The EEOC has rescinded its 1997 Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment (the “Policy Statement”), which set forth the Commission’s position that agreements requiring mandatory arbitration of discrimination claims as a condition of employment are contrary to the principles of the federal employment discrimination statutes.
In a statement published on the EEOC’s website, the Commission noted that the Policy Statement conflicts with numerous post-1997 Supreme Court decisions ruling that agreements to arbitrate employment-related disputes are enforceable under the Federal Arbitration Act. Therefore, the Commission said, the Policy Statement “does not reflect current law” and “should not be relied upon by EEOC staff in investigations or litigations.” The EEOC’s statement further stated that the rescission should not be construed to “limit the ability of the Commission or any other party to challenge the enforceability of a particular arbitration agreement.” (emphasis added.)
While it is too soon to know what practical effects this change will have on EEOC operations, the decision to rescind the Policy Statement at least appears to bring the Commission’s position on enforceability of arbitration agreements in line with the past two decades of Supreme Court precedent.