Union Members: Grievances, Arbitration and Discrimination Claims in New York

A union grievance and a discrimination claim are two different things, and starting one does not start the other. The EEOC says time limits for filing a charge generally will not be extended while you try to resolve a dispute through a union grievance, arbitration or mediation.⁠^[1] Whether you can be required to arbitrate a discrimination claim instead of going to court depends on your contract: under federal law, a collective-bargaining agreement can require it only if it does so "clearly and unmistakably."⁠^[2]

This page is for workers covered by a collective-bargaining agreement (the contract between a union and an employer, often shortened to CBA). A grievance is a complaint that the employer broke that contract, handled through the steps the contract sets out, which can end in arbitration.

How is a grievance different from a discrimination claim?

A grievance enforces the contract. A discrimination claim enforces a statute: Title VII and the other federal laws, the New York State Human Rights Law (NYSHRL) or the New York City Human Rights Law (NYCHRL). The Supreme Court has drawn the same line between contract-based claims and statutory claims.⁠^[2] Each statute has its own filing route and its own clock:

Route	Layer	Time limit
EEOC charge	Federal	For Title VII claims, 300 days where proceedings were first instituted with a State or local agency (180 days otherwise); the EEOC's New York District Office gives 300 days for New York.⁠[8][9]
Division of Human Rights complaint	New York State	Three years after the alleged unlawful discriminatory practice; the Division applies that period to acts on or after February 15, 2024.⁠[10][11]
Court action under the NYSHRL	New York State	Three years under CPLR 214(2).⁠[12]
NYC Commission on Human Rights complaint	New York City	One year; three years for a claim of gender-based harassment.⁠[13]
Court action under the NYCHRL	New York City	Three years.⁠[14]
Fair-representation claim against a Taylor Law or Labor Law article 20 union	New York State	Four months.⁠[3]
Hybrid suit against a private employer and union	Federal	Six months.⁠[4]
Unfair labor practice charge at the National Labor Relations Board	Federal	Six months, counting both filing and service of the charge.⁠[15]

The contract's own grievance steps have time limits set by the contract. Those are in your CBA, not in any statute cited here. For the full list of statutory periods, see every deadline for a New York workplace claim; public employees should also read notice-of-claim rules and shorter deadlines.

Does a grievance pause the filing deadlines?

For the federal charge, the EEOC's answer is that time limits "generally will not be extended while you attempt to resolve a dispute through another forum such as an internal grievance procedure, a union grievance, arbitration or mediation."⁠^[1] The agency also says that other forums for resolution may be pursued at the same time as the processing of the charge.⁠^[1] A grievance and a charge can run side by side.

For State and City claims, do not assume that a grievance stops the clock. The one express pause in the City statute is narrower: under the NYCHRL, the three-year period to sue is tolled when a complaint is filed with the NYC Commission on Human Rights or the State Division of Human Rights and while that complaint is pending.⁠^[16] A grievance is neither of those filings. The safer reading is that every statutory period in the table keeps running while a grievance is pending.

Can my union contract require me to arbitrate a discrimination claim?

Sometimes. The Supreme Court decision on the question arose in New York City.⁠^[2] In 14 Penn Plaza LLC v. Pyett (2009), the contract between SEIU Local 32BJ and the Realty Advisory Board on Labor Relations required union members to submit all claims of employment discrimination to binding arbitration under the contract's grievance procedures.⁠^[2] The Supreme Court held, as a matter of federal law, that a CBA provision that clearly and unmistakably requires union members to arbitrate claims under the Age Discrimination in Employment Act (ADEA) is enforceable.⁠^[2]

Three points from the decision mark its edges:

• The clause has to cover statutory claims. The Court said older cases concerned "the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims," and do not control where the arbitration provision expressly covers both statutory and contractual discrimination claims.⁠^[2]
• Arbitration changes the forum, not the right. The Court said that resolving ADEA claims by arbitration 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.⁠^[2]
• A substantive waiver is not upheld. The Court said a substantive waiver of federally protected civil rights will not be upheld, and it declined to decide the workers' claim that the contract allowed the union to prevent them from effectively vindicating their federal statutory rights in arbitration.⁠^[2]

Whether a particular clause meets the "clearly and unmistakably" test is a case-specific question this guide does not resolve. Reading the discrimination, grievance and arbitration articles of the CBA is the first step, and a point to raise with a lawyer.

What about sexual harassment and assault claims?

Federal law treats these differently. Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, at the election of the person alleging the conduct, no pre-dispute arbitration agreement is valid or enforceable for a case that relates to the sexual harassment or sexual assault dispute.⁠^[17] The Act applies to disputes or claims that arise or accrue on or after March 3, 2022.⁠^[18]

New York State's published guidance says the federal prohibition "makes no exception for CBAs."⁠^[19] That is a State agency's reading of a federal statute, not a court decision. New York's own statute, CPLR 7515, says that where a collective-bargaining agreement conflicts with the section the agreement controls, and the State describes that statute as largely preempted by federal law.⁠^[20][21] For the detail, see can I be forced into arbitration? and arbitration agreements and class waivers.

Can I still file with an agency?

Under federal law, the Supreme Court said in Pyett that union members may also file age discrimination claims with the EEOC and the National Labor Relations Board.⁠^[2] In New York State, the State's guidance says the Division of Human Rights does not enforce mandatory arbitration clauses and proceeds with discrimination complaints filed with it "regardless of any mandatory arbitration provision of an individual or collective bargaining contract," while warning that a judge in a particular case could order the Division to stop.⁠^[22]

Agency filings carry their own consequences. Under New York State law and under New York City law, a person who has filed a complaint with the State Division or the City Commission generally cannot then sue in court on the same claim, with exceptions for certain agency dismissals that differ between the two statutes.⁠^[23][24] See election of remedies and choosing where to file.

What if the union will not pursue my grievance?

Answering the concern that a union may put the group's interests ahead of one member's, the Supreme Court in Pyett pointed to three protections under federal law: a duty of fair representation claim against the union, the union's own direct liability under the ADEA if it discriminates on the basis of age, and the member's ability to file with the EEOC and the National Labor Relations Board.⁠^[2]

The time limits for a fair-representation claim are short:

• Public-sector and State-law unions. Under New York State law (CPLR 217), a claim against a union covered by the Taylor Law or Labor Law article 20 must be started within four months of the date the employee knew or should have known of the breach, or within four months of suffering actual harm, whichever is later.⁠^[3] For a public-employee union, deliberately breaching the duty is also an improper practice under Civil Service Law § 209-a.⁠^[25]
• Private-sector unions. Under federal law, a "hybrid" suit against a private employer for breaching the contract and against the union for breaching the duty of fair representation is governed by a six-month limitations period.⁠^[4]

A fair-representation claim is about how the union handled the grievance. It does not replace the discrimination claim against the employer, and the periods for that claim are the ones in the table above.

Is the union itself bound by the discrimination laws?

Yes, at each layer.

• Federal. Under Title VII it is an unlawful employment practice for a labor organization to exclude or expel from membership, or otherwise discriminate against, any individual because of race, color, religion, sex or national origin.⁠^[5]
• New York State. Under the NYSHRL a labor organization may not, because of a protected characteristic, exclude or expel an individual or discriminate in any way against its members.⁠^[6] The State's harassment provision and its retaliation provision both name labor organizations alongside employers.⁠^[26][27]
• New York City. Under the NYCHRL it is an unlawful discriminatory practice for a labor organization, or its employee or agent, to exclude or expel a person from membership or discriminate in any way against any of its members because of a protected characteristic.⁠^[7]

Public employees and other labor-law routes

Public-sector union members have two extra things to check. Under New York State Civil Service Law § 75-b, a public employee who is covered by a CBA with final and binding arbitration, or who faces discipline under such a procedure, may assert whistleblower retaliation before the arbitrator or hearing officer; the section gives a court action to an employee who is not subject to those procedures.⁠^[28] And under New York State law a suit against a school district requires a written verified claim within three months and must be started within one year, while County Law § 52 requires a notice of claim for damages claims against a county.⁠^[29][30][31]

Separately, under federal law the National Labor Relations Act gives employees the right to engage in concerted activities for mutual aid or protection and forbids discharging an employee for filing charges or giving testimony under the Act.⁠^[32] The Board cannot issue a complaint on an unfair labor practice that occurred more than six months before the charge was filed and served.⁠^[15] See talking with coworkers about pay and working conditions.

What people get wrong

• "My grievance protects my deadline." The EEOC says charge time limits generally are not extended while a union grievance or arbitration is pending.⁠^[1]
• "A union contract can never take a discrimination claim out of court." A clause that clearly and unmistakably requires arbitration of federal age claims is enforceable under Pyett.⁠^[2]
• "If the union drops my grievance, I have years to act." A fair-representation claim has four months under New York State law for Taylor Law and Labor Law article 20 unions, or six months under federal labor law for a hybrid suit against a private employer and union.⁠^[3][4]

Practical steps

Get the current CBA and read the non-discrimination, grievance and arbitration articles; note whether the arbitration clause names statutes or only the contract. Ask your representative, in writing, what the union has filed and when, and keep the reply. Put the statutory periods from the table on a calendar next to the grievance steps, and treat them as separate tracks: the EEOC says its charge time limits generally are not extended while a union grievance is pursued.⁠^[1] The guide on filing an EEOC charge in New York explains the federal step, and preparing for a consultation lists the documents worth gathering.