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

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No. 99-1823

In the

Supreme Court of the United States

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioner

V.

WAFFLE HOUSE, INCORPORATED,

Respondent

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURLZ ASSOCIATED INDUSTRIES OF

MASSACHUSETTS, CONNECTICUT BUSINESS AND

INDUSTRY ASSOCIATION AND NEW ENGLAND LEGAL

FOUNDATION IN SUPPORT OF RESPONDENT

MICHAEL E. MALAMUT

Counsel of Record

LORETTA M. SMITH

New England Legal Foundation

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

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QUESTION PRESENTED

Whether the Equal Employment Opportunity

Commission (“EEOC”) is precluded from seeking

employee-specific relief when the employee has

entered into an enforceable agreement to arbitrate

employment disputes with his employer?

-ii-

TABLE OF CONTENTS

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I. This Court Has Already Rejected the EEOC’s

Argument that Arbitration Agreements

Improperly Undermine the EEOC’s Enforcement

of Federal Employment Discrimination

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Il. The EEOC Does Not Enjoy the Broad Discretion

That the NLRB Does to Impose Remedies on

Those Violating Employment Discrimination

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Ill. The Claimed “Right” to Free Representation by

the EEOC Is an Illusory Right .............. 11

IV. Arbitration Resolves Employment

Discrimination Claims More Effectively and

Efficiently than Litigation ................. 13

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TABLE OF AUTHORITIES

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RULES

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OTHER AUTHORITIES

Samuel Estreicher, Predispute Agreements to Arbitrate

Statutory Claims, 72 N.Y.U. L. Rev. 1344 (1997)... 14, 16

Michael Z. Green, Debunking the Myth of Employer

Advantage From Using Mandatory Arbitration for

Discrimination Claims, 31 Rutgers L.J. 399

GEEEED cccccccescoccccccconcuccecooscedeuces 14, 16

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Kathleen M. Kelly, Introduction to the 1997

Symposium on Contractual Arbitration, 29 Mc George L.

BER, BIW GENO cc cvcccccceseccecccecccccosces 8 n.2

Claudia MacLachlan, Employers Winning ADA Suits, 22

Nat’! L. J. B1, B3 (July 31, 2000) ................... 16

Lewis L. Maltby, Private Justice: Employment Arbitration

and Civil Rights, 30 Colum. Hum. Rts.

LB, BOGISEED ccccccccccccccccccess 14, 15, 16, 17

Evan J. Spelfogel, Mandatory Arbitration vs. Employment

Litigation, 54 Disp. Resol. J. 78 (May 1999) .... 14.5, 17

Julie L. Waters, Does the Battle Over Mandatory

Arbitration Jeopardize the EEOC’s War in Fighting

Workplace Discrimination? 44 St. Louis U. L. J. 1155

—— FPPPPPPPPPPPTTTTTITITITIT TTT TTT TTT TTT eee 7

2 Labor & Employment Arbitration (Tim Bornstein et

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INTEREST OF AMICI CURLE

Associated Industries of Massachusetts ("A.I.M.") is

the largest nonprofit, nonpartisan association of

Massachusetts employers with approximately 5,900

members. A.I.M.’s mission is to promote the well-being

of its members and their employees and the prosperity of

Massachusetts by improving the economic climate of

Massachusetts, proactively advocating fair and equitable

public policy, and providing relevant, reliable

information and excellent services.

The Connecticut Business and Industry Association

(“CBIA”) is an association of Connecticut businesses

whose more than 10,000 member companies together

employ more than 700,000 people across the state. CBIA

offers its members an array of resources and services

related to the legal, economic and social aspects of

running a business and it presents its members’ views on

public policy and legal issues to legislative, regulatory

and judicial authorities.

The New England Legal Foundation (“NELF”) is a

non-profit, public interest law firm incorporated in 1977.'

Its membership consists of individuals, businesses, and

1. Pursuant to Supreme Court Rule 37.6, counsel for

amici states that counsel for neither Petitioner nor

Respondent authored the accompanying brief in whole or

in part and no person or entity other than amici made a

monetary contribution to the preparation or submission

of the brief. The contents of both parties have been filed

with the Clerk of the Court.

2

others who believe in promoting balanced economic

growth for New England, protecting the free enterprise

system, and defending economic rights. NELF’s more

than 130 members and supporters include a cross-section

of large and small businesses from all parts of New

England and the United States. NELF has regularly

appeared in state and federal court, as party or counsel,

in cases raising issues of general economic significance to

the business community. See, e.g., Palazzolo v. Rhode

Island, 69 U.S.L.W. 4605 (U.S. June 28, 2001); Crosby v.

National Foreign Trade Council, 530 U.S. 363 (2000);

UNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999); BMW

v. Gore, 517 U.S. 559 (1996); ea

DeCoster, 229 F.3d 332 (1st Cir. ; Reich v. Southern

New England Telecommunications Corp., 121 F.3d 58 (2d

Cir. 1997).

Amici seek to bring to the Court's attention their

views, and those of their supporters, concerning the

importance of the enforcement of agreements to arbitrate

employment disputes and role of the EEOC when an

enforceable agreement to arbitrate is in place. Amici

believe that this brief may provide an additional

perspective which may aid the Court in determining

whether an employee's enforceable agreement to arbitrate

employment disputes precludes the EEOC from seeking

employee-specific relief in federal court.

STATEMENT OF THE CASE

Amici adopts the Statement of the Case contained in

the Brief of the Respondent Waffle House, Incorporated

(“Waffle House”).

3

SUMMARY OF ARGUMENT

This Court has in prior cases rejected the notion

that arbitration is inherently incapable of enforcing

employees’ rights to be free of unlawful discrimination in

the workplace. Enforcing mandatory predispute

arbitration agreements will not, contrary to the

arguments of the EEOC and its amici, undermine the

enforcement of federal employment discrimination laws

nor immunize particular employers from EEOC scrutiny.

Under the Fourth Circuit’s decision, the EEOC remains

free to seek injunctive relief against a discriminating

employer to vindicate the public interest and, when

necessary, obtain clarification of the law for both

employers and employees.

Nor will enforcement of mandatory predispute

arbitration agreements impermissibly interfere with the

discretion that Congress has given the EEOC to enforce

federal employment discrimination laws. Unlike the

broad discretion that Congress delegated to the National

Labor Relations Board (“NLRB”) to prevent and remedy

unfair labor practices, the EEOC has not been given direct

enforcement powers. The federal courts, not the EEOC,

determine the appropriate remedy in an action by the

EEOC.

Employees do not have a substantive right to cost-

free representation by the EEOC in federal court as the

EEOC’s amici contend. It is the EEOC, not employees,

which chooses which cases it litigates in court.

Employees have not been given any right to require the

EEOC to bring suit on their behalf.

4

Contrary to the arguments made amici the States

of Missouri et al., arbitration of employment disputes

provides an effective and efficient alternative to litigation

for employees and employers alike.

ARGUMENT

I. THis COURT HAS ALREADY REJECTED THE EEOC’S

ARGUMENT THAT ARBITRATION AGREEMENTS

IMPROPERLY UNDERMINE THE EEOC’S ENFORCEMENT

OF FEDERAL EMPLOYMENT DISCRIMINATION LAWS.

This Court has held that the Federal Arbitration Act,

9 U.S.C. § 1 (“FAA”), sets out a liberal federal policy

favoring arbitration to resolve disputes. The purpose of

the FAA is to “place arbitration agreements upon the

same footing as other contracts.” Gilmer _v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991).

This Court has endorsed this policy favoring arbitration,

including agreements to arbitrate “claims arising under a

statute designed to further important social policies.”

531

US. 79, 121 S. Ct. 513, 521 (2000). See Gilmer, 500 U. S. at

24. “[S]o long as the prospective litigant effectively may

vindicate [his or her] statutory cause of action in the

arbitral forum, the statute will continue to serve both its

remedial and deterrent function.” Id. at 28. Indeed, this

Court recently reiterated its support for arbitration,

stating:

We have been clear in rejecting the supposition

that the advantages of the arbitration process

somehow disappear when transferred to the

employment context. . . . Arbitration agreements

5

allow parties to avoid the costs of litigation, a

benefit that may be of particular importance in

employment litigation, which often involves

smaller sums of money than disputes concerning

commercial contracts.

Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302, 1313

(2001) (citation omitted). See also Green Tree Financial,

121 S. Ct. at 521 (“We have likewise rejected generalized

attacks on arbitration that rest on ‘suspicion of arbitration

as a method of weakening the protections afforded in the

substantive law to would-be claimants.’”)

Notwithstanding these decisions, the EEOC and its

amici argue that precluding the EEOC from pursuing

employee-specific relief when an employee has entered

into an enforceable arbitration agreement will have a

devastating impact on the EEOC’s enforcement of federal

anti-discrimination statutes. See EEOC Brief at 33; Brief

of Amici Curiae Maryland Commission on Human

Relations et al. at 24-28. This Court, however, in Gilmer

rejected the argument that the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,

precluded arbitration because it “is designed not only to

address individual grievances, but also to further

important social policies.” Gilmer, 500 U.S. at 27. This

Court did “not perceive any inherent inconsistency

between those policies . . . and enforcing agreements to

arbitrate age discrimination claims.” Id. This Court also

rejected the argument that permitting arbitration of

ADEA claims would “undermine the role of the EEOC in

enforcing the ADEA,” id. at 28, reasoning:

6

An individual ADEA claimant subject to an

arbitration agreement will still be free to file a

charge with the EEOC, even though the claimant

is not able to institute a private judicial action.

Indeed, Gilmer filed a charge with the EEOC in

this case. In any event, the EEOC’s role in

combating age discrimination is not dependent on

the filing of a charge; the agency may receive

information concerning alleged violations of the

ADEA “from any source,” and it has independent

authority to investigate age discrimination. . . .

Moreover, nothing in the ADEA indicates that

Congress intended that the EEOC be involved in

all employment disputes. Such disputes can be

settled, for example, without any EEOC

involvement. . . . Finally, the mere involvement of

an administrative agency in the enforcement of a

statute is not sufficient to preclude arbitration.

Id. (citations omitted).

Neither the EEOC nor any of its amici explain why this

Court should reach a different result under the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§12101 et seq. Since there is no significant difference

between the EEOC’s enforcement authority under the

ADEA and the ADA, this Court should follow Gilmer. To

rule otherwise will

permit an individual, who has freely agreed to

arbitrate all employment claims, to make an end

run around the arbitration agreement by having

the EEOC pursue back pay or liquidated damages

7

on his or her behalf [and] would undermine the

Gilmer decision and the FAA.

EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 303 (2d

Cir. 1998).

Moreover, enforcing arbitration agreements will not,

as the EEOC argues, “immunize” employers with

company-wide mandatory arbitration agreements from

EEOC enforcement efforts. See EEOC Brief at 33. Under

the Fourth Circuit’s decision, the EEOC remains free to

investigate and conciliate employee charges of unlawful

discrimination in the first instance. Should that effort fail,

as it apparently did in this case, the EEOC may seek

injunctive relief with its attendant potential for negative

publicity for the accused employer. See Julie L. Waters,

Does the Battle Over Mandatory Arbitration Jeopardize the

EEOC’s War in Fighting Workplace Discrimination? 44 St.

Louis U. L. J. 1155, 1186-87 (2000) (“By allowing the EEOC

to seek [injunctive] relief on behalf of the public interest,

an employer’s discriminating behavior is exposed to the

public through the court process.”). Accordingly, while

Baker’s agreement to arbitrate has removed one arrow

from the EEOC’s quiver, it has not rendered the EEOC

powerless to act in the public interest to highlight and

remedy unlawful employment discrimination.

Equally unavailing is the EEOC’s argument that

enforcing an employee’s agreement to arbitrate thwarts

its ability “to obtain clarification of the law to guide

employers and employees alike.” EEOC Brief at 36. With

the EEOC free to pursue injunctive relief against

employers who engage in unlawful discrimination, even

8

when their employees have entered into arbitration

agreements, the EEOC retains its ability “to obtain

clarification of the law.” Here, Baker’s agreement to

arbitrate has not thwarted the EEOC’s ability to guide

Waffle House’s conduct if that conduct is shown to have

violated the ADA.

Further, the EEOC itself chooses those few cases it

actually litigates. See EEOC Brief at26. If, in the EEOC’s

judgment, an injunction against a discriminating

employer will not sufficiently advance the public interest

so as to justify its expenditure of resources, the EEOC

may decide not to litigate such a case and choose instead

to litigate a similar case where it may properly pursue

employee-specific relief. Given the sheer number of

charges filed yearly with the EEOC, it is unlikely that

only a single case in which the employee has agreed to

arbitration will involve a novel discriminatory

employment practice that needs to be clarified.’ Yet, even

if the practice arose only in one case, the EEOC has other

tools at its disposal to educate employers and employees.

For example, it may issue guidelines or policy statements

to clarify that particular practices are, in its view,

unlawful. Accordingly, the occasional presence of an

arbitration agreement in a case in which the EEOC would

prefer to seek employee-specific remedies, but is

precluded from doing so, will not seriously affect the

2. “The vast majority of individual cases do not raise

complex issues of law, but rather call for appliction of

established law to facts.” Kathleen M. Kelly, Introduction

to the 1997 McGeorge Symposium on Contractual Arbitration,

29 Mc George L. Rev. 177, 194 (1998).

9

EEOC’s enforcement of federal law.

Il. THE EEOC DOES NOT ENJOY THE BROAD DISCRETION

THAT THE NLRB DOES TO IMPOSE REMEDIES ON

THOSE VIOLATING EMPLOYMENT DISCRIMINATION

LAWS.

Amicus National Whistleblower Center argues that the

FAA “does not displace the EEOC’s administrative

authority to determine the appropriate remedy necessary

to effectuate federal policy in a discrimination case.”

National Whistleblower Center Brief Amicus Curiae

(“Center’s Brief”) at 4 (heading I). It relies heavily upon

Phelps Dodge Corp. v. NLRB, 313 US. 177 (1941), for the

proposition that “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.” Center’s Brief at 6. The Center’s reliance

on Phelps Dodge is misplaced and ignores the different

roles Congress assigned to the NLRB and the EEOC.

The NLRB is authorized to “prevent any person from

engaging in any unfair labor practice.” 29 U.S.C. § 160 (a).

Congress has entrusted to the Board exclusively

the prosecution of the proceeding by its own

complaint, the conduct of the hearing, the

adjudication and the granting of appropriate relief.

The Board as a public agency acting in the public

interest, not any private person or group, not any

employee or group of employees, is chosen as the

instrument to assure protection from the described

10

unfair conduct in order to remove obstructions to

interstate commerce.

Amalgamated Utility Workers v. Consolidated Edison

Co. of New York, 309 U.S. 261, 265 (1940). The NLRB has

been given broad discretion to maintain and promote

“industrial peace.” Phelps Dodge, 313 U.S. at 194.

A statute expressive of such large public policy as

that on which the [NLRB] is based must be

broadly phrased and necessarily carries with it the

task of administrative application. There is an

area plainly covered by the language of the Act

and an area no less plainly without it. But in the

nature of things Congress could not catalogue all

the devices and stratagems for circumventing the

policies of the Act. Nor could it define the whole

gamut of remedies to effectuate these policies in an

infinite variety of specific situations. Congress met

these difficulties 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.

Id. It was in the context of the broad discretion Congress

delegated to the NLRB to craft remedies to prevent and

remedy unfair labor practices that this Court noted that

“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 the law into

the more spacious domain of policy.” Id.

11

Congress has not given the EEOC similar authority to

prevent or to provide remedies for employment

discrimination. “Title VII does not provide the

Commission with direct power of enforcement. The

Commission cannot adjudicate claims or impose

administrative sanctions.” Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974). Rather, the EEOC ‘s role is

limited to the investigation and informal resolution of

charges of employment discrimination. 42 U.S.C. § 2000e-

5(b). If these efforts are unsuccessful, the EEOC may

chose to bring an enforcement action in court. 42 U.S.C.

§ 2000e-4 (f) (1). It is the courts, however, not the EEOC,

that have plenary power to enforce federal employment

discrimination laws. 42 U.S.C. § 2000e-5 (g). The ADA,

like Title VII, “authorizes courts to issue injunctive relief

and to order such affirmative action as may be

appropriate to remedy the effect of unlawful employment

practices. . . . [F]Jederal courts have been assigned plenary

powers to secure compliance with Title VII.” Alexander,

415 U.S. at 45. The courts determine the appropriate

remedy, not the EEOC. Accordingly, precluding the

EEOC from pursuing employee-specific relief when an

employee has entered into an enforceable arbitration

agreement does not impermissibly interfere with the

discretion Congress granted the EEOC in the enforcement

of federal employment discrimination laws.

Ill. THE CLAIMED “RIGHT” TO FREE REPRESENTATION BY

THE EEOC Is AN ILLUSORY RIGHT AT BEST.

The Lawyers’ Committee for Civil Rights Under Law

argues in its Brief Amicus Curiae that Baker’s agreement

to arbitrate should not be enforced because it amounts to

—————

12

“a prospective waiver of substantive protections,

including the opportunity to obtain relief through an

action initiated pursuant to the independent enforcement

authority of the EEOC.” Brief Amicus Curiae Lawyers’

Committee for Civil Rights Under Law et al. at 19. Ina

similar argument, the National Employment Lawyers

Association contends that the arbitration agreement at

issue here “effects an impermissible waiver of [Waffle

House’s] employees statutory protections by stripping

them of their right under the ADA .. . to seek cost-free

assistance of the EEOC in obtaining make-whole relief.”

Brief Amicus Curiae National Employment Lawyers

Association et al. at 8. This claimed “right” is not a right

that employees have at all.

As the EEOC notes, it picks the few cases it will

pursue in court. EEOC Brief at 26. Employees, like

Baker, cannot require the EEOC to pursue claims on their

behalf and the likelihood of the EEOC bringing an

enforcement action on behalf of any individual employee

is exceedingly low. According to the EEOC, it filed 439

suits in 1999 and 291 in 2000. EEOC Brief at 26n.9. The

rate at which the EEOC brought suit on behalf of

employees who had obtained findings of reasonable

cause and had unsuccessful conciliations in 1999 was

approximately 9% and in 2000 was less than 5%.* The

3. According to EEOC statistics, the EEOC resolved

97,846 charges in 1999. Of these, 4,837 were unsuccessful

conciliations which becme candidates for litigation.

hhtp://www.eeoc.gov/stats/all.html. Similarly, the

EEOC resolved 93,672 charges in 2000 resulting in 6,208

unsuccessful conciliations. Id.

13

remote possibility that the EEOC might pursue a claim

seeking employee-specific relief does not transform the

EEOC’s discretion to bring suit into a substantive right

that Congress conferred on employees to cost-free EEOC

representation.

IV. ARBITRATION RESOLVES EMPLOYMENT

DISCRIMINATION CLAIMS MORE EFFECTIVELY

AND EFFICIENTLY THAN LITIGATION.

Undeterred by this Court's rejection of “generalized

attacks on arbitration that rest on ‘suspicion of arbitration

as a method of weakening the protections afforded in the

substantive law to would-be claimants,” Green Tree

Financial, 121 S. Ct. at 521, the States of Missouri et al.

argue that

the reality is that pre-dispute employment

arbitration agreements are often treated with a

healthy dose of skepticism.

Brief Amicus Curiae of States of Missouri et al. (“States’

Brief”) at 9. The States’ Brief notes that “some legal

scholars oppose such mandatory arbitration” and that

some states have exempted “employer-employee pre-

dispute arbitration agreements from enforcement.” Id.‘

The States further contend that the skepticism they report

4. It is doubtful that such state laws are valid. Fee, OB

489 US. 467, 478

Leland Stanford Junior University,

(1989); Southland Corp. v. Keating, 465 U.S. 1, 10-16

(1984).

14

“is based, in part, on the apparent limitations of the

arbitration forum,” id., including alleged lack of arbitrator

expertise, the possibility that a given arbitrator might

ignore the substantive law, and alleged arbitrator bias in

favor of employers. Id.at 10-11. These contentions ignore

both the evolution in employment arbitration and the

results of more recent data on arbitration and litigation

outcomes.”

Since this Court's decision in Gilmer and the ensuing

debate over the wisdom of that decision, many changes

have taken place in employment arbitration. See, e.g.

Michael Z. Green, Debunking the Myth of Employer

Advantage From Using Mandatory Arbitration for

Discrimination Claims, 31 Ruters L.J. 399 (2000); Lewis L.

Maltby, Private Justice: Employment Arbitration and Civil

Rights, 30 Colum. Hum. Rts. L. Rev. 29 (1998); Samuel

Estreicher, Predispute Agreements to Arbitrate Statutory

Claims, 72 N.Y.U. L. Rev. 1344 (1997). For example, in

1995, an American Bar Association task force, which

included members of the American Civil Liberties Union

and the National Employment Lawyers Association,

“issued a unanimous protocol on arbitral due process.”

Matlby, supra, 30 Colum. Hum. Rts. L. Rev. at 39. This

5. The States assert that 70% of employee-plaintiffs are

successful in court. States’ Brief at 9. They cite Evan J.

Spelfogel, Mandatory Arbitration vs. Employment Litigation,

54 Disp. Resol. J. 78, 78 (May 1999) for this statistic. While

the Spelfogel article does contain this assertion, it cites to

no source whatsoever for support. It should be noted

that this phenomenal success rate for employees in court

is not supported by other studies. See page 16 infra.

15

protocol has been adopted by the American Arbitration

Association (“AAA”) and JAMS/Endispute, “by far the

largest providers of arbitration services." Id. The

protocol includes:

(a) a neutral and unbiased arbitrator; (b) right of

the employee to an equal role in selecting the

arbitrator; (c) right to counsel; (d) right to

reasonable discovery; (e) identical remedies to

those available in court; and (f) a written opinion.

Id. In addition, the protocol “ requires that the roster of

available arbitrators ‘must be established on a non-

discriminatory basis, diverse by gender, ethnicity,

background and experience.”” Id. at 40 (citation omitted).

In response, the AAA “created a new roster of available

arbitrators. . . . Only those candidates who were

considered fair and impartial by all parties were included

on the roster.” Id. “It is hard to imagine that the present

roster of the federal judiciary . . .would survive this

process.” Id. Thus, fears that arbitrators lack expertise or

are biased in favor of employers are not well-founded.°

6. The AAA’s National Rules for Resolution of

Employment Disputes, Arbitration and Mediation Rules,

effective June 1, 1997, require that arbitrators “be

experienced in the field of employment law” and require

that prospective arbitrators “disclose all information that

might be relevant to the standards of neutrality set forth

in this Section, including . . . services as a neutral in any

past or pending case involving any of the parties.” Rule

11 a (i), b, reprinted in 2 Labor & Employment Arbitration

Appendix 3 (Tim Bornstein et al. eds. 2001).

16

Indeed, studies show that employees fare better in

arbitration than they do in litigation.

Comparisons of the result rates in arbitration

versus litigation reveal that, contrary to what

many would expect, employees prevail more often

in arbitration than in court. For example, an AAA

survey of employment arbitration results from

1993-95 shows that employees who arbitrated their

claims won sixty-three percent of the time. In

comparison, according to federal district court

records for 1994, only 14.9% of the employees who

took their claims to court won their cases.

Maltby, supra, 30 Colum. Hum. Rts. L. Rev. at 47. See

also Green, supra, 31 Rutgers L.J. at 453-54; Claudia

MacLachlan, Employers Winning ADA Suits, 22 Nat’! L. J.

B1, B3 (July 31, 2000) (American Bar Association study

determined that between 1992 and 1997, employers

prevailed in 91.6% of ADA cases filed in federal court).

Moreover, several commentators have observed that

arbitration may be the only realistic avenue for recovery

for most employees. “[Cl]ivil litigation resulting in

substantial jury awards is a realisitic prospect for

relatively few claimants.” Estreicher, supra, 72 N.Y.U. L.

Rev. at 1356. As Professor Estreicher explains:

For the vast majority, a private lawyer cannot be

secured and their claims will be addressed, if at all,

by overworked, understaffed administrative

agencies.

Id. at 1356-57. Accordingly, “arbitration holds the

17

potential to make workplace justice truly available to the

rank-and-file for the first time in our history.” Maltby,

supra, 30 Colum. Hum. Rts. L. Rev. at 63.

In fact, employees apparently are satisfied by and

large with the results they receive in arbitration.

A survey of employee attitudes with respect to the

use of arbitration in employment disputes shows

that 83% of American workers favor the use of

arbitration instead of courts to settle disputes with

management. . . . Most employees surveyed felt

that arbitration would make it easier for ordinary

workers to obtain a speedy and fair hearing, that

it would be far less costly than hiring a lawyer and

going to court, and that it was a meaningful

substitute under federal civil rights laws.

Spelfogel, supra, 54 Disp. Resol. J. at 81. Thus, despite the

EEOC’s unwavering opposition to the enforcement of

predispute arbitration agreements, both employers and

employees benefit from the less expensive and faster

resolution of employment disputes such agreements

afford.

While the debate over the wisdom of mandatory pre-

dispute agreements to arbitrate employment disputes will

no doubt continue, that public policy question is for

Congress, not the courts, to resolve. And, to date,

“Congress has repeatedly rejected legislation that would

explicitly bar mandatory agreements to arbitrate

- employment discrimination claims.” Rosenberg v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 10 (1st Cir.

18

1999) (citing bills introduced in Congress). Unless and

until Congress prohibits such agreements, this Court

should follow its decision in Gilmer and require all

employees who enter into such agreements to adhere to

their promises while permitting the EEOC to seek

injunctive relief, if warranted, against their employers.

CONCLUSION

For the reasons stated above, this Court should affirm

the decision of the United States Court of Appeals for the

Fourth Circuit.

Respectfully submitted,

Associated Industries of

Massachusetts, Connecticut Business

and Industry Association, and New

England Legal Foundation

By its attorneys,

Michael E. Malamut

Counsel of Record

Loretta M. Smith

New England Legal Foundation

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

Dated: July 12, 2001