•Waffles and Workers’ Rights (EEOC v. Waffle House, p. 84-85) Read about arbitra
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Question
•Waffles and Workers’ Rights (EEOC v. Waffle House, p. 84-85) Read about arbitration law in Chapter 4 and Case 4-3 in your textbook, and do some online research on the U.S. Equal Employment Opportunity Commission (EEOC). Then discuss the following: What is the EEOC’s role in regard to business? Does the court say that the EEOC trumps the arbitration contract between the employee and the employer? If so, why? What are the pros and cons of arbitration agreements? Do you think arbitration agreements between big companies and low wage earners who are uninformed about the law are truly fair? If you have any experiences at work with discrimination policies or EEOC trainings, share those experiences.
Explanation / Answer
What is EEOC?
EEOC i.e. The Equal Employment Opportunity Commission enforces federal laws prohibiting workplace discrimination. (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.
The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.
Authority & Role
The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. Through their investigation, they play a role to fairly and accurately assess the allegations in the charge and then make a finding. If any discrimination, EEOC tries to settle the charge. It has the authority to file a lawsuit to protect the rights of individuals and the interests of the public and litigates a small percentage of these cases. When deciding to file a lawsuit, the EEOC considers several factors such as the strength of the evidence, the issues in the case, and the wider impact the lawsuit could have on the EEOC's efforts to combat workplace discrimination.
It also works to prevent discrimination before it occurs through outreach, education and technical assistance programs.
The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. EEOC assures federal agency and department compliance with EEOC regulations. It provides technical assistance to federal agencies concerning EEO complaint adjudication. It also monitors and evaluates federal agencies' affirmative employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to the Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints.
Does the court say that the EEOC trumps the arbitration contract between the employee and the employer?
No, the original enforcement scheme created the EEOC and charged it with the duty of preventing “any person from engaging in any unlawful [discriminatory] employment practice.”
Despite this charge, the Commission, as created by the 1964 Act, could not bring its own enforcement actions. Instead, it only had authority to utilize informal methods of conciliation when attempting to resolve charges of discrimination.
If such informal methods failed, the EEOC’s involvement in the dispute ended and the aggrieved party had thirty days to file a private cause of action. This enforcement scheme, however, proved to be ineffective due to employers who consistently “shrugged off the [EEOC’s] entreaties and relied upon the
unlikelihood of the parties suing them.” The current scheme, as created by the Civil Rights Act of 1964, and as amended by the Equal Employment Opportunity Act of 1972, and the Civil Rights Act of 1991, allows the EEOC to file suit against an employer only after attempting to resolve the dispute through conciliation. However, before a suit can even be filed, a charge must be filed with the EEOC alleging that the employer has engaged in an unlawful employment practice. A charge can be filed by a discrimination victim or by a member of the EEOC and must be filed within 180 days of the alleged unlawful practice. Upon receiving the charge, the EEOC must notify the employer and then perform an investigation. EEOC investigations are often time-consuming and expensive for an employer.They may involve on-site visits, witness interviews, requests for statements of position, or requests for personnel policies and files. If, after the investigation is performed, the EEOC concludes that there is reasonable cause to believe that the charge is legitimate, the Commission has thirty days to eliminate the alleged unlawful employment practice through informal conciliation. After thirty days, if the informal conciliation process has not rendered a solution satisfactory to the EEOC, the Commission can file suit in federal court. The aggrieved victim has the right to intervene in that lawsuit; however, he is barred from filing his own separate suit. If no reasonable cause is found, the Commission will issue a “right-to-sue” letter to the aggrieved individual and that person has ninety days to file a private suit against the employer.
Pros
Arbitration is faster as disputes can be addressed and rulings made in a more timely manner than the traditional court process.,
It’s cheaper as arbitration usually has a quicker timetable and is less involved than lawsuits in the court system.
Arbitration is more confidential as hearings are private while court cases are generally public.
Most employers consider the pros of employment arbitration is primarily the added advantage of avoiding juries. By avoiding juries, employers and their attorneys often believe they stand a better chance of prevailing on the merits, or if found liable, avoiding larger verdicts.
Also, a single arbitrator or panel of arbitrators are not as likely to be swayed by sympathy or other non-legal factors in making a liability or damages decision, especially regarding non-economic compensatory and punitive damages.
Cons
Many employment lawyers and they will say that, depending on the dispute and the arbitral forum, arbitration can actually be as time-consuming and expensive as regular litigation. If so, that can negate any cost or timeliness advantage a party might find in the arbitration process, although confidentiality – whether you’re for or against it – is usually definite.
Most employees say - for arbitration agreements with their employers, they have no choice about signing. Rather, their only meaningful choice is whether they want to work for an employer that requires mandatory arbitration – if so, they will normally have to sign the agreement.
If not, they can certainly “choose” to apply elsewhere and hopefully obtain employment with another company. Nevertheless, conventional wisdom for employees is that they are (or should be) against mandatory arbitration because, if nothing else, it waives their right to a jury trial. And rightly or wrongly, most employees and their attorneys think they have a better chance of prevailing on the merits if they can reach a jury.
Another concern for employees is that while arbitration may be faster it is often not cheaper for them, as depending on the agreement the costs of arbitration might be allocated differently than in court, including any potential award or payment of attorneys’ fees and costs depending on who wins.
Do you think arbitration agreements between big companies and low wage earners who are uninformed about the law are truly fair?
Advocates for employees argue that mandatory arbitration of employment disputes is unfair to the employees for several reasons. They claim that requiring an employee to arbitrate employment disputes constitutes a contract of
adhesion that is fundamentally unfair to the employee due to the greater bargaining power of the employer. The courts have generally rejected thatargument and held that an employer may require mandatory arbitration of
employment claims if the arbitration agreement or program complies with certain procedural requirements that prevent procedural or substantive unconscionability.Some commentators have noted that mandatory
employment arbitration is consistent with other aspects of employment over which employees rarely negotiate such as health and life insurance, pension or plan provisions, vacation, sick pay, severance and noncompetition
agreements that employers typically present to employees on a take-it-or-leave-it basis.
Employee advocates claim the expense of mandatory employment arbitration poses an undue burden on employees. Yet many mandatory arbitration programs do not require the employee to pay any of the arbitrator fees
and costs associated with the arbitration or require only a nominal payment that is generally equal to or less than the filing fee an individual would have to pay if he or she filed a lawsuit in court. The employees generally are required to pay their own attorneys’ fees and other costs in most mandatory arbitration programs,
but that would also be the case if the employee attempted to resolve the matter in court.
Employee advocates also contend that some mandatory arbitration programs attempt to limit damages by disallowing certain types of damages or placing caps on damages below those set by statute or applicable case law.
Raytheon’s Experience
Raytheon changed its policy in 2006 and went from mandatory to voluntary arbitration of employment disputes. Raytheon still offers employees the opportunity to resolve employment disputes internally through a management
review process and external mediation. Raytheon has been very successful in resolving employment disputes over the six years since they began the ADR program. Over 90% of the ADR complaints end at the management response level. Many of these matters would not be eligible for mediation or arbitration because they do not include claims that involve violations of law (e.g., a dispute over an employment appraisal rating that does not involve any allegation of discrimination). We have also been successful in resolving the remaining 10% of the ADR complaints at mediation – almost 2/3rds (64%) of the cases submitted to mediation result in a settlement. Of the 508 ADR complaints filed, only five cases went to arbitration. In those cases where an employee has a legal claim and is not satisfied with the result of the management review or external mediation, the employee and Raytheon still have the opportunity to voluntarily agree to binding arbitration.
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