Gnawing at Gilmer: Giving Teeth to

Abstract

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1999 WL 80964 (1st Cir. 1999). At the age of forty-five, Susan Rosenberg began a new career in the securities industry and entered Merrill Lynch's twenty-four-month training program for financial consultants in 1992. She signed a standard "U-4" securities industry application form, which contained a provision requiring arbitration of "any dispute, claim or controversy that may arise" with her employer in accordance with policies of the various stock exchanges. When Merrill Lynch terminated her employment two years later, Rosenberg sued, claiming age discrimination under the Age Discrimination in Employment Act ("ADEA") and sexual harassment under Title VII. She asserted that her job performance was superior to that of at least four younger, male consultants who remained employed and alleged that a supervisor had once handed her a phallus-shaped vibrator when she collected documents from his office Merrill Lynch moved to stay her suit and compel arbitration under the dispute resolution system of the New York Stock Exchange ("NYSE").