The question of whether delaying or terminating ADR proceedings constitutes an adverse action would seem to be controlled by the Supreme Court's decision in 14 Penn Plaza L.L.C. v. Pyett. The Court held in Pyett that union members are bound by a provision in a collective bargaining agreement that clearly and unmistakably requires them to arbitrate claims under federal EEO law. In contrast, the CBA provision at issue in Watford did not mandate that union members resolve their EEO claims through arbitration. Rather, it gave them a choice. In this regard, the Watford CBA treated union members more favorably than the kind of CBA provision endorsed in Pyett. If it is lawful to require union members to resolve EEO claims through arbitration, then it stands to reason that it must be lawful to allow them the choice about whether to resolve their claims through arbitration or judicial proceedings.
Still, even though I don't think a choice-of-forum provision can be viewed as retaliatory, I recognize the EEOC's concern that such a provision may discourage employees from filing charges. As the EEOC points out in its amicus brief in Watford:
It is true that employees may sometimes have to choose between arbitration and litigation, assuming that the arbitration fully addresses their statutory rights. That is a separate question, however, from whether they must choose between arbitration and filing an EEOC charge. The latter choice is impermissible.This dichotomy may seem confusing, but it reflects the dual purpose of EEOC proceedings, which are intended to vindicate not only an employee's individual claim for relief but also the larger public interest in eradicating employment discrimination. In its amicus brief, the EEOC explained: "In a small number of cases, the EEOC sues respondents in federal court, where it acts not as the representative of the charging party, but on behalf of the public at large." The EEOC has accordingly recognized that, while someone can waive his individual claim for relief through EEOC proceedings, he cannot waive the broader public interest in EEOC proceedings.
So where does that leave us?
There are two competing principles. Providing an employee the choice of forums to pursue an EEO claim is not an adverse action, yet an employee is not permitted to waive the right to file an EEOC charge.
In this case, it appears that the plaintiff's arbitration proceeding was held in abeyance after she filed an EEOC charge. As I've explained, I don't think this action can be regarded as retaliatory. At the same time, however, the plaintiff had the non-waivable right to file an EEOC charge, so there should have been some means for her to have filed a charge while still choosing to pursue her claim through arbitration. The filing of a charge under such circumstances would authorize the EEOC to consider the charge and obtain relief not for the employee herself but rather for the public at large. In most circumstances, a plaintiff would likely see little value in filing an EEOC charge that would not allow her to obtain individual relief, but since the right to file a charge cannot be waived, that right has to be preserved somehow.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.