Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, July 27, we discuss, “Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?” My name is Guy DeSanctis, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

      Today, we are fortunate to have with us, our moderator, Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak, and Stewart.

 

      Throughout the panel, if you have any questions, please submit them through the question-and-answer feature so that our speakers will have access to them for when we get to that portion of the webinar.

 

      With that, thank you for being with us today. Chris, the floor is yours.

 

Christopher C. Murray:  Thank you, Guy, and good afternoon to everyone, or good morning to those of you who are in the West. Thank you for joining us for today’s Federalist Society Teleforum. And we are delighted to have as our panelists today EEOC Commissioner Janet Dhillon and former EEOC General Counsel Eric Dreiband.

 

      Before her government service, Commissioner Dhillon practiced law in the private sector for over 25 years. She began her legal career at Skadden, Arps, where she practiced for 13 years. And she has held a number of roles with a variety of leading companies, including serving as General Counsel for US Airways, for JC Penney Company, and for Burlington Stores, Incorporated.

 

      Commissioner Dhillon was first nominated to the EEOC by the president in June of 2017 and confirmed on May 8, 2019. She was sworn in as Chair of the EEOC on May 15, 2019, and her term as Chair ended on January 20, 2021. During her tenure as Chair of the EEOC, Commissioner Dhillon implemented a series of reforms to increase the transparency of the Commission’s activities. For example, she instituted the practice of posting the Commission’s votes on the EEOC’s public website, and, in addition, during her time as Chair, the Commission enacted regulations designed to improve the operation of the Commission, including increasing transparency and effectiveness in the EEOC’s conciliation process. She also led the Commission’s efforts to repeal outdated guidance and technical assistance publications and instituted two pilot programs to test changes to the Commission’s alternative dispute resolution process and its conciliation program.

 

      Eric Dreiband also has extensive experience, both in the private sector and in public service. Following law school, Eric served as a federal prosecutor in the Office of Independent Counsel and then worked at the Chicago law firm of Mayer, Brown, Rowe, and Mawe, where he litigated labor and employment and other cases. He is presently a partner at Jones Day, where he represents clients in investigations, litigation and counseling in civil rights, employment discrimination, and other matters.

 

      In his public service, Eric served as General Counsel of the EEOC from 2003–2005. In that capacity, he directed the EEOC’s litigation of federal employment discrimination laws and managed approximately 300 attorneys in a national litigation docket -of approximately 500 cases.

     

      More recently, from 2018–2021, Eric served as Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice. Under his leadership, the Civil Rights Division set several enforcement records; expanded resources for human trafficking prosecutions; and prosecuted illegal discrimination in education, employment, housing, and lending.

 

      As Guy mentioned, my name is Chris Murray, and I’m a Shareholder at Ogletree, Deakins. There, I Chair the Firm’s arbitration and ADR Practice Group, and it’s my pleasure to moderate our discussion today.

 

      I also wanted to note at the outset that we did extend an invitation to the EEOC’s current Office of Legal Counsel to have someone join our panel discussion today, and they declined the invitation.

 

      I wanted to start by providing some background for our discussion. Late last year, one of my colleagues circulated an email in our firm. He explained that the local office of the EEOC in his jurisdiction was routinely denying FOIA requests for the underlying charge file when the resulting matter was pending in arbitration as opposed to a court, following issuance of a civil right to sue letter. My colleague further stated that lawyers from several firms in his jurisdiction had raised this issue with the local EEOC regional attorney and district director.

 

      They made some inquiries and reported back to the lawyers that this was, in fact, the EEOC’s national policy on this matter. Namely, if a matter is filed in arbitration following issuance of a right to sue to a charging party, EEOC does not consider arbitrations to be a proceeding on the charge within the meaning of Title VII, and therefore, EEOC will not disclose the charge file in response to a FOIA request.

 

      My colleague asked if others within our firm had encountered this national policy. Based on several internal inquiries within our firm, we learned that other colleagues in multiple jurisdictions are similarly seeing their FOIA requests denied but on the ground that a case is proceeding in arbitration rather than court. We have not seen this policy in writing in EEOC publications. In fact, the only place we’ve seen it referenced in writing are in the FOIA denial letters.

 

      This raises a host of questions. Where does this policy come from? What is the EEOC’s basis for treating litigation and arbitration differently in responding to FOIA requests? How long has the EEOC been making this distinction, and should employers challenge the EEOC’s FOIA practices, and if so, how?

 

      Eric, I’d like to turn to you first. You practiced labor and employment law going back to the 1990s and were at the EEOC in the early 2000s. Historically, what has been the EEOC’s position on employment arbitration?

 

      Eric, I think you are -- your microphone may be off.

 

Eric Dreiband:  Thank you, Chris. First of all, let me add it’s a real privilege and pleasure to appear today with Chris Murray. Chris and I worked together many years ago in Chicago. And, of course, it’s an honor to be here with Commissioner Dhillon as well.

 

      The EEOC has taken a position for a very long time—back until at least the 1970s—that arbitration of civil rights employment discrimination claims, as a general matter, is inconsistent with the statutes that the EEOC enforces. The lead Supreme Court case on this for the EEOC’s point of view is a case called Alexander v. Gardner-Denver Company, which is a 1974 Supreme Court case that said, essentially, that a collective bargain agreement did not foreclose a Title VII federal court cause of action.

 

      In 1991, however, the Supreme Court of the United States, in a decision called Gilmer v. Interstate/Johnson Lane Corporation, determined that a pre-dispute arbitration agreement could be arbitrated and, essentially, could deny an individual a right to go to federal court. That decision was consistent with a separate law not enforced by the EEOC called the Federal Arbitration Act. And the Federal Arbitration Act, as a general matter, establishes a federal policy that favors arbitration. And so, in the Gilmer case, the Supreme Court determined that the Federal Arbitration Act was wholly consistent with, essentially, an employee and an employer agreeing to arbitrate an employment discrimination lawsuit rather than take the case into federal district court.

 

      Later in 1991, in the Civil Rights Act of 1991, in Section 118 of that Act, the Congress and President George H. W. Bush encouraged arbitration and other forms of alternative dispute resolutions, a mechanism to resolve employment discrimination claims without going to court. Nevertheless, in 1997 the Commission adopted a policy statement in which the Commission said that pre-dispute arbitration of employment discrimination lawsuits is inconsistent with every statute that the EEOC enforces. The policy statement did acknowledge that the Supreme Court had a different point of view on this question and said that, “While the Commission recognizes that the Supreme Court has held otherwise,” -- but essentially saying—not explicitly but implicitly—"the Supreme Court is wrong, and the EEOC doesn’t agree with the Supreme Court.”

 

      I then arrived at the EEOC in 2003, as Chris said, as the General Counsel, and, frankly, I was unaware of this anti-arbitration perspective until I arrived at the EEOC and found the policy statement from 1997 to be lawless because it was inconsistent with the Supreme Court’s decision in the Gilmer case. And so, I unsuccessfully tried to persuade the commissioners to repeal that statement—that policy statement—and bring the statement more in line with what the Supreme Court said the law is, but I was not successful in doing that. I would add, real quickly, that since my tenure there, the Supreme Court has continued to endorse a federal policy of arbitration, and the rank and file at the EEOC continue to disagree with the Supreme Court as far as I know and have seen. But with that, Chris, I’ll turn it back to you.

 

Christopher C. Murray:  Great. Hey, thank you. Commissioner Dhillon, has -- first of all, thank you for joining us today. Has that position changed in the interim, by the time you arrived at the EEOC in 2019 or since your joining the Commission?

 

Janet Dhillon:  Thank you, Chris. It’s a pleasure to be here, and I want to state at the outset that the opinions I express here today are my own, and they shouldn’t be construed to reflect the views of the Commission as a whole or any of my other fellow commissioners.

 

      So when I arrived at the Commission in 2019, that 1997 policy statement that Eric was alluding to was still in place. And as part of an effort that I undertook—actually, built upon some work that had been done by my predecessor, Acting Chair Vicki Lipnic—we embarked on a review of the materials that the Commission had issued over the years to identify things that might be outdated, misleading in light of subsequent developments in the law, subsequent statutory enactments, with the goal of taking things down from our website and rescinding things that reflected outdated principles and ran a real risk of misleading the public. And my view was that the 1997 policy statement fell into that category.

 

In fact, when we really looked into it, we counted up at least 7 Supreme Court decisions addressing various aspects of arbitration in the labor and employment context that had been issued since 1997 and, of course, were not reflected in the document and an additional at least 13 decisions that the Supreme Court had issued involving arbitration and the Federal Arbitration Act in other contexts. And, of course, this 1997 document didn’t reflect any of those decisions as well.

 

      So I put this document up for a vote of the Commission to rescind it, and that vote was successful, and so, the document was rescinded in December of 2019.

 

Christopher C. Murray:  So, I guess, a fundamental question here in the background of this Teleforum is, “Does the EEOC have a formal national policy prohibiting the release of charge files to respondents when a matter is pending in arbitration?” Eric, were you aware of any such policy during your time at the Commission?

 

Eric Dreiband:  No. I wasn’t aware of any such policy until probably last year, 2021.

 

Christopher C. Murray:  And Commissioner Dhillon, I guess, what would be -- what’s the current status of this affair in national policy to your knowledge?

 

Janet Dhillon:  Well, I will start off by saying I wasn’t aware of this practice either until, I think, late last year. I wish I had been aware of it earlier, but I was not. To quibble a bit, I don’t think this is a policy of the Commission because a policy, in most instances like this, would require a vote of the Commission, and, in fact, the procedural requirements for FOIA requests and the like are laid out in the agency’s regulations which are voted on by the Commission. So I think any change to those regulations would require a vote of the Commission, and that kind of vote has not taken place.

 

Christopher C. Murray:  So where does this practice originate? Is it with the staff in the front line, or where does this come from?

 

Janet Dhillon:  I don’t know where it comes from. It’s come to my attention that FOIA requests are being denied on this basis, but I honestly don’t know where it’s coming from because, again, it is not something that is reflected in our regulations.

 

Christopher C. Murray:  Eric, what’s your understanding of what the rationale is that’s being offered for these FOIA denials by the EEOC?

 

Eric Dreiband:  Yeah. So let me explain, first, how the Commission’s enforcement mechanisms work by statute and then -- which explains why the Commission takes the position it does. So the EEOC, unlike other law enforcement agencies, has authority to investigate charges of discrimination. Without a charge, it can’t investigate anything. Once it receives a charge, it’s required by statute under Title VII of the Civil Rights Act to conduct an investigation—has very, very broad subpoena power to compel production of information, testimony, all kinds of things.

 

      When it finishes its investigation, the EEOC then issues a determination of some kind, either dismissing the charge or finding a violation or finding reasonable cause to believe a violation occurred. And then, there are other steps it can take to try to settle the dispute, short of litigation. The Commission, with respect to this, is prohibited by statute from making public any information that it acquires during an investigation prior to the institution of any proceeding under Title VII. And in addition, that provision—this prohibition about making information public—that extends to Title VII of the Civil Rights Act, which is race, sex, color, religion, and national origin discrimination but also to the Americans with Disabilities Act and Genetic Information Non-discrimination Act. So that’s the statute that governs and limits the EEOC’s authority to make anything public that it obtains during investigations.

 

      The Supreme Court has interpreted the public, for these purposes, not to include the parties to the charge. So the person who filed the charge and the respondent to the charge, typically an employer, are not part of the public for purposes of Title VII. And so, what this means is that the requirement in Title VII that the EEOC cannot make information it obtains during an investigation public does not extend to the employer or the person who filed the charge or a union if a union is a party to the charge or any other party to the charge. But under the Freedom of Information Act then -- the Freedom of Information Act requires the EEOC to produce its investigative files unless the law prevents it from doing so.

 

      So what the Commission says is, “Well, we’re not permitted to make any information from our charge file public prior to the institution of a proceeding under Title VII, therefore -- and they interpret proceeding to mean a federal court lawsuit because another provision of Title VII refers to both the EEOC itself and private aggrieved individuals of having the authority to bring a federal court lawsuit under Title VII and the other statutes that incorporate Title VII, like the Americans With Disabilities Act and the Genetic Enforcement Non-discrimination Act. So the upshot of this is that the EEOC says, “Well, a proceeding under this subchapter is a federal court lawsuit, and unless you bring a federal court lawsuit, we can’t make it available to you.” That’s the gist of the EEOC’s position on this.

 

Christopher C. Murray:  And how does the EEOC overrule the Supreme Court on determining whether the parties to the charge are the public?

 

Eric Dreiband:  That’s a very good question, Chris. I wish I could answer that. So let me back up. So the relevant Supreme Court case here is a case called EEOC v. Associated Dry Goods, and it’s a 1981 Supreme Court decision in which it says, as I mentioned, that the public does not -- I’ll read it. “The public to whom the statute forbids disclosure of charges cannot logically include parties to the agency proceeding.” That’s the relevant language, and that extends to the provision about information obtained during an investigation.

 

      I don’t know how the EEOC squares the Associated Dry Goods decision with its position other than to say that the statute limits proceedings under the subchapter to federal court cases and does not include arbitration. And so, the Commission simply, to my knowledge, has never addressed publicly, at least, either the existence of this policy about withholding information if the matter is pending in arbitration, nor has the EEOC ever explained how it squares the Associated Dry Goods opinion with the Freedom of Information Act. So it’s very difficult to do that.

 

There is an EEOC regulation that says that the requesting party should submit a copy of the court complaint, but that one doesn’t really rely on anything in the statute. And so it’s, at least, arguable that the EEOC interprets its own regulation that way, that its own regulation requires that a matter be filed in court, but I’m not aware of any public defense or even explanation for the policy.

 

Christopher C. Murray:  Okay. Commissioner Dhillon, on the second rationale that Eric mentioned there—the reference to the regulation that requires attachment of a complaint—do you know how long that regulation has been in place or where that came from?

 

Janet Dhillon:  So that regulation and that language was enacted about ten years ago, and it was part of procedural regulations required to explain to the public how to go about submitting a FOIA request to the EEOC. And notably -- and I went back, and I looked at the Notice of Proposed Rulemaking. And notably, the way the EEOC described the particular provision that Eric alluded to, which is this reference to respondents being required to provide a file-stamped copy of the complaint when they submit a FOIA request, the EEOC explained in its rulemaking that the purpose of this requirement was to obtain required identification of the submission as a FOIA request and other content required for efficient processing.

 

        And of course, if you think about it, that makes sense. I mean, the EEOC receives thousands of FOIA requests and Section 83 requests every year, and just the administrative process involved in processing in a timely way -- what the EEOC, I think, was saying in this regulation was, “You need to give us identifying information so that we can easily locate that charge file to produce it.”

 

        Notably, neither in the Notice of Proposed Rulemaking or in the final rule did the EEOC ever say, “And, oh, by the way, we’re going to interpret this provision requiring a file-stamped copy of the complaint as a means of denying FOIA requests to respondents who are in the process of litigating an employment dispute in an arbitration forum.” And, of course, they couldn’t say that because the EEOC’s procedural regulatory authority can’t trump the language of FOIA, which is a statute, or the Federal Arbitration Act, which is a statute.

 

Christopher C. Murray:  Commissioner Dhillon, another question -- this is a little bit on a slightly different topic, but my understanding is that Attorney General Garland has issued a directive regarding FOIA and transparency. Just wondering how the EEOC has interpreted that and whether that has changed any of its stance on these FOIA requests where arbitration is involved.

 

Janet Dhillon:  That’s a very good question. So in March of 2022, Attorney General Garland issued a memorandum, the title of which was Freedom of Information Act Guidelines, and it was addressed to all heads of executive departments and agencies, so that includes the EEOC. And there are a couple provisions in it that I think are particularly noteworthy. First of all, under the heading “The Presumption of Openness,” the Attorney General wrote, “Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure. In case of doubt, openness should prevail. Moreover, agencies are strongly encouraged to make discretionary disclosures of information where appropriate.” So the situation as Eric has described it and as you have described it, I question whether it is consistent with that directive in the Attorney General’s memorandum.

 

        And then the Attorney General goes on to note that the burden is on the agency to sustain a decision to withhold information from a FOIA requester. And then he writes, “In determining whether to defend an agency’s non-disclosure decision, the Justice Department will apply the presumption of openness described above. The Justice Department will not defend non-disclosure decisions that are inconsistent with FOIA or with these guidelines.”

 

        So what the Justice Department is saying -- and as Eric knows from his days at DOJ, it’s the Justice Department that defends the agencies in many actions in federal court. And what the Attorney General, I think, is saying here in a very polite way is, “You follow these guidelines, or you can’t have the use of my lawyers.”

 

        I encourage people to look at this document because I think it’s very helpful, both in this context and other contexts. You can find it on the Department of Justice’s website. You can’t find it on the EEOC’s website, interestingly enough. I was looking, actually, for it this morning, and we have a memorandum from Attorney General Eric Holder from 2009 that’s on our website, but you cannot locate this document there. So you have to go to the Department of Justice website to get a copy.

 

Christopher C. Murray:  Eric, you’ve described the rationales that have been offered by the agency in defense of these FOIA denials. I’m curious what your thoughts are on the viability of those rationales. And should they be challenged? And also, I guess, kind of a broader question -- and that is, is there anything else going on here? Those are the stated rationales. Do you believe there are any unstated rationales or purposes behind this practice of denying these FOIA requests where arbitration’s involved?

 

Eric Dreiband:  Chris, I’ll start with your last question first. On the unstated rationale, there is a widespread view—at least there was when I was at the Agency, now, that’s a long time ago, but as far as I know it has not changed—that pre-dispute arbitration agreements are essentially a nefarious plot by employers to deprive victims of discrimination of access to federal courts.

 

        So by way of example, when I was at the EEOC and first learning about this controversy, one attorney told me that arbitration of employment discrimination cases is the modern-day equivalent of the 1857 decision by the Supreme Court in the Dred Scott case when the Supreme Court told Dred Scott that he did not have access to the federal courts. So there is, I think, an undercurrent of something akin to, arbitration agreements deprive victims of access to federal courts in the same way that Chief Justice Taney’s opinion in the Dred Scott case did to Dred Scott.

 

        Now, that’s a bit hyperbolic, and I’m not saying that everybody at the EEOC shares that view. But there is a general view that arbitration is a corrupt forum because employers pay the arbitrators, typically, because it’s private and not public, because people are coerced into doing it to pre-dispute agreements, that there are adhesion contracts where the employer has much greater bargaining power than employees do, that they’re forced on employees, and therefore, there’s something nefarious and corrupt about them as a general matter.

 

        And so that’s the kind of general view I think that many, many people at the Commission have about our pre-dispute arbitration [inaudible 28:04] in general.

 

        Now, to your question about whether, in my view, the Commission’s position is viable and whether or not it’s litigated—for example, challenged—that the EEOC would prevail, my view is that the Commission’s position is not viable. I think it’s completely unlawful. I don’t even think it’s a close question, and I don’t think that even the Justice Department would think it’s a close question either. I think, if -- for the reasons Commission Dhillon said, I think if and when someone challenges the Commission’s position, I do not believe the Justice Department would even defend it in court.

 

        I think what will happen will be that if somebody challenges it—that challenges the EEOC’s denial of a FOIA request because a matter is pending in arbitration and files a lawsuit under the Freedom of Information Act to compel production, which is the procedural mechanism to do so—the Justice Department will be the entity that’s assigned to defend the EEOC. It will look at the case, and it will tell the EEOC that they have an indefensible position and will immediately settle with whoever the requester is that brought the lawsuit.

 

        And let me add, too: the EEOC has litigation authority to file Title VII and other kinds of employment discrimination cases, but the EEOC does not have litigation authority to defend itself in a Freedom of Information Act challenge brought by a requester whose FOIA request is denied. There’s no option for the EEOC on that question. It would go to the Justice Department to defend. And as I said, my personal belief is that the Justice Department will not defend it. And if they do, they’ll lose.

 

Christopher C. Murray:  And Commissioner Dhillon, let me present the same question to you. What are your thoughts on the rationales that you’ve seen offered for these FOIA requests?

 

Janet Dhillon:  Well, I haven’t done a survey of the EEOC employees on the subject of the utility of arbitration agreements in labor employment disputes. I will say that—and I think it’s really important to note—the EEOC itself is not bound by any of these arbitration agreements. The agency’s authority to investigate charges of discrimination, to bring litigation in federal courts is something that is separate and apart from any kind of agreement that an employee and an employer may have. And indeed, if, I think, an employer attempted to circumvent the EEOC’s authority by way of an arbitration agreement, I think that that would, frankly, constitute retaliation under Title VII. And so, that employer would be facing, potentially, not one charge of discrimination but two.

 

        Though this -- essentially, employees have a non-waivable right to bring a charge with the EEOC and to participate in the EEOC’s investigation. And likewise, as the Supreme Court held in 2002 in the Waffle House decision, the EEOC can pursue victim-specific relief on behalf of an employee, even if that employee is subject to an arbitration agreement. So the EEOC’s equities in situations where arbitration agreements are at issue are completely protected by law, and that has been widely recognized.

 

Christopher C. Murray:  And Eric, you touched a little bit on what employers might do in response to challenge these practices. Let’s say an employer gets a FOIA denial. What are its options to challenge this practice in these circumstances?

 

Eric Dreiband:  Okay. So there is an administrative process at the Commission itself, and that’s described on the Commission’s website in various kind of regulations and sub-regulatory guidance that are easily accessible to the public on the website. So the process, generally, is that the requester will—the person or entity requesting information—will go to the EEOC as directed in the guidance that the EEOC makes available and make a request for, say, the charge file, the investigative file, and then that will be denied if it’s an arbitration-related matter. The person will get a letter. There are internal administrative exhaustion appellate-type processes at the EEOC that person/requester should and can exhaust. And once those are exhausted, then the Freedom of Information Act provides a cause of action to bring a lawsuit in federal court to challenge an agency—in this case, the EEOC’s denial of a request for information under the Freedom of Information Act—and that it’s pending before a federal district court judge and will be adjudicated as appropriate.

 

Christopher C. Murray:  And Commissioner Dhillon, I’m wondering, are there any other options employers or potential respondents might have to challenge this practice outside of, maybe, the litigation context?

 

Janet Dhillon:  Well, I think one potential approach is to seek an opinion letter from the Commission because, ultimately, this appears to involve—at least to some extent—interpreting the use of the word public and proceeding in Title VII, on which there is, I believe, ample Supreme Court authority, as well as an interpretation of our own procedural regulations.

 

        The EEOC, actually, has two forms of opinion letters. One is what’s called an informal discussion letter. That is something that is issued by staff. And then there is a formal opinion letter, which is a document that is voted on by the full Commission. When I was Chair, I resurrected the opinion letter practice because I thought it was a very helpful way to provide guidance to stakeholders on discrete issues of interpretation, and this strikes me as well-suited to the opinion letter format.

 

        If someone is interested in doing it, there’s -- on our website, there is the process that one would go through to request such a letter. It basically entails you email either our executive secretary or you email the commissioners—I would suggest all the commissioners—and just lay out what the question is and ask for an opinion letter to be issued.

 

        Now, the ultimate decision on whether or not an opinion letter is going to be brought before the Commission resides with the Chair, but I certainly think that this type of issue is the type of thing that I think would lend itself well to the format of an opinion letter and clear up the confusion that seems to have arisen over the EEOC’s role in responding to FOIA requests from respondents when the underlying dispute is subject to arbitration.

 

Christopher C. Murray:  I wanted to, I guess, give you both an opportunity first -- I guess if you had any kind of final thoughts on this topic, whether it’s advice to potential respondents and employers or thoughts on just the EEOC’s rationales for this conduct or for this practice, rather. Commissioner Dhillon, maybe, turning to you first.

 

Janet Dhillon:  Sure. Well, look, I understand that here in year 2022, arbitration in the labor and employment context has become a somewhat heated issue—an emotional issue—for many, and I certainly understand that. But I think that the way those kinds of issues get addressed is the way that we saw, at least, a portion of it be addressed earlier this year with the enactment of the—and I always have to read it—Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which amended the Federal Arbitration Act to pull out of its coverage cases involving sexual harassment and sexual assault. That was a bill that received bipartisan support, and it was signed by President Biden.

 

        And it seems to me that when people have a policy preference about how arbitration is applied in the labor and employment context, the right way to address it is what we saw earlier this year, which is through the enactment of legislation. Whether or not you agree with that legislation, it is now the law of the land, and it’s the obligation of all of us to enforce that. I think that, unfortunately, to the extent this practice is going on in the Agency, that’s not the way to express a particular policy preference concerning the utility of arbitration in the labor employment context. I think our obligations, both as senate-confirmed commissioners—but everyone at the EEOC—is to apply the law impartially as it’s written.

 

Christopher C. Murray:  Eric, same questions for you. I guess, kind of, your…

 

Eric Dreiband:  Yeah. I just want to add a couple of points and follow up on one point Commissioner Dhillon made. I have not conducted a survey, either, of the staff at the EEOC and their particular views on arbitration. So I’m commenting based on anecdotal experiences that I had when I served at the EEOC and what I have seen in private practice or otherwise in public service since I served there in terms of a general negative view of arbitration. Not every single EEOC employee despises arbitration in the manner that I’ve described, and some recognize that the Federal Arbitration Act exists and that it is, as Commissioner Dhillon would say, the law of the land. And the Supreme Court has interpreted the Federal Arbitration Act to extend to pre-dispute arbitration agreements and enforcement of those agreements in a manner consistent with -- as relevant here, would make production of these charge files available under the Freedom of Information Act.

 

        I agree with Commissioner Dhillon that the way to address these kinds of issues is either through the Congress of the United States to change the courts -- if the Congress wants to amend further the Federal Arbitration Act, it can certainly do that. It has the authority to do that, and it did that recently within the context of sex discrimination and sexual assault claims. Congress has not done that with respect to any other claim at all, number one. And number two, even the new law about pulling out from the Federal Arbitration Act, sexual assault and sex discrimination claims from arbitration doesn’t change the FOIA calculation at all. That does change the fact that these matters may not end up in arbitration, but it doesn’t change the calculus under FOIA—under the Freedom of Information Act—and it doesn’t authorize the EEOC to withhold information that the Freedom of Information Act commands that the EEOC produce.

 

        So, maybe, with that, I’ll turn it back to you, Chris.

 

Christopher C. Murray:  All right. Thanks. Well, I just wanted to note, I guess, some final -- or some statistics, to put all of this in context, and that is that according to a study in 2018, over 50 percent of employers are now using employment arbitration agreements. And when you look at employers with a thousand or more employees, that number increases to 65% are now using employment arbitration. So it will appear that this issue will be increasingly presented for employers because more and more of them use employment arbitration. So I’m very grateful for Commissioner Dhillon and for Eric joining us today to discuss these issues. Thank you very much for taking the time and sharing your experiences and expertise. I really appreciate it.

 

Janet Dhillon:  Thank you.

 

Christopher C. Murray:  And with that, I think we are concluded with our Teleforum today, so thank you all very much for joining us.

 

Janet Dhillon:  Thank you.

 

Eric Dreiband:  Thanks.

 

Guy DeSantis:  On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.