No. 99-1823 

In the Supreme Court of the United States 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE PETITIONER 

GWENDOLYN YOUNG REAMS 

Associate General Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

LORRAINE C. DAVIS 

Assistant General Counsel 

ROBERT J. GREGORY 
Senior Attorney 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether an employee’s agreement to arbitrate 
employment-related disputes with an employer bars 
the Equal Employment Opportunity Commission, as 
plaintiff in an enforcement action against the employer, 
from obtaining victim-specific remedies for discrimina- 
tion against the employee, such as backpay, reinstate- 
ment, and damages. 

(I) 

II 

PARTIES TO THE PROCEEDING 

The caption of the case includes all parties to the 
proceeding in the district court and court of appeals. 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved ..................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
10 

Argument: 

I. The EEOC’s statutory authority to obtain 

victim-specific relief in a public enforcement 

action does not conflict with the terms or 

policies of the Federal Arbitration Act ...................... 

15 

A. The Fourth Circuit’s result is inconsistent 

with the text and structure of Title VII ............. 

17 

B. The FAA does not support any limitation 

on the remedies the antidiscrimination laws 

make available to the EEOC, because the 

FAA’s terms and policies are fully vindi- 
cated by holding the complainant to his 

agreement to arbitrate ........................................... 

23 

II. Because the EEOC seeks to vindicate the public 

interest when it seeks victim-specific remedies, 

there is no basis for a conclusion that it merely 

represents private parties in such cases or 

should be bound by private agreements .................... 

27 

A. Congress’s broadening of the public 

enforcement role in 1972 beyond “pattern 

or practice” cases was based on the premise 

that there is a strong public interest in 

remedying individual cases of discrimi- 
nation ......................................................................... 28 

B. This Court has frequently recognized the 

broad public purposes served by victim- 
specific remedies ..................................................... 31 

(III) 

IV 

Table of Contents—Continued: 

Page 

C. Preventing the EEOC from recovering 

victim-specific remedies in any case in which 

there is a private arbitration agreement 

would seriously compromise the EEOC’s 

ability to enforce the antidiscrimination 

statutes ...................................................................... 33 

D. There are no other countervailing policy 

considerations that counsel against allowing 

the EEOC to obtain the full range of 

statutory remedies .................................................. 
38 

Conclusion ....................................................................................... 42 

TABLE OF AUTHORITIES 

Cases: 

AT&T Techs., Inc. v. Communications Workers, 

475 U.S. 643 (1986) ................................................................ 

24 

Albemarle Paper Co. v. Moody, 422 U.S. 405 

(1975) .............................................................................. 

13, 31, 37 

Alden v. Maine, 527 U.S. 706 (1999) .................................. 

41 

Alexander v. Gardner-Denver Co., 415 U.S. 36 

(1974) ........................................................................................ 38 

Armendariz v. Foundation Health Psychcare 

Servs., Inc., 6 P.3d 669 (Cal. 2000) ..................................... 

16 

Blim v. Western Elec. Co., 731 F.2d 1473 (10th Cir.), 

cert. denied, 469 U.S. 874 (1984) ......................................... 

32 

Board of Trustees of the Univ. of Ala. v. Garrett, 

121 S. Ct. 955 (2001) .......................................................... 

15, 41 

Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 

(2001) .............................................................................. 

14, 36, 40 

City of Newport v. Fact Concerts, Inc., 453 U.S. 

247 (1981) ................................................................................. 

32 

Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465 

(D.C. Cir. 1997) ....................................................................... 16 

V 

Cases—Continued: Page 

Donovan v. Cunningham, 716 F.2d 1455 (5th Cir. 

1983), cert. denied, 467 U.S. 1251 (1984) ........................... 

33 

Duffield v. Robertson Stephens & Co., 144 F.3d 

1182 (9th Cir.), cert. denied, 525 U.S. 982 and 

525 U.S. 996 (1998) ................................................................ 

16 

EEOC v. Frank’s Nursery & Crafts, Inc., 177 

F.3d 448 (6th Cir. 1999) ........................................................ 

39 

EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir. 

1976) ......................................................................................... 7 

EEOC v. General Lines, Inc., 865 F.2d 1555 (10th 

Cir. 1989) ................................................................................. 

36 

EEOC v. Goodyear Aerospace Corp., 813 F.2d 

1539 (9th Cir. 1987) ................................................................ 

39 

EEOC v. Harris Chernin, Inc., 10 F.3d 1286 (7th 

Cir. 1993) ................................................................................. 

39 

EEOC v. Hernando Bank, Inc., 724 F.2d 1188 

(5th Cir. 1984) ..................................................................... 

20-21 

EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 

(2d Cir. 1996), cert. denied, 522 U.S. 808 (1997) ............... 

20 

EEOC v. Kidder, Peabody & Co., 156 F.3d 298 

(2d Cir. 1998) ...................................................................... 

23, 29 

EEOC v. United States Steel Corp., 921 F.2d 489 

(3d Cir. 1990) .......................................................................... 

39 

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th 

Cir. 1999) ................................................................................. 

36 

General Tel. Co. of the N.W., Inc. v. EEOC, 446 

U.S. 318 (1980) .................................................................. 

passim 

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 

20 (1991) ......................................................... 

8, 15, 22, 31, 40, 41 

Green Tree Fin. Corp. v. Randolph, 121 S. Ct. 513 

(2000) ........................................................................................ 16 

Herman v. South Carolina Nat’l Bank, 140 F.3d 

1413 (11th Cir. 1998), cert. denied, 525 U.S. 1140 

(1999) ........................................................................................ 33 

VI 

Cases—Continued: Page 

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ......... 

32 

McKennon v. Nashville Banner Publ’g Co., 513 

U.S. 352 (1995) .................................................................... 

31, 36 

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 

Inc., 473 U.S. 614 (1985) .................................................. 

22, 24 

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ......... 

31 

Rodriguez de Quijas v. Shearson/American Express, 

Inc., 490 U.S. 477 (1989) ...................................................... 

22 

Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) .......... 

22 

Secretary of Labor v. Fitzsimmons, 805 F.2d 682 

(7th Cir. 1986) ......................................................................... 

33 

Tony & Susan Alamo Found. v. Secretary of 

Labor, 471 U.S. 290 (1985) ................................................... 

21 

United States v. N.L. Indus., Inc., 479 F.2d 354 

(8th Cir. 1973) ......................................................................... 

31 

United States v. W.T. Grant Co., 345 U.S. 629 

(1953) ........................................................................................ 36 

United Steelworkers v. Warrior & Gulf Navigation 

Co., 363 U.S. 574 (1960) ....................................................... 

24 

Wright v. Universal Mar. Serv. Corp., 525 U.S. 

70 (1998) ................................................................................... 

22 

Statutes, regulation and rule: 

Age Discrimination in Employment Act of 1967, 

29 U.S.C. 621 et seq. ............................................................... 

40 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq.: 

42 U.S.C. 12101 ................................................................. 

2 

42 U.S.C. 12117(a) ............................................................ 

4 

42 U.S.C. 12212 ................................................................. 

22 

Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, 

78 Stat. 253 (42 U.S.C. 2000e et seq.) ............................ 

passim 

42 U.S.C. 2000e (§ 701, 78 Stat. 253) ............................. 

2 

42 U.S.C. 2000e-4(b)(2) ................................................ 

21, 22 

42 U.S.C. 2000e-5(a) ....................................................... 

3, 17 

42 U.S.C. 2000e-5(b) ................................................. 3, 20, 22 

VII 

Statutes, regulation and rule—Continued: 

Page 

42 U.S.C. 2000e-5(f )(1) (§ 706(f )(1), 78 Stat. 

260-261) ................................................. 

3, 4, 17, 20, 22, 25 

42 U.S.C. 2000e-5(f )(3) .................................................. 

4, 21 

42 U.S.C. 2000e-5(g) (§ 706(g), 78 Stat. 261) ........ 

4, 17, 18 

42 U.S.C. 2000e-5(g)(1) ............................................ 

4, 17, 39 

42 U.S.C. 2000e-6 (1970) .................................................. 

28 

42 U.S.C. 2000e-6(c) ......................................................... 

3 

Civil Rights Act of 1991, Pub. L. No. 102-166, § 2, 

105 Stat. 1071 .......................................................................... 

37 

§ 102, 105 Stat. 1072 (42 U.S.C. 1981a(a)(1)) .............. 

4, 18 

§ 102, 105 Stat. 1072 (42 U.S.C. 1981a(a)(2)) .............. 

5, 18 

§ 102, 105 Stat. 1073 (42 U.S.C. 1981a(d)(1)(A)) .......... 

4 

§ 102, 105 Stat. 1073 (42 U.S.C. 1981a(d)(1)(B)) ........ 

5, 19 

Federal Arbitration Act, 9 U.S.C. 1 et seq. .......................... 

6 

9 U.S.C. 16(a)(1) ................................................................ 

7 

29 C.F.R. 1601.10 ...................................................................... 

20 

Fed. R. Civ. P. 23 ...................................................................... 

29 

Miscellaneous: 

118 Cong. Rec. 4941 (1972) .................................................. 

28, 30 

137 Cong. Rec. 28,860-28,861 (1991) ...................................... 
18 

Daily Lab. Rep. (BNA) (Mar. 24, 2000) ................................ 
26 

H.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) ................... 
37 

S. Rep. No. 415, 92d Cong., 1st Sess. (1971) ......................... 
28 

www.eeoc.gov/stats/litigation.html ....................................... 26 

In the Supreme Court of the United States 

No. 99-1823 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (J.A. 7-351) is 
reported at 193 F.3d 805. The opinions of the district 
court (Pet. App. 30a-34a) and of the magistrate judge 
(Pet. App. 37a-53a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
October 6, 1999. A petition for rehearing was denied on 
January 14, 2000 (Pet. App. 35a-36a). On April 4, 2000, 

1 We have reprinted the opinion of the court of appeals in the 
Joint Appendix, because the footnotes to that opinion are misnum- 
bered in the version reprinted in the appendix to the petition for 
certiorari. 

(1) 

2 

the Chief Justice extended the time within which to file 
a petition for a writ of certiorari to and including May 
15, 2000, and the petition was filed on that date. The 
jurisdiction of this Court rests on 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

Relevant provisions of the Americans With Disabili- 
ties Act of 1990, the Civil Rights Act of 1964, and the 
Federal Arbitration Act are reproduced at Pet. App. 
54a-63a. 

STATEMENT 

Eric Scott Baker filed a claim with the Equal Em- 
ployment Opportunity Commission (EEOC) alleging 
that his employer, respondent Waffle House, Inc., had 
discharged him on the basis of disability, in violation of 
Title I of the Americans with Disabilities Act of 1990 
(ADA), 42 U.S.C. 12101. In response to that claim, the 
EEOC brought this action against respondent in the 
United States District Court for the District of South 
Carolina, alleging that respondent had engaged in 
unlawful employment practices against Baker on the 
basis of disability. The court of appeals held that Baker 
and respondent had entered into an agreement to arbi- 
trate employment-related disputes, and that while the 
EEOC was free to seek general injunctive relief, the 
agreement between Baker and respondent precluded 
the EEOC from obtaining other, victim-specific forms 
of relief, such as back pay, reinstatement, and compen- 
satory and punitive damages. The court of appeals 
accordingly instructed the district court to dismiss the 
claims for those forms of relief. 

1. When the EEOC was originally created by Title 
VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 
§ 701, 78 Stat. 253, it was not authorized to bring suit 
against employers. Title VII as originally enacted 

3 

authorized only a private right of action by employees 
and a public right of action by the Attorney General in 
cases involving a “pattern or practice” of discrimina- 
tion. See generally General Tel. Co. of the N.W., Inc. v. 
EEOC, 446 U.S. 318, 325-326 (1980). The EEOC was 
given the authority to process charges of discrimination 
and, if possible, to work out conciliation agreements 
with employers, but it was not authorized to bring suit 
against an offending employer. Ibid. In 1972, Congress 
amended Title VII to provide the Commission with 
independent authority to bring suit in court, in both 
individual cases, see 42 U.S.C. 2000e-5(a) and 42 U.S.C. 
2000e-5(f)(1), and “pattern or practice” cases, see 
42 U.S.C. 2000e-6(c).2 

The 1972 amendments created a dual system of 
private and public enforcement, in which “[t]he EEOC 
was to bear the primary burden of litigation, but the 
private action previously available under § 706 was not 
superseded.” General Tel., 446 U.S. at 326. Before any 
suit can be brought, a charge must be filed with the 
EEOC by or on behalf of an aggrieved person or by a 
member of the EEOC. The EEOC investigates the 
charge. 42 U.S.C. 2000e-5(b). If the EEOC finds rea- 
sonable cause to believe that discrimination has oc- 
curred, it must attempt to conciliate the charge; if that 
effort is unsuccessful, the EEOC may choose to bring a 
public enforcement action in its own name. 42 U.S.C. 
2000e-5(b), 2000e-5(f )(1). The forum for such an action 
is any federal district court within the State in which 
the unlawful practice occurred, the district in which the 
employment records are maintained, the district in 

2 The Attorney General retains enforcement authority over 
cases involving a “government, governmental agency, or political 
subdivision.” 42 U.S.C. 2000e-5(f )(1). 

4 

which the aggrieved person would have worked but for 
the unlawful practice, or, if the employer is not present 
in those districts, the district in which the employer has 
its principal office. 42 U.S.C. 2000e-5(f )(3). 

If the EEOC files suit, an employee may intervene in 
the EEOC action but may not initiate a suit in the 
employee’s own name. 42 U.S.C. 2000e-5(f )(1). If the 
EEOC fails to act within certain designated time peri- 
ods or determines that it will not itself file a suit and so 
notifies the employee, the employee may bring a pri- 
vate suit under Title VII. 42 U.S.C. 2000e-5(f )(1). 
Regardless of whether the action is brought by the 
EEOC or by an employee, the relief available includes 
the full range of equitable relief including injunctive 
relief, back pay, and reinstatement. 42 U.S.C. 2000e- 
5(g)(1). See General Tel., 446 U.S. at 324. In 1991, Con- 
gress expanded the relief available to a “complaining 
party”—defined to include both private plaintiffs and 
the EEOC, see 42 U.S.C. 1981a(d)(1)(A)—to include 
compensatory and punitive damages (as limited by the 
applicable statutory cap). See 42 U.S.C. 1981a(a)(1). 
The provisions authorizing the EEOC to initiate an 
enforcement action do not distinguish between general 
injunctive relief and victim-specific remedies. 

Title I of the ADA outlaws discrimination in employ- 
ment on the basis of disability. Title I expressly incor- 
porates “[t]he powers, remedies, and procedures set 
forth in [Title VII].” 42 U.S.C. 12117(a). That includes 
the procedures outlined above applicable to enforce- 
ment actions brought by the Commission and the 
equitable relief available under 42 U.S.C. 2000e-5(g). In 
1991, at the same time as it made damages available to 
a “complaining party” in a Title VII suit, 42 U.S.C. 
1981a(a)(1), Congress in identical terms made the same 
forms of damages available to a “complaining party” in 

5 

an ADA suit. 42 U.S.C. 1981a(a)(2). The term “com- 
plaining party” was defined for ADA purposes—as for 
Title VII purposes—to include both private plaintiffs 
and the EEOC. 42 U.S.C. 1981a(d)(1)(B). 

2. This case involves a public enforcement action 
brought by the EEOC. Eric Scott Baker applied for 
a position with respondent on June 23, 1994. J.A. 8. 
Baker filled out an employment application that in- 
cluded the following provision: 

The parties agree that any dispute or claim con- 
cerning 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. 

J.A. 59.3 

Baker began working for respondent on August 10, 
1994. J.A. 9. Baker had a seizure disorder. On August 
26, 1994, he had a seizure that lasted approximately 30 
seconds just after arriving for work. He went home for 
the day, and the manager told him not to report for 
work because of his disorder. On September 5, 1994, 

3 The facts recited in text are undisputed. Baker, however, was 
not employed by the store in Columbia, South Carolina, to which 
he submitted his employment application, but instead was em- 
ployed by another of respondent’s facilities in West Columbia, 
South Carolina, without filling out another employment applica- 
tion. Because of these and other facts, summarized at Pet. 5 n.1, 
the district court concluded that the arbitration clause in the appli- 
cation for the job in Columbia did not govern the job in West 
Columbia, while the court of appeals reached the opposite conclu- 
sion. 

6 

respondent terminated Baker’s employment. J.A. 9; 
Pet. App. 32a. 

Baker filed a charge of discrimination with the 
EEOC, complaining that his discharge violated the 
ADA. He did not submit a claim against respondent for 
arbitration. The EEOC initiated this enforcement 
action in September 1996, after attempts to conciliate 
Baker’s charge failed. J.A. 36; Pet. App 40a. The 
EEOC filed the action in its own name “to correct 
unlawful employment practices on the basis of disability 
and to provide appropriate relief to Eric Scott Baker, 
who was adversely affected by such practices.” J.A. 36. 
The EEOC sought several forms of relief to address 
respondent’s actions: an injunction barring respondent 
from employment discrimination on the basis of dis- 
ability, an order requiring respondent to institute anti- 
discrimination policies and practices to create opportu- 
nities and eradicate the effects of past and present 
disability discrimination, back pay and reinstatement 
for Baker, compensation for pecuniary and non-pecuni- 
ary losses suffered by Baker, and punitive damages. 
J.A. 39-40. 

In response to the EEOC’s complaint, respondent 
filed a petition under the Federal Arbitration Act 
(FAA), 9 U.S.C. 1 et seq., to compel arbitration and to 
stay or dismiss the EEOC’s enforcement action. The 
matter was referred to a magistrate judge, who filed a 
report concluding that Baker had entered into an 
arbitration agreement with respondent covering the 
instant claim. The magistrate judge recommended that 
the motion to dismiss the EEOC’s action be denied, but 
that the motion to compel arbitration be granted and 
the proceedings in this case be stayed pending arbitra- 
tion. J.A. 10-11; Pet. App. 33a. 

7 

The district court disagreed with the magistrate 
judge’s conclusions. The court held that there was no 
enforceable arbitration agreement because Baker never 
agreed to arbitrate with respect to the specific job for 
which he was hired. See note 3, supra. Because there 
had been no agreement to arbitrate, the court denied 
the motion to dismiss and the motion to compel arbitra- 
tion. Pet. App. 34a. 

3. Respondent filed an interlocutory appeal pursu- 
ant to 9 U.S.C. 16(a)(1). A divided panel of the court of 
appeals reversed the district court’s finding that there 
had been no agreement to arbitrate between Baker and 
respondent. J.A. 13. The court held that Baker’s 
application “did form a binding arbitration agreement” 
between Baker and respondent. J.A. 13. The court 
then addressed the question of what effect, if any, the 
agreement between Baker and respondent had on the 
EEOC’s enforcement action. 

The court of appeals recognized that, “[i]n enforcing 
the federal antidiscrimination laws, the EEOC does not 
act merely as a proxy for the charging party but rather 
seeks to ‘advance the public interest in preventing and 
remedying employment discrimination.’ ” J.A. 13 (quot- 
ing General Tel., 446 U.S. at 331). See also J.A. 14 
(EEOC is not “merely an institutional surrogate for 
individual victims of discrimination”). Referring to the 
1972 amendments to Title VII that had vested the 
EEOC with power to bring enforcement actions in its 
own name, the court noted that “it was clear that Con- 
gress intended by these [1972] Amendments to place 
primary reliance upon the powers of enforcement to be 
conferred upon the Commission . . . and not upon pri- 
vate law suits, to achieve equal employment opportu- 
nity.” J.A. 14 (quoting EEOC v. General Elec. Co., 532 
F.2d 359, 373 (4th Cir. 1976)). The court explained that 

8 

Congress intended “to preserve the EEOC’s authority 
to litigate selectively those cases which it believes will 
have the most significant public impact.” J.A. 15. 

From this statutory background, the court reached 
two conclusions. First, the court concluded that respon- 
dent “cannot succeed on its motion to compel the EEOC 
to arbitrate.” J.A. 19. That conclusion was based on 
the court’s recognition “that neither the ADA nor Title 
VII as incorporated therein requires the EEOC to 
arbitrate,” J.A. 18, and that “the EEOC is not a party 
to any arbitration agreement,” J.A. 18. The court 
stated that “the only argument Waffle House could 
advance to require the EEOC to arbitrate is that the 
EEOC’s interest in enforcing the ADA is derivative of 
Baker’s interest,” J.A. 18—an argument that “disre- 
gards the EEOC’s independent statutory role,” J.A. 18. 
The court also noted that this Court had “recognized 
implicitly that the EEOC, acting in its public role, is not 
bound by private arbitration agreements.” J.A. 19 
(citing Gilmer v. Interstate/Johnson Lane Corp., 500 
U.S. 20, 32 (1991)). Accordingly, the EEOC cannot be 
compelled to arbitrate pursuant to a private arbitration 
agreement to which it is not a party. J.A. 19. 

Second, the court concluded that even though an 
employee’s agreement to arbitrate does not bind the 
EEOC directly, it does preclude the EEOC from ob- 
taining victim-specific relief—such as back pay, rein- 
statement, or damages—in a public enforcement action. 
Although the court acknowledged the federal statute 
giving the EEOC a distinct cause of action, it empha- 
sized the federal policy “to give [an arbitration] con- 
tract effect in order to favor the arbitration mechanism 
for dispute resolution.” J.A. 20. In the court’s view, 
“[t]o permit the EEOC to prosecute in court Baker’s 
individual claim * * * would significantly trample this 

9 

strong policy favoring arbitration.” J.A. 20. The court 
stated that, “[b]ecause Baker’s own suit in court to 
enforce his ADA claim would be barred by his contract 
and by the federal policy embodied in the FAA, only a 
stronger, competing policy could justify allowing the 
EEOC to do for Baker what Baker could not have done 
himself.” J.A. 20. The court concluded that “[t]he 
EEOC’s public mission to eradicate and to prevent 
discrimination may be such a policy in certain contexts, 
but * * * it cannot outweigh the policy favoring 
arbitration when the EEOC seeks relief specific to the 
charging party who assented to arbitrate his claims.” 
J.A. 20 (internal citation omitted). The court thus dis- 
tinguished between the EEOC’s ability to seek general 
injunctive relief, which is not affected by the private 
arbitration agreement, and the EEOC’s ability to seek 
victim-specific relief, which is barred by such an 
agreement. 

As applied to this case, the court thus held that the 
EEOC could seek to enjoin respondent generally from 
engaging in discriminatory actions and it could seek an 
order directing respondent to carry out practices and 
programs to provide equal employment opportunity 
and eradicate the effects of past and present discrimina- 
tion. J.A. 21-22. Those remedies, the court believed, 
furthered “the public interest in a discrimination-free 
workplace” and, thus, transcended any limitation im- 
posed by Baker’s agreement to arbitrate. J.A. 22. But 
the court held that the EEOC “cannot pursue Baker’s 
individual remedies in court,” such as “backpay, rein- 
statement, and compensatory and punitive damages.” 
J.A. 23. Because the EEOC had stated that it had no 
intention to pursue those remedies in arbitration, the 
court “d[id] not reach the question of whether the 
EEOC is authorized to do so.” J.A. 23. The court 

10 

remanded the case “with instructions to the district 
court to dismiss, without prejudice, the EEOC’s claims 
asserted on behalf of Baker individually and to permit 
the EEOC to move forward on its claims for broad 
injunctive relief.” J.A. 23-24. The court did not reach 
the question “whether the EEOC has pled sufficient 
facts to warrant the equitable relief it seeks.” J.A. 24 

n.3. 
Judge King filed a dissenting opinion, which focused 
on the issue of whether Baker and respondent had 
entered into an arbitration agreement with respect to 
the particular job for which he was hired. See note 3, 
supra; Pet. 5 n.1. He agreed with the district court that 
no such agreement had been reached, and he therefore 
did not address what effect a valid arbitration agree- 
ment would have on the EEOC’s ability to litigate in its 
own name. J.A. 28. Judge King also suggested that the 
arbitration agreement might be unenforceable in any 
event because the arbitration clause was so inconspicu- 
ous that it was difficult to discern, J.A. 33 n.8; see J.A. 
59, and because it provided for employer and employee 
to bear the costs of arbitration equally, J.A. 33 n.8. The 
issue of the agreement’s validity and enforceability 
were not raised in the petition and, thus, are not before 
this Court. 

SUMMARY OF ARGUMENT 

The EEOC has the undisputed authority to examine 
claims of discrimination brought before it, to attempt to 
conciliate those it deems meritorious, to decide which 
ones are of sufficient public import to warrant the 
expenditure of public enforcement resources, and, if 
conciliation proves unsuccessful, to litigate those claims 
in federal court. Congress has expressly provided that 
the EEOC may obtain all of the forms of relief 

11 

authorized by statute in such cases, including victim- 
specific relief such as back pay, reinstatement, and 
compensatory and punitive damages. Nonetheless, the 
court of appeals held that a private arbitration agree- 
ment and a general federal policy favoring arbitration 
trumped the EEOC’s statutory right to pursue victim- 
specific relief in this case. This Court should uphold the 
EEOC’s statutory right to litigate in its own name and 
reverse the decision below. 

I. The court of appeals’ result is inconsistent with 
the plain language and structure of the Title VII (and 
ADA) enforcement scheme. Congress expressly pro- 
vided in Title VII that the EEOC may bring a public 
enforcement action to obtain all forms of relief author- 
ized by statute, and it underscored that determination 
when it added a damages remedy in 1991 and expressly 
included the EEOC among the parties that may obtain 
damages. The EEOC thus may choose from among all 
forms of relief authorized by the statute, whether 
victim-specific or general in nature—including injunc- 
tive relief, back pay, and damages—in deciding how 
best to serve the public interest in a particular case. 
The court of appeals’ holding is inconsistent with the 
text of the statute, because it denies the EEOC the 
right to pursue forms of relief that the statute specifi- 
cally authorizes it to pursue. 

In addition, the structure of the Title VII enforce- 
ment scheme gives the EEOC rights to sue that are 
independent of and superior to those of private plain- 
tiffs. The EEOC has an exclusive period after a charge 
is filed in which to decide whether to file suit and, if it 
does so, the private complainant is limited to inter- 
vention in the EEOC’s suit. Moreover, the EEOC may 
initiate and maintain its suit, even if the victim of the 
alleged discrimination does not want the suit to go 

12 

forward. And of particular note here, the EEOC 
has sole choice of forum when it chooses to bring suit. 
The court of appeals’ result is inconsistent with those 
statutory provisions, because it gives the private 
complainant—not the EEOC—control over the litiga- 
tion. In particular, it gives the private litigant the 
ability to select the forum in which to obtain victim- 
specific relief by agreeing to resolve private employ- 
ment-related disputes in an arbitral forum. 

The court of appeals attempted to justify its depar- 
ture from the Title VII enforcement scheme by elevat- 
ing the policies underlying the FAA over the text of 
Title VII and the ADA. The court of appeals reasoned 
that, when an employee has signed an arbitration 
agreement, the federal policy favoring arbitration 
trumps Title VII. There is, however, no conflict be- 
tween Title VII and the FAA, and any tension between 
Title VII’s text and the FAA’s policy should be re- 
solved in favor of Title VII’s text. The terms and 
policies of the FAA favor the enforcement of arbitra- 
tion agreements to which a party has agreed. The 
EEOC, however, has not agreed to arbitrate. Accord- 
ingly, the terms and policies of the FAA are fully 
vindicated by permitting the EEOC to litigate in the 
judicial forum specified by Congress in Title VII, while 
giving the agreement its appropriate force if and when 
the employee seeks to intervene in the EEOC’s action. 
The EEOC’s ability to bring a distinct enforcement 
action is not something the employee can bargain away. 

II. The reasoning of the court of appeals is flatly 
inconsistent with the policies reflected in Congress’s 
structuring of the Title VII enforcement scheme. 
Under the original Title VII enforcement scheme, a 
public enforcement action would lie only in a case in- 
volving a “pattern or practice” of discrimination. Such 

13 

a case would presumably be one in which “broad injunc- 
tive relief ” would be warranted. In 1972, Congress 
expanded the public enforcement role, however, by 
giving the EEOC the authority to litigate cases 
involving individual acts of discrimination. As this 
Court recognized in General Telephone, that expansion 
reflected Congress’s determination that there can be a 
strong public interest, sufficient to warrant public 
enforcement, in identifying discrimination and remedy- 
ing it even in such individual cases. The court of 
appeals’ conclusion that the public interest in obtaining 
victim-specific relief is necessarily “minimal,” J.A. 21, 
conflicts with the determinations Congress made in 
expanding the EEOC’s enforcement role in 1972. 

The reasoning of the court of appeals conflicts as well 
with this Court’s oft-repeated recognition that victim- 
specific remedies are vital to the public goals of the 
antidiscrimination statutes. Back pay serves a power- 
ful deterrent purpose because it provides the “spur or 
catalyst” for the defendant to eliminate discriminatory 
practices and for other employers not to adopt such 
practices. Albemarle Paper Co. v. Moody, 422 U.S. 405, 
417-418 (1975). Reinstatement likewise not only bene- 
fits the reinstated employee, but also sends a powerful 
message to others in the workplace that discrimination 
will not be tolerated. Punitive damages, when appro- 
priate, clearly serve a predominantly public purpose by 
punishing the defendant and deterring others. There is 
no doubt that victim-specific remedies serve a private 
compensatory purpose as well. In the end, however, 
there is no basis in the statute to distinguish between 
victim-specific and broad injunctive relief, and there is 
similarly no basis for the court of appeals’ across-the- 
board conclusion that the public interest in obtaining 
victim-specific relief is inevitably minimal. There is, 

14 

accordingly, no basis for precluding the EEOC from 
obtaining such remedies. 

The court of appeals’ decision, if allowed to stand, 
could seriously compromise the EEOC’s ability to 
enforce the antidiscrimination laws. First, the court of 
appeals’ characterization of the relief that remains open 
to the EEOC—“large-scale injunctive relief,” J.A. 21— 
has no foundation in the statutory language and its 
meaning is necessarily indeterminate. Second, injunc- 
tive relief may not be adequate to deter employment 
discrimination in some circumstances, either because 
the EEOC cannot establish the prerequisites for injunc- 
tive relief, or because injunctive relief can be a tooth- 
less sanction. But under the court of appeals’ decision, 
the EEOC would be unable to supplement injunctive 
relief with monetary sanctions against any employer 
who, like respondent, requires all employees to sign 
arbitration agreements. To be sure, this Court recog- 
nized the ability of employers to bargain with their 
employees for arbitration clauses that require the 
arbitration of suits brought by employees. See Circuit 
City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001). But 
such agreements cannot prevent the EEOC from pur- 
suing those enforcement actions that are essential to 
the public functions Congress intended the EEOC to 
serve. 

Finally, no countervailing policy considerations sup- 
port the court of appeals’ rule. The rule is not needed 
to prevent victims of discrimination from obtaining 
double recoveries through EEOC actions, because 
mechanisms are readily available for that purpose. Nor 
does the rule reduce redundant or duplicative proceed- 
ings; to the contrary, it would virtually require dupli- 
cate arbitral and judicial proceedings, because the 
victim can often obtain victim-specific remedies only in 

15 

the arbitral forum, while the EEOC ordinarily seeks 
(and may be limited to seeking) its remedies in federal 
court. Nor is the court of appeals’ rule needed to 
promote respect for the private arbitration system; to 
the contrary, this Court has recognized that EEOC 
enforcement in a case like this respects, rather than 
circumvents, the private arbitration system. See 
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 
28 (1991). Just as the government may seek victim- 
specific relief for discrimination from a State even 
though a private action for the same relief would be 
barred by sovereign immunity, see Board of Trustees of 
the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 968 (2001), so 
too an EEOC action for victim-specific relief for dis- 
crimination may proceed even though a private action 
for the same relief may be barred by an arbitration 
agreement. In each case, permitting the public action 
while barring the private one simultaneously respects 
both the bar (whether imposed by sovereign immunity 
or by a private contract) and the enforcement of the 
federal antidiscrimination laws. 

ARGUMENT 

I. THE EEOC’S STATUTORY AUTHORITY TO OB- 
TAIN VICTIM-SPECIFIC RELIEF IN A PUBLIC 
ENFORCEMENT ACTION DOES NOT CONFLICT 
WITH THE TERMS OR POLICIES OF THE FED- 
ERAL ARBITRATION ACT 

The court of appeals held that a private arbitration 
agreement barred the EEOC from obtaining victim- 
specific remedies in this case.4 Denying the EEOC the 

4 The question presented in this case assumes that the private 
arbitration agreement is enforceable as between the employee and 
the employer. But cf. J.A. 24-35 (King, J., dissenting). If not en- 

16 

right to obtain victim-specific remedies on the basis of 
an arbitration agreement to which it was not a party 
contravenes the plain text of Title VII, as incorporated 
in the ADA. Title VII expressly gives the EEOC a 
distinct cause of action with a full range of remedies and 
grants the EEOC—not the employee— control over 
litigation it initiates, even when it seeks victim-specific 
remedies. That statutory authorization cannot be 
disregarded on the ground that the terms or policies of 
the FAA conflict with the EEOC’s express statutory 
rights. The terms and the policies of the FAA are fully 
vindicated by ensuring that the parties to the 
arbitration agreement respect the agreement. Neither 
the terms nor the policies of the FAA support any limit 
on the statutory rights of the EEOC, which has not 
agreed to arbitrate any dispute. 

forceable as a private matter, the agreement plainly has no impact 
on the EEOC. The assumption that an arbitration agreement is 
enforceable as between the employee and the employer may not 
always hold true. See, e.g., Green Tree Fin. Corp. v. Randolph, 121 
S. Ct. 513, 522-523 (2000) (agreement unenforceable if it imposes 
“prohibitive costs” on the statutory claimant); Duffield v. Robert- 
son Stephens & Co., 144 F.3d 1182, 1187-1200 (9th Cir.) (agreement 
mandating arbitration of Title VII claims unenforceable under the 
Civil Rights Act of 1991), cert. denied, 525 U.S. 982 and 525 U.S. 
996 (1998); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1482 
(D.C. Cir. 1997) (agreement unenforceable unless, at a minimum, it 
establishes an “arbitration arrangement” that “provides for all of 
the types of relief that would otherwise be available in court”); 
Armendariz v. Foundation Health Psychcare Servs., Inc., 6 P.3d 
669, 694 (Cal. 2000) (arbitration agreement unenforceable as “un- 
conscionable” where it lacked “mutuality” and did not “permit the 
full recovery of damages for employees”). 

17 

A. The Fourth Circuit’s Result Is Inconsistent With The 

Text And Structure Of Title VII 

1. As originally enacted, Title VII authorized only a 
private right of action against employers and a public 
action (by the Attorney General) in “pattern or prac- 
tice” cases. See generally General Tel. Co. of the N.W., 
Inc. v. EEOC, 446 U.S. 318, 325-326 (1980). In 1972, 
Congress amended Title VII to provide the EEOC with 
independent authority to bring suit in court, thus creat- 
ing a dual system of private and public enforcement. 
See 42 U.S.C. 2000e-5(a), 2000e-5(f )(1). 

2. a. As part of this dual enforcement scheme, the 
text of Title VII (and, thus, of the ADA, which incor- 
porates that text) expressly grants the EEOC its own 
cause of action, and it grants the EEOC the right to ob- 
tain all statutory remedies in any action it brings. Sec- 
tion 706(f )(1) of Title VII provides that, if the EEOC is 
“unable to secure from the respondent a conciliation 
agreement acceptable to the Commission, the Commis- 
sion may bring a civil action against any respondent.” 
42 U.S.C. 2000e-5(f )(1). Section 706(g) further provides 
that if the court finds intentional discrimination in such 
an action, “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 appro- 
priate.” 42 U.S.C. 2000e-5(g)(1). Accordingly, as the 
Court explained in General Telephone, “Section 
706(f )(1) specifically authorizes the EEOC to bring a 
civil action against any respondent not a governmental 
entity * * *, the purpose of the action being to termi- 
nate unlawful practices and to secure appropriate relief, 
including ‘reinstatement or hiring . . ., with or without 

18 

back pay.’ ” 446 U.S. at 324 (emphasis added) (quoting 
42 U.S.C. 2000e-5(g)). 

The text of Title VII does not limit the relief 
available to the EEOC or otherwise distinguish the 
relief available to the EEOC from the relief available to 
a private litigant. To the contrary, the statute in clear 
terms authorizes the EEOC to obtain all of the listed 
forms of relief. “[T]he EEOC 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.” General Tel., 446 U.S. 
at 324. Indeed, Congress gave the EEOC complete 
control over the relief—even the victim-specific relief 
—it sought. As the Court explained in General Tele- 
phone, the EEOC could seek the most effective overall 
relief in a particular case even where some victims of 
discrimination “may appear to be disadvantaged” by 
the EEOC’s choice. Id. at 331. 

In 1991, when Congress amended Title VII and the 
ADA to provide for a damages remedy, Congress spe- 
cifically reaffirmed that the EEOC should have 
available the full range of statutory remedies—which 
now included damages—when it brings an enforcement 
action. The amendments specify that damages are 
available to a “complaining party” in a Title VII suit 
and in an ADA suit. 42 U.S.C. 1981a(a)(1) and (a)(2). 
Although a damages remedy might be thought to be 
peculiarly victim-specific, the term “complaining party” 
was not limited to employees who brought claims to the 
EEOC. Instead, Congress specifically decided that the 
EEOC should also have the right to obtain the new 
damages relief after concerns were raised that the 
failure to do so in an earlier version of the bill would 
“undermine the [EEOC’s] ability to enforce Title VII 
and the ADA.” 137 Cong. Rec. 28,860-28,861 (1991) 

19 

(letter from EEOC Chairman Evan J. Kemp, Jr. to Sen. 
Kennedy).5 Accordingly, the term “complaining party” 
was defined to include “the Equal Employment Oppor- 
tunity Commission, the Attorney General, [or] a person 
who may bring an action or proceeding under [Title VII 
or the ADA].” 42 U.S.C. 1981a(d)(1)(B). In short, 
under both the older version of the statute and the 1991 
amendments, the EEOC is plainly authorized “to sue in 
its own name to enforce federal law by obtaining appro- 
priate relief ”—which now includes damages—“for 
those persons injured by discriminatory practices for- 
bidden by the Act.” General Tel., 446 U.S. at 324-325. 

b. The court of appeals’ rule precluding the EEOC 
from obtaining victim-specific relief is flatly inconsis- 
tent with Title VII’s express authorization of such 
relief in a public enforcement action. Congress could 
have structured Title VII so that only a subset of 
remedies was available to the EEOC, if it believed that 
only a subset of remedies genuinely vindicates the 
interests of the public, rather than the private interests 
of the victim. Alternatively, Congress could have per- 
mitted victim-specific relief only in cases in which an 
individual victim is the plaintiff or intervenor. Had it 
done so, an individual’s agreement to arbitrate dis- 
crimination claims likely would have barred such relief 
in a public enforcement action, because the arbitration 
agreement may well bar the individual from interven- 
ing in such a suit. See pp. 24-26, infra. Instead of 

5 The letter cited in text warned that, without including the 
EEOC as a “complaining party,” the EEOC might “have a duty to 
refer all cases of intentional discrimination to private attorneys 
because, by filing suit, the [EEOC] would dramatically reduce the 
relief available to the victims [who would be able to seek com- 
pensatory and punitive damages in their own actions].” 

20 

pursuing either of those courses, Congress chose to 
permit the EEOC to pursue victim-specific equitable 
(and now, legal) relief in a public enforcement action, 
regardless of whether the private complainant chose to 
intervene. The court of appeals’ decision depriving the 
EEOC of the right to obtain victim-specific relief is 
inconsistent with the text of Title VII. 

3. a. The court of appeals’ decision is also inconsis- 
tent with the structure of Title VII. That structure 
makes clear that, although private litigants bring 
the vast majority of cases under the federal anti- 
discrimination statutes, the EEOC’s statutory rights to 
bring suit are independent of and superior to the rights 
of private individuals. When a charge is filed, the 
EEOC has exclusive jurisdiction over the charge for 
180 days or until a right-to-sue letter has been issued. 
See 42 U.S.C. 2000e-5(f )(1).6 The private complainant 
has no separate cause of action if the EEOC files suit 
during that time, although the employee may intervene 
in the EEOC’s suit. 42 U.S.C. 2000e-5(f )(1). Indeed, 
the EEOC may initiate and maintain its suit, even if the 
individuals for whom it seeks relief disavow the suit 
and claim not to want relief. See, e.g., EEOC v. John- 
son & Higgins, Inc., 91 F.3d 1529, 1535-1537 (2d Cir. 
1996), cert. denied, 522 U.S. 808 (1997); EEOC v. 
Hernando Bank, Inc., 724 F.2d 1188, 1195-1196 & n.8 

6 Even after the 180-day period, a private suit may be com- 
menced only if the charging party has received a right-to-sue letter 
from the EEOC. See 42 U.S.C. 2000e-5(f )(1). The EEOC is not be- 
holden to the individual charge. The EEOC can file its own charge. 
See 42 U.S.C. 2000e-5(b). The EEOC can expand the investigation 
of a charge to include “[a]ny violations that the EEOC ascertains 
in the course of a reasonable investigation of the [charge].” Gen- 
eral Tel., 446 U.S. at 331. Once a charge is filed, it cannot be 
withdrawn without the EEOC’s consent. See 29 C.F.R. 1601.10. 

21 

(5th Cir. 1984). Cf. Tony & Susan Alamo Found. v. 
Secretary of Labor, 471 U.S. 290, 302 (1985) (permitting 
public enforcement suit under Fair Labor Standards 
Act over the objections of employees because “the 
purposes of the Act require that it be applied even to 
those who would decline its protections”). And the 
attorneys appointed by the EEOC in a public enforce- 
ment action represent the EEOC; they do not repre- 
sent the charging party. See 42 U.S.C. 2000e-4(b)(2) 
(attorneys appointed by the EEOC “appear for and 
represent the Commission”). In sum, Title VII pro- 
vides the EEOC with a distinct right to sue that is not 
the individual complaining employee’s to bargain away. 

The statutory structure gives the EEOC particular 
control over the choice of forum in a public enforcement 
action. Title VII addresses with great precision the fora 
in which the EEOC may bring suit—any federal district 
court in the State in which the discrimination occurred, 
the district in which the employment records are main- 
tained, the district in which the aggrieved person would 
have worked, or, if necessary to find the respondent, 
the district of the respondent’s principal office. 
42 U.S.C. 2000e-5(f )(3). Even though the private 
complainant’s right to individual damages will be finally 
determined in the EEOC suit, the employee has no 
control whatever over the forum in which the EEOC’s 
discrimination claim will be brought and no right to 
bring an individual suit in another forum once the 
EEOC’s litigation has begun. Congress left the choice 
of forum in such a suit entirely up to the EEOC. 

b. The court of appeals’ decision contravenes that 
statutory structure, because it gives the choice of forum 
in part to a private individual. This Court has observed 
that an individual’s agreement to arbitrate disputes “is, 
in effect, a specialized kind of forum-selection clause 

22 

that posits not only the situs of suit but also the 
procedure to be used in resolving the dispute.” Scherk 

v. Alberto-Culver Co., 417 U.S. 506, 519 (1974). Thus, 
“[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). See also Gilmer v. Interstate/Johnson Lane 
Corp., 500 U.S. 20, 26, 29 (1991); Rodriguez de Quijas v. 
Shearson/American Express, Inc., 490 U.S. 477, 483 
(1989). In a public enforcement action, however, Con- 
gress granted the choice of forum to the EEOC, not to 
private individuals. The EEOC in this case has not 
chosen to bring its claim or any part of its claim— 
including its claim for victim-specific relief—in an 
arbitral forum.7 Accordingly, the private individual’s 
choice of an arbitral forum, although binding on that 
individual, can have no effect on the EEOC.8 
In short, Congress clearly and expressly gave the 
EEOC an enforcement action and choice of both 

7 As the court of appeals noted (J.A. 23), there could be a 
significant question whether the EEOC has authority to pursue a 
discrimination claim in an arbitral forum. See 42 U.S.C. 2000e- 
4(b)(2) (“Attorneys appointed under [Title VII] may, at the direc- 
tion of the Commission, appear for and represent the Commission 
in any case in court.”) (emphasis added). 

8 Congress has encouraged alternative—including arbitral— 
resolution of private discrimination claims “[w]here appropriate 
and to the extent authorized by law.” 42 U.S.C. 12212; see Wright 

v. Universal Mar. Serv. Corp., 525 U.S. 70, 82 n.2 (1998). With 
respect to public discrimination claims, however, it has instead 
required the EEOC to attempt “conference, conciliation, and per- 
suasion” before bringing suit. 42 U.S.C. 2000e-5(b); see also 2000e- 
5(f )(1). And, if conciliation fails, it has specified federal district 
courts as the fora in which EEOC suits are to be brought. 

23 

remedies and fora. The court of appeals’ approach 
effectively gives control over the types of relief the 
EEOC may obtain and the forum in which they may be 
obtained to private parties, based on arbitration agree- 
ments they (but not the EEOC) have signed. That 
decision is inconsistent with Congress’s choice. 

B. The FAA Does Not Support Any Limitation On the 

Remedies The Antidiscrimination Laws Make Avail- 
able To The EEOC, Because The FAA’s Terms And 

Policies Are Fully Vindicated By Holding The 

Complainant To His Agreement To Arbitrate 

1. The court of appeals justified its extra-statutory 
limitation on the remedies the EEOC may obtain in this 
case by elevating what it believed to be the FAA’s 
policy over the plain terms of Title VII. The court of 
appeals reasoned that “[t]o permit the EEOC to prose- 
cute in court Baker’s individual claim—the resolution of 
which he had earlier committed by contract to the arbi- 
tral forum—would significantly trample th[e] strong 
policy favoring arbitration” embodied in the FAA. J.A. 

20. In the court’s view, a “balance” must be struck 
between the “competing policies” of the FAA and the 
antidiscrimination statutes, J.A. 21, by depriving the 
EEOC of its statutory right to obtain victim-specific 
remedies when the victim (but not the EEOC) has 
agreed to arbitrate employment-related disputes. See 
also EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 303 
(2d Cir. 1998) (stating that EEOC’s public enforcement 
role and the FAA represent “competing public inter- 
ests”). That analysis is flawed on two levels—there is 
no conflict between the FAA’s policy and Title VII’s 
text, and even if there were, it would provide no basis 
for disregarding Title VII’s grant of authority to the 
EEOC. 

24 

2. There is no conflict between the terms or policies 
of the FAA and the antidiscrimination statutes, and 
there is thus no basis for the court of appeals’ conclu- 
sion that the remedies available under the antidiscrimi- 
nation statutes must give way to accommodate the 
FAA. The terms and policies of the FAA are fully 
vindicated by holding the private complainant (who 
agreed to arbitration) to his agreement, while permit- 
ting the EEOC (which has not agreed to arbitration) to 
pursue the full range of remedial options authorized by 
the antidiscrimination statutes. 

a. The FAA, “as a whole, is at bottom a policy guar- 
anteeing the enforcement of private contractual 
arrangements.” Mitsubishi Motors Corp., 473 U.S. at 
625. The “first task of a court asked to compel arbitra- 
tion of a dispute is to determine whether the parties 
agreed to arbitrate that dispute.” Id. at 626. Because 
arbitration “is a matter of contract,” a “party cannot be 
required to submit to arbitration any dispute which he 
has not agreed so to submit.” AT&T Techs., Inc. v. 
Communications Workers, 475 U.S. 643, 648 (1986) 
(quoting United Steelworkers v. Warrior & Gulf Navi- 
gation Co., 363 U.S. 574, 582 (1960)). Forcing arbitra- 
tion on an unconsenting party is inconsistent with both 
the terms and the policies of the FAA. 

b. In the present posture of this case, it must be 
assumed that Baker himself signed a valid and binding 
agreement to arbitrate employment-related disputes 
with respondent. See note 3, supra; Pet. 5 n.1. That 
means that Baker must arbitrate his individual claim 
against respondent under the ADA. Therefore, if the 
EEOC had determined that it would not bring suit and 
Baker’s own cause of action had thereby ripened, and if 
Baker had filed his own suit against respondent without 
attempting arbitration, Baker’s agreement would bar 

25 

his suit. For that reason, in the vast majority of cases 
(see p. 26 & note 9, infra), an employee’s agreement to 
arbitrate will preclude all judicial consideration of his 
complaint. 

Moreover, even in the relatively rare cases in which 
the EEOC initiates a public enforcement action, the 
arbitration agreement significantly restricts the options 
available to the private employee. Thus, for example, if 
Baker attempted to intervene in the EEOC’s suit under 
42 U.S.C. 2000e-5(f )(1), his agreement to arbitrate his 
disputes with his employer would ordinarily bar inter- 
vention. That likely inability to intervene is significant. 
As this Court noted in General Telephone, in a public 
enforcement action “the EEOC is authorized * * * to 
obtain the most satisfactory overall relief even though 
competing interests are involved and particular groups 
may appear to be disadvantaged.” 446 U.S. at 331. 
Indeed, “[t]he individual victim is given his right to 
intervene for this very reason,” ibid.—i.e., to protect 
his own rights where the EEOC has determined that 
the public interest would best be served by compromis- 
ing or even abandoning some of the claims for relief for 
that individual. By agreeing to arbitrate his claims, 
Baker has agreed, inter alia, to forego that statutory 
right to intervene in a judicial action brought by the 
EEOC; Baker is likely to face the choice of enforcing his 
own right to relief in an arbitral forum or not at all. 
Accordingly, whether or not the EEOC initiates a 
public enforcement action, the terms and policies of the 
FAA are fully vindicated by ensuring that the arbitra- 
tion agreement binds the parties who signed it. 

In short, the EEOC did not agree to arbitrate its 
dispute with respondent. Nothing in the terms of the 
FAA (which merely provide that agreements to arbi- 
trate are enforceable) or the policies of the FAA (which 

26 

favor arbitration where the parties have agreed to it) 
prevents the EEOC from invoking its statutory author- 
ity to bring a public enforcement action against respon- 
dent and to obtain all statutory remedies (including 
victim-specific remedies) provided for such an action. 

3. In addition, even if the policy favoring arbitration 
embodied in the FAA were implicated in this case, 
permitting the EEOC to seek full relief in its own 
actions would not have a serious impact on that policy. 
The EEOC has the primary enforcement role under the 
federal antidiscrimination statutes in the sense that it 
sues to vindicate the “overriding public interest in 
equal employment opportunity.” General Tel., 446 U.S. 
at 326. When the EEOC elects to exercise its indepen- 
dent authority to sue, its role is predominant. The 
EEOC, however, has very limited resources. As a 
percentage of the total lawsuits filed under the antidis- 
crimination statutes, the number of lawsuits filed by 
the EEOC is quite low.9 Moreover, as explained above, 
arbitration agreements continue to constrain the litiga- 
tion options of the signatories even in the relatively 
rare cases in which the EEOC initiates a public enforce- 
ment action. Accordingly, the ability of the EEOC to 
sue and obtain victim-specific relief represents at most 
a minimal encroachment on the regime of private 
arbitration. 

4. Finally, even if (contrary to fact) there were some 
tension between the text and structure of Title VII and 
the policies underlying the FAA, that would not justify 

9 For example, the EEOC filed 439 lawsuits in fiscal year 
1999 and 291 in 2000. See http://www.eeoc.gov/stats/litigation.html 
(May 15, 2001). The total number of fair employment lawsuits filed 
in federal court during fiscal year 1999 was 22,412. See Daily Lab. 
Rep. (BNA) A-1 (Mar. 24, 2000). 

27 

the court of appeals’ decision to elevate congressional 
policy over statutory text. Here, the text of Title VII 
clearly gives the EEOC the right to pursue a distinct 
statutory enforcement action and to secure the full 
range of remedial options. Enforcing the terms of an 
arbitration agreement against its signatories fully 
vindicates the policies underlying the FAA. But if that 
were not the case, the policies underlying the FAA 
would not provide a sufficient basis for imposing judi- 
cial limitations on remedies clearly and expressly made 
available to the EEOC under Title VII. 

II. BECAUSE THE EEOC SEEKS TO VINDICATE THE 
PUBLIC INTEREST WHEN IT SEEKS VICTIM- 
SPECIFIC REMEDIES, THERE IS NO BASIS FOR A 
CONCLUSION THAT IT MERELY REPRESENTS 
PRIVATE PARTIES IN SUCH CASES OR SHOULD 
BE BOUND BY PRIVATE AGREEMENTS 

On a broader level, the structure of Title VII 
embodies a congressional policy that there can be a 
strong public interest in obtaining each of the forms of 
relief authorized by statute and a congressional dele- 
gation to the EEOC—not the courts—of the authority 
to decide when the public interest warrants bringing a 
public enforcement action to obtain that relief. The 
court of appeals should have honored—not disputed— 
that congressional policy and that delegation of author- 
ity. 

28 

A. Congress’s Broadening Of The Public Enforcement 

Role In 1972 Beyond “Pattern Or Practice” Cases 

Was Based On The Premise That There Is A Strong 

Public Interest In Remedying Individual Cases Of 

Discrimination 

1. As noted above, see pp. 2-3, supra, before 1972, 
Title VII provided for public enforcement (by the 
Attorney General) only in cases involving a “pattern or 
practice” of discrimination. See 42 U.S.C. 2000e-6 
(1970). Such actions “did not depend upon the filing of a 
charge with the EEOC; nor were they designed merely 
to advance the personal interest of any particular ag- 
grieved person.” General Tel., 446 U.S. at 327. In- 
stead, they were designed to attack widespread dis- 
crimination that was likely to affect a greater number 
of employees and to warrant broad injunctive relief. 

In 1972, Congress decided to broaden the public 
enforcement role by providing for EEOC authority to 
bring actions not only in “pattern or practice” cases 
whose enforcement had previously been assigned to the 
Attorney General, but also in cases in which the only 
claim was that there had been a particular act or acts of 
discrimination against one or more private individuals. 
Congress took that step because the “failure to grant 
the EEOC meaningful enforcement powers [had] 
proven to be a major flaw in the operation of Title VII.” 
S. Rep. No. 415, 92d Cong., 1st Sess. 4 (1971). Congress 
bestowed litigation authority on the EEOC on the 
premise that the EEOC would protect “the overriding 
public interest in equal employment opportunity” 
through direct “[f]ederal enforcement,” even in individ- 
ual cases of discrimination. 118 Cong. Rec. 4941 (1972). 

Congress thus recognized in 1972 that discrimination 
even against a single person could offend not merely an 
individual, private interest, but society’s interest in 

29 

rooting out and remedying discrimination. Congress 
did not give the EEOC the resources to litigate all 
possibly meritorious individual claims of discrimination. 
But Congress’s extension of authority to the EEOC to 
pursue cases of individual discrimination embodied 
Congress’s determination that, when the EEOC selects 
a case to litigate, there is a dominant public (not merely 
a private) interest in ending the discrimination in that 
case, in obtaining compensation for the victim, and in 
deterring the defendant and other employers from 
further discrimination. 

2. This Court underscored that the EEOC’s interest 
in obtaining victim-specific relief is primarily a public— 
not a private—interest in its decision in General Tele- 
phone. In General Telephone, the employer argued 
that the EEOC’s Title VII suits should be considered 
“representative” actions, subject to the prescriptions of 
Federal Rule of Civil Procedure 23, because the EEOC 
in bringing a public enforcement action is simply 
standing in for the private interests of the individual 
employees who benefit from the suit. 446 U.S. at 326. 
This Court disagreed, ruling that the EEOC “sue[s] in 
its own name to enforce federal law” and “is not merely 
a proxy for the victims of discrimination.” Id. at 324- 
326. This Court concluded that, “[w]hen the EEOC 
acts, albeit at the behest of and for the benefit of specific 
individuals, it acts also to vindicate the public interest 
in preventing employment discrimination.” Id. at 326 
(emphasis added). The court specifically relied on that 
public interest in concluding that “the EEOC’s enforce- 
ment suits should not be considered representative 
actions subject to Rule 23.” Ibid. As this Court 
explained, even when the EEOC seeks “specific relief, 
such as hiring or reinstatement, constructive seniority, 
or damages for backpay or benefits denied, on behalf of 

30 

discrimination victims, the agency is guided by ‘the 
overriding public interest in equal employment oppor- 
tunity . . . asserted through direct Federal enforce- 
ment.’ ” Ibid. (quoting 118 Cong. Rec. at 4941). 

3. The court of appeals’ decision is premised on a 
disregard of both the congressional determination that 
the public interest may be served by obtaining victim- 
specific relief and the congressional delegation of 
authority to the EEOC—not the courts—to determine 
when a public enforcement action seeking such relief 
should be brought. The court of appeals reasoned that 
“the EEOC’s public interest is minimal” when it seeks 
victim-specific relief, because in that context “the 
EEOC seeks primarily to vindicate private, rather than 
public, interests.” J.A. 21. In the court’s view, only 
“when the EEOC is pursuing large-scale injunctive 
relief ” does “the balance tip[] in favor of EEOC en- 
forcement efforts in federal court because the public 
interest dominates the EEOC’s action.” J.A. 21. There 
was, however, no warrant for the court of appeals to 
assess the strength of the public interest in various 
types of remedy. By expanding the public enforcement 
role in 1972, Congress determined that there is a 
sufficient public interest in victim-specific relief when- 
ever the EEOC initiates a public enforcement action 
and determines that such relief is worth pursuing. 
Congress did not categorically preclude victim-specific 
remedies, but left to the EEOC the judgment as to 
which remedies would best serve the public interest in 
a particular enforcement action. Because Congress has 
already made the relevant policy judgment about the 
strength of the public interest in such cases, the court 
of appeals erred in restricting the EEOC’s statutory 

31 

authority based on second-guessing the congressional 
judgment. 

10 

B. This Court Has Frequently Recognized The Broad 

Public Purposes Served By Victim-Specific Remedies 

This Court has recognized that victim-specific reme- 
dies are vital to the public—not merely private—goals 
of the antidiscrimination statutes in other contexts as 
well. The Court has noted that back pay, for example, 
serves both “deterrence and * * * compensation 
objectives.” McKennon v. Nashville Banner Publ’g 
Co., 513 U.S. 352, 358 (1995). Back pay does not simply 
make the individual victim whole; it provides the “spur 
or catalyst which causes employers * * * to endeavor 
to eliminate, so far as possible, [their discriminatory 
practices].” Albemarle Paper Co. v. Moody, 422 U.S. 
405, 417-418 (1975) (quoting United States v. N.L. 
Indus., Inc., 479 F.2d 354, 379 (8th Cir. 1973)). It is 
therefore an essential weapon in the EEOC’s arsenal. 

Reinstatement and similar remedies likewise provide 
public benefits beyond the private benefit to the rein- 
stated employee. The reinstatement of an employee 
previously separated sends a powerful message to the 
entire workplace that discrimination will not be toler- 
ated and that disfavored individuals cannot be removed 
from the workplace. See, e.g., Phelps Dodge Corp. v. 
NLRB, 313 U.S. 177, 195 (1941) (noting, in labor rela- 
tions case, that “[r]einstatement may be the effective 

10 Elsewhere in its opinion, the court stated that “the Supreme 
Court has recognized implicitly that the EEOC, acting in its public 
role, is not bound by private arbitration agreements.” J.A. 19 
(emphasis added; citing Gilmer, 500 U.S. at 28, 32). The court 
ignored the fact that the EEOC acts “in its public role” when it 
seeks victim-specific remedies, and it thereby “is not bound by 
private arbitration agreements.” 

32 

assurance of the right of self-organization”); Blim v. 
Western Elec. Co., 731 F.2d 1473, 1478 (10th Cir.) 
(“[R]einstatement has the dual purpose of protecting 
the discharged employee and demonstrating the em- 
ployer’s good faith to the other employees.”), cert. 
denied, 469 U.S. 874 (1984). 

Punitive damages are even more closely geared to 
the public interest, because they are designed to punish 
the wrongdoer rather than to compensate or “make 
whole” the victim of discrimination. The court of 
appeals did not expressly address the question whether 
the public interest in obtaining punitive damages is 
“dominant” or “minimal,” and it is therefore unclear on 
what basis the court precluded that element of victim- 
specific relief. See J.A. 21 (ruling that the EEOC’s 
“public interest is minimal” when it seeks “ ‘make- 
whole’ relief for a charging party” without any discus- 
sion of punitive damages). This Court has recognized, 
however, that “[p]unitive damages by definition are not 
intended to compensate the injured party, but rather to 
punish the tortfeasor whose wrongful action was inten- 
tional or malicious, and to deter him and others from 
similar extreme conduct.” City of Newport v. Fact 
Concerts, Inc., 453 U.S. 247, 266-267 (1981). See also 
Landgraf v. USI Film Prods., 511 U.S. 244, 281 (1994) 
(“The very labels given ‘punitive’ or ‘exemplary’ dam- 
ages, as well as the rationales that support them, dem- 
onstrate that they share key characteristics of criminal 
sanctions.”). That is primarily a public, not private 
purpose, and there is accordingly no basis, even under 
the court of appeals’ reasoning, to preclude the EEOC 
from obtaining punitive damages in appropriate cases. 

11 

11 In other areas of public enforcement, the courts of appeals 
have recognized that the federal government may exercise its 

33 

C. Preventing The EEOC From Recovering Victim- 
Specific Remedies In Any Case In Which There Is A 

Private Arbitration Agreement Would Seriously 

Compromise The EEOC’s Ability To Enforce The 

Antidiscrimination Statutes 

1. The decision of the court of appeals, if allowed to 
stand, could have serious consequences for the EEOC’s 
public enforcement role. The court of appeals ruled 
that the EEOC may not recover victim-specific reme- 
dies in any case in which the victim of discrimination 
has signed an arbitration agreement with an employer. 
That ruling opens the door to an across-the-board limit 
on the EEOC’s enforcement powers. By adopting a 
company-wide mandatory arbitration program, an em- 
ployer could immunize itself from any EEOC action 
seeking victim-specific remedies. 

2. This case illustrates the point. Respondent is a 
national employer, and, like many national employers, 
respondent has included an arbitration provision in its 
standardized employment application, one that it claims 
is tendered to all of its prospective employees. See J.A. 
56 (affidavit of respondent’s general counsel stating 
that “[a]ll prospective Waffle House employees are 

public enforcement authority even when it seeks relief for indivi- 
duals whose private claims would otherwise be barred. E.g., Her- 
man v. South Carolina Nat’l Bank, 140 F.3d 1413, 1422-1427 (11th 
Cir. 1998) (enforcement action brought under the ERISA), cert. 
denied, 525 U.S. 1140 (1999); Secretary of Labor v. Fitzsimmons, 
805 F.2d 682, 688-697 (7th Cir. 1986) (en banc) (same). The reason 
is simple: “[T]he United States has an interest in enforcing 
federal law that is independent of any claims of private citizens;” 
by obtaining “monies” for the individual “beneficiaries” of a federal 
statute, the government vindicates its “unique, distinct, and sepa- 
rate public interest” in maintaining compliance with federal law. 
Id. at 693 (quoting Donovan v. Cunningham, 716 F.2d 1455, 1462 
(5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984)). 

34 

required to * * * sign a Waffle House employment 
application prior to being hired” and that “Waffle 
House’s employment application contains a provision 
requiring all disputes between the employee signing 
the application and Waffle House to be submitted to 
arbitration”); J.A. 59 (arbitration agreement in this 
case). Under the rationale of the court of appeals, the 
EEOC could never file a suit for damages or other 
victim-specific relief against respondent because all of 
respondent’s employees have agreed to arbitrate. 
Regardless of the extent to which respondent engaged 
in forbidden discriminatory practices, the EEOC would 
not be able to recover victim-specific remedies or use 
the threat of punitive damages to deter future dis- 
crimination. By the simple expedient of including a 
standard arbitration provision in its employment appli- 
cations, respondent would undercut the EEOC’s ability 
to police respondent’s compliance with the antidis- 
crimination statutes. 

3. The decision of the court of appeals does leave the 
EEOC free to pursue a claim for “broad injunctive 
relief.” The scope of remaining EEOC authority under 
that standard, however, is unclear and, in any event, it 
fails to fill the enforcement gap left by the court’s 
preclusion of the EEOC from pursuing victim-specific 
remedies. 

a. It is not clear what the court of appeals meant 
when it used the term “large-scale injunctive relief,” 
J.A. 21, to describe the relief that the EEOC could con- 
tinue to obtain in the face of a private arbitration agree- 
ment. See also J.A.8 (“broad-based injunctive relief ”), 
23 (“broad injunctive relief ”). If the court meant to 
apply a test that would turn on the number of employ- 
ees affected, then the court’s rule would appear to make 
an unjustifiable and quite indeterminate distinction 

35 

between the remedies available depending on the size 
of the firm that has practiced discrimination and the 
number of workers involved. On the other hand, if the 
court meant to permit all injunctive relief while 
excluding relief that would result in money payments or 
reinstatement, then it would appear to permit specific 
injunctions directed at the treatment of specific em- 
ployees, regardless of whether they had signed arbitra- 
tion agreements—a result that appears to be at odds 
with the court’s reasoning. At bottom, the difficulty of 
drawing the line intended by the court of appeals is the 
result of the court’s misguided effort—without any 
statutory guidepost—to distinguish generically among 
types of relief on the theory that some serve the public 
interest more than others. Congress decided that all 
authorized forms of relief are in the public interest 
(even if they may be in the private interest of the 
victims as well) when it made all of them available in 
public enforcement actions brought by the EEOC. 
That is sufficient to resolve this case. 

b. Not only is it difficult to define the relief that 
would remain open in theory to the EEOC, but it also is 
not clear that in practice the EEOC would always be 
able to obtain meaningful injunctive relief under the 
court of appeals’ rule, even in otherwise meritorious 
cases. In this case, for example, the court of appeals 
noted respondent’s argument “that the EEOC is not 
entitled to broad injunctive relief because its claim 
relies exclusively on the incident involving Baker,” but 
“le[ft] to the district court the question of whether the 
EEOC has pled sufficient facts to warrant the equitable 
relief it seeks.” J.A. 24 n.3. If that means that in this 
case or in other cases the EEOC would be unable to 
maintain an otherwise meritorious action because 
“broad injunctive relief” would be unavailable, see, e.g., 

36 

United States v. W.T. Grant Co., 345 U.S. 629, 632 
(1953); EEOC v. General Lines, Inc., 865 F.2d 1555, 
1565 (10th Cir. 1989); but cf. EEOC v. Wal-Mart Stores, 
Inc., 187 F.3d 1241, 1250-1251 (10th Cir. 1999), that 
result would completely negate the EEOC’s indepen- 
dent statutory right to bring an action. Turning the 
statutory scheme on its head, the court of appeals’ rule 
would preclude the EEOC from bringing any action 
simply because a private party has agreed to arbitrate. 

Moreover, an important goal of the EEOC in deciding 
whether to bring a public enforcement action is fre- 
quently to obtain clarification of the law to guide 
employers and employees alike. And “[t]he disclosure 
through litigation of incidents or practices that violate 
national policies respecting nondiscrimination in the 
work force is itself important, for the occurrence of 
violations may disclose patterns of noncompliance 
resulting from a misapplication of the Act’s operation or 
entrenched resistance to its commands, either of which 
can be of industry-wide significance.” McKennon v. 
Nashville Banner Publ’g Co., 513 U.S. at 358-359. 
Insofar as the EEOC is barred from litigating other- 
wise meritorious cases by private arbitration agree- 
ments, its ability to achieve those public objectives is 
thwarted. 

c. In addition, even in cases in which the EEOC’s 
suit is not entirely precluded, broad injunctive relief, 
while an important weapon in the EEOC’s enforcement 
arsenal, simply cannot substitute for meaningful victim- 
specific relief. 

12 As this court explained in Albemarle 

12 As this Court has explained—most recently in Circuit City 
Stores, Inc. v. Adams, 121 S. Ct. 1302, 1313 (2001)—“there are real 
benefits to the enforcement of arbitration provisions,” including 
avoidance of litigation costs. Nonetheless, arbitration does not 

37 

Paper, “[i]f employers faced only the prospect of an 
injunction order, they would have little incentive to 
shun practices of dubious legality.” 422 U.S. at 417. 
Congress made a similar judgment in the Civil Rights 
Act of 1991. Determining that the existing range of 
essentially equitable remedies (including back pay) may 
not be effective, Congress added compensatory and 
punitive damages to the remedial mix. See Pub. L. No. 
102-166, § 2, 105 Stat. 1071 (citing the need for 
“additional remedies”). With respect to the EEOC in 
particular, Congress determined that the EEOC’s 
enforcement authority would be undermined if it did 
not enjoy the full range of remedies available to private 
litigants. Therefore, Congress granted the EEOC the 
authority to pursue compensatory and punitive dam- 
ages, despite their victim-specific character. See p. 20, 
supra. In many cases, employers need the “spur,” 
Albemarle Paper, 422 U.S. at 418, of the full range of 
sanctions to prompt them into the type of self-examina- 
tion that will deter future acts of discrimination. 

Indeed, the decision of the court of appeals threatens 
to relegate the EEOC to its pre-1972 state—an agency 
without the necessary tools to enforce violations of the 
antidiscrimination statutes and dependent on the ac- 
tions of private parties to enforce the law. Before 1972, 
employers would “shrug[] off the [EEOC’s] entreaties” 
in “cases posing the most profound consequences” 
because of “the unlikelihood of the parties suing them.” 
H.R. Rep. No. 238, 92d Cong., 1st Sess. 9 (1971). Under 

produce precedent to guide employers and employees not involved 
in the particular case—an important function of the EEOC’s 
enforcement role. Even if arbitration clauses merely had the effect 
of precluding the EEOC from litigating issues that have to do with 
back pay, reinstatement, damages, and the like, one important 
public role of the EEOC would be limited. 

38 

the court of appeals’ decision, an employer, by the 
simple act of attaching arbitration language to an 
employment application, can undo Congress’s decisions 
in 1972 and 1991 to provide the EEOC with full 
enforcement authority in court, including the authority 
to vindicate the public interest by seeking and recover- 
ing the entire array of statutory remedies. 

D. There Are No Other Countervailing Policy Con- 
siderations That Counsel Against Allowing The EEOC 

To Obtain The Full Range Of Statutory Remedies 

1. Adopting the EEOC’s position in this case would 
not lead to an impermissible double recovery for the 
victims of discrimination. As this Court explained in 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 n.14 
(1974), “in cases where the employee has first prevailed 
[in arbitration], judicial relief can be structured to avoid 

* * * windfall gains” that the employee would obtain 
through “duplicative recoveries.” See also General Tel., 
446 U.S. at 333 (stating that it “goes without saying 
that the courts can and should preclude double recovery 
by an individual”). Thus, although the damages sought 
by the EEOC to vindicate the public interest in eradi- 
cating discrimination are paid over to the individual, 
there is no risk that the individual will receive an 
impermissible windfall. The EEOC is free to pursue its 
claim for victim-specific remedies, but a court may 
“adjust the relief accordingly” (ibid.) if the individual 
for whom the EEOC seeks such remedies has already 
recovered monies in the arbitral forum. 

13 

13 This case does not present any question regarding the effect 
of a prior private settlement or judgment between employer and 
employee on a later public enforcement action. The availability of 
relief in such cases would require resolution of questions con- 
cerning whether victim-specific relief would result in a double 

39 

2. The court of appeals’ rule is not supported by 
considerations of judicial economy and efficiency. If the 
EEOC is permitted to obtain in a single action both 
victim-specific relief and any general injunctive relief to 
which it is entitled (as Title VII provides), the com- 
plainant may choose to forego the arbitral forum 
altogether. 

14 If, however, the EEOC cannot obtain 

recovery, whether victim-specific relief is “appropriate” under 
42 U.S.C. 2000e-5(g)(1) after the victim has satisfied his own claim 
through litigation or settlement, and whether principles of res 
judicata would bar an award of victim-specific relief under a par- 
ticular statutory scheme and set of facts. In cases brought by the 
EEOC, courts of appeals have relied on principles of res judicata 
(in litigated or arbitrated cases) or mootness (in settled cases) to 
bar the EEOC from obtaining victim-specific relief after litigation 
or settlement of the victim’s claims. See, e.g., EEOC v. Harris 
Chernin, Inc., 10 F.3d 1286 (7th Cir. 1993) (ADEA case; res judi- 
cata); EEOC v. United States Steel Corp., 921 F.2d 489 (3d Cir. 
1990) (ADEA case; res judicata); EEOC v. Goodyear Aerospace 
Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) (Title VII case; moot- 
ness); but cf. United States Steel Corp., 921 F.2d at 494 n.4 (noting 
distinctions between ADEA enforcement scheme and scheme 
applicable to Title VII and ADA cases). In this case, Baker has 
neither litigated nor settled his individual claim. Accordingly, the 
question presented is not one of res judicata or mootness, but 
rather whether Baker’s mere choice of an arbitral forum for 
litigating his private claims is binding on the EEOC when it seeks 
victim-specific relief in a public enforcement action. See EEOC v. 
Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 463 (6th Cir. 1999) 
(distinguishing cases involving “a prior suit” or “a prior arbitra- 
tion” that “raised or resolved the issues raised in the EEOC’s 
complaint,” in holding that a mere agreement to arbitrate does not 
preclude the EEOC from suing in its own name and recovering 
victim-specific remedies). 

14 The Second Circuit in Kidder Peabody erred in stating that 
an employee in a case like this can wait for the EEOC to prevail in 
its lawsuit and then bring the employee’s own claim for victim- 
specific remedies in arbitration. 156 F.3d at 303 (“If the EEOC is 

40 

victim-specific relief (as the court of appeals held), 
parallel proceedings likely would be necessary; the 
EEOC generally litigates (and is perhaps limited to liti- 
gating, see note 7, supra) in court, while the individual 
would be required to pursue the arbitral forum to 
obtain any victim-specific relief. This Court in Circuit 
City Stores, Inc. v. Adams, 121 S. Ct. 1302, 1313 (2001), 
noted that “litigation costs” can be “compounded” by 
“the necessity of bifurcation of proceedings” into paral- 
lel arbitral and judicial cases. The court of appeals’ 
decision would make those extra costs virtually 
inevitable. 

3. Nor is it anomalous that, under the approach 
advocated by the EEOC, the EEOC will be able to 
recover victim-specific remedies that could not be 
recovered in a private lawsuit initiated by the victim 
herself. That result flows logically from the dual 
enforcement structure of the antidiscrimination stat- 
utes, as this Court recognized in Gilmer v. Inter- 
state/Johnson Lane Corp., 500 U.S. 20 (1991). In 
Gilmer, this Court held that an employee could be 
required to arbitrate a claim of discrimination under the 
Age Discrimination in Employment Act of 1967 
(ADEA), 29 U.S.C. 621 et seq. In reaching that con- 
clusion, this Court stated that it was “unpersuaded by 
the argument that arbitration will undermine the role 
of the EEOC in enforcing the ADEA.” 500 U.S. at 28. 

successful, the employee could pursue back pay and liquidated 
damages through arbitration armed with a federal court’s finding 
of discrimination, which certainly would have collateral estoppel 
effect in the arbitral proceeding.”). By the time the EEOC has 
prevailed, the employee is very likely to be beyond the time limit 
for bringing his own claim, and the employee would therefore 
likely be precluded from capitalizing on the EEOC’s lawsuit in that 
way. 

41 

The Court explained that “[a]n individual ADEA 
claimant subject to an arbitration agreement [is] still 

* * * free to file a charge with the EEOC, even though 
the claimant is not able to institute a private judicial 
action.” Ibid. Such a charge triggers the EEOC’s 
statutory enforcement responsibilities, including its 
right to file a public enforcement action and to obtain 
victim-specific relief. Gilmer thus suggests that a 
private agreement to arbitrate affects private rights 
only; it has no impact on the public enforcement role of 
the EEOC. 

4. In other contexts as well, the Court has recog- 
nized that the public interest in obtaining victim- 
specific remedies is sufficient to justify a government 
suit that seeks only such remedies (and does not even 
seek injunctive relief ), even when the victim himself 
would be entirely disabled from bringing the suit. In 
Board of Trustees of the University of Alabama v. 
Garrett, 121 S. Ct. 955 (2001), this Court held that the 
Constitution bars a private individual from suing a 
nonconsenting state employer for money damages 
under Title I of the ADA. That constitutional bar is 
based on “a fundamental aspect of the sovereignty 
which the States enjoyed before the ratification of the 
Constitution.” Alden v. Maine, 527 U.S. 706, 713 (1999). 
Notwithstanding that fundamental bar, however, the 
Court recognized that a public enforcement action 
seeking the very same money damages denied to a 
private plaintiff would not be barred. As the Court 
stated, the standards of Title I of the ADA “can be 
enforced by the United States in actions [against State 
employers] for money damages.” 121 S. Ct. at 968 n.9. 
Accord Alden v. Maine, supra (Fair Labor Standards 
Act). 

42 

Garrett and Alden provide a compelling rejoinder to 
the court of appeals’ concern that allowing the EEOC to 
sue for victim-specific remedies in cases of this nature 
will result in an impermissible circumvention of the 
“federal policy embodied in the FAA.” J.A. 20. In the 
context of state sovereign immunity, permitting the 
federal action to obtain victim-specific remedies while 
prohibiting private suits against States simultaneously 
respects state sovereignty and the federal law being 
enforced. For similar reasons, permitting an EEOC 
action for victim-specific remedies while prohibiting 
private suits by parties who agreed to arbitrate 
respects both the binding nature of arbitration agree- 
ments on the parties and the federal antidiscrimination 
laws. 

CONCLUSION 

The decision of the court of appeals should be 
reversed. 

Respectfully submitted. 

GWENDOLYN YOUNG REAMS 

Associate General Counsel 

PHILIP B. SKLOVER 

Associate General Counsel 

LORRAINE C. DAVIS 

Assistant General Counsel 

ROBERT J. GREGORY 
Senior Attorney 
Equal Employment 

Opportunity Commission 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

MAY 2001