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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0371%3A15

## Record

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

## Text

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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

BEST AVAILABLE COPY?)

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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?

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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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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

OB, GE SEED ccc cccccccccccccescocceccceccces 15 n.6
hhtp:/ /www.eeoc.gov/stats/all. html ......... 12n3

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0371%3A15. Public record. Not legal advice.