01-2998 EEOC v. Board of Regents

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“[T]he argument is, even though the EEOC would have the power to sue the states to remedy a pattern of intentional discrimination, the state retains immunity from this suit. If the individuals cannot sue, the EEOC should not be able to either.

“Whatever wind might originally have been in the sails of this argument has been knocked out by EEOC v. Waffle House, Inc., 122 S. Ct. 754, decided earlier this year. In Waffle House, the EEOC brought an enforcement action under the ADA on behalf of a former Waffle House employee who signed a binding arbitration agreement. The issue presented for decision was ‘whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief …’ At 758. The Court of Appeals for the Fourth Circuit had distinguished between injunctive and victim-specific relief and determined that only when the EEOC seeks broad injunctive relief would the public interest overcome the goals of the Federal Arbitration Act. Rejecting this conclusion, the Supreme Court pointed out that once an EEOC charge is filed, the EEOC is in ‘command of the process’ and has ‘exclusive jurisdiction over the claim for 180 days.’

“The only response left to the UW would be to say that sovereign immunity is different; it is more important than the FAA or arbitration agreements. That may be so. But when we read Waffle House together with the cautionary language of Garrett, which indicates that despite the fact that sovereign immunity bars private suits, the federal employment statutes can be enforced by the United States, we find little room in which to maneuver – even were we inclined to. If ultimately Waffle House is to be distinguished from a case such as this one, that distinction should be drawn not by us, but rather by the Supreme Court. See Agostini v. Felton, 521 U.S. 203 (1997).”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Shabaz, J., Evans, J.