No. 99-1823 

In the Supreme Court of the United States 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

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

REPLY BRIEF FOR THE PETITIONER 

C. GREGORY STEWART 

General Counsel 
Equal Employment 

Opportunity Commission 
Washington, D.C. 20507 
SETH P. WAXMAN 

Solicitor General 

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

In the Supreme Court of the United States 

No. 99-1823 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
PETITIONER 

v. 

WAFFLE HOUSE, INCORPORATED 

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

REPLY BRIEF FOR THE PETITIONER 

Respondent concedes that “[i]n this case, there is a 
split among the courts of appeals that have decided the 
effect of a charging party’s binding agreement to 
arbitrate employment-related disputes on the EEOC’s 
ability to seek ‘make-whole’ relief in a judicial forum on 
behalf of the charging party.” Br. in Opp. 10. Respon- 
dent also concedes that the split in the circuits is 
precisely the conflict that we identified in the Petition, 
with the Second and Fourth Circuits having ruled 
against the EEOC’s ability to obtain “make-whole” 
relief in the circumstances of this case and the Sixth 
Circuit having permitted such relief. See Br. in Opp. 
10-12. Respondent nonetheless argues that certiorari is 
not warranted because the issue is not sufficiently 

(1) 

2 

important and because a number of other circuits have 
not yet addressed the issue. 

I. THE CONFLICT IN THE CIRCUITS IS NOT 
LIKELY TO BE RESOLVED WITHOUT THIS 
COURT’S REVIEW 

Respondent suggests that the Court should defer 
reviewing this issue until additional courts of appeals 
have addressed it, in order to determine whether the 
courts of appeals are “truly divided” on the issue. Br. in 
Opp. 13. But additional review by other circuits is 
unlikely either to reduce the existing conflict or to shed 
additional light on the issue. 

First, there is no reason to believe that the conflict in 
the circuits will be mitigated over time. The Second 
Circuit first squarely addressed the issue in EEOC v. 
Kidder, Peabody & Co., 156 F.3d 298 (1998), ruling 
against the EEOC’s position. The following year, after 
taking specific account of the Second Circuit’s decision, 
the Sixth Circuit in EEOC v. Frank’s Nursery & 
Crafts, Inc., 177 F.3d 448, 465 (1999), ruled in favor of 
the EEOC’s position, thereby creating the conflict in 
the circuits. After reviewing both of those decisions, 
the Fourth Circuit in this case sided with the Second 
Circuit’s view in Kidder, Peabody. That see-saw pat- 
tern is likely to be repeated as more courts of appeals 
decide the issue. There is accordingly no reason to 
believe that the circuit split would become any less 
serious if review were delayed. 

Second, the Sixth Circuit has already demonstrated 
that it will not alter its position in light of the views of 
other circuits. In EEOC v. Northwest Airlines, Inc., 
188 F.3d 695, 701-702 (1999), the Sixth Circuit reaf- 
firmed its decision in Frank’s Nursery that the EEOC 
is not bound by arbitration agreements to which it was 

3 

not a party. Having thus twice held that the EEOC’s 
ability to litigate and obtain relief is not limited by such 
arbitration agreements, it is unlikely that the Sixth 
Circuit would alter its position on the issue. Accord- 
ingly, the conflict in the circuits is likely to persist, and 
further review is therefore warranted to resolve it. 

II. THE QUESTION PRESENTED IS AN IMPOR- 
TANT ONE 

Respondent argues (Br. in Opp. 15) that the question 
presented in this case is “an infrequently arising 
anomaly unworthy of this Court’s review.” The record 
of litigation before the courts of appeals belies 
that characterization, in that four published decisions— 
Kidder, Peabody, Frank’s Nursery, Northwest 
Airlines, and this case—in cases involving EEOC en- 
forcement actions have addressed the question 
presented in the last two years. Respondent does not 
dispute that an increasing number of employers are 
considering requiring employees to agree to mandatory 
arbitration of employment-related (including equal 
opportunity) disputes. See Pet. 15. The question 
presented thus is arising frequently in the courts of 
appeals, and it can be expected to arise with increasing 
frequency in the future. 

Respondent states correctly (Br. in Opp. 14-15) that 
EEOC brings only a relatively small proportion of 
the employment discrimination cases filed in federal 
court in a given year, and the only EEOC enforcement 
actions that are affected by the issue in this case are 
those in which the employee has entered into an 
arbitration agreement. Respondent mistakenly sug- 
gests, however, that as a result “there is no evidence 
that there is any meaningfully substantial number of 
cases in which the EEOC’s ability to seek make-whole 

4 

relief on behalf of the individual employee was affected 
by an agreement to arbitrate entered into by the 
employee with his employer.” Br. in Opp. 14. 

Although the EEOC does not litigate a great many 
cases, the EEOC does take care to select the cases that 
it will litigate and to concentrate its limited resources 
on cases that raise important or novel legal issues 
or otherwise are of general importance. Indeed, as 
General Telephone Co. of the Northwest, Inc. v. EEOC, 
446 U.S. 318 (1980), establishes, Congress intended the 
EEOC to serve precisely this role. See Pet. 13-14. 
Under the Fourth Circuit’s rule, the EEOC may well 
find itself unable to bring precisely the issues and cases 
deserving of its litigation efforts to the courts, since a 
complaining party’s entry into an arbitration agree- 
ment can, as a practical matter, preclude an EEOC 
action. In this case, for example, the Fourth Circuit 
suggested that the EEOC may be barred from seeking 
even purely equitable relief. See Pet. App. 18a n.8. 
Because the EEOC is able to bring only a relatively 
small number of cases, it is all the more critical that it 
not be barred from bringing the cases it identifies as 
most important. The Fourth Circuit’s rule would pre- 
vent the EEOC from performing the role defined for it 
by Congress. 

III. THE COURT MAY WISH TO HOLD THE PETI- 
TION PENDING ITS DECISION IN CIRCUIT 
CITY STORES, INC. V. ADAMS 

In our petition, we stated that the Court may wish to 
hold this case pending its disposition of the petition 
for a writ of certiorari in Circuit City Stores, Inc. v. 
Adams, No. 99-1379. On May 22, 2000, the Court 
granted the petition in Circuit City, which presents the 
question whether contracts of employment are covered 

5 

by the Federal Arbitration Act, 9 U.S.C. 1 et seq., at all. 
As we explained in the petition (at 20-21), the resolu- 
tion of that question could affect both the legal analysis 
and practical significance of this case. Now that the 
Court has granted the petition for a writ of certiorari in 
Circuit City and will resolve the question presented 
in that case, we continue to believe that it may wish 
to hold this case until it has decided Circuit City. If the 
Court affirms in Circuit City (and thereby holds that 
contracts of employment are not covered by the 
Federal Arbitration Act), it may be appropriate to 
grant the petition, vacate the judgment, and remand 
this case to the court of appeals for reconsideration in 
light of the absence of any governing federal policy 
concerning arbitration in this context. If the Court 
reverses in Circuit City (and thereby holds that most 
contracts of employment are covered by the Federal 
Arbitration Act), the petition for a writ of certiorari in 
this case should be granted. 

* * * * * 

For the reasons given above and in the petition, the 
Court may wish to hold this case pending its decision in 
Circuit City Stores, Inc. v. Adams, No. 99-1379, and 
then dispose of it accordingly. Alternatively, the peti- 
tion should be granted now. 

Respectfully submitted. 

C. GREGORY STEWART 

General Counsel 
Equal Employment 

Opportunity Commission 
SETH P. WAXMAN 

Solicitor General 

AUGUST 2000