This paper addresses the Equal Employment Opportunity Commission's current policy statement against the use of mandatory arbitration which is now more than ten years old. Quite a lot has occurred since the 1997 statement in which the EEOC criticized employers who attempted to require that employees agree as a condition of employment to arbitrate their statutory employment discrimination claims. Since 1997, the Supreme Court has issued opinions in both Circuit City v. Adams and EEOC v. Waffle House that should have clarified the EEOC's position. The author explores the reasons why the EEOC has still not taken a clear position and updated its policy regarding enforcement of agreements to arbitrate when made as a condition of employment. The paper identifies a number of legitimate and possibly some not so legitimate factors that have stymied the EEOC from being a leader in the ongoing development of critical processes to ensure fair enforcement of arbitration clauses. The author concludes, however, that we have reached a crucial juncture where failure by the EEOC to define a supportive policy may not bode well for the overall future use of arbitration in employment discrimination matters.
While any EEOC policy may not ultimately reflect what the courts eventually decide on many of the remaining issues, the influence of the EEOC on employees and employers, both small and large, can foster and encourage the positive aspects of resolving statutory employment discrimination claims through the arbitration process. It is incumbent upon the EEOC, as the critical government agency charged with enforcing key statutes that ban workplace discrimination, to set a clear policy addressing the fairness of arbitration clauses. That policy must provide guidance regarding many of the still unresolved issues such as class actions, arbitrator's fees, and other requirements that must be established to effectively vindicate employees' statutory rights in the arbitration forum.
Michael Z. Green,
Ruminations About the EEOC’s Policy Regarding Arbitration,
Employee Rts. & Emp. Pol’y J.
Available at: https://scholarship.law.tamu.edu/facscholar/625