923 F.3d 1246

THOMAS, Chief Circuit Judge, concurring:
I agree that this court's decision in EEOC v. Luce, Forward, Hamilton & Scripps , 345 F.3d 742 (9th Cir. 2003) (en banc), compels us to hold that § 1981 claims are arbitrable. I therefore concur in the majority opinion. I write separately because I believe that Luce, Forward was wrongly decided.
Because the majority in Luce, Forward determined that the statutory text of § 118 is unambiguous, it did not consider the legislative history of the Civil Rights Act of 1991. See id. at 753. Section 118, however, merely states that arbitration should be "encouraged" to the extent it is "appropriate" and "authorized by law." § 118, 105 Stat. at 1081. As the dissenters in Luce, Forward noted, these terms are "at a minimum, ambiguous." Id. at 756 (Pregerson, J., dissenting) (quoting Duffield v. Robertson Stephens & Co. , 144 F.3d 1182, 1193 (9th Cir. 1998) (overruled by Luce, Forward , 345 F.3d at 745 )); see also , id. at 764 (Reinhardt, J., dissenting) (noting that the terms in § 118 are "unquestionably ambiguous"). The dissenters determined, and I agree, that pursuant to Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 23, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Luce, Forward majority should have recognized this ambiguity and moved on to consider § 118's legislative history. See Luce, Forward , 345 F.3d at 756 (Pregerson, J., dissenting); id. at 764-66 (Reinhardt, J., dissenting).
Section 118's legislative history explicitly states that, in order to prevent employment discrimination, Congress intended "to supplement, rather than supplant, the rights and remedies provided by Title VII." Id. at 766 (Reinhardt, J., dissenting) (quoting H.R. Rep. No. 102-40 pt. I, at 104 (1991)); id. at 760 (Pregerson, J., dissenting) (quoting the same). As did the Luce, Forward dissenters, I recognize that Congress "plainly thought that the [1991] Act did not allow employers to force their workers to sign compulsory arbitration clauses forfeiting their right to trial by jury in Title VII cases." Id. at 766 (Reinhardt, J., dissenting).
Viewed in this light, compelling arbitration in Section 1981 actions more acutely defies Congress's intent than does compelling arbitration in Title VII actions. As the majority in Luce, Forward noted, the EEOC may pursue Title VII claims in a judicial forum on behalf of individuals, even if the individual agreed to mandatory arbitration. Id. at 750. Thus, those bringing claims under Title VII retain some ability to choose the judicial forum in which their claims will be heard. The same is not true for Section 1981 claims, which must be brought by private litigants. As a result of our holding, an individual who signs an arbitration clause will be stripped of any ability to pursue a racial discrimination claim under Section 1981 in a court of law.
Our decision today signifies a further departure from the increased choice of fora Congress intended to bring about in the 1991 Act. However, bound by Luce, Forward , we are left with no option to hold otherwise. Therefore, I concur.
What is more, an individual has good reason to bring an action for racial discrimination under Section 1981 as opposed to Title VII since the statute of limitations for bringing a Section 1981 claim is longer than for a Title VII claims. Compare Jones v. R.R. Donnelley & Sons Co. , 541 U.S. 369, 382-84, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (concluding that Section 1981 claims are subject to a four-year statute of limitations) with 42 U.S.C. § 2000e-5(e)(1) (Title VII claims must be brought within 180 days after the alleged unlawful act). In addition, a plaintiff may be able to recover more damages under Section 1981. See Patterson v. McLean Credit Union , 491 U.S. 164, 182 n.4, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded on other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (noting that a plaintiff is limited to backpay in a Title VII action, but may recovery plenary compensatory, as well as punitive damages, in a Section 1981 action).

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