U. S. 50, 62, and Congress has accounted for the con
flict in several ways: Union members may bring a duty of fair represen
tation claim against the union; a union can be subjected to direct liability
under the ADEA if it discriminates on the basis of age; and union mem
bers may also file age-discrimination claims with the EEOC and the
National Labor Relations Board. Pp. 265–272.
(c) Because respondents’ arguments that the CBA does not clearly
and unmistakably require them to arbitrate their ADEA claims were
not raised in the lower courts, they have been forfeited. Moreover,
although a substantive waiver of federally protected civil rights will not
be upheld, see, e. g., Mitsubishi, supra, at 637, and n. 19, this Court is
not positioned to resolve in the first instance respondents’ claim that
the CBA allows the Union to prevent them from effectively vindicating

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their federal statutory rights in the arbitral forum, given that this ques
tion would require resolution of contested factual allegations, was not
fully briefed here or below, and is not fairly encompassed within the
question presented. Resolution now would be particularly inappropri
ate in light of the Court’s hesitation to invalidate arbitration agreements
based on speculation. See, e. g., Green Tree Financial Corp.-Ala. v.
Randolph, 531 U. S. 79. Pp. 272–274.
498 F. 3d 88, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dis
senting opinion, post, p. 274. Souter, J., filed a dissenting opinion, in
which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 277.
Paul Salvatore argued the cause for petitioners. With
him on the briefs were Edward A. Brill, Charles S. Sims,
Mark D. Harris, Brian S. Rauch, Ian C. Schaefer, James F.
Berg, and Howard Rothschild.
David C. Frederick argued the cause for respondents.
With him on the brief were Jeffrey L. Kreisberg, Michael F.
Sturley, and Lynn E. Blais.
Curtis E. Gannon argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were former Solicitor General Garre, Acting Assistant
Attorney General Becker, Dennis J. Dimsey, Ronald S.
Cooper, and Lorraine C. Davis.*
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Samuel Estreicher and
Robin S. Conrad; and for the Equal Employment Advisory Council by Rae
T. Vann.
Briefs of amici curiae urging affirmance were filed for the American
Federation of Labor and Congress of Industrial Organizations et al. by
Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Law
yers’ Committee for Civil Rights Under Law et al. by Matthew D. Slater,
Michael Byars, Andrew Weaver, and Michael Foreman; for the National
Employment Lawyers Association et al. by Kathleen Phair Barnard, Jef
frey L. Needle, Laurie A. McCann, and Deborah Zuckerman; for the Na
tional Right to Work Legal Defense Foundation, Inc., by Raymond J. La

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Opinion of the Court
Justice Thomas delivered the opinion of the Court.
The question presented by this case is whether a provision
in a collective-bargaining agreement that clearly and unmis
takably requires union members to arbitrate claims arising
under the Age Discrimination in Employment Act of 1967
(ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq.,
is enforceable. The United States Court of Appeals for the
Second Circuit held that this Court’s decision in Alexander
v. Gardner-Denver Co., 415 U. S. 36 (1974), forbids enforce
ment of such arbitration provisions. We disagree and re
verse the judgment of the Court of Appeals.
I
Respondents are members of the Service Employees In
ternational Union, Local 32BJ (Union). Under the National
Labor Relations Act (NLRA), 49 Stat. 449, as amended, the
Union is the exclusive bargaining representative of employ
ees within the building-services industry in New York City,
which includes building cleaners, porters, and doorpersons.
See 29 U. S. C. § 159(a). In this role, the Union has exclusive
authority to bargain on behalf of its members over their
“rates of pay, wages, hours of employment, or other condi
tions of employment.” Ibid. Since the 1930’s, the Union
has engaged in industrywide collective bargaining with the
Realty Advisory Board on Labor Relations, Inc. (RAB), a
multiemployer bargaining association for the New York City
real-estate industry. The agreement between the Union
and the RAB is embodied in their Collective Bargaining
Agreement for Contractors and Building Owners (CBA).
The CBA requires Union members to submit all claims of
employment discrimination to binding arbitration under the
CBA’s grievance and dispute resolution procedures:
Jeunesse, Jr.; and for the Service Employees International Union, Local
32BJ, by Larry Engelstein.
Matthew W. Finkin, Barry Winograd, and James Oldham filed a brief
for the National Academy of Arbitrators as amicus curiae.

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“30. NO DISCRIMINATION
“There shall be no discrimination against any present
or future employee by reason of race, creed, color, age,
disability, national origin, sex, union membership, or any
characteristic protected by law, including, but not lim
ited to, claims made pursuant to Title VII of the Civil
Rights Act, the Americans with Disabilities Act, the
Age Discrimination in Employment Act, the New York
State Human Rights Law, the New York City Human
Rights Code, . . . or any other similar laws, rules or
regulations. All such claims shall be subject to the
grievance and arbitration procedure (Articles V and VI)
as the sole and exclusive remedy for violations. Arbi
trators shall apply appropriate law in rendering deci
sions based upon claims of discrimination.” App. to
Pet. for Cert. 48a.1
Petitioner 14 Penn Plaza LLC is a member of the RAB.
It owns and operates the New York City office building
where, prior to August 2003, respondents worked as night
lobby watchmen and in other similar capacities. Respond
ents were directly employed by petitioner Temco Service In
dustries, Inc. (Temco), a maintenance service and cleaning
contractor. In August 2003, with the Union’s consent, 14
Penn Plaza engaged Spartan Security, a unionized security
services contractor and affiliate of Temco, to provide licensed
security guards to staff the lobby and entrances of its build
ing. Because this rendered respondents’ lobby services un
necessary, Temco reassigned them to jobs as night porters
1 Article V establishes the grievance process, which applies to all claims
regardless of whether they are subject to arbitration under the CBA. Ar
ticle VI establishes the procedures for arbitration and postarbitration judi
cial review, and, in particular, provides that the arbitrator “shall . . . decide
all differences arising between the parties as to interpretation, application
or performance of any part of this Agreement and such other issues as the
parties are expressly required to arbitrate before him under the terms of
this Agreement.” App. to Pet. for Cert. 43a–47a.

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and light-duty cleaners in other locations in the building.
Respondents contend that these reassignments led to a loss
in income, caused them emotional distress, and were other
wise less desirable than their former positions.
At respondents’ request, the Union filed grievances chal
lenging the reassignments. The grievances alleged that
petitioners: (1) violated the CBA’s ban on workplace discrim
ination by reassigning respondents on account of their age;
(2) violated seniority rules by failing to promote one of the
respondents to a handyman position; and (3) failed to equita
bly rotate overtime. After failing to obtain relief on any of
these claims through the grievance process, the Union re
quested arbitration under the CBA.
After the initial arbitration hearing, the Union with
drew the first set of respondents’ grievances—the age
discrimination claims—from arbitration. Because it had
consented to the contract for new security personnel at 14
Penn Plaza, the Union believed that it could not legitimately
object to respondents’ reassignments as discriminatory.
But the Union continued to arbitrate the seniority and over
time claims, and, after several hearings, the claims were
denied.
In May 2004, while the arbitration was ongoing but after
the Union withdrew the age-discrimination claims, respond
ents filed a complaint with the Equal Employment Opportu
nity Commission (EEOC) alleging that petitioners had vio
lated their rights under the ADEA. Approximately one
month later, the EEOC issued a Dismissal and Notice of
Rights, which explained that the agency’s “ ‘review of the
evidence . . . fail[ed] to indicate that a violation ha[d] oc
curred,’ ” and notified each respondent of his right to sue.
Pyett v. Pennsylvania Building Co., 498 F. 3d 88, 91 (CA2
2007).
Respondents thereafter filed suit against petitioners in the
United States District Court for the Southern District of
New York, alleging that their reassignment violated the

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ADEA and state and local laws prohibiting age discrimina
tion.2 Petitioners filed a motion to compel arbitration of re
spondents’ claims pursuant to §§ 3 and 4 of the Federal Arbi
tration Act (FAA), 9 U. S. C. §§ 3, 4.3 The District Court
denied the motion because under Second Circuit precedent,
“even a clear and unmistakable union-negotiated waiver of a
right to litigate certain federal and state statutory claims in
a judicial forum is unenforceable.” App. to Pet. for Cert.
21a. Respondents immediately appealed the ruling under
§ 16 of the FAA, which authorizes an interlocutory appeal
of “an order . . . refusing a stay of any action under sec
tion 3 of this title” or “denying a petition under section
4 of this title to order arbitration to proceed.” 9 U. S. C.
§§ 16(a)(1)(A)–(B).
The Court of Appeals affirmed. 498 F. 3d 88. According
to the Court of Appeals, it could not compel arbitration of
the dispute because Gardner-Denver, which “remains good
law,” held “that a collective bargaining agreement could not
waive covered workers’ rights to a judicial forum for causes
of action created by Congress.” 498 F. 3d, at 92, 91, n. 3
(citing Gardner-Denver, 415 U. S., at 49–51). The Court of
Appeals observed that the Gardner-Denver decision was in
tension with this Court’s more recent decision in Gilmer v.
2 Respondents also filed a “hybrid” lawsuit against the Union and peti
tioners under § 301 of the Labor Management Relations Act, 1947, 29
U. S. C. § 185, see also DelCostello v. Teamsters, 462 U. S. 151, 164–165
(1983), alleging that the Union breached its “duty of fair representation”
under the NLRA by withdrawing support for the age-discrimination
claims during the arbitration and that petitioners breached the CBA by
reassigning respondents. Respondents later voluntarily dismissed this
suit with prejudice.
3 Petitioners also filed a motion to dismiss the complaint for failure to
state a claim. The District Court denied the motion, holding that re
spondents had sufficiently alleged an ADEA claim by claiming that they
“were over the age of 40, . . . they were reassigned to positions which led
to substantial losses in income, and . . . their replacements were both
younger and had less seniority at the building.” App. to Pet. for Cert.
20a (footnote omitted). Petitioners have not appealed that ruling.

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Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), which
“held that an individual employee who had agreed individu
ally to waive his right to a federal forum could be compelled
to arbitrate a federal age discrimination claim.” 498 F. 3d,
at 91, n. 3 (citing Gilmer, supra, at 33–35; emphasis in origi
nal). The Court of Appeals also noted that this Court pre
viously declined to resolve this tension in Wright v. Univer
sal Maritime Service Corp., 525 U. S. 70, 82 (1998), where
the waiver at issue was not “clear and unmistakable.” 498
F. 3d, at 91, n. 3.
The Court of Appeals attempted to reconcile Gardner-
Denver and Gilmer by holding that arbitration provisions in
a collective-bargaining agreement, “which purport to waive
employees’ rights to a federal forum with respect to statu
tory claims, are unenforceable.” 498 F. 3d, at 93–94. As a
result, an individual employee would be free to choose com
pulsory arbitration under Gilmer, but a labor union could not
collectively bargain for arbitration on behalf of its members.
We granted certiorari, 552 U. S. 1178 (2008), to address the
issue left unresolved in Wright, which continues to divide
the Courts of Appeals,4 and now reverse.
II
A
The NLRA governs federal labor-relations law. As per
mitted by that statute, respondents designated the Union
as their “exclusive representativ[e] . . . for the purposes of
collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment.” 29
U. S. C. § 159(a). As the employees’ exclusive bargaining
representative, the Union “enjoys broad authority . . . in the
4 Compare, e. g., Rogers v. New York Univ., 220 F. 3d 73, 75 (CA2 2000)
(per curiam); O’Brien v. Agawam, 350 F. 3d 279, 285 (CA1 2003); Mitchell
v. Chapman, 343 F. 3d 811, 824 (CA6 2003); Tice v. American Airlines,
Inc., 288 F. 3d 313, 317 (CA7 2002), with, e. g., Eastern Associated Coal
Corp. v. Massey, 373 F. 3d 530, 533 (CA4 2004).

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negotiation and administration of [the] collective bargaining
contract.” Communications Workers v. Beck, 487 U. S. 735,
739 (1988) (internal quotation marks omitted). But this
broad authority “is accompanied by a responsibility of equal
scope, the responsibility and duty of fair representation.”
Humphrey v. Moore, 375 U. S. 335, 342 (1964). The em
ployer has a corresponding duty under the NLRA to bargain
in good faith “with the representatives of his employees” on
wages, hours, and conditions of employment. 29 U. S. C.
§ 158(a)(5); see also § 158(d).
In this instance, the Union and the RAB, negotiating on
behalf of 14 Penn Plaza, collectively bargained in good faith
and agreed that employment-related discrimination claims,
including claims brought under the ADEA, would be re
solved in arbitration. This freely negotiated term between
the Union and the RAB easily qualifies as a “conditio[n] of
employment” that is subject to mandatory bargaining under
§ 159(a). See Litton Financial Printing Div., Litton Busi
ness Systems, Inc. v. NLRB, 501 U. S. 190, 199 (1991) (“[A]r
rangements for arbitration of disputes are a term or condi
tion of employment and a mandatory subject of bargaining”);
Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 578
(1960) (“[A]rbitration of labor disputes under collective bar
gaining agreements is part and parcel of the collective bar
gaining process itself ”); Textile Workers v. Lincoln Mills
of Ala., 353 U. S. 448, 455 (1957) (“Plainly the agreement to
arbitrate grievance disputes is the quid pro quo for an agree
ment not to strike”). The decision to fashion a collective
bargaining agreement to require arbitration of employment
discrimination claims is no different from the many other
decisions made by parties in designing grievance machinery.5
5 Justice Souter claims that this understanding is “impossible to
square with our conclusion in [Alexander v.] Gardner-Denver [Co., 415
U. S. 36 (1974),] that ‘Title VII . . . stands on plainly different ground’ from
‘statutory rights related to collective activity’: ‘it concerns not majori
tarian processes, but an individual’s right to equal employment opportuni

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Respondents, however, contend that the arbitration clause
here is outside the permissible scope of the collective
bargaining process because it affects the “employees’ indi
vidual, non-economic statutory rights.” Brief for Respond
ents 22; see also post, at 281–283 (Souter, J., dissenting).
We disagree. Parties generally favor arbitration precisely
because of the economics of dispute resolution. See Circuit
City Stores, Inc. v. Adams, 532 U. S. 105, 123 (2001) (“Arbi
tration agreements allow parties to avoid the costs of lit
igation, a benefit that may be of particular importance in
employment litigation, which often involves smaller sums
of money than disputes concerning commercial contracts”).
As in any contractual negotiation, a union may agree to
the inclusion of an arbitration provision in a collective
bargaining agreement in return for other concessions from
the employer. Courts generally may not interfere in this
bargained-for exchange. “Judicial nullification of contrac
tual concessions . . . is contrary to what the Court has recog
nized as one of the fundamental policies of the National
Labor Relations Act—freedom of contract.” NLRB v. Mag
navox Co., 415 U. S. 322, 328 (1974) (Stewart, J., concurring
in part and dissenting in part) (internal quotation marks and
brackets omitted).
As a result, the CBA’s arbitration provision must be hon
ored unless the ADEA itself removes this particular class of
ties.’ ” Post, at 282 (dissenting opinion) (quoting Gardner-Denver, supra,
at 51). As explained below, however, Justice Souter repeats the key
analytical mistake made in Gardner-Denver’s dicta by equating the deci
sion to arbitrate Title VII and ADEA claims to a decision to forgo these
substantive guarantees against workplace discrimination. See infra, at
265–267. The right to a judicial forum is not the nonwaivable “substan
tive” right protected by the ADEA. See infra, at 259. Thus, although
Title VII and ADEA rights may well stand on “different ground” than
statutory rights that protect “majoritarian processes,” Gardner-Denver,
supra, at 51, the voluntary decision to collectively bargain for arbitration
does not deny those statutory antidiscrimination rights the full protection
they are due.

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grievances from the NLRA’s broad sweep. See Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S.
614, 628 (1985). It does not. This Court has squarely held
that the ADEA does not preclude arbitration of claims
brought under the statute. See Gilmer, 500 U. S., at 26–33.
In Gilmer, the Court explained that “[a]lthough all statu
tory claims may not be appropriate for arbitration, ‘[h]aving
made the bargain to arbitrate, the party should be held to it
unless Congress itself has evinced an intention to preclude
a waiver of judicial remedies for the statutory rights at
issue.’ ” Id., at 26 (quoting Mitsubishi Motors Corp., supra,
at 628). And “[i]f Congress intended the substantive protec
tion afforded by the ADEA to include protection against
waiver of the right to a judicial forum, that intention will be
deducible from text or legislative history.” 500 U. S., at 29
(internal quotation marks and some brackets omitted). The
Court determined that “nothing in the text of the ADEA or
its legislative history explicitly precludes arbitration.” Id.,
at 26–27. The Court also concluded that arbitrating ADEA
disputes would not undermine the statute’s “remedial and
deterrent function.” Id., at 28 (internal quotation marks
omitted). In the end, the employee’s “generalized attacks”
on “the adequacy of arbitration procedures” were “insuffi
cient to preclude arbitration of statutory claims,” id., at 30,
because there was no evidence that “Congress, in enacting
the ADEA, intended to preclude arbitration of claims under
that Act,” id., at 35.
The Gilmer Court’s interpretation of the ADEA fully ap
plies in the collective-bargaining context. Nothing in the
law suggests a distinction between the status of arbitration
agreements signed by an individual employee and those
agreed to by a union representative. This Court has re
quired only that an agreement to arbitrate statutory antidis
crimination claims be “explicitly stated” in the collective
bargaining agreement. Wright, 525 U. S., at 80 (internal

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quotation marks omitted). The CBA under review here
meets that obligation. Respondents incorrectly counter
that an individual employee must personally “waive” a “[sub
stantive] right” to proceed in court for a waiver to be “know
ing and voluntary” under the ADEA. 29 U. S. C. § 626(f)(1).
As explained below, however, the agreement to arbitrate
ADEA claims is not the waiver of a “substantive right” as
that term is employed in the ADEA. Wright, supra, at 80;
see infra, at 265–266. Indeed, if the “right” referred to in
§ 626(f)(1) included the prospective waiver of the right to
bring an ADEA claim in court, even a waiver signed by an
individual employee would be invalid as the statute also pre
vents individuals from “waiv[ing] rights or claims that may
arise after the date the waiver is executed.” § 626(f)(1)(C).6
6 Respondents’ contention that § 118 of the Civil Rights Act of 1991, Pub.
L. 102–166, 105 Stat. 1081, note following 42 U. S. C. § 1981 (2000 ed.),
precludes the enforcement of this arbitration agreement also is misplaced.
See Brief for Respondents 31–32. Section 118 expresses Congress’ sup
port for alternative dispute resolution: “Where appropriate and to the ex
tent authorized by law, the use of alternative means of dispute resolution,
including . . . arbitration, is encouraged to resolve disputes arising under”
the ADEA. 105 Stat. 1081, note following 42 U. S C. § 1981. Respond
ents argue that the legislative history actually signals Congress’ intent
to preclude arbitration waivers in the collective-bargaining context. In
particular, respondents point to a House Report that, in spite of the stat
ute’s plain language, interprets § 118 to support their position. See H. R.
Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agreement to submit disputed
issues to arbitration . . . in the context of a collective bargaining
agreement . . . does not preclude the affected person from seeking relief
under the enforcement provisions of Title VII. This view is consistent
with the Supreme Court’s interpretation of Title VII in Alexander v.
Gardner-Denver Co., 415 U. S. 36 (1974)”). But the legislative history
mischaracterizes the holding of Gardner-Denver, which does not prohibit
collective bargaining for arbitration of ADEA claims. See infra, at 260–
264. Moreover, reading the legislative history in the manner suggested
by respondents would create a direct conflict with the statutory text,
which encourages the use of arbitration for dispute resolution without im
posing any constraints on collective bargaining. In such a contest, the

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Examination of the two federal statutes at issue in this
case, therefore, yields a straightforward answer to the ques
tion presented: The NLRA provided the Union and the RAB
with statutory authority to collectively bargain for arbitra
tion of workplace discrimination claims, and Congress did
not terminate that authority with respect to federal age
discrimination claims in the ADEA. Accordingly, there is
no legal basis for the Court to strike down the arbitration
clause in this CBA, which was freely negotiated by the Union
and the RAB, and which clearly and unmistakably requires
respondents to arbitrate the age-discrimination claims at
issue in this appeal. Congress has chosen to allow arbitra
tion of ADEA claims. The Judiciary must respect that
choice.
B
The CBA’s arbitration provision is also fully enforceable
under the Gardner-Denver line of cases. Respondents
interpret Gardner-Denver and its progeny to hold that “a
union cannot waive an employee’s right to a judicial forum
under the federal antidiscrimination statutes” because
“allowing the union to waive this right would substitute
the union’s interests for the employee’s antidiscrimination
rights.” Brief for Respondents 12. The “combination of
union control over the process and inherent conflict of inter
est with respect to discrimination claims,” they argue, “pro
vided the foundation for the Court’s holding [in Gardner-
Denver] that arbitration under a collective bargaining
agreement could not preclude an individual employee’s right
to bring a lawsuit in court to vindicate a statutory discrimi
nation claim.” Id., at 15. We disagree.
1
The holding of Gardner-Denver is not as broad as respond
ents suggest. The employee in that case was covered by a
text must prevail. See Ratzlaf v. United States, 510 U. S. 135, 147–148
(1994) (“[W]e do not resort to legislative history to cloud a statutory text
that is clear”).

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collective-bargaining agreement that prohibited “discrimina
tion against any employee on account of race, color, religion,
sex, national origin, or ancestry” and that guaranteed that
“[n]o employee will be discharged . . . except for just cause.”
415 U. S., at 39 (internal quotation marks omitted). The
agreement also included a “multistep grievance procedure”
that culminated in compulsory arbitration for any “differ
ences aris[ing] between the Company and the Union as to
the meaning and application of the provisions of this Agree
ment” and “any trouble aris[ing] in the plant.” Id., at 40–41
(internal quotation marks omitted).
The employee was discharged for allegedly producing too
many defective parts while working for the respondent as a
drill operator. He filed a grievance with his union claiming
that he was “ ‘unjustly discharged’ ” in violation of the “ ‘just
cause’ ” provision within the collective-bargaining agree
ment. Id., at 39, 42. Then at the final prearbitration step
of the grievance process, the employee added a claim that he
was discharged because of his race. Id., at 38–42.
The arbitrator ultimately ruled that the employee had
been “ ‘discharged for just cause,’ ” but “made no reference
to [the] claim of racial discrimination.” Id., at 42. After
obtaining a right-to-sue letter from the EEOC, the employee
filed a claim in Federal District Court, alleging racial dis
crimination in violation of Title VII of the Civil Rights Act
of 1964. The District Court issued a decision, affirmed by
the Court of Appeals, which granted summary judgment to
the employer because it concluded that “the claim of racial
discrimination had been submitted to the arbitrator and re
solved adversely to [the employee].” Id., at 43. In the Dis
trict Court’s view, “having voluntarily elected to pursue his
grievance to final arbitration under the nondiscrimination
clause of the collective-bargaining agreement,” the employee
was “bound by the arbitral decision” and precluded from
suing his employer on any other grounds, such as a statutory
claim under Title VII. Ibid.

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This Court reversed the judgment on the narrow ground
that the arbitration was not preclusive because the
collective-bargaining agreement did not cover statutory
claims. As a result, the lower courts erred in relying on the
“doctrine of election of remedies” to bar the employee’s Title
VII claim. Id., at 49. “That doctrine, which refers to situa
tions where an individual pursues remedies that are legally
or factually inconsistent” with each other, did not apply to
the employee’s dual pursuit of arbitration and a Title VII
discrimination claim in district court. Ibid. The employ
ee’s collective-bargaining agreement did not mandate arbi
tration of statutory antidiscrimination claims. Id., at 49–
50. “As the proctor of the bargain, the arbitrator’s task is
to effectuate the intent of the parties.” Id., at 53. Because
the collective-bargaining agreement gave the arbitrator “au
thority to resolve only questions of contractual rights,” his
decision could not prevent the employee from bringing the
Title VII claim in federal court “regardless of whether cer
tain contractual rights are similar to, or duplicative of, the
substantive rights secured by Title VII.” Id., at 53–54; see
also id., at 50.
The Court also explained that the employee had not
waived his right to pursue his Title VII claim in federal court
by participating in an arbitration that was premised on the
same underlying facts as the Title VII claim. See id., at 52.
Thus, whether the legal theory of preclusion advanced by the
employer rested on “the doctrines of election of remedies”
or was recast “as resting instead on the doctrine of equitable
estoppel and on themes of res judicata and collateral estop
pel,” id., at 49, n. 10 (internal quotation marks omitted), it
could not prevail in light of the collective-bargaining agree
ment’s failure to address arbitration of Title VII claims.
See id., at 46, n. 6 (“[W]e hold that the federal policy favoring
arbitration does not establish that an arbitrator’s resolution
of a contractual claim is dispositive of a statutory claim
under Title VII” (emphasis added)).

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The Court’s decisions following Gardner-Denver have not
broadened its holding to make it applicable to the facts of
this case. In Barrentine v. Arkansas-Best Freight System,
Inc., 450 U. S. 728 (1981), the Court considered “whether an
employee may bring an action in federal district court, alleg
ing a violation of the minimum wage provisions of the Fair
Labor Standards Act, . . . after having unsuccessfully submit
ted a wage claim based on the same underlying facts to a
joint grievance committee pursuant to the provisions of his
union’s collective-bargaining agreement.” Id., at 729–730.
The Court held that the unsuccessful arbitration did not pre
clude the federal lawsuit. Like the collective-bargaining
agreement in Gardner-Denver, the arbitration provision
under review in Barrentine did not expressly reference the
statutory claim at issue. See 450 U. S., at 731, n. 5. The
Court thus reiterated that an “arbitrator’s power is both de
rived from, and limited by, the collective-bargaining agree
ment” and “[h]is task is limited to construing the meaning of
the collective-bargaining agreement so as to effectuate the
collective intent of the parties.” Id., at 744.
McDonald v. West Branch, 466 U. S. 284 (1984), was de
cided along similar lines. The question presented in that
case was “whether a federal court may accord preclusive ef
fect to an unappealed arbitration award in a case brought
under [42 U. S. C. § 1983].” Id., at 285. The Court declined
to fashion such a rule, again explaining that “because an ar
bitrator’s authority derives solely from the contract, Barren
tine, supra, at 744, an arbitrator may not have the authority
to enforce § 1983” when that provision is left unaddressed by
the arbitration agreement. Id., at 290. Accordingly, as in
both Gardner-Denver and Barrentine, the Court’s decision in
McDonald hinged on the scope of the collective-bargaining
agreement and the arbitrator’s parallel mandate.
The facts underlying Gardner-Denver, Barrentine, and
McDonald reveal the narrow scope of the legal rule arising
from that trilogy of decisions. Summarizing those opinions

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in Gilmer, this Court made clear that the Gardner-Denver
line of cases “did not involve the issue of the enforceability
of an agreement to arbitrate statutory claims.” 500 U. S.,
at 35. Those decisions instead “involved the quite different
issue whether arbitration of contract-based claims precluded
subsequent judicial resolution of statutory claims. Since the
employees there had not agreed to arbitrate their statutory
claims, and the labor arbitrators were not authorized to re
solve such claims, the arbitration in those cases understand
ably was held not to preclude subsequent statutory actions.”
Ibid.; see also Wright, 525 U. S., at 76; Livadas v. Bradshaw,
512 U. S. 107, 127, n. 21 (1994).7 Gardner-Denver and its
progeny thus do not control the outcome where, as is the
case here, the collective-bargaining agreement’s arbitration
provision expressly covers both statutory and contractual
discrimination claims.8
7 Justice Souter’s reliance on Wright v. Universal Maritime Service
Corp., 525 U. S. 70 (1998), to support its view of Gardner-Denver is mis
placed. See post, at 281, 283. Wright identified the “tension” between
the two lines of cases represented by Gardner-Denver and Gilmer, but
found “it unnecessary to resolve the question of the validity of a union
negotiated waiver, since it [was] apparent . . . on the facts and arguments
presented . . . that no such waiver [had] occurred.” 525 U. S., at 76–77.
And although his dissent describes Wright’s characterization of Gardner-
Denver as “raising a ‘seemingly absolute prohibition of union waiver of
employees’ federal forum rights,’ ” post, at 283 (quoting Wright, 525 U. S.,
at 80), it wrenches the statement out of context: “Although [the right to a
judicial forum] is not a substantive right, see Gilmer, 500 U. S., at 26, and
whether or not Gardner-Denver’s seemingly absolute prohibition of union
waiver of employees’ federal forum rights survives Gilmer, Gardner-
Denver at least stands for the proposition that the right to a federal judi
cial forum is of sufficient importance to be protected against less-than
explicit union waiver in a CBA,” id., at 80 (emphasis added). Wright
therefore neither endorsed Gardner-Denver’s broad language nor sug
gested a particular result in this case.
8 Because today’s decision does not contradict the holding of Gardner-
Denver, we need not resolve the stare decisis concerns raised by the dis
senting opinions. See post, at 280–281, 285–286 (opinion of Souter, J.);
post, at 275–277 (opinion of Stevens, J.). But given the development of

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2
We recognize that apart from their narrow holdings, the
Gardner-Denver line of cases included broad dicta that were
highly critical of the use of arbitration for the vindication of
statutory antidiscrimination rights. That skepticism, how
ever, rested on a misconceived view of arbitration that this
Court has since abandoned.
First, the Court in Gardner-Denver erroneously assumed
that an agreement to submit statutory discrimination claims
to arbitration was tantamount to a waiver of those rights.
See 415 U. S., at 51 (“[T]here can be no prospective waiver
of an employee’s rights under Title VII” (emphasis added)).
For this reason, the Court stated, “the rights conferred [by
Title VII] can form no part of the collective-bargaining proc
ess since waiver of these rights would defeat the paramount
congressional purpose behind Title VII.” Ibid.; see also id.,
at 56 (“[W]e have long recognized that ‘the choice of forums
inevitably affects the scope of the substantive right to be
vindicated’ ” (quoting U. S. Bulk Carriers, Inc. v. Arguelles,
400 U. S. 351, 359–360 (1971) (Harlan, J., concurring))).
The Court was correct in concluding that federal antidis
crimination rights may not be prospectively waived, see 29
U. S. C. § 626(f)(1)(C); see supra, at 259, but it confused an
agreement to arbitrate those statutory claims with a pro
spective waiver of the substantive right. The decision to
resolve ADEA claims by way of arbitration instead of litiga
tion does not waive the statutory right to be free from work
place age discrimination; it waives only the right to seek re
this Court’s arbitration jurisprudence in the intervening years, see infra,
at 266–269, Gardner-Denver would appear to be a strong candidate for
overruling if the dissents’ broad view of its holding, see post, at 282–283
(opinion of Souter, J.), were correct. See Patterson v. McLean Credit
Union, 491 U. S. 164, 173 (1989) (explaining that it is appropriate to over
rule a decision where there “has been [an] intervening development of the
law” such that the earlier “decision [is] irreconcilable with competing legal
doctrines or policies”).

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lief from a court in the first instance. See Gilmer, supra, at
26 (“ ‘[B]y agreeing to arbitrate a statutory claim, a party
does not forgo the substantive rights afforded by the statute;
it only submits to their resolution in an arbitral, rather than
a judicial, forum’ ” (quoting Mitsubishi Motors Corp., 473
U. S., at 628)). This “Court has been quite specific in hold
ing that arbitration agreements can be enforced under the
FAA without contravening the policies of congressional en
actments giving employees specific protection against dis
crimination prohibited by federal law.” Circuit City Stores,
Inc., 532 U. S., at 123. The suggestion in Gardner-Denver
that the decision to arbitrate statutory discrimination claims
was tantamount to a substantive waiver of those rights,
therefore, reveals a distorted understanding of the com
promise made when an employee agrees to compulsory
arbitration.
In this respect, Gardner-Denver is a direct descendant of
the Court’s decision in Wilko v. Swan, 346 U. S. 427 (1953),
which held that an agreement to arbitrate claims under the
Securities Act of 1933 was unenforceable. See id., at 438.
The Court subsequently overruled Wilko and, in so doing,
characterized the decision as “pervaded by . . . ‘the old
judicial hostility to arbitration.’ ” Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 480 (1989).
The Court added: “To the extent that Wilko rested on suspi
cion of arbitration as a method of weakening the protections
afforded in the substantive law to would-be complainants, it
has fallen far out of step with our current strong endorse
ment of the federal statutes favoring this method of resolv
ing disputes.” Id., at 481; see also Mitsubishi Motors Corp.,
supra, at 626–627 (“[W]e are well past the time when judicial
suspicion of the desirability of arbitration and of the compe
tence of arbitral tribunals inhibited the development of arbi
tration as an alternative means of dispute resolution”). The
timeworn “mistrust of the arbitral process” harbored by the
Court in Gardner-Denver thus weighs against reliance on

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anything more than its core holding. Shearson/American
Express Inc. v. McMahon, 482 U. S. 220, 231–232 (1987); see
also Gilmer, 500 U. S., at 34, n. 5 (reiterating that Gardner
Denver’s view of arbitration “has been undermined by [the
Court’s] recent arbitration decisions”). Indeed, in light of
the “radical change, over two decades, in the Court’s recep
tivity to arbitration,” Wright, 525 U. S., at 77, reliance on
any judicial decision similarly littered with Wilko’s overt
hostility to the enforcement of arbitration agreements would
be ill advised.9
9 Justice Stevens suggests that the Court is displacing its “earlier
determination of the relevant provisions’ meaning” based on a “preference
for arbitration.” Post, at 275. But his criticism lacks any basis. We are
not revisiting a settled issue or disregarding an earlier determination; the
Court is simply deciding the question identified in Wright as unresolved.
See supra, at 255; see also infra, at 272–273. And, contrary to Justice
Stevens’ accusation, it is the Court’s fidelity to the ADEA’s text—not an
alleged preference for arbitration—that dictates the answer to the ques
tion presented. As Gilmer explained, nothing in the text of Title VII or
the ADEA precludes contractual arbitration, see supra, at 258, and Jus
tice Stevens has never suggested otherwise. Rather, he has always
contended that permitting the “compulsory arbitration” of employment
discrimination claims conflicts with his perception of “the congressional
purpose animating the ADEA.” Gilmer, 500 U. S., at 41 (Stevens, J.,
dissenting); see also id., at 42 (“Plainly, it would not comport with the
congressional objectives behind a statute seeking to enforce civil rights
protected by Title VII to allow the very forces that had practiced discrimi
nation to contract away the right to enforce civil rights in the courts”
(internal quotation marks omitted)). The Gilmer Court did not adopt
Justice Stevens’ personal view of the purposes underlying the ADEA,
for good reason: That view is not embodied within the statute’s text. Ac
cordingly, it is not the statutory text that Justice Stevens has sought
to vindicate—it is instead his own “preference” for mandatory judicial re
view, which he disguises as a search for congressional purpose. This
Court is not empowered to incorporate such a preference into the text of
a federal statute. See infra, at 270. It is for this reason, and not because
of a “policy favoring arbitration,” see post, at 274, 275 (Stevens, J., dis
senting), that the Court overturned Wilko v. Swan, 346 U. S. 427 (1953).
And it is why we disavow the antiarbitration dicta of Gardner-Denver and
its progeny today.

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Second, Gardner-Denver mistakenly suggested that cer
tain features of arbitration made it a forum “well suited to
the resolution of contractual disputes,” but “a comparatively
inappropriate forum for the final resolution of rights created
by Title VII.” 415 U. S., at 56. According to the Court,
the “factfinding process in arbitration” is “not equivalent to
judicial factfinding” and the “informality of arbitral pro
cedure . . . makes arbitration a less appropriate forum for
final resolution of Title VII issues than the federal courts.”
Id., at 57, 58. The Court also questioned the competence of
arbitrators to decide federal statutory claims. See id., at 57
(“[T]he specialized competence of arbitrators pertains pri
marily to the law of the shop, not the law of the land”); Bar
rentine, 450 U. S., at 743 (“Although an arbitrator may be
competent to resolve many preliminary factual questions,
such as whether the employee ‘punched in’ when he said he
did, he may lack the competence to decide the ultimate legal
issue whether an employee’s right to a minimum wage or to
overtime pay under the statute has been violated”). In the
Court’s view, “the resolution of statutory or constitutional
issues is a primary responsibility of courts, and judicial con
struction has proved especially necessary with respect to
Title VII, whose broad language frequently can be given
meaning only by reference to public law concepts. ”
Gardner-Denver, supra, at 57; see also McDonald, 466 U. S.,
at 290 (“An arbitrator may not . . . have the expertise re
quired to resolve the complex legal questions that arise in
§ 1983 actions”).
These misconceptions have been corrected. For example,
the Court has “recognized that arbitral tribunals are readily
capable of handling the factual and legal complexities of anti
trust claims, notwithstanding the absence of judicial instruc
tion and supervision” and that “there is no reason to assume
at the outset that arbitrators will not follow the law.” Mc-
Mahon, supra, at 232; Mitsubishi Motors Corp., 473 U. S., at
634 (“We decline to indulge the presumption that the parties

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and arbitral body conducting a proceeding will be unable or
unwilling to retain competent, conscientious, and impartial
arbitrators”). An arbitrator’s capacity to resolve complex
questions of fact and law extends with equal force to discrim
ination claims brought under the ADEA. Moreover, the
recognition that arbitration procedures are more streamlined
than federal litigation is not a basis for finding the forum
somehow inadequate; the relative informality of arbitration
is one of the chief reasons that parties select arbitration.
Parties “trad[e] the procedures and opportunity for review
of the courtroom for the simplicity, informality, and expedi
tion of arbitration.” Id., at 628. In any event, “[i]t is
unlikely . . . that age discrimination claims require more ex
tensive discovery than other claims that we have found to be
arbitrable, such as [Racketeer Influenced and Corrupt Orga
nizations Act] and antitrust claims.” Gilmer, supra, at 31.
At bottom, objections centered on the nature of arbitration
do not offer a credible basis for discrediting the choice of that
forum to resolve statutory antidiscrimination claims.10
Third, the Court in Gardner-Denver raised in a footnote a
“further concern” regarding “the union’s exclusive control
over the manner and extent to which an individual grievance
is presented.” 415 U. S., at 58, n. 19. The Court suggested
that in arbitration, as in the collective-bargaining process, a
union may subordinate the interests of an individual em
ployee to the collective interests of all employees in the bar
gaining unit. Ibid.; see also McDonald, supra, at 291 (“The
union’s interests and those of the individual employee are
not always identical or even compatible. As a result, the
10 Moreover, an arbitrator’s decision as to whether a unionized employee
has been discriminated against on the basis of age in violation of the
ADEA remains subject to judicial review under the FAA. 9 U. S. C.
§ 10(a). “[A]lthough judicial scrutiny of arbitration awards necessarily is
limited, such review is sufficient to ensure that arbitrators comply with
the requirements of the statute.” Shearson/American Express Inc. v.
McMahon, 482 U. S. 220, 232 (1987).

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union may present the employee’s grievance less vigorously,
or make different strategic choices, than would the em
ployee”); see also Barrentine, supra, at 742; post, at 284, n. 4
(Souter, J., dissenting).
We cannot rely on this judicial policy concern as a source
of authority for introducing a qualification into the ADEA
that is not found in its text. Absent a constitutional barrier,
“it is not for us to substitute our view of . . . policy for the
legislation which has been passed by Congress.” Florida
Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S.
33, 52 (2008) (internal quotation marks omitted). Congress
is fully equipped “to identify any category of claims as to
which agreements to arbitrate will be held unenforceable.”
Mitsubishi Motors Corp., supra, at 627. Until Congress
amends the ADEA to meet the conflict-of-interest concern
identified in the Gardner-Denver dicta, and seized on by re
spondents here, there is “no reason to color the lens through
which the arbitration clause is read” simply because of an
alleged conflict of interest between a union and its members.
Mitsubishi Motors Corp., supra, at 628. This is a “battl[e]
that should be fought among the political branches and the
industry. Those parties should not seek to amend the stat
ute by appeal to the Judicial Branch.” Barnhart v. Sigmon
Coal Co., 534 U. S. 438, 462 (2002).
The conflict-of-interest argument also proves too much.
Labor unions certainly balance the economic interests of
some employees against the needs of the larger work force
as they negotiate collective-bargaining agreements and im
plement them on a daily basis. But this attribute of orga
nized labor does not justify singling out an arbitration provi
sion for disfavored treatment. This “principle of majority
rule” to which respondents object is in fact the central prem
ise of the NLRA. Emporium Capwell Co. v. Western Addi
tion Community Organization, 420 U. S. 50, 62 (1975). “In
establishing a regime of majority rule, Congress sought to
secure to all members of the unit the benefits of their collec

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tive strength and bargaining power, in full awareness that
the superior strength of some individuals or groups might
be subordinated to the interest of the majority.” Ibid. (foot
note omitted); see also Ford Motor Co. v. Huffman, 345 U. S.
330, 338 (1953) (“The complete satisfaction of all who are rep
resented is hardly to be expected”); Pennsylvania R. Co. v.
Rychlik, 352 U. S. 480, 498 (1957) (Frankfurter, J., concur
ring). It was Congress’ verdict that the benefits of orga
nized labor outweigh the sacrifice of individual liberty that
this system necessarily demands. Respondents’ argument
that they were deprived of the right to pursue their ADEA
claims in federal court by a labor union with a conflict of
interest is therefore unsustainable; it amounts to a collateral
attack on the NLRA.
In any event, Congress has accounted for this conflict of
interest in several ways. As indicated above, the NLRA
has been interpreted to impose a “duty of fair representa
tion” on labor unions, which a union breaches “when its con
duct toward a member of the bargaining unit is arbitrary,
discriminatory, or in bad faith.” Marquez v. Screen Actors,
525 U. S. 33, 44 (1998). This duty extends to “challenges
leveled not only at a union’s contract administration and en
forcement efforts but at its negotiation activities as well.”
Beck, 487 U. S., at 743 (citation omitted). Thus, a union is
subject to liability under the NLRA if it illegally discrimi
nates against older workers in either the formation or gov
ernance of the collective-bargaining agreement, such as by
deciding not to pursue a grievance on behalf of one of its
members for discriminatory reasons. See Vaca v. Sipes, 386
U. S. 171, 177 (1967) (describing the duty of fair representa
tion as the “statutory obligation to serve the interests of all
members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct” (emphasis added)). Re
spondents in fact brought a fair representation suit against
the Union based on its withdrawal of support for their age

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discrimination claims. See n. 2, supra. Given this avenue
that Congress has made available to redress a union’s viola
tion of its duty to its members, it is particularly inappropri
ate to ask this Court to impose an artificial limitation on the
collective-bargaining process.
In addition, a union is subject to liability under the ADEA
if the union itself discriminates against its members on the
basis of age. See 29 U. S. C. § 623(d); see also 1 B. Linde
mann & P. Grossman, Employment Discrimination Law
1575–1581 (4th ed. 2007) (explaining that a labor union may
be held jointly liable with an employer under federal antidis
crimination laws for discriminating in the formation of a
collective-bargaining agreement, knowingly acquiescing in
the employer’s discrimination, or inducing the employer to
discriminate); cf. Goodman v. Lukens Steel Co., 482 U. S. 656,
669 (1987). Union members may also file age-discrimination
claims with the EEOC and the National Labor Relations
Board, which may then seek judicial intervention under this
Court’s precedent. See EEOC v. Waffle House, Inc., 534
U. S. 279, 295–296 (2002). In sum, Congress has provided
remedies for the situation where a labor union is less than
vigorous in defense of its members’ claims of discrimination
under the ADEA.
III
Finally, respondents offer a series of arguments contend
ing that the particular CBA at issue here does not clearly
and unmistakably require them to arbitrate their ADEA
claims. See Brief for Respondents 44–47. But respondents
did not raise these contract-based arguments in the District
Court or the Court of Appeals. To the contrary, respond
ents acknowledged on appeal that the CBA provision requir
ing arbitration of their federal antidiscrimination statutory
claims “is sufficiently explicit” in precluding their federal
lawsuit. Brief for Plaintiffs-Appellees in No. 06–3047–cv(L)
etc. (CA2), p. 9. In light of respondents’ litigating position,
both lower courts assumed that the CBA’s arbitration clause

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Opinion of the Court
clearly applied to respondents and proceeded to decide the
question left unresolved in Wright. We granted review of
the question presented on that understanding.
“Without cross-petitioning for certiorari, a prevailing
party may, of course, ‘defend its judgment on any ground
properly raised below whether or not that ground was relied
upon, rejected, or even considered by the District Court or
the Court of Appeals.’ ” Granfinanciera, S. A. v. Nordberg,
492 U. S. 33, 38–39 (1989) (quoting Washington v. Confeder
ated Bands and Tribes of Yakima Nation, 439 U. S. 463, 476,
n. 20 (1979)). But this Court will affirm on grounds that
have “ ‘not been raised below . . . “only in exceptional
cases.” ’ ” Nordberg, supra, at 39 (quoting Heckler v. Camp
bell, 461 U. S. 458, 468–469, n. 12 (1983)). This is not an
“exceptional case.” As a result, we find that respondents’
alternative arguments for affirmance have been forfeited.
See, e. g., Rita v. United States, 551 U. S. 338, 360 (2007);
Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
We will not resurrect them on respondents’ behalf.
Respondents also argue that the CBA operates as a sub
stantive waiver of their ADEA rights because it not only
precludes a federal lawsuit, but also allows the Union to
block arbitration of these claims. Brief for Respondents 28–
30. Petitioners contest this characterization of the CBA,
see Reply Brief for Petitioners 23–27, and offer record evi
dence suggesting that the Union has allowed respondents
to continue with the arbitration even though the Union has
declined to participate, see App. to Pet. for Cert. 42a. But
not only does this question require resolution of contested
factual allegations, it was not fully briefed to this or any
court and is not fairly encompassed within the question pre
sented, see this Court’s Rule 14.1(a). Thus, although a sub
stantive waiver of federally protected civil rights will not be
upheld, see Mitsubishi Motors Corp., 473 U. S., at 637, and
n. 19; Gilmer, 500 U. S., at 29, we are not positioned to re
solve in the first instance whether the CBA allows the Union

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to prevent respondents from “effectively vindicating” their
“federal statutory rights in the arbitral forum,” Green Tree
Financial Corp.-Ala. v. Randolph, 531 U. S. 79, 90 (2000).
Resolution of this question at this juncture would be particu
larly inappropriate in light of our hesitation to invalidate ar
bitration agreements on the basis of speculation. See id.,
at 91.
IV
We hold that a collective-bargaining agreement that
clearly and unmistakably requires union members to arbi
trate ADEA claims is enforceable as a matter of federal law.
The judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Stevens, dissenting.
Justice Souter’s dissenting opinion, which I join in full,
explains why our decision in Alexander v. Gardner-Denver
Co., 415 U. S. 36 (1974), answers the question presented in
this case. My concern regarding the Court’s subversion of
precedent to the policy favoring arbitration prompts these
additional remarks.
Notwithstanding the absence of change in any relevant
statutory provision, the Court has recently retreated from,
and in some cases reversed, prior decisions based on its
changed view of the merits of arbitration. Previously, the
Court approached with caution questions involving a union’s
waiver of an employee’s right to raise statutory claims in a
federal judicial forum. After searching the text and pur
poses of Title VII of the Civil Rights Act of 1964, the Court
in Gardner-Denver held that a clause of a collective
bargaining agreement (CBA) requiring arbitration of dis
crimination claims could not waive an employee’s right to a
judicial forum for statutory claims. See 415 U. S., at 51.
The Court’s decision rested on several features of the stat

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ute, including the individual nature of the rights it confers,
the broad remedial powers it grants federal courts, and its
expressed preference for overlapping remedies. See id., at
44–48. The Court also noted the problem of entrusting a
union with certain arbitration decisions given the potential
conflict between the collective interest and the interests of
an individual employee seeking to assert his rights. See id.,
at 58, n. 19. That concern later provided a basis for our
decisions in Barrentine v. Arkansas-Best Freight System,
Inc., 450 U. S. 728, 742 (1981), and McDonald v. West Branch,
466 U. S. 284, 291 (1984), which similarly held that a CBA
may not commit enforcement of certain rights-creating stat
utes exclusively to a union-controlled arbitration process.
Congress has taken no action signaling disagreement with
those decisions.
The statutes construed by the Court in the foregoing cases
and in Wilko v. Swan, 346 U. S. 427 (1953), have not since
been amended in any relevant respect. But the Court has
in a number of cases replaced our predecessors’ statutory
analysis with judicial reasoning espousing a policy favor
ing arbitration and thereby reached divergent results.
I dissented in those cases to express concern that my col
leagues were making policy choices not made by Congress.
See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U. S. 614, 640 (1985); Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 486 (1989);
Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 36
(1991); and Circuit City Stores, Inc. v. Adams, 532 U. S. 105,
124 (2001).
Today the majority’s preference for arbitration again leads
it to disregard our precedent. Although it purports to as
certain the relationship between the Age Discrimination in
Employment Act of 1967 (ADEA), the National Labor Rela
tions Act, and the Federal Arbitration Act, the Court ignores
our earlier determination of the relevant provisions’ mean
ing. The Court concludes that “[i]t was Congress’ verdict

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that the benefits of organized labor outweigh the sacrifice of
individual liberty” that the system of organized labor “neces
sarily demands,” even when the sacrifice demanded is a judi
cial forum for asserting an individual statutory right. Ante,
at 271. But in Gardner-Denver we determined that “Con
gress’ verdict” was otherwise when we held that Title VII
does not permit a CBA to waive an employee’s right to a
federal judicial forum. Because the purposes and relevant
provisions of Title VII and the ADEA are not meaningfully
distinguishable, it is only by reexamining the statutory ques
tions resolved in Gardner-Denver through the lens of the
policy favoring arbitration that the majority now reaches a
different result.*
Under the circumstances, I believe a passage from one of
my earlier dissents merits repetition. The Court in Rodri
guez de Quijas overruled our decision in Wilko and held that
predispute agreements to arbitrate claims under the Securi
ties Act of 1933 are enforceable. 490 U. S., at 484; see also
id., at 481 (noting Wilko’s reliance on “the outmoded pre
sumption of disfavoring arbitration proceedings”). I ob
served in dissent:
“In the final analysis, a Justice’s vote in a case like this
depends more on his or her views about the respective
lawmaking responsibilities of Congress and this Court
than on conflicting policy interests. Judges who have
confidence in their own ability to fashion public policy
*Referring to the potential conflict between individual and collective
interests, the Court asserts that it “cannot rely on this judicial policy con
cern as a source of authority for introducing a qualification into the ADEA
that is not found in its text.” Ante, at 270. That potential conflict of
interests, however, was a basis for our decision in several pertinent cases,
including Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and Gil
mer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 35 (1991), and in the
intervening years Congress has not seen fit to correct that interpretation.
The Court’s derision of that “policy concern” is particularly disingenuous
given its subversion of Gardner-Denver’s holding in the service of an ex
tratextual policy favoring arbitration.

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are less hesitant to change the law than those of us who
are inclined to give wide latitude to the views of the
voters’ representatives on nonconstitutional matters.
Cf. Boyle v. United Technologies Corp., 487 U. S. 500
(1988). As I pointed out years ago, Alberto-Culver Co.
v. Scherk, 484 F. 2d 611, 615–620 (CA7 1973) (dissenting
opinion), rev’d, 417 U. S. 506 (1974), there are valid pol
icy and textual arguments on both sides regarding the
interrelation of federal securities and arbitration Acts.
None of these arguments, however, carries sufficient
weight to tip the balance between judicial and legislative
authority and overturn an interpretation of an Act of
Congress that has been settled for many years.” Ro
driguez de Quijas, 490 U. S., at 487 (footnote and cita
tion omitted).
As was true in Rodriguez de Quijas, there are compet
ing arguments in this case regarding the interaction of the
relevant statutory provisions. But the Court in Gardner-
Denver considered these arguments, including “the federal
policy favoring arbitration of labor disputes,” 415 U. S., at
59, and held that Congress did not intend to permit the result
petitioners seek. In the absence of an intervening amend
ment to the relevant statutory language, we are bound by
that decision. It is for Congress, rather than this Court, to
reassess the policy arguments favoring arbitration and re
vise the relevant provisions to reflect its views.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The issue here is whether employees subject to a
collective-bargaining agreement (CBA) providing for conclu
sive arbitration of all grievances, including claimed breaches
of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U. S. C. § 621 et seq., lose their statutory right to
bring an ADEA claim in court, § 626(c). Under the 35
year-old holding in Alexander v. Gardner-Denver Co., 415

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U. S. 36 (1974), they do not, and I would adhere to stare deci
sis and so hold today.
I
Like Title VII of the Civil Rights Act of 1964, 42 U. S. C.
§ 2000e et seq., the ADEA is aimed at “ ‘the elimination of
discrimination in the workplace,’ ” McKennon v. Nashville
Banner Publishing Co., 513 U. S. 352, 358 (1995) (quoting
Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979)), and,
again like Title VII, the ADEA “contains a vital element . . . :
It grants an injured employee a right of action to obtain the
authorized relief,” 513 U. S., at 358. “Any person ag
grieved” under the ADEA “may bring a civil action in any
court of competent jurisdiction for such legal or equitable
relief,” 29 U. S. C. § 626(c), thereby “not only redress[ing] his
own injury but also vindicat[ing] the important congres
sional policy against discriminatory employment practices,”
Gardner-Denver, supra, at 45.
Gardner-Denver considered the effect of a CBA’s arbitra
tion clause on an employee’s right to sue under Title VII.
One of the employer’s arguments was that the CBA entered
into by the union had waived individual employees’ statutory
cause of action subject to a judicial remedy for discrimination
in violation of Title VII. Although Title VII, like the
ADEA, “does not speak expressly to the relationship be
tween federal courts and the grievance-arbitration machin
ery of collective-bargaining agreements,” 415 U. S., at 47, we
unanimously held that “the rights conferred” by Title VII
(with no exception for the right to a judicial forum) cannot
be waived as “part of the collective bargaining process,” id.,
at 51. We stressed the contrast between two categories of
rights in labor and employment law. There were “statutory
rights related to collective activity,” which “are conferred on
employees collectively to foster the processes of bargaining[,
which] properly may be exercised or relinquished by the
union as collective-bargaining agent to obtain economic bene
fits for union members.” Ibid. But “Title VII . . . stands

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on plainly different [categorical] ground; it concerns not ma
joritarian processes, but an individual’s right to equal
employment opportunities.” Ibid. Thus, as the Court
previously realized, Gardner-Denver imposed a “seemingly
absolute prohibition of union waiver of employees’ federal
forum rights.” Wr ight v. Universal Mar itime Service
Corp., 525 U. S. 70, 80 (1998).1
We supported the judgment with several other lines of
complementary reasoning. First, we explained that anti
discrimination statutes “have long evinced a general intent
to accord parallel or overlapping remedies against discrimi
nation,” and Title VII’s statutory scheme carried “no
suggestion . . . that a prior arbitral decision either forecloses
an individual’s right to sue or divests federal courts of
jurisdiction.” Gardner-Denver, 415 U. S., at 47. We ac
cordingly concluded that “an individual does not forfeit his
private cause of action if he first pursues his grievance to
final arbitration under the nondiscrimination clause of a
collective-bargaining agreement.” Id., at 49.
Second, we rejected the District Court’s view that simply
participating in the arbitration amounted to electing the ar
bitration remedy and waiving the plaintiff ’s right to sue.
We said that the arbitration agreement at issue covered only
a contractual right under the CBA to be free from discrimi
nation, not the “independent statutory rights accorded by
Congress” in Title VII. Id., at 49–50. Third, we rebuffed
the employer’s argument that federal courts should defer to
arbitral rulings. We declined to make the “assumption that
arbitral processes are commensurate with judicial proc
esses,” id., at 56, and described arbitration as “a less appro
priate forum for final resolution of Title VII issues than the
federal courts,” id., at 58.
1 Gardner-Denver also contained some language seemingly prohibiting
even individual prospective waiver of federal forum rights, see 415 U. S.,
at 51–52, an issue revisited in Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20 (1991), and not disputed here.

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Finally, we took note that “[i]n arbitration, as in the
collective-bargaining process, the interests of the individual
employee may be subordinated to the collective interests of
all employees in the bargaining unit,” ibid., n. 19, a result
we deemed unacceptable when it came to Title VII claims.
In sum, Gardner-Denver held that an individual’s statutory
right of freedom from discrimination and access to court for
enforcement were beyond a union’s power to waive.
Our analysis of Title VII in Gardner-Denver is just as per
tinent to the ADEA in this case. The “interpretation of
Title VII . . . applies with equal force in the context of age
discrimination, for the substantive provisions of the ADEA
‘were derived in haec verba from Title VII,’ ” and indeed
neither petitioners nor the Court points to any relevant dis
tinction between the two statutes. Trans World Airlines,
Inc. v. Thurston, 469 U. S. 111, 121 (1985) (quoting Lorillard
v. Pons, 434 U. S. 575, 584 (1978)); see also McKennon,
513 U. S., at 358 (“The ADEA and Title VII share common
substantive features and also a common purpose”). Given
the unquestionable applicability of the Gardner-Denver rule
to this ADEA issue, the argument that its precedent be
followed in this case of statutory interpretation is equally
unquestionable. “Principles of stare decisis . . . demand re
spect for precedent whether judicial methods of interpreta
tion change or stay the same. Were that not so, those prin
ciples would fail to achieve the legal stability that they seek
and upon which the rule of law depends.” CBOCS West,
Inc. v. Humphries, 553 U. S. 442, 457 (2008). And “[c]onsid
erations of stare decisis have special force” over an issue of
statutory interpretation, which is unlike constitutional inter
pretation owing to the capacity of Congress to alter any
reading we adopt simply by amending the statute. Patter
son v. McLean Credit Union, 491 U. S. 164, 172–173 (1989).
Once we have construed a statute, stability is the rule,
and “we will not depart from [it] without some compelling
justification.” Hilton v. South Carolina Public Railways

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Souter, J., dissenting
Comm’n, 502 U. S. 197, 202 (1991). There is no argument
for abandoning precedent here, and Gardner-Denver
controls.
II
The majority evades the precedent of Gardner-Denver as
long as it can simply by ignoring it. The Court never men
tions the case before concluding that the ADEA and the Na
tional Labor Relations Act, 29 U. S. C. § 151 et seq., “yiel[d]
a straightforward answer to the question presented,” ante,
at 260, that is, that unions can bargain away individual rights
to a federal forum for antidiscrimination claims. If this
were a case of first impression, it would at least be possible
to consider that conclusion, but the issue is settled and the
time is too late by 35 years to make the bald assertion that
“[n]othing in the law suggests a distinction between the sta
tus of arbitration agreements signed by an individual em
ployee and those agreed to by a union representative,” ante,
at 258. In fact, we recently and unanimously said that the
principle that “federal forum rights cannot be waived in
union-negotiated CBAs even if they can be waived in individ
ually executed contracts . . . assuredly finds support in” our
case law, Wright, supra, at 77, and every Court of Appeals
save one has read our decisions as holding to this position,
Air Line Pilots Assn., Int’l v. Northwest Airlines, Inc., 199
F. 3d 477, 484 (CADC 1999) (“We see a clear rule of law
emerging from Gardner-Denver and Gilmer [v. Interstate/
Johnson Lane Corp., 500 U. S. 20 (1991)]: . . . an individual
may prospectively waive his own statutory right to a judicial
forum, but his union may not prospectively waive that right
for him. All of the circuits to have considered the meaning
of Gardner-Denver after Gilmer, other than the Fourth, are
in accord with this view”).
Equally at odds with existing law is the majority’s state
ment that “[t]he decision to fashion a [CBA] to require arbi
tration of employment-discrimination claims is no different
from the many other decisions made by parties in designing

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grievance machinery.” Ante, at 256. That is simply impos
sible to square with our conclusion in Gardner-Denver that
“Title VII . . . stands on plainly different ground” from “stat
utory rights related to collective activity”: “it concerns not
majoritarian processes, but an individual’s right to equal em
ployment opportunities.” 415 U. S., at 51; see also Atchison,
T. & S. F. R. Co. v. Buell, 480 U. S. 557, 565 (1987) (“[N]ot
withstanding the strong policies encouraging arbitration,
‘different considerations apply where the employee’s claim is
based on rights arising out of a statute designed to provide
minimum substantive guarantees to individual workers’ ”
(quoting Barrentine v. Arkansas-Best Freight System, Inc.,
450 U. S. 728, 737 (1981))).
When the majority does speak to Gardner-Denver, it mis
reads the case in claiming that it turned solely “on the nar
row ground that the arbitration was not preclusive because
the collective-bargaining agreement did not cover statutory
claims.” Ante, at 262. That, however, was merely one
of several reasons given in support of the decision, see
Gardner-Denver, 415 U. S., at 47–59, and we raised it to ex
plain why the District Court made a mistake in thinking that
the employee lost his Title VII rights by electing to pursue
the contractual arbitration remedy, see id., at 49–50. One
need only read Gardner-Denver itself to know that it was
not at all so narrowly reasoned, and we have noted already
how later cases have made this abundantly clear. Barren
tine, supra, at 737, provides further testimony:
“Not all disputes between an employee and his employer
are suited for binding resolution in accordance with the
procedures established by collective bargaining. While
courts should defer to an arbitral decision where the em
ployee’s claim is based on rights arising out of the
collective-bargaining agreement, different considera
tions apply where the employee’s claim is based on

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rights arising out of a statute designed to provide mini
mum substantive guarantees to individual workers.
“These considerations were the basis for our decision
in [Gardner-Denver].”
See also Gilmer v. Interstate/Johnson Lane Corp., 500 U. S.
20, 35 (1991) (“An important concern” in Gardner-Denver
“was the tension between collective representation and indi
vidual statutory rights . . . ”). Indeed, if the Court can read
Gardner-Denver as resting on nothing more than a contrac
tual failure to reach as far as statutory claims, it must think
the Court has been wreaking havoc on the truth for years,
since (as noted) we have unanimously described the case as
raising a “seemingly absolute prohibition of union waiver of
employees’ federal forum rights.” Wright, 525 U. S., at 80.2
Human ingenuity is not equal to the task of reconciling state
ments like this with the majority’s representation that
Gardner-Denver held only that “the arbitration was not pre
clusive because the collective-bargaining agreement did not
cover statutory claims.” Ante, at 262.3
2 The majority seems inexplicably to think that the statutory right to a
federal forum is not a right, or that Gardner-Denver failed to recognize it
because it is not “substantive.” Ante, at 256–257, n. 5. But Gardner-
Denver forbade union waiver of employees’ federal forum rights in large
part because of the importance of such rights and a fear that unions would
too easily give them up to benefit the many at the expense of the few, a
far less salient concern when only economic interests are at stake. See,
e. g., Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728,
737 (1981).
3 There is no comfort for the Court in making the one point on which
we are in accord, that Gardner-Denver relied in part on what the majority
describes as “broad dicta that was highly critical of the use of arbitration
for the vindication of statutory antidiscrimination rights.” Ante, at 265.
I agree that Gardner-Denver’s “ ‘mistrust of the arbitral process’ . . . has
been undermined by our recent arbitration decisions,” Gilmer, 500 U. S.,
at 34, n. 5 (quoting Shearson/American Express Inc. v. McMahon, 482
U. S. 220, 231 (1987)), but if the statements are “dicta,” their obsolescence
is as irrelevant to Gardner-Denver’s continued vitality as their currency

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Nor, finally, does the majority have any better chance of
being rid of another of Gardner-Denver’s statements sup
porting its rule of decision, set out and repeated in previous
quotations: “in arbitration, as in the collective-bargaining
process, a union may subordinate the interests of an individ
ual employee to the collective interests of all employees in
the bargaining unit,” ante, at 269 (citing 415 U. S., at 58,
n. 19), an unacceptable result when it comes to “an individu
al’s right to equal employment opportunities,” id., at 51.
The majority tries to diminish this reasoning, and the pre
viously stated holding it supported, by making the remark
able rejoinder that “[w]e cannot rely on this judicial policy
concern as a source of authority for introducing a qualifica
tion into the ADEA that is not found in its text.” Ante, at
270.4 It is enough to recall that respondents are not seeking
was to the case’s holding when it came down; in Gardner-Denver itself we
acknowledged “the federal policy favoring arbitration,” 415 U. S., at 46,
n. 6, but nonetheless held that a union could not waive its members’ statu
tory right to a federal forum in a CBA.
4 The majority says it would be “particularly inappropriate” to consider
Gardner-Denver’s conflict-of-interest rationale because “Congress has
made available” another “avenue” to protect workers against union dis
crimination, namely, a duty of fair representation claim. Ante, at 272.
This answer misunderstands the law, for unions may decline for a variety
of reasons to pursue potentially meritorious discrimination claims without
succumbing to a member’s suit for failure of fair representation. See,
e. g., Barrentine, 450 U. S., at 742 (“[E]ven if the employee’s claim were
meritorious, his union might, without breaching its duty of fair representa
tion, reasonably and in good faith decide not to support the claim vigor
ously in arbitration”). More importantly, we have rejected precisely this
argument in the past, making this yet another occasion where the majority
ignores precedent. See, e. g., ibid.; Gardner-Denver, supra, at 58, n. 19
(noting that a duty of fair representation claim would often “prove difficult
to establish”). And we were wise to reject it. When the Court con
strues statutes to allow a union to eliminate a statutory right to sue in
favor of arbitration in which the union cannot represent the employee
because it agreed to the employer’s challenged action, it is not very consol
ing to add that the employee can sue the union for being unfair.

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to “introduc[e] a qualification into” the law; they are justifi
ably relying on statutory-interpretation precedent decades
old, never overruled, and serially reaffirmed over the years.
See, e. g., McDonald v. West Branch, 466 U. S. 284, 291
(1984); Barrentine, 450 U. S., at 742. With that precedent
on the books, it makes no sense for the majority to claim that
“judicial policy concern[s]” about unions sacrificing individual
antidiscrimination rights should be left to Congress.
For that matter, Congress has unsurprisingly understood
Gardner-Denver the way we have repeatedly explained it
and has operated on the assumption that a CBA cannot waive
employees’ rights to a judicial forum to enforce antidiscrimi
nation statutes. See, e. g., H. R. Rep. No. 102–40, pt. 1, p. 97
(1991) (stating that, “consistent with the Supreme Court’s
interpretation of Title VII in [Gardner-Denver],” “any
agreement to submit disputed issues to arbitration . . . in the
context of a collective bargaining agreement . . . does not
preclude the affected person from seeking relief under the
enforcement provisions of Title VII”). And Congress ap
parently does not share the Court’s demotion of Gardner
Denver’s holding to a suspect judicial policy concern: “Con
gress has had [over] 30 years in which it could have corrected
our decision . . . if it disagreed with it, and has not chosen to
do so. We should accord weight to this continued accept
ance of our earlier holding.” Hilton, 502 U. S., at 202; see
also Patterson, 491 U. S., at 172–173.
III
On one level, the majority opinion may have little effect,
for it explicitly reserves the question whether a CBA’s
waiver of a judicial forum is enforceable when the union con
trols access to and presentation of employees’ claims in arbi
tration, ante, at 273–274, which “is usually the case,” Mc-
Donald, supra, at 291. But as a treatment of precedent in
statutory interpretation, the majority’s opinion cannot be

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reconciled with the Gardner-Denver Court’s own view of its
holding, repeated over the years and generally understood,
and I respectfully dissent.