As part of its announcement, the EEOC instructed its employees not to rely on political reporting for investigations or litigation, but stated that their political reporting mission did not limit their ability to question the applicability of a given arbitration agreement or provision. The EEOC had previously found that mandatory arbitration agreements undermined the application of federal anti-discrimination laws. The 1997 political declaration concluded that arbitration agreements allow employers to «break free from the application of civil rights laws by the Confederation» and «deprive civil rights activists of the choice to justify their legal rights in court.» The EEOC raised public policy concerns, such as lack of public accountability, limited scope for judicial review and structural distortions within the Arbitral Tribunal. The Equal Employment Opportunity Commission today withdrew its 1997 Declaration of Principle, which disapproved of the practice of forcing workers to enter into conciliation agreements to settle claims of discrimination in the workplace, and instructed its staff to assert rights against employers despite such agreements. The milestone that followed two decades of Supreme Court decisions supporting the use of arbitration is a new step that federal authorities have recently taken to restore a natural balance in the area of workplace disputes. The impact of this policy on the day-to-day operations of the EEOC is not yet known, but it could limit the type of enforcement measures employers might face if they have binding arbitration agreements. According to the document, mandatory arbitration was «at odds with the basic principles in federal civil rights laws, including Title VII, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), and Americans with Disabilities Act (ADA). The authority asserted that the federal government – through the Department of Justice, the federal justice system and the Commission itself – was the primary enforcer of these laws, and it is at odds with these laws to cede power to a private party as an arbitrator. «The application of unilaterally imposed agreements, which impose mandatory arbitration of labour discrimination disputes as a condition of employment, harms both the individual civil rights activist and the public interest in the elimination of discrimination,» he concludes. «Those who must be governed by law must not exempt themselves from the Alliance`s application of the Civil Rights Act.» However, in the two decades since the EEOC adopted this policy, the Supreme Court has slowly but surely suppressed all arguments against mandatory arbitration and adopted a number of cases in which the practice is defended as a valid exercise under the Federal Arbitration Act (FAA). A few years after the EEOC issued the directive, the Supreme Court ruled in 2001 on Circuit City Stores v. Adams, who confirmed that work-related disputes are covered and promoted by the FAA.
In the last ten years of nothing, 2011 AT-T Mobility v. Cas Concepcion, which made a state law at odds with the FAA, and the 2018 Epic Systems trilogy, class remedies have been waiving labor arbitration agreements.