OCTOBER TERM, 2001
Syllabus
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE,
INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-1823. Argued October 10, 200l-Decided January 15,2002
Respondent's employees must each sign an agreement requiring
employment disputes to be settled by binding arbitration. After
Eric Baker suffered a seizure and was fired by respondent, he filed
a timely discrimination charge with the Equal Employment
Opportunity Commission (EEOC) alleging that his discharge violated
Title I of the Americans with Disabilities Act of 1990 (ADA). The
EEOC subsequently filed this enforcement suit, to which Baker is
not a party, alleging that respondent's employment practices,
including Baker's discharge "because of his disability," violated
the ADA and that the violation was intentional and done with malice
or reckless indifference. The complaint requested injunctive relief
to "eradicate the effects of [respondent's] past and present
unlawful employment practices"; specific relief designed to make
Baker whole, including backpay, reinstatement, and compensatory
damages; and punitive damages for malicious and reckless conduct.
Respondent petitioned under the Federal Arbitration Act (FAA) to
stay the EEOC's suit and compel arbitration, or to dismiss the
action, but the District Court denied relief. The Fourth Circuit
concluded that the arbitration agreement between Baker and
respondent did not foreclose the enforcement action because the
EEOC was not a party to the contract, but had independent statutory
authority to bring suit in any federal district court where venue
was proper. Nevertheless, the court held that the EEOC was limited
to injunctive relief and precluded from seeking victim-specific
relief because the FAA policy favoring enforcement of private
arbitration agreements outweighs the EEOC's right to proceed in
federal court when it seeks primarily to vindicate private, rather
than public, interests.
Held: An agreement between an employer and an employee to
arbitrate employment-related disputes does not bar the EEOC from
pursuing victim-specific judicial relief, such as backpay,
reinstatement, and damages, in an ADA enforcement action. Pp.
285-298.
(a) The ADA directs the EEOC to exercise the same enforcement
powers, remedies, and procedures that are set forth in Title VII of
the Civil Rights Act of 1964 when enforcing the ADA's prohibitions
against employment discrimination on the basis of disability.
Following the
280
Syllabus
1991 amendments to Title VII, the EEOC has authority to bring
suit to enjoin an employer from engaging in unlawful employment
practices, and to pursue reinstatement, backpay, and compensatory
or punitive damages, in both Title VII and ADA actions. Thus, these
statutes unambiguously authorize the EEOC to obtain the relief that
it seeks here if it can prove its case against respondent. Neither
the statutes nor this Court's cases suggest that the existence of
an arbitration agreement between private parties materially changes
the EEOC's statutory nmction or the remedies otherwise available.
pp. 285-288.
(b) Despite the FAA policy favoring arbitration agreements,
nothing in the FAA authorizes a court to compel arbitration of any
issues, or by any parties, that are not already covered in the
agreement. The FAA does not mention enforcement by public agencies;
it ensures the enforceability of private agreements to arbitrate,
but otherwise does not purport to place any restriction on a
nonparty's choice of a judicial forum. Pp.288-289.
(c) The Fourth Circuit based its decision on its evaluation of
the "competing policies" implemented by the ADA and the FAA, rather
than on any language in either the statutes or the arbitration
agreement between Baker and respondent. If the EEOC could prosecute
its claim only with Baker's consent, or if its prayer for relief
could be dictated by Baker, the lower court's analysis might be
persuasive. But once a charge is filed, the exact opposite is true
under the ADA, which clearly makes the EEOC the master of its own
case, conferring on it the authority to evaluate the strength of
the public interest at stake and to determine whether public
resources should be committed to the recovery of victim-specific
relief. Moreover, the Court of Appeals' attempt to balance policy
goals against the arbitration agreement's clear language is
inconsistent with this Court's cases holding that the FAA does not
require parties to arbitrate when they have not agreed to do so. E.
g., Volt Information Sciences, Inc. v. Board of Trustees of
Leland Stanford Junior Univ.,
489 U. S. 468, 478.
Because the EEOC is not a party to the contract and has not agreed
to arbitrate its claims, the FAA's proarbitration policy goals do
not require the agency to relinquish its statutory authority to
pursue victim-specific relief, regardless of the forum that the
employer and employee have chosen to resolve their disputes. Pp.
290-296.
(d) Although an employee's conduct may effectively limit the
relief the EEOC can obtain in court if, for example, the employee
fails to mitigate damages or accepts a monetary settlement, see, e.
g., Ford Motor Co. v. EEOC,
458 U. S. 219, 231-232,
Baker has not sought arbitration, nor is there any indication that
he has entered into settlement negotiations with respondent. The
fact that ordinary principles of res
281
judicata, mootness, or mitigation may apply to EEOC claims does
not mean the EEOC's claim is merely derivative. This Court has
recognized several situations in which the EEOC does not stand in
the employee's shoes, see, e. g., Occidental Life Ins. Co. of Cal.
v. EEOC,
432 U. S.
355, 368, and, in this context, the statute specifically grants
the EEOC exclusive authority over the choice of forum and the
prayer for relief once a charge has been filed. pp. 296-298.
193 F.3d
805, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and SCALIA, J., joined, post, p. 298.
Paul D. Clement argued the cause for petitioner. With him on the
briefs were Solicitor General Olson, Acting Solicitor General
Underwood, Acting Assistant Attorney General Yeomans, James A.
Feldman, Gwendolyn Young Reams, Philip B. Sklover, Lorraine C.
Davis, and Robert
David L. Gordon argued the cause for respondent. With him on the
brief were D. Gregory Valenza, Stephen F. Fisher, and Thomas C.
Goldstein.
*
*Briefs of amici curiae urging reversal were filed for the State
of Missouri et al. by Jeremiah W (Jay) Nixon, Attorney General of
Missouri, James R. Layton, State Solicitor, and Alana M.
Barragan-Scott, Deputy Solicitor, and by the Attorneys General for
their respective jurisdictions as follows: Bruce M. Botelho of
Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill
Lockyer of California, Ken Salazar of Colorado, Robert A.
Butterworth of Florida, Earl I. Anzai of Hawaii, James E. Ryan of
Illinois, Steve Carter of Indiana, Thomas
J. Miller of Iowa,
Carla
J. Stovall of Kansas, Richard P. Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of
Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana,
Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John
J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New
Mexico, Eliot Spitzer of New York, Betty D. Montgomery of Ohio,
Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota,
Mark Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V.
McGraw, Jr., of West Virginia, and Herbert D. Soll of the Northern
Mariana Islands; for the Maryland Commission on Human Relations et
al. by Lee D. Hoshall and Elizabeth Colette; for AARP by Thomas
282
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether an agreement between an
employer and an employee to arbitrate employmentrelated disputes
bars the Equal Employment Opportunity Commission (EEOC) from
pursuing victim-specific judicial relief, such as backpay,
reinstatement, and damages, in an enforcement action alleging that
the employer has violated Title I of the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101
et seq. (1994 ed. and Supp. V).
I
In his application for employment with respondent, Eric Baker
agreed that "any dispute or claim" concerning his employment would
be "settled by binding arbitration." 1 As a
W Osborne, Laurie A. McCann, and Melvin Radowitz; for the
American Federation of Labor and Congress of Industrial
Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence
Gold; for the Lawyers' Committee for Civil Rights Under Law et al.
by Paul W Mollica, John Payton, Norman Redlich, Barbara R. Arnwine,
Thomas
J. Henderson, Karen K. Narasaki, Vincent A. Eng,
Judith L. Lichtman, Martha F. Davis, Yolanda S. Wu, Marcia D.
Greenberger, and Judith Appelbaum; for the National Employment
Lawyers Association et al. by Michael Rubin, Scott A. Kronland,
Cliff Palefsky, Steven R. Shapiro, Lenora M. Lapidus, F. Paul
Bland, Jr., Arthur H. Bryant, and Paula A. Brantner; and for the
National Whistleblower Center by Stephen M. Kohn, Michael
Briefs of amici curiae urging affirmance were filed for
Associated Industries of Massachusetts et al. by Michael E.
Malamut; for the Council for Employment Law Equity by Walter
Dellinger, Samuel Estreicher, and Mark A. de Bernardo; and for the
Equal Employment Advisory Council by Ann Elizabeth Reesman and Rae
T. Vann.
1 The agreement states:
"The parties agree that any dispute or claim concerning
Applicant's employment with Waffle House, Inc., or any subsidiary
or Franchisee of Waffle House, Inc., or the terms, conditions or
benefits of such employment, including whether such dispute or
claim is arbitrable, will be settled by binding arbitration. The
arbitration proceedings shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association in effect
at the time a demand for arbitration is made. A
283
condition of employment, all prospective Waffle House employees
are required to sign an application containing a similar mandatory
arbitration agreement. See App. 56. Baker began working as a grill
operator at one of respondent's restaurants on August 10, 1994.
Sixteen days later he suffered a seizure at work and soon
thereafter was discharged. Id., at 43-44. Baker did not initiate
arbitration proceedings, nor has he in the seven years since his
termination, but he did file a timely charge of discrimination with
the EEOC alleging that his discharge violated the ADA.
After an investigation and an unsuccessful attempt to
conciliate, the EEOC filed an enforcement action against respondent
in the Federal District Court for the District of South Carolina,2
pursuant to § 107(a) of the ADA, 42 U. S. C. § 12117(a) (1994 ed.),
and § 102 of the Civil Rights Act of 1991, as added, 105 Stat.
1072, 42 U. S. C. § 1981a (1994 ed.). Baker is not a party to the
case. The EEOC's complaint alleged that respondent engaged in
employment practices that violated the ADA, including its discharge
of Baker "because of his disability," and that its violation was
intentional, and "done with malice or with reckless indifference to
[his] federally protected rights." The complaint requested the
court to grant injunctive relief to "eradicate the effects of
[respondent's] past and present unlawful employment prac-
decision and award of the arbitrator made under the said rules
shall be exclusive, final and binding on both parties, their heirs,
executors, administrators, successors and assigns. The costs and
expenses of the arbitration shall be borne evenly by the parties."
App. 59.
2 Because no evidence of the employment practices alleged in the
complaint has yet been presented, we of course express no opinion
on the merits of the EEOC's case. We note, on the one hand, that
the state human rights commission also investigated Baker's claim
and found no basis for suit. On the other hand, the EEOC chooses to
file suit in response to only a small number of the many charges
received each year, see n. 7, infra. In keeping with normal
appellate practice in cases arising at the pleading stage, we
assume, arguendo, that the EEOC's case is meritorious.
284
tices," to order specific relief designed to make Baker whole,
including backpay, reinstatement, and compensatory damages, and to
award punitive damages for malicious and reckless conduct. App.
38-40.
Respondent filed a petition under the Federal Arbitration Act
(FAA), 9 U. s. C. § 1 et seq., to stay the EEOC's suit and compel
arbitration, or to dismiss the action. Based on a factual
determination that Baker's actual employment contract had not
included the arbitration provision, the District Court denied the
motion. The Court of Appeals granted an interlocutory appeal and
held that a valid, enforceable arbitration agreement between Baker
and respondent did exist.
193 F.3d
805, 808
(CA4 1999). The court then proceeded to
consider "what effect, if any, the binding arbitration agreement
between Baker and Waffle House has on the EEOC, which filed this
action in its own name both in the public interest and on behalf of
Baker." Id., at 809. After reviewing the relevant statutes and the
language of the contract, the court concluded that the agreement
did not foreclose the enforcement action because the EEOC was not a
party to the contract, and it has independent statutory authority
to bring suit in any federal district court where venue is proper.
Id., at 809-812. Nevertheless, the court held that the EEOC was
precluded from seeking victim-specific relief in court because the
policy goals expressed in the FAA required giving some effect to
Baker's arbitration agreement. The majority explained:
"When the EEOC seeks 'make-whole' relief for a charging party,
the federal policy favoring enforcement of private arbitration
agreements outweighs the EEOC's right to proceed in federal court
because in that circumstance, the EEOC's public interest is
minimal, as the EEOC seeks primarily to vindicate private, rather
than public, interests. On the other hand, when the EEOC is
pursuing large-scale injunctive relief, the balance tips in favor
of EEOC enforcement efforts in federal court
285
because the public interest dominates the EEOC's action." Id.,
at 812.3
Therefore, according to the Court of Appeals, when an employee
has signed a mandatory arbitration agreement, the EEOC's remedies
in an enforcement action are limited to injunctive relief.
Several Courts of Appeals have considered this issue and reached
conflicting conclusions. Compare EEOC v. Frank's Nursery &
Crafts, Inc.,
177 F.3d
448 (CA6 1999) (employee's agreement to arbitrate does not
affect the EEOC's independent statutory authority to pursue an
enforcement action for injunctive relief, backpay, and damages in
federal court), with EEOC v. Kidder, Peabody & Co.,
156 F.3d
298 (CA2 1998) (allowing the EEOC to pursue injunctive relief
in federal court, but precluding monetary relief); Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Nixon,
210
F.3d 814 (CA8), cert. denied, 531 U. S. 958 (2000) (same). We
granted the EEOC's petition for certiorari to resolve this
conflict, 532 U. S. 941 (2001), and now reverse.
II
Congress has directed the EEOC to exercise the same enforcement
powers, remedies, and procedures that are set forth in Title VII of
the Civil Rights Act of 1964 when it is enforcing the ADA's
prohibitions against employment discrimination on the basis of
disability. 42 U. S. C. § 12117(a) (1994 ed.).4 Accordingly, the
provisions of Title VII defining
3 One member of the panel dissented because he agreed with the
District Court that, as a matter of fact, the arbitration clause
was not included in Baker's actual contract of employment. 193 F.
3d, at 813.
4 Section 12117(a) provides:
"The powers, remedies, and procedures set forth in sections
2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall
be the powers, remedies, and procedures this subchapter provides to
the Commission, to the Attorney General, or to any person alleging
discrimination on the basis of disability in violation of any
provision of this chapter, or regulations promulgated under section
12116 of this title, concerning employment."
286
the EEOC's authority provide the starting point for our
analysis.
When Title VII was enacted in 1964, it authorized private
actions by individual employees and public actions by the Attorney
General in cases involving a "pattern or practice" of
discrimination. 42 U. S. C. § 2000e-6(a) (1994 ed.). The EEOC,
however, merely had the authority to investigate and, if possible,
to conciliate charges of discrimination. See General Telephone Co.
of Northwest v. EEOC,
446 U. S. 318, 325
(1980). In 1972, Congress amended Title VII to authorize the EEOC
to bring its own enforcement actions; indeed, we have observed that
the 1972 amendments created a system in which the EEOC was intended
"to bear the primary burden of litigation,"
id., at 326.
Those amendments authorize the courts to enjoin employers from
engaging in unlawful employment practices, and to order appropriate
affirmative action, which may include reinstatement, with or
without backpay.5 Moreover, the amendments specify the judicial
districts in which such actions may be brought.6 They do not
mention arbitration proceedings.
5 "(g) Injunctions; appropriate affirmative action; equitable
relief; accrual of back pay; reduction of back pay; limitations on
judicial orders
"(1) If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the
respondent from engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer,
employment agency, or labor organization, as the case may be,
responsible for the unlawful employment practice), or any other
equitable relief as the court deems appropriate. Back pay liability
shall not accrue from a date more than two years prior to the
filing of a charge with the Commission. Interim earnings or amounts
earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay
otherwise allowable." 42 U. S. C. § 2000e-5(g)(1) (1994 ed.).
6 Section 2000e-5(f)(3) provides:
"Each United States district court and each United States court
of a place subject to the jurisdiction of the United States shall
have jurisdiction
287
In 1991, Congress again amended Title VII to allow the recovery
of compensatory and punitive damages by a "complaining party." 42
U. s. C. § 1981a(a)(1) (1994 ed.). The term includes both private
plaintiffs and the EEOC, § 1981a(d)(1)(A), and the amendments apply
to ADA claims as well, §§ 1981a(a)(2), (d)(l)(B). As a complaining
party, the EEOC may bring suit to enjoin an employer from engaging
in unlawful employment practices, and to pursue reinstatement,
backpay, and compensatory or punitive damages. Thus, these statutes
unambiguously authorize the EEOC to obtain the relief that it seeks
in its complaint if it can prove its case against respondent.
Prior to the 1991 amendments, we recognized the difference
between the EEOC's enforcement role and an individual employee's
private cause of action in Occidental Life Ins. Co. of Cal. v.
EEOC,
432 U. S.
355 (1977), and General Telephone Co. of Northwest v. EEOC,
446 U. S. 318
(1980). Occidental presented the question whether EEOC enforcement
actions are subject to the same statutes of limitations that govern
individuals' claims. After engaging in an unsuccessful conciliation
process, the EEOC filed suit in Federal District Court, on behalf
of a female employee, alleging sex discrimination. The court
granted the defendant's motion for summary judgment on the ground
that the EEOC's claim was time barred; the EEOC filed suit after
California's i-year statute of limitations had run. We reversed
because "under the procedural structure created by the 1972
of actions brought under this subchapter. Such an action may be
brought in any judicial district in the State in which the unlawful
employment practice is alleged to have been committed, in the
judicial district in which the employment records relevant to such
practice are maintained and administered, or in the judicial
district in which the aggrieved person would have worked but for
the alleged unlawful employment practice, but if the respondent is
not found within any such district, such an action may be brought
within the judicial district in which the respondent has his
principal office. For purposes of sections 1404 and 1406 of title
28, the judicial district in which the respondent has his principal
office shall in all cases be considered a district in which the
action might have been brought."
288
amendments, the EEOC does not function simply as a vehicle for
conducting litigation on behalf of private parties," 432 U. S., at
368. To hold otherwise would have undermined the agency's
independent statutory responsibility to investigate and conciliate
claims by subjecting the EEOC to inconsistent limitations
periods.
In General Telephone, the EEOC sought to bring a discrimination
claim on behalf of all female employees at General Telephone's
facilities in four States, without being certified as the class
representative under Federal Rule of Civil Procedure 23. 446 U. S.,
at 321-322. Relying on the plain language of Title VII and the
legislative intent behind the 1972 amendments, we held that the
EEOC was not required to comply with Rule 23 because it "need look
no further than § 706 for its authority to bring suit in its own
name for the purpose, among others, of securing relief for a group
of aggrieved individuals." Id., at 324. In light of the provisions
granting the EEOC exclusive jurisdiction over the claim for 180
days after the employee files a charge, we concluded that "the EEOC
is not merely a proxy for the victims of discrimination and that
[its] enforcement suits should not be considered representative
actions subject to Rule 23." Id., at 326.
Against the backdrop of our decisions in Occidental and General
Telephone, Congress expanded the remedies available in EEOC
enforcement actions in 1991 to include compensatory and punitive
damages. There is no language in the statutes or in either of these
cases suggesting that the existence of an arbitration agreement
between private parties materially changes the EEOC's statutory
function or the remedies that are otherwise available.
III
The FAA was enacted in 1925, 43 Stat. 883, and then reenacted
and codified in 1947 as Title 9 of the United States Code. It has
not been amended since the enactment of Title
289
VII in 1964. As we have explained, its "purpose was to reverse
the longstanding judicial hostility to arbitration agreements that
had existed at English common law and had been adopted by American
courts, and to place arbitration agreements upon the same footing
as other contracts." Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20, 24
(1991). The FAA broadly provides that a written provision in "a
contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract
... shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract." 9 U. S. C. § 2. Employment contracts, except for those
covering workers engaged in transportation, are covered by the FAA.
Circuit City Stores, Inc. v. Adams,
532 U. S. 105 (2001).
The FAA provides for stays of proceedings in federal district
courts when an issue in the proceeding is referable to arbitration,
and for orders compelling arbitration when one party has failed or
refused to comply with an arbitration agreement. See 9 U. S. C. §§
3 and 4. We have read these provisions to "manifest a 'liberal
federal policy favoring arbitration agreements.'" Gilmer, 500 U.
S., at 25 (quoting Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp.,
460 U.
S. 1,24 (1983)). Absent some ambiguity in the agreement,
however, it is the language of the contract that defines the scope
of disputes subject to arbitration. See Mastrobuono v. Shearson
Lehman Hutton, Inc.,
514 U. S. 52, 57 (1995)
("[T]he FAA's pro arbitration policy does not operate without
regard to the wishes of the contracting parties"). For nothing in
the statute authorizes a court to compel arbitration of any issues,
or by any parties, that are not already covered in the agreement.
The FAA does not mention enforcement by public agencies; it ensures
the enforceability of private agreements to arbitrate, but
otherwise does not purport to place any restriction on a nonparty's
choice of a judicial forum.
290
IV
The Court of Appeals based its decision on its evaluation of the
"competing policies" implemented by the ADA and the FAA, rather
than on any language in the text of either the statutes or the
arbitration agreement between Baker and respondent. 193 F. 3d, at
812. It recognized that the EEOC never agreed to arbitrate its
statutory claim,
id., at 811 ("We must also recognize that
in this case the EEOC is not a party to any arbitration
agreement"), and that the EEOC has "independent statutory
authority" to vindicate the public interest, but opined that
permitting the EEOC to prosecute Baker's claim in court "would
significantly trample" the strong federal policy favoring
arbitration because Baker had agreed to submit his claim to
arbitration. Id., at 812. To effectuate this policy, the court
distinguished between injunctive and victim-specific relief, and
held that the EEOC is barred from obtaining the latter because any
public interest served when the EEOC pursues "make whole" relief is
outweighed by the policy goals favoring arbitration. Only when the
EEOC seeks broad injunctive relief, in the Court of Appeals' view,
does the public interest overcome the goals underpinning the FAA.
7
7 This framework assumes the federal policy favoring arbitration
will be undermined unless the EEOC's remedies are limited. The
court failed to consider, however, that some of the benefits of
arbitration are already built into the EEOC's statutory duties.
Unlike individual employees, the EEOC cannot pursue a claim in
court without first engaging in a conciliation process. 42 U. S. C.
§ 2000e-5(b) (1994 ed.). Thus, before the EEOC ever filed suit in
this case, it attempted to reach a settlement with respondent.
The court also neglected to take into account that the EEOC
files suit in a small fraction of the charges employees file. For
example, in fiscal year 2000, the EEOC received 79,896 charges of
employment discrimination. Although the EEOC found reasonable cause
in 8,248 charges, it only filed 291 lawsuits. Equal Employment
Opportunity Commission, Enforcement Statistics and Litigation (as
visited Nov. 18, 2001), http://
www.eeoc.gov/stats/enforcement.html.
In contrast, 21,032 employment discrimination lawsuits were filed
in 2000. See Administrative Office,
291
If it were true that the EEOC could prosecute its claim only
with Baker's consent, or if its prayer for relief could be dictated
by Baker, the court's analysis might be persuasive. But once a
charge is filed, the exact opposite is true under the statute-the
EEOC is in command of the process. The EEOC has exclusive
jurisdiction over the claim for 180 days. During that time, the
employee must obtain a right-to-sue letter from the agency before
prosecuting the claim. If, however, the EEOC files suit on its own,
the employee has no independent cause of action, although the
employee may intervene in the EEOC's suit. 42 U. s. C. §
2000e-5(f)(1) (1994 ed.). In fact, the EEOC takes the position that
it may pursue a claim on the employee's behalf even after the
employee has disavowed any desire to seek relief. Brief for
Petitioner 20. The statute clearly makes the EEOC the master of its
own case and confers on the agency the authority to evaluate the
strength of the public interest at stake. Absent textual support
for a contrary view, it is the public agency's province-not that of
the court-to determine
Judicial Business of the United States Courts 2000, Table C-2A
(Sept. 30, 2000). These numbers suggest that the EEOC files fewer
than two percent of all antidiscrimination claims in federal court.
Indeed, even among the cases where it finds reasonable cause, the
EEOC files suit in fewer than five percent of those cases. Surely
permitting the EEOC access to victim-specific relief in cases where
the employee has agreed to binding arbitration, but has not yet
brought a claim in arbitration, will have a negligible effect on
the federal policy favoring arbitration.
JUSTICE THOMAS notes that our interpretation of Title VII and
the FAA "should not depend on how many cases the EEOC chooses to
prosecute in any particular year." See post, at 314, n. 14
(dissenting opinion). And yet, the dissent predicts our holding
will "reduce that arbitration agreement to all but a nullity,"
post, at 309, "discourag[e] the use of arbitration agreements,"
post, at 310, and "discourage employers from entering into
settlement agreements," post, at 312. These claims are highly
implausible given the EEOC's litigation practice over the past 20
years. When speculating about the impact this decision might have
on the behavior of employees and employers, we think it is worth
recognizing that the EEOC files suit in less than one percent of
the charges filed each year.
292
whether public resources should be committed to the recovery of
victim-specific relief. And if the agency makes that determination,
the statutory text unambiguously authorizes it to proceed in a
judicial forum.
Respondent and the dissent contend that Title VII supports the
Court of Appeals' bar against victim-specific relief, because the
statute limits the EEOC's recovery to "appropriate" relief as
determined by a court. See Brief for Respondent 19, and n. 8; post,
at 301-303 (THOMAS, J., dissenting). They rely on § 706(g)(1),
which provides that, after a finding of liability, "the court may
enjoin the respondent from engaging in such unlawful employment
practice, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring
of employees, with or without back pay ... or any other equitable
relief as the court deems appropriate." 42 U. S. C. § 2000e-5(g)(1)
(1994 ed.) (emphasis added). They claim this provision limits the
remedies available and directs courts, not the EEOC, to determine
what relief is appropriate.
The proposed reading is flawed for two reasons. First, under the
plain language of the statute the term "appropriate" refers to only
a subcategory of claims for equitable relief, not damages. The
provision authorizing compensatory and punitive damages is in a
separate section of the statute, § 1981a(a)(1), and is not limited
by this language. The dissent responds by pointing to the phrase
"may recover" in § 1981a(a)(1), and arguing that this too provides
authority for prohibiting victim-specific relief. See post, at 303,
n. 7. But this contention only highlights the second error in the
proposed reading. If "appropriate" and "may recover" can be read to
support respondent's position, then any discretionary language
would constitute authorization for judge-made, per se rules. This
is not the natural reading of the text. These terms obviously refer
to the trial judge's discretion in a particular case to order
reinstatement and award damages in an amount warranted by the facts
of that
293
case. They do not permit a court to announce a categorical rule
precluding an expressly authorized form of relief as inappropriate
in all cases in which the employee has signed an arbitration
agreement.8
The Court of Appeals wisely did not adopt respondent's reading
of § 706(g). Instead, it simply sought to balance the policy goals
of the FAA against the clear language of Title VII and the
agreement. While this may be a more coherent approach, it is
inconsistent with our recent arbitration cases. The FAA directs
courts to place arbitration agreements on equal footing with other
contracts, but it "does not require parties to arbitrate when they
have not agreed to do so." Volt Information Sciences, Inc. v. Board
of Trustees of Leland Stanford Junior Univ.,
489 U. S. 468, 478
(1989).9 See
8 JUSTICE THOMAS implicitly recognizes this distinction by
qualifying his description of the courts' role as determining
appropriate relief "in any given case," or "in a particular case."
See post, at 301, 303. But the Court of Appeals' holding was not so
limited.
193 F.3d
805, 812
(CA4 1999) (holding that the EEOC "may not
pursue relief in court ... specific to individuals who have waived
their right to a judicial forum").
9 In Volt, the parties to a construction contract agreed to
arbitrate all disputes relating to the contract and specified that
California law would apply. When one party sought to compel
arbitration, the other invoked a California statute that authorizes
a court to stay arbitration pending resolution of related
litigation with third parties not bound by the agreement when
inconsistent rulings are possible. We concluded that the FAA did
not pre-empt the California statute because "the FAA does not
confer a right to compel arbitration of any dispute at any time; it
confers only the right to obtain an order directing that
'arbitration proceed in the manner provided for in [the parties']
agreement.'" 489 U. S., at 474-475 (quoting 9 U. S. C. §4).
Similarly, the FAA enables respondent to compel Baker to arbitrate
his claim, but it does not expand the range of claims subject to
arbitration beyond what is provided for in the agreement.
Our decision in Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U. S. 52
(1995), is not inconsistent with this position. In Mastrobuono, we
reiterated that clear contractual language governs our
interpretation of arbitration agreements, but because the
choice-of-Iaw provision in that case was ambiguous, we read the
agreement to favor arbitration under the FAA rules. Id., at 62.
While we distinguished Volt on the ground
294
also Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U. S. 395, 404, n. 12
(1967) ("[T]he purpose of Congress in 1925 was to make arbitration
agreements as enforceable as other contracts, but not more so").
Because the FAA is "at bottom a policy guaranteeing the enforcement
of private contractual arrangements," Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc.,
473 U. S. 614, 625
(1985), we look first to whether the parties agreed to arbitrate a
dispute, not to general policy goals, to determine the scope of the
agreement. Id., at 626. While ambiguities in the language of the
agreement should be resolved in favor of arbitration, Volt, 489 U.
S., at 476, we do not override the clear intent of the parties, or
reach a result inconsistent with the plain text of the contract,
simply because the policy favoring arbitration is implicated.
"Arbitration under the [FAA] is a matter of consent, not coercion."
Id., at 479. Here there is no ambiguity. No one asserts that the
EEOC is a party to the contract, or that it agreed to arbitrate its
claims. It goes without saying that a contract cannot bind a
nonparty. Accordingly, the pro arbitration policy goals of the FAA
do not require the agency to relinquish its statutory authority if
it has not agreed to do so.
Even if the policy goals underlying the FAA did necessitate some
limit on the EEOC's statutory authority, the line drawn by the
Court of Appeals between injunctive and victim-specific relief
creates an uncomfortable fit with its avowed purpose of preserving
the EEOC's public function while favoring arbitration. For that
purpose, the category of victim-specific relief is both
overinclusive and underinclusive. For example, it is overinclusive
because while
that we were reviewing a federal court's construction of the
contract, 514 U. S., at 60, n. 4, regardless of the standard of
review, in this case the Court of Appeals recognized that the EEOC
was not bound by the agreement. When that much is clear, Volt and
Mastrobuono both direct courts to respect the terms of the
agreement without regard to the federal policy favoring
arbitration.
295
punitive damages benefit the individual employee, they also
serve an obvious public function in deterring future violations.
See Newport v. Fact Concerts, Inc.,
453 U. S. 247, 266-270
(1981) ("Punitive damages by definition are not intended to
compensate the injured party, but rather to punish the tortfeasor
... , and to deter him and others from similar extreme conduct");
Restatement (Second) of Torts § 908 (1977). Punitive damages may
often have a greater impact on the behavior of other employers than
the threat of an injunction, yet the EEOC is precluded from seeking
this form of relief under the Court of Appeals' compromise scheme.
And, it is underinclusive because injunctive relief, although
seemingly not "victim-specific," can be seen as more closely tied
to the employees' injury than to any public interest. See
Occidental, 432 U. S., at 383 (REHNQUIST, J., dissenting) ("While
injunctive relief may appear more 'broad based,' it nonetheless is
redress for individuals").
The compromise solution reached by the Court of Appeals turns
what is effectively a forum selection clause into a waiver of a
nonparty's statutory remedies. But if the federal policy favoring
arbitration trumps the plain language of Title VII and the
contract, the EEOC should be barred from pursuing any claim outside
the arbitral forum. If not, then the statutory language is clear;
the EEOC has the authority to pursue victim-specific relief
regardless of the forum that the employer and employee have chosen
to resolve their disputes.10 Rather than attempt to split the
difference, we are
lOWe have held that federal statutory claims may be the subject
of arbitration agreements that are enforceable pursuant to the FAA
because the agreement only determines the choice of forum. "In
these cases we recognized that '[b]y agreeing to arbitrate a
statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an
arbitral, rather than a judicial, forum.' [Mitsubishi Motors Corp.
v. Soler Chrysler-Plymouth, Inc.,
473 U. S. 614, 628
(1985)]." Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20, 26 (1991).
To the extent the Court of Appeals construed an employee's
agreement to submit his claims to an arbitral forum as a waiver of
the substantive statutory
296
persuaded that, pursuant to Title VII and the ADA, whenever the
EEOC chooses from among the many charges filed each year to bring
an enforcement action in a particular case, the agency may be
seeking to vindicate a public interest, not simply provide
make-whole relief for the employee, even when it pursues entirely
victim-specific relief. To hold otherwise would undermine the
detailed enforcement scheme created by Congress simply to give
greater effect to an agreement between private parties that does
not even contemplate the EEOC's statutory functionY
V
It is true, as respondent and its amici have argued, that
Baker's conduct may have the effect of limiting the relief that the
EEOC may obtain in court. If, for example, he had failed to
mitigate his damages, or had accepted a monetary settlement, any
recovery by the EEOC would be limited accordingly. See, e.
g., Ford Motor Co. v. EEOC,
458 U. S. 219, 231-232
(1982) (Title VII claimant "forfeits his right to back-
prerogative of the EEOC to enforce those claims for whatever
relief and in whatever forum the EEOC sees fit, the court obscured
this crucial distinction and ran afoul of our precedent.
11 If injunctive relief were the only remedy available, an
employee who signed an arbitration agreement would have little
incentive to file a charge with the EEOC. As a greater percentage
of the work force becomes subject to arbitration agreements as a
condition of employment, see Voluntary Arbitration in Worker
Disputes Endorsed by 2 Groups, Wall Street Journal, June 20, 1997,
p. B2 (reporting that the American Arbitration Association
estimates "more than 3.5 million employees are covered" by
arbitration agreements designating it to administer arbitration
proceedings), the pool of charges from which the EEOC can choose
cases that best vindicate the public interest would likely get
smaller and become distorted. We have generally been reluctant to
approve rules that may jeopardize the EEOC's ability to investigate
and select cases from a broad sample of claims. Cf. EEOC v. Shell
Oil Co.,
466 U. S.
54, 69 (1984) ("[I]t is crucial that the Commission's ability
to investigate charges of systemic discrimination not be
impaired"); Occidental Life Ins. Co. of Cal. v. EEOC,
432 U. S. 355, 368
(1977).
297
pay if he refuses a job substantially equivalent to the one he
was denied"); EEOC v. Goodyear Aerospace Corp.,
813 F.2d
1539, 1542
(CA9 1987) (employee's settlement "rendered
her personal claims moot"); EEOC v. U. S. Steel Corp.,
921 F.2d
489, 495
(CA3 1990) (individuals who litigated their own
claims were precluded by res judicata from obtaining individual
relief in a subsequent EEOC action based on the same claims). As we
have noted, it "goes without saying that the courts can and should
preclude double recovery by an individual." General Telephone, 446
U. S., at 333.
But no question concerning the validity of his claim or the
character of the relief that could be appropriately awarded in
either a judicial or an arbitral forum is presented by this record.
Baker has not sought arbitration of his claim, nor is there any
indication that he has entered into settlement negotiations with
respondent. It is an open question whether a settlement or
arbitration judgment would affect the validity of the EEOC's claim
or the character of relief the EEOC may seek. The only issue before
this Court is whether the fact that Baker has signed a mandatory
arbitration agreement limits the remedies available to the EEOC.
The text of the relevant statutes provides a clear answer to that
question. They do not authorize the courts to balance the competing
policies of the ADA and the FAA or to second-guess the agency's
judgment concerning which of the remedies authorized by law that it
shall seek in any given case.
Moreover, it simply does not follow from the cases holding that
the employee's conduct may affect the EEOC's recovery that the
EEOC's claim is merely derivative. We have recognized several
situations in which the EEOC does not stand in the employee's
shoes. See Occidental, 432 U. S., at 368 (EEOC does not have to
comply with state statutes of limitations); General Telephone, 446
U. S., at 326 (EEOC does not have to satisfy Rule 23 requirements);
Gilmer, 500 U. S., at 32 (EEOC is not precluded from seeking
classwide and equi-
298
table relief in court on behalf of an employee who signed an
arbitration agreement). And, in this context, the statute
specifically grants the EEOC exclusive authority over the choice of
forum and the prayer for relief once a charge has been filed. The
fact that ordinary principles of res judicata, mootness, or
mitigation may apply to EEOC claims does not contradict these
decisions, nor does it render the EEOC a proxy for the
employee.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
The Court holds today that the Equal Employment Opportunity
Commission (EEOC or Commission) may obtain victim-specific remedies
in court on behalf of an employee who had agreed to arbitrate
discrimination claims against his employer. This decision conflicts
with both the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et
seq., and the basic principle that the EEOC must take a victim of
discrimination as it finds him. Absent explicit statutory
authorization to the contrary, I cannot agree that the EEOC may do
on behalf of an employee that which an employee has agreed not to
do for himself. Accordingly, I would affirm the judgment of the
Court of Appeals.
I
Before starting work as a grill operator for respondent Waffle
House, Inc., Eric Scott Baker filled out and signed an employment
application. This application included an arbitration clause
providing that "any dispute or claim concerning Applicant's
employment with Waffle House, Inc., or any subsidiary or Franchisee
of Waffle House, Inc., or the terms,
299
conditions or benefits of such employment ... will be settled by
binding arbitration." App. 59.
The Court does not dispute that the arbitration agreement
between Waffle House and Baker falls comfortably within the scope
of the FAA, see Circuit City Stores, Inc. v. Adams,
532 U. S. 105 (2001),
which provides that "[a] written provision in ... a contract
evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract
or transaction ... shall be valid, irrevocable, and enforceable." 9
U. S. C. § 2. Neither does the Court contest that claims arising
under federal employment discrimination laws, such as Baker's claim
that Waffle House discharged him in violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U. S. C. § 12101 et seq. (1994
ed. and Supp. V), may be subject to compulsory arbitration. See
Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20, 23 (1991)
(holding that a claim arising under the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq. (1994
ed.), may be subject to compulsory arbitration). 1 The Court
therefore does not dispute that
1 Admittedly, this case involves a claim under the ADA while
Gilmer addressed compulsory arbitration in the context of the ADEA.
Nevertheless, I see no reason why an employee should not be
required to abide by an agreement to arbitrate an ADA claim. In
assessing whether Congress has precluded the enforcement of an
arbitration agreement with respect to a particular statutory claim,
this Court has held that a party should be held to an arbitration
agreement "unless Congress itself has evinced an intention to
preclude a waiver of judicial remedies for the statutory rights at
issue." Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc.,
473 U. S. 614,628
(1985). Here, the text of the ADA does not suggest that Congress
intended for ADA claims to fall outside the purview of the FAA.
Indeed, the ADA expressly encourages the use of arbitration and
other forms of alternative dispute resolution, rather than
litigation, to resolve claims under the statute: "Where appropriate
and to the extent authorized by law, the use of alternative means
of dispute resolution, including settlement negotiations,
conciliation, facilitation, mediation, factfinding, minitrials, and
arbitration, is encouraged to resolve disputes arising under this
[Act]." 42 U. S. C. § 12212 (1994 ed.).
300
Baker, by signing an arbitration agreement, waived his ability
either to bring an ADA claim against Waffle House in court or,
consequently, to obtain relief for himself in that forum.
The EEOC, in its complaint, sought to obtain the victimspecific
relief for Baker that he could not seek for himself, asking a court
to make Baker whole by providing reinstatement with backpay and
compensatory damages and to pay Baker punitive damages.2 App.
39-40. In its responses to interrogatories and directives to
produce filed the same day as its complaint, the EEOC stated
unambiguously: "All amounts recovered from Defendant Employer in
this litigation will be received directly by Mr. Baker based on his
charge of discrimination against Defendant Employer." Id., at 52.
The EEOC also admitted that it was "bring[ing] this action on
behalf of Eric Scott Baker." 3 Id., at 51.
By allowing the EEOC to obtain victim-specific remedies for
Baker, the Court therefore concludes that the EEOC may do "on
behalf of ... Baker" that which he cannot do for himself. The
Court's conclusion rests upon the following premise advanced by the
EEOC: An arbitration agreement between an employer and an employee
may not limit the remedies that the Commission may obtain in court
because
2 The EEOC, in its prayer for relief, also requested that the
court enjoin Waffle House from engaging in any discriminatory
employment practice and asked the court to order Waffle House to
institute policies, practices, and programs which would provide
equal employment opportunities for qualified individuals with
disabilities, and which would eradicate the effect of its past and
present unlawful employment practices. App. 39. The Court of
Appeals concluded that Baker's arbitration agreement did not
preclude the EEOC from seeking such broad-based relief, and Waffle
House has not appealed that ruling. See
193 F.3d
805, 813, n. 3
(CA4 1999).
3 Although the EEOC's complaint alleged that Waffle House
engaged in "unlawful employment practices," in violation of §
102(a) of the ADA, 42 U. S. C. § 12112(a) (1994 ed.), it mentioned
no instances of discriminatory conduct on the part of Waffle House
other than its discharge of Baker. App. 38 (emphasis added).
301
Title VII "grants the EEOC the right to obtain all statutory
remedies in any action it brings."4 Brief for Petitioner 17. The
EEOC contends that "the statute in clear terms authorizes [it] to
obtain all of the listed forms of relief," referring to those types
of relief set forth in 42 U. S. C. § 2000e-5(g)(1) (1994 ed.)
(including injunctive relief and reinstatement with backpay) as
well as the forms of relief listed in § 1981a(a)(1) (compensatory
and punitive damages). Brief for Petitioner 17-18. Endorsing the
EEOC's position, the Court concludes that "these statutes
unambiguously authorize the EEOC to obtain the relief that it seeks
in its complaint if it can prove its case against respondent."
Ante, at 287.
The Court's position, however, is inconsistent with the relevant
statutory provision. For while the EEOC has the statutory right to
bring suit, see § 2000e-5(f)(1), it has no statutory entitlement to
obtain a particular remedy. Rather, the plain language of §
2000e-5(g)(1) makes clear that it is a court's role to decide
whether to "enjoin the respondent ... , and order such affirmative
action as may be appropriate, which may include, but is not limited
to, reinstatement or hiring of employees, with or without back pay
... or any other equitable relief as the court deems appropriate."
(Emphasis added.) Whether a particular remedy is "appropriate" in
any given case is a question for a court and not for the EEOC.5 See
Albemarle Paper Co.
4 Title I of the ADA expressly incorporates "[t]he powers,
remedies, and procedures set forth in [Title VII]." 42 U. S. C. §
12117(a). That includes the procedures applicable to enforcement
actions as well as the equitable relief available under §
2000e-5(g).
5 The EEOC also points out that Title VII gives the EEOC, and
not an individual victim of discrimination, the choice of forum
when the EEOC files an enforcement action. See § 2000e-5(f)(3).
Since the statute gives the victim no say in the matter, the EEOC
argues that an employee, by signing an arbitration agreement,
should not be able to effectively negate ex ante the EEOC's
statutory authority to choose the forum in which it brings suit.
Brief for Petitioner 21-23. The Court, wisely, does not rely
heavily on this argument since nothing in the Court of Appeals'
decision
302
v. Moody,
422 U.
S. 405, 415-416 (1975) ("The [Title VII] scheme implicitly
recognizes that there may be cases calling for one remedy but not
another, and ... these choices are, of course, left in the first
instance to the district courts"); Selgas v. American Airlines,
Inc.,
104 F.3d
9, 13, n. 2 (CA1 1997) ("It is clear that in a Title VII case,
it is the court which has discretion to fashion relief comprised of
the equitable remedies it sees as appropriate, and not the parties
which may determine which equitable remedies are available").
Had Congress wished to give the EEOC the authority to determine
whether a particular remedy is appropriate under § 2000e-5, it
clearly knew how to draft language to that effect. See §
2000e-16(b) (providing that the EEOC shall have the authority to
enforce § 2000e-16(a)'s prohibition of employment discrimination
within federal agencies "through appropriate remedies, including
reinstatement or hiring of employees with or without back pay, as
will effectuate the policies of this section"). But Congress
specifically declined to grant the EEOC such authority when it
empowered the Commission to bring lawsuits against private
employers. Both the original House version and the original Senate
version of the Equal Employment Opportunity Act of 1972 would have
granted the EEOC powers similar to those possessed by the National
Labor Relations Board to adjudicate a complaint and implement a
remedy. See H. R. 1746, 92d Cong., 1st Sess., § 706(h) (1971), and
S. 2515, 92d Cong., 1st Sess., § 4(h) (1971), reprinted in
Legislative History of the Equal Employment Opportunity Act of
1972, pp. 7-8, 164165. These bills were amended, however, once they
reached the floor of both Houses of Congress to replace such
"ceaseand-desist" authority with the power only to prosecute an
prevents the EEOC from choosing to file suit in any appropriate
judicial district set forth in § 2000e-5(f)(3). Rather, the Court
of Appeals' holding only limits the remedies that the EEOC may
obtain when it decides to institute a judicial action. See 193 F.
3d, at 806-807.
303
action in court. See 117 Congo Rec. 32088-32111 (1971); 118
Congo Rec. 3965-3979 (1972).
The statutory scheme enacted by Congress thus entitles neither
the EEOC nor an employee, upon filing a lawsuit, to obtain a
particular remedy by establishing that an employer discriminated in
violation of the law. 6 In both cases, 42 U. S. C. § 2000e-5(g)(1)
governs, and that provision unambiguously requires a court to
determine what relief is "appropriate" in a particular case.7
II
Because Congress has not given the EEOC the authority to usurp
the traditional role of courts to determine what constitutes
"appropriate" relief in a given case, it is necessary to examine
whether it would be "appropriate" to allow the EEOC to obtain
victim-specific relief for Baker here, notwithstanding the fact
that Baker, by signing an arbitration
6 The Court, in fact, implicitly admits as much. Contradicting
its earlier assertion that the "statutes unambiguously authorize
the EEOC to obtain the relief that it seeks in its complaint if it
can prove its case against respondent," ante, at 287 (emphasis
added), the Court later concludes that the statutory scheme gives
the trial judge "discretion in a particular case to order
reinstatement and award damages in an amount warranted by the facts
of that case." Ante, at 292-293.
7 Similarly, the EEOC's authority to obtain legal remedies is
also no greater than that of an employee acting on his own behalf.
Title 42 U. S. C. § 1981a(a)(2), which was enacted as part of the
Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1072, provides
that the EEOC or an employee "may recover compensatory and punitive
damages" in addition to the forms of relief authorized by §
2000e-5(g)(1). (Emphasis added.) Nothing in § 1981a(a), however,
alters the fundamental proposition that it is for the judiciary to
determine what relief (of all the relief that plaintiffs "may
recover" under the statute) the particular plaintiff before the
court is entitled to. The statutory language does not purport to
grant the EEOC or an employee the absolute right to obtain damages
in every case of proven discrimination, despite the operation of
such legal doctrines as time bar, accord and satisfaction, or (as
in this case) binding agreement to arbitrate.
304
agreement, has waived his ability to seek such relief on his own
behalf in a judicial forum. For two reasons, I conclude it is not
"appropriate" to allow the EEOC to do on behalf of Baker that which
Baker is precluded from doing for himself.
A
To begin with, when the EEOC litigates to obtain relief on
behalf of a particular employee, the Commission must take that
individual as it finds him. Whether the EEOC or an employee files a
particular lawsuit, the employee is the ultimate beneficiary of
victim-specific relief. The relevance of the employee's
circumstances therefore does not change simply because the EEOC,
rather than the employee himself, is litigating the case, and a
court must consider these circumstances in fashioning an
"appropriate" remedy.8
As a result, the EEOC's ability to obtain relief is often
limited by the actions of an employee on whose behalf the
Commission may wish to bring a lawsuit. If an employee signs an
agreement to waive or settle discrimination claims against an
employer, for example, the EEOC may not recover victim-specific
relief on that employee's behalf. See, e. g., EEOC v. Cosmair,
Inc.,
821 F.2d
1085, 1091 (CAS 1987); EEOC v. Goodyear Aerospace Corp.,
813 F.2d
1539, 1543
(CA9 1987); see also EEOC: Guidance on
Waivers Under the ADA and Other Civil Rights Laws, EEOC Compliance
Manual (BNA) N:2345, N:2347 (Apr. 10, 1997) (hereinafter EEOC
Compliance Manual) (recognizing that a valid waiver or set-
8 I agree with the Court that, in order to determine whether a
particular remedy is "appropriate," it is necessary to examine the
specific facts of the case at hand. See ante, at 292-293. For this
reason, the statutory scheme does not permit us to announce a
categorical rule barring lower courts from ever awarding a form of
relief expressly authorized by the statute. When the same set of
facts arises in different cases, however, such cases should be
adjudicated in a consistent manner. Therefore, this Court surely
may specify particular circumstances under which it would be
inappropriate for trial courts to award certain types of relief,
such as victim-specific remedies.
305
tlement agreement precludes the EEOC from recovering
victim-specific relief for an employee). In addition, an employee
who fails to mitigate his damages limits his ability to obtain
relief, whether he files his own lawsuit or the EEOC files an
action on his behalf. See Ford Motor Co. v. EEOC,
458 U. S. 219, 231-232
(1982). An employee's unilateral attempt to pursue his own
discrimination claim may also limit the EEOC's ability to obtain
victim-specific relief for that employee. If a court rejects the
merits of a claim in a private lawsuit brought by an employee, for
example, res judicata bars the EEOC from recovering victim-specific
relief on behalf of that employee in a later action. See, e. g.,
EEOC
In all of the aforementioned situations, the same general
principle applies: To the extent that the EEOC is seeking
victim-specific relief in court for a particular employee, it is
able to obtain no more relief for that employee than the employee
could recover for himself by bringing his own lawsuit. The EEOC,
therefore, should not be able to obtain victimspecific relief for
Baker in court through its own lawsuit here when Baker waived his
right to seek relief for himself in a judicial forum by signing an
arbitration agreement.
The Court concludes that the EEOC's claim is not "merely
derivative" of an employee's claim and argues that "[w]e have
recognized several situations in which the EEOC does not stand in
the employee's shoes." Ante, at 297. The Court's opinion, however,
attacks a straw man because this case does not turn on whether the
EEOC's "claim" is wholly derivative of an employee's "claim." Like
the Court of Appeals below, I do not question the EEOC's ability to
seek declaratory and broad-based injunctive relief in a case where
a particular employee, such as Baker, would not be able to pursue
such relief in court. Rather, the dispute here turns on whether the
EEOC's ability to obtain victim-specific relief is dependent upon
the victim's ability to obtain such relief for himself.
306
The Court claims that three cases support its argument that the
EEOC's claim is not "merely derivative" of an employee's claim. See
Gilmer v. Interstate/Johnson Lane Corp., 500 U. S., at 24; General
Telephone Co. of Northwest v. EEOC,
446 U. S. 318, 325
(1980); Occidental Life Ins. Co. of Cal. v. EEOC,
432 U. S. 355, 368
(1977). Once the actual nature of the dispute is properly
understood, however, it is apparent that these cases do not support
the Court's position, for none of them suggests that the EEOC
should be allowed to recover victim-specific relief on behalf of an
employee who has waived his ability to obtain such relief for
himself in court by signing a valid arbitration agreement.
In Gilmer, for example, this Court addressed whether arbitration
procedures are inadequate in discrimination cases because they do
not allow for "broad equitable relief and class actions." 500 U.
S., at 32. Rejecting this argument, the Court noted that valid
arbitration agreements "will not preclude the EEOC from bringing
actions seeking class-wide and equitable relief." Ibid.
Conspicuously absent from the Court's opinion, however, was any
suggestion that the EEOC could obtain victim-specific relief on
behalf of an employee who had signed a valid arbitration agreement.
Cf. ibid.
Similarly, in General Telephone, this Court held only that
lawsuits filed by the EEOC should not be considered representative
actions under Federal Rule of Civil Procedure 23. In reaching this
conclusion, the Court noted that "the EEOC is not merely a proxy
for the victims of discrimination." 446 U. S., at 326. To be sure,
I agree that to the extent the EEOC seeks broad-based declaratory
and equitable relief in court, the Commission undoubtedly acts both
as a representative of a specific employee and to "vindicate the
public interest in preventing employment discrimination." Ibid. But
neither this dual function nor anything in General Telephone
detracts from the proposition that when the EEOC seeks to secure
victim-specific relief in court, it may obtain
307
no more relief for an individual than the individual could
obtain for himself.
Even the EEOC recognizes the dual nature of its role.9 See EEOC
Compliance Manual N:2346 (citing General Telephone, supra, at 326).
In its compliance manual, the EEOC states that "every charge filed
with the EEOC carries two potential claims for relief: the charging
party's claim for individual relief, and the EEOC's claim to
'vindicate the public interest in preventing employment
discrimination.''' EEOC Compliance Manual N:2346. It is for this
reason that "a private agreement can eliminate an individual's
right to personal recovery, [but] it cannot interfere with EEOC's
right to enforce ... the ADA ... by seeking relief that will
benefit the public and any victims of an employer's unlawful
practices who have not validly waived their claims." Id., at
N:2347.1O
In the final case cited by the Court, Occidental Life Ins.
Co. v. EEOC, this Court held that state statutes of limita-
9 The EEOC has consistently recognized that the Commission
represents individual employees when it files an action in court.
In this case, for instance, the EEOC stated in its answers to
interrogatories that it brought this action "on behalf of Eric
Scott Baker." See Part I, supra. Moreover, the EEOC has maintained
in numerous cases that its attorneys have an attorney-client
relationship with charging parties and their communications with
charging parties are therefore privileged. See, e.
g., EEOC
v. Johnson & Higgins Inc., 78 FEP Cases 1127 (SDNY 1998); EEOC
v. McDonnell Douglas Corp., 948 F. Supp. 54 (ED Mo. 1996).
10 This Court has recognized that victim-specific remedies also
serve the public goals of antidiscrimination statutes. See, e. g.,
McKennon v. Nashville Banner Publishing Co.,
513 U. S. 352, 357-358
(1995). Nevertheless, when the EEOC is seeking such remedies, it is
only serving the public interest to the extent that an employee
seeking the same relief for himself through litigation or
arbitration would also be serving the public interest. It is when
the EEOC is seeking broader relief that its unique role in
vindicating the public interest comes to the fore. The Commission's
motivation to secure such relief is likely to be greater than that
of an individual employee, who may be primarily concerned with
securing relief only for himself.
308
tions do not apply to lawsuits brought by the EEOC, because
"[u]nlike the typical litigant against whom a statute of
limitations might appropriately run, the EEOC is required by law to
refrain from commencing a civil action until it has discharged its
administrative duties." 432 U. S., at 368. The Court also noted
that the i-year statute of limitations at issue in that case "could
under some circumstances directly conflict with the timetable for
administrative action expressly established in the 1972 Act." Id.,
at 368-369. Precluding the EEOC from seeking victim-specific
remedies in court on behalf of an employee who has signed an
arbitration agreement, however, would in no way impede the
Commission from discharging its administrative duties nor would it
directly conflict with any provision of the statute. In fact, such
a result is entirely consistent with the federal policy underlying
the Court's decision in Occidental: that employment discrimination
claims should be resolved quickly and out of court. See
id.,
at 368.
B
Not only would it be "inappropriate" for a court to allow the
EEOC to obtain victim-specific relief on behalf of Baker, to do so
in this case would contravene the "liberal federal policy favoring
arbitration agreements" embodied in the FAA. See Moses H. Cone
Memorial Hospital v. Mercury Constr. Corp.,
460 U. S. 1,24 (1983).
Under the terms of the FAA, Waffle House's arbitration agreement
with Baker is valid and enforceable. See Part I, supra. The Court
reasons, however, that the FAA is not implicated in this case
because the EEOC was not a party to the arbitration agreement and
"[i]t goes without saying that a contract cannot bind a nonparty."
Ante, at 294. The Court's analysis entirely misses the point. The
relevant question here is not whether the EEOC should be bound by
Baker's agreement to arbitrate. Rather, it is whether a court
should give effect to the arbitration agreement be-
309
tween Waffle House and Baker or whether it should instead allow
the EEOC to reduce that arbitration agreement to all but a nullity.
I believe that the FAA compels the former course.ll
By allowing the EEOC to pursue victim-specific relief on behalf
of Baker under these circumstances, the Court eviscerates Baker's
arbitration agreement with Waffle House and liberates Baker from
the consequences of his agreement. Waffle House gains nothing and,
if anything, will be worse off in cases where the EEOC brings an
enforcement action should it continue to utilize arbitration
agreements in the future. This is because it will face the prospect
of defending itself in two different forums against two different
parties seeking precisely the same relief. It could face the EEOC
in court and the employee in an arbitral forum.
The Court does not decide here whether an arbitral judgment
would "affect the validity of the EEOC's claim or the character of
relief the EEOC may seek" in courtP Ante, at 297. Given the
reasoning in the Court's opinion, however, the proverbial
handwriting is on the wall. If the EEOC indeed is "the master of
its own case," ante, at 291, I do not see how an employee's
independent decision to pursue arbitral proceedings could affect
the validity of the "EEOC's claim"
llThe Court also reasons that "the FAA enables respondent to
compel Baker to arbitrate his claim, but it does not expand the
range of claims subject to arbitration beyond what is provided for
in the agreement." Ante, at 293, n. 9. The Court does not explain,
however, how the EEOC's ADA claim on Baker's behalf differs in any
meaningful respect from the ADA claim that Baker would have been
compelled to submit to arbitration.
12 In the vast majority of cases, an individual employee's
arbitral proceeding will be resolved before a parallel court action
brought by the EEOC. See Maltby, Private Justice: Employment
Arbitration and Civil Rights, 30 Colum. Human Rights L. Rev. 29, 55
(1998) (reporting that in arbitration the average employment
discrimination case is resolved in under nine months while the
average employment discrimination case filed in federal district
court is not resolved for almost two years).
310
in court. Should this Court in a later case determine that an
unfavorable arbitral judgment against an employee precludes the
EEOC from seeking similar relief for that employee in court, then
the Court's jurisprudence will stand for the following proposition:
The EEOC may seek relief for an employee who has signed an
arbitration agreement unless that employee decides that he would
rather abide by his agreement and arbitrate his claim. Reconciling
such a result with the FAA, however, would seem to be an impossible
task and would make a mockery of the rationale underlying the
Court's holding here: that the EEOC is "the master of its own
case." Ante, at 291.
Assuming that the Court means what it says, an arbitral judgment
will
not preclude the EEOC's claim for victimspecific relief
from going forward, and courts will have to adjust damages awards
to avoid double recovery. See ante, at 297. If an employee, for
instance, is able to recover $20,000 through arbitration and a
court later concludes in an action brought by the EEOC that the
employee is actually entitled to $100,000 in damages, one assumes
that a court would only award the EEOC an additional $80,000 to
give to the employee. Suppose, however, that the situation is
reversed: An arbitrator awards an employee $100,000, but a court
later determines that the employee is only entitled to $20,000 in
damages. Will the court be required to order the employee to return
$80,000 to his employer? I seriously doubt it.
The Court's decision thus places those employers utilizing
arbitration agreements at a serious disadvantage. Their employees
will be allowed two bites at the apple-one in arbitration and one
in litigation conducted by the EEOCand will be able to benefit from
the more favorable of the two rulings. This result, however,
discourages the use of arbitration agreements and is thus
completely inconsistent with the policies underlying the FAA.
311
C
While the Court explicitly decides today only "whether the fact
that Baker has signed a mandatory arbitration agreement limits the
remedies available to the EEOC,"
ibid., its opinion sets
this Court on a path that has no logical or principled stopping
point. For example, if "[t]he statute clearly makes the EEOC the
master of its own case," ante, at 291, and the filing of a charge
puts the Commission "in command of the process,"
ibid., then
it is likely after this decision that an employee's decision to
enter into a settlement agreement with his employer no longer will
preclude the EEOC from obtaining relief for that employee in
court.
While the Court suggests that ordinary principles of mootness
"may apply to EEOC claims," ante, at 298, this observation, given
the reasoning in the Court's opinion, seems largely beside the
point. It should go without saying that mootness principles apply
to EEOC claims. For instance, if the EEOC settles claims with an
employer, the Commission obviously cannot continue to pursue those
same claims in court. An employee's settlement agreement with an
employer, however, does not "moot" an action brought by the EEOC
nor does it preclude the EEOC from seeking broadbased relief.
Rather, a settlement may only limit the EEOC's ability to obtain
victim-specific relief for the employee signing the settlement
agreement. See,
e. g., Goodyear Aerospace Corp., 813 F. 2d,
at 1541-1544.
The real question addressed by the Court's decision today is
whether an employee can enter into an agreement with an employer
that limits the relief the EEOC may seek in court on that
employee's behalf. And if, in the Court's view, an employee cannot
compromise the EEOC's ability to obtain particular remedies by
signing an arbitration agreement, then I do not see how an employee
may be permitted to do the exact same thing by signing a settlement
agreement. See Scherk v. Alberto-Culver Co.,
417 U. S. 506, 511
(1974)
312
(noting that one purpose of the FAA is to place arbitration
agreements "'upon the same footing as other contracts'" (citation
omitted)). The Court's reasoning, for example, forecloses the
argument that it would be inappropriate under 42 U. S. C. §
2000e-5(g)(1) for a court to award victim-specific relief in any
case where an employee had already settled his claim. If the
statutory provision, according to the Court, does not "permit a
court to announce a categorical rule precluding an expressly
authorized form of relief as inappropriate in all cases in which
the employee has signed an arbitration agreement," then it surely
does not "constitute authorization for [a] judge-made, per se
rul[e]" barring the EEOC from obtaining victim-specific remedies on
behalf of an employee who has signed a valid settlement agreement.
Ante, at 292, 293.
Unfortunately, it is therefore likely that under the logic of
the Court's opinion the EEOC now will be able to seek
victim-specific relief in court on behalf of employees who have
already settled their claims. Such a result, however, would
contradict this Court's suggestion in Gilmer that employment
discrimination disputes "can be settled ... without any EEOC
involvement." 500 U. S., at 28. More importantly, it would
discourage employers from entering into settlement agreements and
thus frustrate Congress' desire to expedite relief for victims of
discrimination, see Ford Motor Co. v. EEOC, 458 U. S., at 221;
Occidental Life, 432 U. S., at 364-365, and to resolve employment
discrimination disputes out of court. See 42 U. S. C. § 12212
(encouraging alternative means of dispute resolution, including
settlement negotiations, to avoid litigation under the ADA).
III
Rather than allowing the EEOC to undermine a valid and
enforceable arbitration agreement between an employer and an
employee in the manner sanctioned by the Court today, I would
choose a different path. As this Court has stated,
313
courts are "not at liberty to pick and choose among
congressional enactments, and when two statutes are capable of
coexistence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each
as effective." Pittsburgh & Lake Erie R. Co. v. Railway Labor
Executives' Assn.,
491 U. S. 490, 510
(1989). In this case, I think that the EEOC's statutory authority
to enforce the ADA can be easily reconciled with the FAA.
Congress has not indicated that the ADA's enforcement scheme
should be interpreted in a manner that undermines the FAA. Rather,
in two separate places, Congress has specifically encouraged the
use of arbitration to resolve disputes under the ADA. First, in the
ADA itself, Congress stated:
"Where appropriate and to the extent authorized by law, the use
of alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes
arising under this chapter." 42 U. S. C. § 12212 (emphasis added).
Second, Congress used virtually identical language to encourage the
use of arbitration to resolve disputes under the ADA in the Civil
Rights Act of 1991. See Pub. L. 102-166, § 118, 105 Stat.
1081.13
The EEOC contends that these provisions do not apply to this
dispute because the Commission has not signed an arbitration
agreement with Waffle House and the provisions encourage
arbitration "only when the parties have consented to arbitration."
Reply Brief for Petitioner 17. Remarkably, the EEOC at the same
time questions whether it even has the statutory authority to take
this step. See Brief
13 This provision states: "Where appropriate and to the extent
authorized by law, the use of alternative means of dispute
resolution, including settlement negotiations, conciliation,
facilitation, mediation, factfinding, minitrials, and arbitration,
is encouraged to resolve disputes arising under the Acts or
provisions of Federal law amended by this title." Among "the Acts
or provisions of Federal law" amended by the Civil Rights Act of
1991 was the ADA. See Pub. L. 102-166, § 118, 105 Stat. 1081.
314
for Petitioner 22, n. 7. As a result, the EEOC's view seems to
be that Congress has encouraged the use of arbitration to resolve
disputes under the ADA only in situations where the EEOC does not
wish to bring an enforcement action in court. This limiting
principle, however, is nowhere to be found in § 12212. The use of
arbitration to resolve all disputes under the ADA is clearly
"authorized by law." See Part I, supra. Consequently, I see no
indication that Congress intended to grant the EEOC authority to
enforce the ADA in a manner that undermines valid and enforceable
arbitration agreements.14
In the last 20 years, this Court has expanded the reach and
scope of the FAA, holding, for instance, that the statute applies
even to state-law claims in state court and pre-empts all contrary
state statutes. See Allied-Bruce Terminix Coso v. Dobson,
513 U. S. 265 (1995);
Southland Corp. v. Keating,
465 U. S. 1 (1984). I have
not always agreed with this Court's jurisprudence in this area,
see, e. g., Allied-Bruce, supra, at 285-297 (THOMAS, J.,
dissenting), but it seems to me that what's good for the goose is
good for the gander. The Court should not impose the FAA upon
States in the absence of any indication that Congress intended such
a result, see Southland, supra, at 25-30 (O'CONNOR, J.,
dissenting), yet refuse to interpret a federal statute in a
manner
14 I do not see the relevance of the Court's suggestion that its
decision will only "have a negligible effect on the federal policy
favoring arbitration" because the EEOC brings relatively few
lawsuits. Ante, at 291, n. 7. In my view, either the EEOC has been
authorized by statute to undermine valid and enforceable
arbitration agreements, such as the one at issue in this case, or
one should read the Commission's enforcement authority and the FAA
in a harmonious manner. This Court's jurisprudence and the proper
interpretation of the relevant statutes should not depend on how
many cases the EEOC chooses to prosecute in any particular year. I
simply see no statutory basis for the Court's implication that the
EEOC has the authority to undermine valid and enforceable
arbitration agreements so long as the Commission only opts to
interfere with a relatively limited number of agreements.
315
compatible with the FAA, especially when Congress has expressly
encouraged that claims under that federal statute be resolved
through arbitration.
Given the utter lack of statutory support for the Court's
holding, I can only conclude that its decision today is rooted in
some notion that employment discrimination claims should be treated
differently from other claims in the context of arbitration. I had
thought, however, that this Court had decisively repudiated that
principle in Gilmer. See 500 U. S., at 27-28 (holding that
arbitration agreements can be enforced without contravening the
"important social policies" furthered by the ADEA).
For all of these reasons, I respectfully dissent.
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