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You don’t have to raise arbitration at the EEOC stage

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in Discrimination and Harassment,Human Resources

If, like many employers, you would rather avoid litigation by relying instead on arbitration to settle workplace disputes, you probably know that employees still may take their claims to the EEOC. That’s because the agency claims an interest in knowing whether employers are following the nation’s anti-discrimination laws.

But it’s perfectly legal to force an employee into arbitration over those same claims. The EEOC’s right to know about violations and enforce the law is separate from the employee’s right to damages.

Because the two rights are separate, an employer doesn’t have to mention the arbitration agreement during an EEOC investigation. It can wait until the employee files a lawsuit, and then ask the judge to move the case out of the court system and into arbitration.

Why would you want to remain silent rather than immediately send the case to arbitration? The employee might never file a lawsuit. Raising the issue at the informal EEOC stage could essentially start something that might have simply faded away.

Recent case: Paul Barna signed on with Wackenhut Services for a firefighter position in Baghdad. Barna has diabetes, which he disclosed to Wackenhut’s recruiter. When he arrived in Baghdad, the company fired him almost immediately. Barna thought the reason was his diabetes and filed an ADA complaint with the EEOC.

Next he filed a federal ADA lawsuit. That’s when Wackenhut told the court that Barna had signed an arbitration agreement. It asked that the case be transferred to an arbitrator under the terms of the agreement.

Barna said Wackenhut should have raised the arbitration agreement as part of the EEOC process. Since it had not, Barna argued that the company had agreed to take the case to court.

Not so, said the court. Because Barna suffered no adverse effect from the delay, there was no harm done in not raising the issue at the EEOC stage. The court sent the case to arbitration. (Barna v. Wackenhut Services, No. 1:07-CV-147, ND OH, 2007)

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