News
Labor/Employment
Feb. 14, 2002
Agency's Enforcement Suits Belong in Court to Protect Rights of Public
Forum Column - By Lew Maltby - In EEOC v. Waffle House Inc. , the Supreme Court was faced with the question of whether an employee's signature on an arbitration agreement precludes the Equal Opportunity Commission from becoming involved in a discrimination claim. The court wisely ruled that the employee's agreement does not preclude the EEOC from doing its job.
Forum Column
By Lew Maltby
In EEOC v. Waffle House Inc., the Supreme Court was faced with the question of whether an employee's signature on an arbitration agreement precludes the Equal Opportunity Commission from becoming involved in a discrimination claim. The court wisely ruled that the employee's agreement does not preclude the EEOC from doing its job.
Arbitration, when conducted properly, is a fine vehicle for resolving employment disputes, including statutory discrimination claims. Most arbitrators from reputable providers are seasoned professionals. Moreover, the process of selecting arbitrators is free of the political bias that frequently affects judges. Presidents Reagan and Bush, for example, packed the federal judiciary with old white men with conservative views who were at best lukewarm about employment and civil rights.
The fairness of arbitration can be seen in its results. Employees prevail more often in arbitrations than they do in court. While arbitrators may be less likely to issue a multimillion-dollar award than a jury, the aggregate percentage of their claim won by employees who arbitrate through the American Arbitration Association is greater than that received by employees in court. The primary reason is that judges throw 60 percent of employees' cases out of court before they reach a jury. Arbitrators, however, almost never dismiss a case. They will hear both sides' cases before ruling.
Arbitration also makes justice available to many employees to whom it would otherwise be denied. The cost of litigation far exceeds the means of most employees. While attorneys sometimes take cases on a contingency basis, this is the exception. Arbitration makes workplace justice available to many for the first time.
But not every employment dispute is a purely private matter. Discrimination hurts not just the victim but also the company's other employees and the public. This is especially true where the employer has a consistent practice of discrimination. If an employer consistently discriminates against people of color, for example, it is not enough for a series of individual employees to be compensated for their losses. The employer must be ordered to both give the victims back their jobs and to cease its discrimination.
Such equitable relief is not readily available to arbitrators. Arbitrators have the ability to award damages, but there is some disagreement over the extent of arbitrators' ability to issue injunctive relief. Nor can the arbitrator order the employer to institute training or other remedial measures. And most important, an arbitrator cannot order the employer to stop discriminating against other employees. The arbitrator's jurisdiction is limited to the individual employee whose case is before him or her. Moreover, even if arbitrators had the authority to issue such orders, they could not enforce them. Arbitrators, unlike judges, cannot hold people in contempt.
In order to see that justice is done in such situations, Congress has charged the EEOC with enforcing civil rights laws. The Commission does not stand in the shoes of the victim but has its own legal authority to eliminate discrimination. When the EEOC believes that a case affects not only the employee but the rest of society, it has the responsibility and the authority to intervene. This responsibility cannot be taken away by the employer or the employee.
Employers cried foul over this decision, claiming it allowed Baker to escape the agreement he made to arbitrate. But it is difficult to work up a great deal of moral indignation over this. Baker agreed to take his disputes to arbitration under duress. Waffle House told him, "Sign this arbitration agreement or else." While this practice may be lawful, that doesn't make it right.
Moreover, the EEOC never agreed to arbitrate Baker's disputes. The agreement to arbitrate was between Baker and Waffle House only. No one can be compelled to arbitrate a dispute unless they have agreed to it, including the EEOC.
Nor did Waffle House suffer any great harm from the court's ruling. The company's proposal was to face Baker's claim in arbitration, and any additional EEOC claims in federal court. The Supreme Court only required the entire matter to be heard as a single case in court. Waffle House might even save money by having the whole dispute heard in one trial.
Employers have become enamored of arbitration in recent years and now compel millions of people to "agree" to arbitrate employment disputes as a condition of getting and keeping their jobs. Despite these strong-arm tactics, employees may have benefited from the increased use of arbitration. But Waffle House and its supporters believed they could compel federal agencies to arbitrate as well. The Supreme Court wisely reminded them of their error.
Lew Maltby is a lawyer with the National Work Rights Institute in New Jersey.
By Lew Maltby
In EEOC v. Waffle House Inc., the Supreme Court was faced with the question of whether an employee's signature on an arbitration agreement precludes the Equal Opportunity Commission from becoming involved in a discrimination claim. The court wisely ruled that the employee's agreement does not preclude the EEOC from doing its job.
Arbitration, when conducted properly, is a fine vehicle for resolving employment disputes, including statutory discrimination claims. Most arbitrators from reputable providers are seasoned professionals. Moreover, the process of selecting arbitrators is free of the political bias that frequently affects judges. Presidents Reagan and Bush, for example, packed the federal judiciary with old white men with conservative views who were at best lukewarm about employment and civil rights.
The fairness of arbitration can be seen in its results. Employees prevail more often in arbitrations than they do in court. While arbitrators may be less likely to issue a multimillion-dollar award than a jury, the aggregate percentage of their claim won by employees who arbitrate through the American Arbitration Association is greater than that received by employees in court. The primary reason is that judges throw 60 percent of employees' cases out of court before they reach a jury. Arbitrators, however, almost never dismiss a case. They will hear both sides' cases before ruling.
Arbitration also makes justice available to many employees to whom it would otherwise be denied. The cost of litigation far exceeds the means of most employees. While attorneys sometimes take cases on a contingency basis, this is the exception. Arbitration makes workplace justice available to many for the first time.
But not every employment dispute is a purely private matter. Discrimination hurts not just the victim but also the company's other employees and the public. This is especially true where the employer has a consistent practice of discrimination. If an employer consistently discriminates against people of color, for example, it is not enough for a series of individual employees to be compensated for their losses. The employer must be ordered to both give the victims back their jobs and to cease its discrimination.
Such equitable relief is not readily available to arbitrators. Arbitrators have the ability to award damages, but there is some disagreement over the extent of arbitrators' ability to issue injunctive relief. Nor can the arbitrator order the employer to institute training or other remedial measures. And most important, an arbitrator cannot order the employer to stop discriminating against other employees. The arbitrator's jurisdiction is limited to the individual employee whose case is before him or her. Moreover, even if arbitrators had the authority to issue such orders, they could not enforce them. Arbitrators, unlike judges, cannot hold people in contempt.
In order to see that justice is done in such situations, Congress has charged the EEOC with enforcing civil rights laws. The Commission does not stand in the shoes of the victim but has its own legal authority to eliminate discrimination. When the EEOC believes that a case affects not only the employee but the rest of society, it has the responsibility and the authority to intervene. This responsibility cannot be taken away by the employer or the employee.
Employers cried foul over this decision, claiming it allowed Baker to escape the agreement he made to arbitrate. But it is difficult to work up a great deal of moral indignation over this. Baker agreed to take his disputes to arbitration under duress. Waffle House told him, "Sign this arbitration agreement or else." While this practice may be lawful, that doesn't make it right.
Moreover, the EEOC never agreed to arbitrate Baker's disputes. The agreement to arbitrate was between Baker and Waffle House only. No one can be compelled to arbitrate a dispute unless they have agreed to it, including the EEOC.
Nor did Waffle House suffer any great harm from the court's ruling. The company's proposal was to face Baker's claim in arbitration, and any additional EEOC claims in federal court. The Supreme Court only required the entire matter to be heard as a single case in court. Waffle House might even save money by having the whole dispute heard in one trial.
Employers have become enamored of arbitration in recent years and now compel millions of people to "agree" to arbitrate employment disputes as a condition of getting and keeping their jobs. Despite these strong-arm tactics, employees may have benefited from the increased use of arbitration. But Waffle House and its supporters believed they could compel federal agencies to arbitrate as well. The Supreme Court wisely reminded them of their error.
Lew Maltby is a lawyer with the National Work Rights Institute in New Jersey.
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