# Amicus Curiae Brief — EEOC v. Waffle House, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0371%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 279

## Text

Supreme Cowt, U.S.

FILBD
May 2f 2eol- | may 25 200
No. 99-1823 “ _—|_scOrFICEOP THRCLERE

IN THE
SUPREME COURT OF THE UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Petitioner,
v.

WAFFLE HOUSE, INC.,
Respondent.

On Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE
NATIONAL WHISTLEBLOWER CENTER
IN SUPPORT OF PETITIONER

Stephen M. Kohn

Counsel of Record

Michael D. Kohn

David K. Colapinto

National Whistleblower Legal
Defense and Education Fund
3238 P Street, N.W.
Washington, D.C. 20007
(202) 342-2177

Counsel for Amicus Curiae
National Whistleblower Center

TABLE OF CONTENTS

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STATEMENT OF INTEREST OF AMICUS CURIAE

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SUMMARY OF THE ARGUMENT ................. 3
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I. THE FEDERAL ARBITRATION ACT
DOES NOT DISPLACE THE EEOC’S
ADMINISTRATIVE AUTHORITY TO

DETERMINE THE APPROPRIATE
REMEDY NECESSARY TO EFFECTUATE
FEDERAL POLICY IN A
DISCRIMINATION CASE ............. +

Il. INTERFERING WITH THE EEOC’S
DISCRETION TO DETERMINE THE

APPROPRIATE REMEDY TO
EFFECTUATE FEDERAL POLICY
WOULD DEFEAT CONGRESS’ PURPOSE
IN PASSING THE FEDERAL
ARBITRATION ACT ........ jenviced OO

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TABLE OF AUTHORITIES

CASES

Cannon vy. University of Chicago,

441 US. G77 CEGTSD « cvivevvccesscunsaneenees 8

Circuit City Stores v. Saint Clair Adams,
__ US. __, 121 S.Ct. 1302 (2001) ....... 4,12, 13

EEOC v. Frank's Nursery & Crafts,
177 F.3d 448 (6™ Cir. 1999) .............0008. 12

EEOC v. Waffle House, Inc.,
193 F.3d 805 (4 Cir. 1999) ................ 5,12

FEC v. Akins,
524 US. 15 CISRED . 0 oc ccscsesesese eee 9

General Telephone Co. v. EEOC,
446 U.S. SIG CISEED . « cccccccsssansuaeneeue 6

Gilmer v. Interstate/Johnson Lane Corp.,
LS & Ti) rrr re 1]

Heckler v. Chaney,
470 US. Gai CEG) «+ cvcscvcccstanaveneennee 9

J 1 Case Co. v. NLRB,
321 US. SRB CHeee « sv 004008sineeneeee 6, 8,14

NLRB v. Jones & Laughlin Steel Corp,
301 UD. 8 CReR so cccccscevctesecedenensees 5

Occidental Life Ins. Co. v. EEOC,
432 UD. Fa Gee 6 ok tececduccotedeccss 5, 6,9

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Phelps Dodge Corp. v. NLRB,
Ee 6, 7,8, 11
STATUTES AND CONSTITUTION

United States Constitution,

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OTHER AUTHORITIES

Equal Employment Opportunity Act of 1972,
H. Rep. No. 92-238, reprinted 1972 U.S.C.C_A.N.

re rere 13
Legislative History of Titles VII and XI of Civil Rights Act
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STATEMENT OF INTEREST
OF AMICUS CURIAE
NATIONAL WHISTLEBLOWER CENTER

The National Whistleblower Center ("Center")' is a
nonprofit, tax-exempt, non-partisan, charitable, and educational
organization dedicated to the protection of employees who
report misconduct in the workplace or testify in proceedings to
enforce federal law. The Center supports employees who have
suffered illegal retaliation due to the disclosure of matters in
the public interest. The Center regularly assists employees who
have filed viable claims of retaliation under state and federal
anti-retaliation laws and participates in public education
programs throughout the country. The Center also operates,
pro bono, an Attorney Referral Service for whistleblowers
(with attorney members in 38 states) and maintains an Internet
web site at www. whistleblowers org.

Persons assisted by the Center have a direct interest in
the outcome of this case. Over twenty federal laws containing
prohibitions against employee retaliation also contain
administrative enforcement procedures either identical or
substantially similar to the provisions at issue in this case.
Affirming the decision of the Fourth Circuit could have the
direct impact of undermining a_ carefully-constructed
Congressional framework for protecting employee-

' Pursuant to Rule 37.6, no monetary
contributions were accepted for the preparation or submission
of this amicus curiae brief and that the Center's attorneys,
Stephen M. Kohn, Michael D. Kohn, David K. Colapinto,
authored this brief in its entirety. Counsel for all parties have
consented to the filing of an amicus curiae brief by the National
Whistleblower Center.

2

whistleblowers under numerous laws, in addition to the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 2000e-
3(a), specifically at issue here.

This case is of particular concern to the National
Whistleblower Center. Almost all federal whistleblower
protection laws rely upon an enforcement mechanism similar
to the one employed by Congress in the ADA. Whistleblowers
tend to be very unpopular plaintiffs, and are typically at a
disadvantage vis a vis employers. Accordingly, Congress has
enacted statutory schemes designed to carry out the federal
policy of protecting whistleblowers, and has empowered a
number of federal agencies to administer those laws and uphold
the federal policies at stake. Similar to the powers given the
Equal Employment Opportunity Commission ("EEOC") under
the ADA, these federal agencies are authorized to seek relief in
federal court for individual whistleblowers who serve the
public interest, including the enforcement of back pay and
reinstatement awards.

Any limitations on the power of these agencies to
properly protect whistleblowers would fundamentally
undermine the detailed Congressional framework which has
created a safety net for employees who blow the whistle on
public safety violations in a number of sensitive areas, such as
nuclear safety, airline safety, mine safety, surface transportation
safety, and environmental protection, among many others.

Since 1990 the Center has participated before this
Court as amicus curiae in a number of cases that directly
impact on the rights of employee whistleblowers, including
English v. General Electric, 496 U.S. 72 (1990), Haddle v.
Garrison, 525 U.S. 121 (1999), and Vermont Agency of
Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (2000).

3
SUMMARY OF THE ARGUMENT

Since 1935 Congress has entrusted the executive
branch of government with the discretion to enforce important
public polices that can come under fire in the workplace. Over
twenty statutes are based on this model, including the ADA.
Congress recognized the case-by-case “difficulties” of
enforcing these polices and consequently established agencies,
such as the EEOC, to ensure that important federal policy
would not be undermined by illegal employer action.

In granting executive agencies authority to vindicate
congressionally-sanctioned policy, Congress also empowered
these agencies, pursuant to Article | of the United States
Constitution, with the authority to determine the “relation of
remedy to policy,” an authority this Court has long recognized.
The lower court in this case failed to heed this Court’s warning
against “the danger of sliding unconsciously from the narrow
confines of law into the more spacious domain of policy,”
when it drastically limited the EEOC’s enforcement authority.

The EEOC has the discretion to determine the
relationship between remedy and policy in all cases in which it
seeks to enforce the ADA and the important policies that Act
stands for. In this case, the lower court abused its discretion
when it determined that the EEOC may only seek prospective
relief against employers who violate the ADA. The Fourth
Circuit’s holding directly undermines the well-established
discretion the EEOC has to determine which remedies further
the federal policies it is entrusted by Congress to enforce.

Moreover, in addition to the ADA, twenty other federal
laws are based on enforcement principles either identical or
similar to those in the ADA. Upholding the lower court ruling
in this matter could threaten the administrative and judicial
enforcement process in all of these laws. Such a result would

4

undermine the carefully constructed enforcement process
established by Congress over a sixty-year period.

Finally, the decision of the lower court is completely
inconsistent with the policies underlying the Federal
Arbitration Act and this Court’s decision in Circuit City Stores
v. Saint Clair Adams, _U.S. _, 121 S.Ct. 1302 (2001). As
this Court has recognized, one of the benefits of arbitration is
permitting both employees and employers to enjoy the benefits
of a fast, fair and inexpensive process to vindicate statutory
rights. Under the process endorsed by the lower court,
however, employees and employers could be forced to defend
employment decisions in two separate ongoing proceedings -
one before an arbitration panel and another before the EEOC.
Instead of being inexpensive and in accordance with federal
arbitration policy, the costs of such cases could easily double.

Additionally, the adjudication process in both cases may
be distorted due to the application of the res judicata and
collateral estoppel doctrines. Permitting multiple litigation of
the same or similar claims in two separate fora would
undermine all of the reasons why the res judicata and
collateral estoppel rules exist.

ARGUMENT

I, THE FEDERAL ARBITRATION ACT DOES
NOT DiSMLACE THE EEOC’S
ADMINESTRATIVE AUTHORITY TO
DETERMINE THE APPROPRIATE REMEDY
NECESSARY TO EFFECTUATE FEDERAL
POLICY IN A DISCRIMINATION CASE.

The lower court fundamentally misunderstood the
EEOC » aiscretuon te evaluate the remedy it would seek in a
discrimination case with the EEOC’s Congressionally-

—

5

mandated duty to effectuate the national policy of eliminating
the harms caused by illegal discrimination. Its failure to
properly weigh this Court’s longstanding rule that agencies,
such as the EEOC, have the primary duty to determine the
relationship between remedy and policy in eradicating illegal
employment practices mandates that the decision of the lower
court be reversed.

The lower court erred when it held that the “public
interest” in determining issues such as back pay and
reinstatement, were “minimal,” and somehow outside of the
EEOC’s “primary” mission of protecting “public” interests.
EEOC v. Waffle House, Inc., 193 F.3d 805, 812 (4th Cir. 1999).
This holding is at war with the fundamental premises
underlying most federal anti-discrimination laws. Since the
enactment of the National Labor Relations Act in 1935,
Congress has, on numerous instances, empowered Article |
administrative agencies with the authority of protecting the
public interest by policing employment practices which
interfered with interstate commerce or other federal rights for
which Congress, under the U.S. Constitution, had the authority
to regulate. See NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 48-49 (1937).

In upholding administrative agencies’ authority to
police employment practices made illegal by Congress, this
Court has also recognized that part of that enforcement
authority includes the power of agencies to seek judicial
enforcement of orders of “reinstatement” or “payment for lost
time.” /d.? This Court has also firmly recognized that neither

2 Title VII of the Civil Rights Act of 1964, as
amended, established the EEOC to implement “an integrated,
multistep enforcement procedure culminating in the EEOC’s
authority to bring a civil action in federal court.” Occidental

(continued...)

6

an employee nor an employer may interfere with this power
through the execution of a private contract. J./ Case Co. v.
NLRB, 321 U.S. 332, 337 (1944) (“Individual contracts, no
matter what the circumstances that justify their execution or
what their terms, may not be availed of to defeat or delay the
procedures prescribed by the National Labor Relations Act”).

The lower court’s holding that an award of back pay to
an employee somehow had only a “minimal” impact on the
broader public interest cannot be sustained as a matter of law.
Congress vested the EEOC with the discretion to determine the
relationship between the remedy sought in an action filed by the
Commission, and the Commission’s obligation to advance the
broader public interest. Again, sixty years ago this Court
recognized the fundamental relationship between a “remedy”
and the effectuation ofa policy. Phelps Dodge Corp. v. NLRB,
313 U.S. 177 (1941). In Phelps Dodge, this Court held that an
administrative agency’s “power to neutralize discrimination”

? (...continued)

Life Insurance Company v. EEOC, 432 U.S. 355, 359 (1977).
When Congress created the EEOC in 1964, it “established an
administrative procedure” for resolving discrimination claims.
In 1972 the EEOC was granted “additional enforcement power”
to seek enforcement of discrimination laws in federal court.
Despite its ability to file claims in federal court, “the EEOC
does not function simply as a vehicle for conducting litigation
on behalf of private parties; it is a federal administrative agency
charged with the responsibility of investigating claims of
employment discrimination ....” J/d., pp. 367-68. This Court
has noted the difference between suits which merely represent
a private interest and those filed by administrative agencies in
order to protect a public interest. General Telephone Company
v. EEOC, 446 U.S. 318, 333 (1980) (noting “possible
differences between the public and private interests” involved
in Title VII litigation).

7

was not limited in cases in which an employee may already
have obtained “compensatory” relief. The agency’s power was
not “limited” to remedying private harms, but extended to
effectuating “public policy. Jd, pp. 192-93.

In the context of eradicating harmful employment
practices prohibited by law, Congress empowered agencies to
determine the “relation” between the necessary “remedy” in a
particular case, to the “policy” for which the agency was
established to enforce. Phelps Dodge, 313.ULS. at 194.

Although decided sixty years ago in the context of
evaluating the powers of the National Labor Relations Board,
the analysis of this Court in Phelps Dodge is equally applicable
to the issued raised by the lower court in order to determine the
scope of discretionary authority vested in the EEOC to
determine what remedy to seek for an employee when weighing
its duty to protect the public interest as a whole. This Court left
no doubt that Article I agencies, such as the NLRB or EEOC,
have the discretion to make this threshold determination, and
that courts must be extremely limited in second-guessing that
judgment, as a matter of law:

Congress met these difficulties [ie., in
determining the proper scope of a remedy] by
leaving the adaptation of means to end to the
empiric process of administration. The exercise
of the process was committed to the Board,
subject to limited judicial review. Because the
relation of remedy to policy is peculiarly a
matter for administrative competence, the
courts must not enter the allowable area of the
Board’s discretion and must guard against the
danger of sliding unconsciously from the
narrow confines of law into the more spacious
domain of policy. On the other hand, the power
with which Congress invested the Board

implies responsibility — the responsibility of
exercising its judgment in employing the
statutory powers.

Phelps Dodge, 313 U.S. at 194.

This holding is equally true in the context of the
EEOC’s exercise of its discretion in cases arising under the
ADA. First, determining what relief is necessary to effectuate
Congress’ policy goals in any particular case is a “difficult”
issue, and one which Congress left with the EEOC, if and when
the EEOC chooses to exercise its discretion to file a claim. Just
as with the NLRB, Congress clearly vested considerable
discretion with the EEOC in formulating its demand for relief
in any case filed in federal court.

Second, because of the relationship between remedy
and policy, courts must be very wary of interfering with the
EEOC’s discretion in this area. Of course, a court can refuse to
award any damage requested by the EEOC if such an award is
not permissible under the act or is not supported by the
evidence. However, removing the EEOC’s authority to even
request such relief in a complaint, or attempt to create a record
that would justify such relief, unquestionably oversteps the
bounds of judicial restraint, and upsets the regulatory and

’ Congress is “presumed to know the law.”

Cannon v. University of Chicago, 441 U.S. 677, 696-99, 99
S.Ct. 1946 (1979). When Congress passed the Civil Rights Act
of 1964 and the amendments thereto in 1972, it knew of
agencies’ authority to determine the appropriate remedy to
effectuate federal policy, as set forth in Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941)(recognizing agency discretion in
formulating a proposed remedy); J.J. Case Co. v. NLRB, 321
U.S. 332, 337 (1944)(recognizing that private contracts must
yield to a congressionally-sanctioned enforcement regime).

9

enforcement scheme developed by Congress.‘ This Court’s —
warning to the lower courts “against the danger of sliding
unconsciously” into the “spacious domain of policy” in which
Congress granted the NLRB is equally applicable to the EEOC.
It is well established that Congress empowered the EEOC with
a “spacious domain” to enforce the ADA and thereby effectuate
the federal policies Congress intended when it enacted the
ADA into law.

Third, Congress’ grant of “power” to the EEOC to
investigate and file claims against employers concerning illegal
employment practices also “implies responsibility.” Clearly,
the EEOC does not file such claims in every case. Even when
claims are filed, the EEOC must act with proper
“responsibility” in determining what relief to seek, and what
forum should be used to obtain that relief.

Although this case arose in the context of the ADA,
since 1935 Congress has used the NLRA as a model for passing

¢ It is well-settled that "agency enforcement
decisions" are generally "committed to agency discretion."
FEC v. Akins, 524 U.S. 11, 26, 118 S.Ct. 1777 (1998), citing
Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1469 (1985).
Consequently, there is no authority which would permit a
district court to micro-manage or second-guess the types of
relief the EEOC may request when engaging in its “multi-step
enforcement procedure.” Occidental Life Ins. Co. v. EEOC,
432 U.S. 355, 359 (1997). In fact, permitting such micro-
management at the complaint and discovery phase of a legal
action could significantly add to the complexity and expense
incurred by all parties engaged in the EEOC enforcement
process.

10

numerous laws which effectuate other national labor polices.’
Any decision by this Court limiting the discretion of the EEOC
to determine the proper “remedy” in an employment case
would have an extremely detrimental impact on numerous
laws in addition to the civil rights statutes directly implicated
in the Fourth Circuit’s holding. See, eg, Aviation
Whistleblower Protection Provision, 49 U.S.C. § 42121(c)(5)
(Secretary of Labor discretion to file civil action to enforce law
and seek compensatory damages); Clean Air Act Employee
Protection, 42 U.S.C. § 7622(d) (Secretary of Labor discretion
to file civil action to enforce law and seek compensatory and
exemplary damages); Employee Polygraph Protection Act, 29
U.S.C. § 2005(b) (Secretary of Labor discretion to file civil suit
c* taining lost wages and benefits for employees); Fair Labor
Standards Act, 29 U.S.C. §§ 215(a)(3) and 216 (Secretary of
Labor discretion to file civil action to enforce law); Migrant
and Seasonal Agricultural Workers Protection Act, 29 U.S.C.
§ 1855 (Secretary of Labor duty to file civil action to enforce
law); Mine Health and Safety Act, 30 U.S.C. § 818 (Secretary
of labor discretion to file civil action to enforce law);
Occupational Health and Safety Act nonretaliation provision,
29 U.S.C. § 660(c) (Secretary of Labor discretion to file civil
action to enforce law); Safe Containers for International Cargo
Act Employee Protection Provision, 46 U.S.C. § 1506

: See Legislative History of Titles VII and XI of
Civil Rights Act of 1964 at p. 3077 (GPO 1968), reprinting
various legal memoranda placed into the Congressional Record
by Sen. Clark during the 1964 debates concerning the Civil
Rights Act. For example, one memorandum placed on the
record by Sen. Clark noted that “starting with the National
Labor Relations Act,” Congress had “enacted comprehensive
legislation regulation labor and management practices.” The
memorandum also noted that “prior statutes,” which included
the NLRA, were “directly analogous to the provisions of title
VII.”

11

(Secretary of Labor discretion to file civil action to enforce
law); Safe Drinking Water Act Employee Protection Provision,
42 U.S.C. § 300j-9i(4); Surface Transportation Act Employee
Protection Provision, 49 U.S.C. § 31105(d) (Secretary of Labor
duty to file civil action to enforce law); Toxic Substances
Control Act Employee Protection Provision, 15 U.S.C. §
2622(d) (Secretary of Labor duty to file civil action to enforce
law).

Clearly, Congress was free to rely on this Court’s
holding in Phelps Dodge in empowering administrative
agencies to protect employees under other laws, and entrusting
those agencies to properly determine the relationship between
“remedy” and “policy” in enforcing those other laws. Should
this Court uphold the lower court’s ruling, the power of these
agencies to administer and enforce the vital national policies
effectuated under numerous laws would be either directly
undermined or, at a minimum, called into question.

The EEOC has the discretion to determine the
relationship between remedy and policy in all cases in which it,
in its discretion, seeks to vindicate the policies of the ADA.
The lower court erred when it overturned the EEOC’s exercise
of that discretion.

Il. INTERFERING WITH THE EEOC’S
DISCRETION TO DETERMINE THE
APPROPRIATE REMEDY TO EFFECTUATE
FEDERAL POLICY WOULD DEFEAT
CONGRESS’ PURPOSE IN PASSING THE
FEDERAL ARBITRATION ACT.

In Gilmer, this Court acknowledged that the EEOC
retained certain powers to pursue claims under anti-
discrimination laws, despite the existence of an arbitration
agreement executed by two private parties. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). This

12

holding is fully consistent with the legislative history of the
Civil Rights Act of 1964, as amended. EEOC v. Frank's
Nursery & Crafts, 177 F.3d 448, 456-59 (6th Cir. 1999).

In this case, however, the lower court justified limiting
the EEOC’s right to request various remedies for victims of
discrimination. The lower court held that a dual procedure for
enforcing the national policy against illegal employment
discrimination must be utilized. On the one hand, the EEOC
could adjudicate broad class actions and seek “injunctive” relief
for victims of discrimination in federal court, while on the other
hand, issues of individual monetary relief arising from the same
incident had to be resolved through arbitration. EEOC v.
Waffle House, Inc., 193 F.3d 805, (4th Cir. 1999).

This holding is illogical and completely inconsistent
with the Congressional purposes behind the Federal Arbitration
Act and this Court’s holding in Circuit City Stores v. Saint
Clair Adams, _ U.S. _, 121 S.Ct. 1302 (2001) . If the
holding of the lower court were followed, employees,
employers and the government would, in many cases, have to
bear the burdens and risks of dual adjudications. Circuit City,
__ U.S. __, 121 S.Ct. 1313 (warning against judicial holdings
which could result in the “bifurcation of proceedings” subject
to arbitration, thereby increasing both litigation costs and the
burden on the courts).

For example, an instance of discrimination could easily
give rise to both an individual claim for relief (which, under the
Fourth Circuit’s holding, must be handled in an arbitral forum)
and a claim for broad injunctive relief, which the EEOC would
file in a federal court. Because many (if not all) of the facts
relevant to one proceeding, would also be relevant to the other,
the employer could find itself having to pay double-attorney
fees. Circuit City, _U.S.at__, 121 S.Ct. at 1313 (permitting
parties to “avoid the costs of litigation” is a major “benefit” of
arbitration). The employer would be forced to defend the same

13
alleged discriminatory action twice.

Moreover, because of the potential impact of res
judicata and collateral estoppel, the EEOC may find itself
forced to intervene in the arbitration proceeding, and the
employee may be forced to intervene in the EEOC proceeding.
Witnesses would have to testify twice, different forums could
issue contradictory decisions on every issue, ranging from
credibility determinations to controlling factual and a plethora
of legal questions may be litigated concerning which requested
remedy must be arbitrated or litigated. See, e.g. Circuit City
Stores, supra (warning against judicia: holdings which may
create “complexity and uncertainty” and cast doubt on the
“efficiency of alternative dispute resolution procedures”).

To make matters even worse, Congress recognized that
understanding employment discrimination was becoming
“increasingly complex,” especially to an “untrained observer.”
Equal Employment Opportunity Act of 1972, H. Rep. No. 92-
238, reprinted 1972 U.S.C.C.A.N. 2137, 2144. To ensure that
the “national policy of equal employment opportunity” could
be enforced “in a meaningful way,” Congress enhanced the
enforcement authority of the EEOC in 1972. 1972
U.S.C.C.AN. at 2138. Establishing a precedent which would
permit dual litigation in multiple fora would undermine the
national policy to promote equal employment opportunity by
artificially adding complexity and uncertainty when none need

exist. Circuit City Stores strongly counsels against interpreting
the FAA in such a manner.

In short, the very reason for requiring arbitration in
employment cases (i.e. lowing costs, efficient resolution,
administrative convenience, etc.) and for applying the doctrines
of res judicata and collateral estoppel in any case, would be
fundamentally undermined by upholding an enforcement
regime that not only permitted and encouraged the unnecessary
bifurcation of proceedings, but essentially required such

14

duplication in all cases in which the EEOC determined that
major i an nentiionstt ‘sted

A claim of discrimination - like any other law suit -
must be resolved in one proceeding. In the case below, the
employee and the employer both agreed to an arbitration forum.
However, the EEOC did not agree to that forum. In such a
circumstance, the interests of the private parties must bend to
the greater public interest, as represented by the EEOC. J./
Case Co. v. NLRB, 321 U.S. 332, 337 (1944) (“Wherever
private contracts conflict with its functions, they obviously
must yield or the Act would be reduced to a futility”).

Of course, the EEOC may exercise its discretion in
choosing the forum in which a claim should be heard, and may
very well prefer in any given case to have a claim resolved
through arbitration. This decision rests in the sound discretion
of the EEOC, and private parties may not invalidate the
exercise of that discretion through private contract.

15

CONCLUSION

For the foregoing reasons, this Court should reverse the
decision of the Fourth Circuit Court of Appeals.

May 25, 2001

Defense and Education Fund
3238 P Street, N.W.
Washington, D.C. 20007
(202) 342-2177

Counsel for Amicus Curiae
National Whistleblower Center
Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0371%3A13. Public record. Not legal advice.