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This past summer, the U.S. Supreme Court carved out an exception to the general principle that arbitration agreements are enforceable under the Federal Arbitration Act, 9 U.S.C. � 1 et. seq, for suits brought by the Equal Employment Opportunity Commission. As a result of Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, even if an employer has an otherwise enforceable arbitration agreement with an individual employee, the EEOC may nonetheless bring suit and collect monetary damages on behalf of that employee. Despite this holding, the EEOC should embrace a policy of agency deference to arbitration similar to that adopted by the National Labor Relations Board in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955), and Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). Generally, under Spielberg and Collyer, the NLRB will defer to arbitration the resolution of claims that allege violations of the National Labor Relations Act but that actually center on the interpretation and/or application of a collective bargaining agreement. The board retains the right, however, to determine whether the issues relating to the violations were properly presented in the arbitration proceeding; whether the proceedings were fair and adequate, whether the parties are bound by the arbitrator’s decision and whether the final decision is otherwise repugnant to the act’s policies. The EEOC should adopt a similar policy with deference to arbitration agreements that comport with fundamental due process and fairness. In fact, there are several advantages should it do so. First is a growing recognition that litigation is ill-suited to resolve employment-related disputes. Similar to what occurred with the development of workers’ compensation law at the turn of this past century and with the Steelworkers trilogy in the labor management context, litigants are beginning to recognize that the judicial system is poorly adapted to resolve statutory discrimination claims. Specifically, the litigation of such claims is often a cumbersome, unmanageably slow and expensive process. And by the time of trial, any damages that existed when the dispute arose have accumulated and compounded so that they assume an importance far out of proportion with the original nature of the dispute. In contrast, arbitration, if properly administered, permits parties to resolve their dispute in a relatively inexpensive and expedient manner while lives and careers can still be preserved. The EEOC’s adoption of a policy of deference would further encourage the acknowledgment of arbitration as a viable and practical alternative to litigation. Moreover, recognizing that Waffle House created a small set of cases that are automatically exempt from any arbitration agreement’s coverage, a policy of deference would at least partially close that gap, thus further encouraging the present trend toward arbitration as a favorable alternative. Second, by adopting substantive review as a prerequisite to deferral, the EEOC would promote the adoption of arbitration agreements that comport with fundamental due process and fairness. Simply put, employers seeking agency deference would offer their employees arbitration agreements that would be more likely to pass the EEOC’s substantive review. In addition, similar to its present guidelines regarding what constitutes an effective anti-harassment policy, the EEOC could assist employers by providing advice regarding what forms of arbitration it would deem legitimate and viable alternatives to litigation automatically triggering deferral. Finally, choosing to defer to arbitration is also less costly for the EEOC than pursuing litigation. While it is true that the EEOC at present litigates only a relatively small number of the thousands of cases it investigates, by deferring even a few of those cases to arbitration the EEOC should be able to free up significant resources for its other endeavors. Moreover, under the right circumstances deferral to arbitration might also be applied to cases the EEOC investigates. The overall result would be that the EEOC could allocate more resources to its other agency responsibilities or even reduce the amount it draws from the public coffer. Either way, deferral represents a sound policy choice for the EEOC and it should consider adopting such a policy even after the Supreme Court’s holding in Waffle House. M. Trevor Lyons is an associate at Dorf & Dorf, P.C. in Rahway, N.J., where he counsels and represents management in labor and employment law matters.

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