Compulsory Employment Arbitration and the EEOC

This article explores the legal and policy tensions between compulsory employment arbitration and the Equal Employment Opportunity Commission (EEOC). Following the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., compulsory arbitration agreements have become increasingly common in employment contracts. While arbitration can offer a more efficient resolution process for certain disputes, critics argue it undermines employee rights and statutory protections. The EEOC, as the federal agency enforcing anti-discrimination laws, has expressed strong opposition to mandatory arbitration agreements that preclude judicial resolution for eight specific reasons. The article examines the EEOC’s policy statement, its powers, its litigation strategies, and the extent to which courts are likely to defer to the agency’s positions, concluding that the EEOC’s efforts face significant judicial limitations.