Blair vs. Scott Special Specialty Gases
 01-1096
 IN THE UNITED STATES COURT OF APPEALS
 FOR THE THIRD CIRCUIT
 No. 01-1096
 BLAIR
 vs.
 SCOTT SPECIALTY GASES, et al.
 Diane Blair, Appellant
 On Appeal from the United States District
 Court for the Eastern District of Pennsylvania
 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS AMICUS CURIAE IN SUPPORT OF
 THE APPELLANT
         GWENDOLYN YOUNG REAMS
         Associate General Counsel
         PHILIP B. SKLOVER
         Associate General Counsel
         LORRAINE C. DAVIS
         Assistant General Counsel
         ROBERT J. GREGORY
         Senior Attorney
         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         (202) 663-4059
 STATEMENT OF INTEREST
  The Equal Employment Opportunity Commission ("Commission") is the agency
  entrusted with the enforcement of Title VII of the Civil Rights Act
  of 1964, 42 U.S.C.  2000e et seq. ("Title VII"), and other federal
  anti-discrimination statutes.  In this case, the plaintiff brought
  suit in federal court, alleging sex discrimination under Title VII.
  The defendant moved to dismiss the plaintiff's suit, arguing that the
  plaintiff was required to  arbitrate her Title VII claim pursuant
  to a pre-dispute arbitration agreement imposed by the defendant.
  That agreement, among other things, presumptively required the plaintiff
  to pay one-half of the arbitrator's fees.  Despite this feature of
  the agreement, the district court granted the defendant's motion and
  dismissed the plaintiff's suit.
  The decision of the district court raises important issues concerning
  the enforceability of pre-dispute arbitration agreements that require a
  federal statutory claimant to pay a portion of the arbitrator's fees.
  Although the district court held that the agreement in this case
  was enforceable, the district court's decision was issued prior to
  the Supreme Court's decision in Green Tree Fin. Corp. v. Randolph,
  121 S. Ct. 513 (2000).  In that case, the Supreme Court explicitly
  addressed the fee-allocation issue, adopting standards that, in our
  view, require reversal of the district court's decision in this case.
  To assist the Court in resolving the important issues raised by this
  appeal and to give the Court the benefit of the Commission's views on
  the Green Tree decision, the Commission, pursuant to F.R.A.P. 29(a),
  offers its views as amicus curiae.
 STATEMENT OF THE ISSUES
  1.  Whether the Supreme Court's Green Tree decision empowers a federal
  district court to determine, in a pre-arbitration judicial proceeding,
  whether the arbitration agreement makes it likely that the federal
  statutory claimant will incur prohibitive arbitration costs, thus
  rendering the agreement unenforceable as a matter of federal law.
  2.  Whether, under Green Tree, a federal statutory claimant is entitled
  to invoke discovery procedures in a pre-arbitration judicial proceeding
  to demonstrate the likelihood that prohibitive arbitration costs will be
  incurred under the arbitration agreement.       3.  Whether a remand for
  further factual inquiry is the proper remedy in this case, given the fact
  that the arbitration agreement, by its very terms, presumptively requires
  the federal statutory claimant to pay one-half of the arbitrator's fees.
 STATEMENT OF THE CASE
  1.  Diane Blair began working for Scott Specialty Gases ("Scott")
  in 1995.  See Blair v. Scott Specialty Gases, 2000 WL 1728503, *1
  (E.D. Pa. Nov. 21, 2000).  In February 1998, Scott published and
  distributed an updated employee handbook that included a mandatory,
  binding arbitration provision.  Id.  That provision set forth detailed
  arbitration procedures.  Among other things, the provision stated that
  arbitration "expenses," other than the filing fee, "will be paid by
  the parties as set forth in the applicable AAA [American Arbitration
  Association] rules."  Id. at *2.  Under the AAA's National Rules for
  the Resolution of Employment Disputes, the arbitrator's fees are to be
  "'borne equally by the parties unless they agree otherwise, or unless
  the law provides otherwise.'"  Id.  On February 27, 1998, Blair signed
  an acknowledgment stating that she had read the arbitration provision
  of the employee handbook and agreeing "'that if there is any dispute
  arising out of [her] employment . . . [she] will submit it exclusively
  to final and binding arbitration.'" Id.
  Blair resigned her employment with Scott in March 1999.  Id.  Blair
  filed a timely charge of discrimination with the Commission.  Id.
  Blair eventually brought suit in federal district court, alleging that
  Scott subjected her to discrimination and harassment because of her sex,
  thus causing her to resign her employment.  Id. at *1.
 2.  In dismissing Blair's suit, the district court rejected Blair's
  argument that her arbitration agreement with Scott was unenforceable
  "because under the agreement, Blair is required to pay half of the
  arbitrator's fees."  Id. at *7.  The court faulted  Blair for failing to
  "submit any evidence that demonstrates the amount of the arbitrator's
  fee" and failing to demonstrate "why she cannot afford arbitration,
  whether it is or is not possible to cut back on her expenses to afford
  arbitration, and whether when she was eligible to file for arbitration,
  she could afford arbitration."  Id.  The court also noted that,
  under the terms of the arbitration provision imposed by Scott, it was
  possible that the parties could have forged an agreement to have Scott
  pay the full share of the arbitrator's fees.  Id.  The court drew no
  significance from the fact that the arbitration provision imposed by
  Scott, by its very terms, presumptively requires the statutory claimant
  to pay one-half of the arbitrator's fees.
  3.  Subsequent to the district court's decision in this case,  the
  Supreme Court issued its decision in Green Tree Fin. Corp. v. Randolph.
  In Green Tree, the Court addressed the arbitration fee-allocation
  issue in the context of a rental agreement purporting to require the
  arbitration of any claim arising under the agreement (including any
  claim brought under the Truth in Lending Act).  The Court agreed with
  the claimant that the "existence of large arbitration costs" (including
  arbitrators' fees) could render an arbitration agreement unenforceable.
  121 S. Ct. at 522 (noting that such costs could preclude a claimant "from
  effectively vindicating her statutory rights in the arbitral forum").
  The Court further opined that a court was empowered to invalidate an
  agreement, in a pre-arbitration judicial proceeding, based on a showing
  that "arbitration would be prohibitively expensive."  Id.  In the Court's
  view, the claimant was entitled to make this showing in the district
  court and, if necessary, to invoke "discovery" procedures to demonstrate
  "the likelihood of incurring such [prohibitive] costs."  Id. at 522-23.
  The Court held that the claimant in the case before it had failed to
  make the requisite showing of prohibitive expense, stressing that the
  agreement before the Court in that case was "silen[t]" on the issue of
  arbitrators' fees.  Id. at 522.
  Although Green Tree did not involve arbitration of an employment dispute,
  the Court's decision has already been extended to the employment context.
  See, e.g., Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 947
  (8th Cir. 2001) (applying Green Tree in an employment discrimination
  case); Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d
  549, 556-57 (4th Cir. 2001) (applying Green Tree in an ADEA case);
  Geiger v. Ryan's Family Steak Houses, Inc., 2001 WL 278120, *8 n.5
  (S.D. Ind. March 21, 2001) (applying Green Tree in a Title VII case).
  In the Commission's view, Green Tree establishes a legal framework for
  all cases involving pre-dispute agreements to arbitrate federal claims,
  including claims under the federal anti-discrimination statutes.
 ARGUMENT
 I. THE SUPREME COURT'S GREEN TREE DECISION EMPOWERS A FEDERAL DISTRICT
 COURT TO DETERMINE, IN A PRE-ARBITRATION JUDICIAL PROCEEDING, WHETHER
 THE ARBITRATION AGREEMENT MAKES IT LIKELY THAT THE FEDERAL STATUTORY
 CLAIMANT WILL INCUR PROHIBITIVE ARBITRATION COSTS, THUS RENDERING THE
 AGREEMENT UNENFORCEABLE AS A MATTER OF FEDERAL LAW.
     The most critical point established in Green Tree is that a district
     court is empowered to determine, in a pre-arbitration judicial
     proceeding, whether the arbitration agreement is unenforceable because
     it imposes prohibitive arbitration costs on the statutory claimant.
     In Green Tree, the arbitration proponent (the financing company)
     argued that any issue concerning the claimant's liability for
     arbitrators' fees should be deferred to post-arbitration review in
     court.  Stressing that the claimant was entitled to seek a judicial
     "modification" of an arbitrator's cost award, the company argued
     that such post-arbitration review was  "adequate" to protect the
     claimant's statutory rights.  See Petitioner's Reply Brief, 2000 WL
     1215299, **15-16 & n.10.  Similar arguments were advanced by the amici
     supporting the company's position in the Supreme Court.  See Brief of
     American Bankers Association, et al., 2000 WL 744158, *13 (arguing
     that any injury inflicted by an arbitrator's fee-allocation order
     is properly corrected through "judicial review" of the arbitration
     decision);  Brief of Equal Employment Advisory Council, 2000 WL
     744164, *19 (arguing that because the "availability of judicial
     review . . . serves as a safeguard against the imposition of
     unreasonable fees," improper to invalidate an arbitration agreement
     in a pre-arbitration judicial proceeding).
  The Supreme Court flatly rejected this argument.  The Court stressed that
  statutory claims may be arbitrated under the FAA but only "'so long as
  the prospective litigant effectively may vindate [his or her] statutory
  cause in the arbitral forum.'"  121 S. Ct. at 521.  The Court recognized
  that "[i]t may well be that the existence of large arbitration costs
  could preclude a litigant [from] effectively vindicating her federal
  statutory rights in the arbitral forum."  Id. at 522.  The Court ruled
  that a statutory claimant can have an arbitration agreement invalidated
  by demonstrating the "likelihood" of incurring "prohibitive" arbitration
  costs under the agreement.  Id.  The Court clarified that, where the
  claimant makes a "showing of prohibitive expense," the burden shifts
  to the arbitration proponent to "come forward with contrary evidence."
  Id. at 522-23.  In short, the Court established a framework for resolving
  the fee-allocation issue in a pre-arbitration judicial proceeding,
  a framework that empowers the district court to deny enforcement of an
  arbitration agreement that imposes prohibitive arbitration costs.
  The Supreme Court's decision, on this point, is consistent with a large
  body of pre-Green Tree circuit court precedent, supporting the view
  that an arbitration agreement is unenforceable, as an initial matter,
  if it requires the federal statutory claimant to incur prohibitive
  arbitration costs.  In Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465,
  1483 (D.C. Cir. 1997), for example, the D.C. Circuit ruled that an
  employer may not require an employee to accept an arbitration agreement
  "that requires the employee to submit his or her statutory claims to
  arbitration and then requires the employee to pay all or part of the
  arbitrators' fees."  In Shankle v. B-G Maint. Mgmt. of Colorado, Inc.,
  163 F.3d 1230, 1233 (10th Cir. 1999), the Tenth Circuit ruled that a
  "mandatory arbitration agreement" that "requires an employee to pay a
  portion of the arbitrator's fees, [is] unenforceable under the [FAA]."
  The court stressed that such an agreement "undermines the remedial and
  deterrent functions of the federal anti-discrimination laws," imposing
  a "prohibitive cost" on the exercise of statutory rights.  Id. at 1235.
  Likewise, in Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054,
  1062 (11th Cir. 1998) (Cox, J., & Tjoflat, J., concurring), the Eleventh
  Circuit opined that a pre-dispute agreement imposed by an employer
  is unenforceable where the agreement makes the claimant liable for a
  portion of the sometimes "hefty cost of an arbitration."  Green Tree
  affirms the settled view that a "'federal court, before enforcing an
  employer's demand for arbitration under an employment contract, may --
  indeed, must -- scrutinize the agreed-upon or contemplated arbitration
  system'" to ensure that the system provides "substantive protection[s]
  and access to a neutral forum in which to enforce those protections."
  Cole, 105 F.3d at 1482-83 (quoting Robert A. Gorman, "The Gilmer
  Decision and the Private Arbitration of Public-Law Disputes," 1995
  U. ILL. L. REV. 635, 645)).
  In this regard, Green Tree closely tracks the Supreme Court's arbitration
  precedent, most notably, Gilmer v. Interstate/Johnson Lane Corp., 500
  U.S. 20 (1991).  In Gilmer, the Supreme Court ruled that an individual
  can be required to arbitrate a claim of discrimination under the federal
  Age Discrimination in Employment Act.  The Court, however, imposed
  significant conditions on the enforcement of pre-dispute agreements
  that purport to require the arbitration of federal statutory claims.
  The Court stated that an arbitration agreement must not require a party
  to "'forgo the substantive rights afforded by the statute.'" Id. at 26
  (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
  U.S. 614, 628 (1985)).  The Court clarified that mandatory arbitration
  of federal statutory claims is permissible only if "'the prospective
  litigant effectively may vindicate [his or her] statutory cause of
  action in the arbitral forum'" such that "'the statute will continue
  to serve both its remedial and deterrent function.'" 500 U.S. at 28
  (quoting Mitsubishi, 473 U.S. at 637). Gilmer establishes that there
  are limitations, derived from federal law, on the use of arbitration
  procedures that are imposed by employers in pre-dispute agreements
  with employees.  One of those limitations is that employees "seeking to
  vindicate statutory rights" not be required to "pay for the services
  of an arbitrator when they would never be required to pay for a judge
  in court."  Cole, 105 F.3d at 1484 (citing Gilmer).
  The rationale for having a court rule on the fee-allocation issue,
  at the pre-arbitration stage, is obvious.  A possible by-product of
  an arbitration agreement of this nature is that some individuals will
  be dissuaded from asserting their statutory claims.  The agreement
  denies access to a judicial forum and then, by its terms, exposes
  claimants to liability for what may be substantial arbitral forum fees.
  Many putative claimants (and their attorneys), faced with this potential
  liability, will simply give up the fight and not pursue an otherwise
  viable claim.  It is  not enough to say that a fee award might be
  corrected in a post-arbitration review proceeding.  To ensure that
  claimants are not dissuaded from pursuing their claims as an initial
  matter, the deterrent effect of a potential fee award must be removed
  at the enforcement stage.
 II.  UNDER GREEN TREE, A FEDERAL STATUTORY CLAIMANT IS ENTITLED TO
 INVOKE DISCOVERY PROCEDURES IN A PRE-ARBITRATION JUDICIAL PROCEEDING TO
 DEMONSTRATE THE LIKELIHOOD THAT PROHIBITIVE ARBITRATION COSTS WILL BE
 INCURRED UNDER THE ARBITRATION AGREEMENT.
  The second important point established in Green Tree is that a
  federal statutory claimant is entitled to invoke discovery procedures,
  in a pre-arbitration judicial proceeding, to assist the claimant in
  meeting her "burden of showing the likelihood of incurring [prohibitive
  arbitration] costs."  121 S. Ct. at 522.  In Green Tree, the Supreme
  Court cited a failure of proof on the issue of arbitration costs,
  noting that the record contained "hardly any information" on the issue
  at all.  Id.  In doing so, the Court made clear that the fault was the
  claimant's; the claimant could have developed a record on the cost issue.
  Specifically, the claimant could have done so during the "discovery"
  phase of the pre-arbitration judicial proceeding.  Id. at 523.
  Under Green Tree, the claimant bears the burden of proof in seeking to
  "invalidate an arbitration agreement on the ground that arbitration would
  be prohibitively expensive."  Id. at 522.  The claimant, in shouldering
  that burden, is entitled to deploy discovery procedures, procedures that
  would allow the claimant, among other things, to unearth the history
  of fee and cost awards under the arbitration procedures established by
  the agreement.
  Notably, the discovery issue was explicitly raised during the Supreme
  Court oral argument in Green Tree.  Chief Justice Rehnquist vigorously
  questioned the claimant's attorney on why the claimant did not "make
  any showing" in the district court on the issue of arbitration costs.
  Transcript of Oral Argument, 2000 WL 1513141, *35.  The Chief Justice
  criticized the claimant for not seeking "discovery going to the costs
  of the arbitration."  Id. at **35-36.  The Chief Justice opined that
  "proof could be offered in the district court, before the arbitration,"
  on the fees issue.  Id. at *39.  Later, counsel for the financing
  company, the arbitration proponent, was asked whether the claimant
  could have sought "discovery" concerning "the costs of arbitration."
  Id. at *54.  Counsel agreed that "[t]here's no problem with seeking
  discovery" but urged that the claimant had failed to invoke properly
  her discovery rights.  Id.  It is clear from the oral argument in Green
  Tree that all concerned assumed that discovery would be available in a
  pre-arbitration judicial proceeding going to the issue of arbitrators'
  fees.  That assumption is reflected in the Court's decision.
  It is true that permitting such discovery, in a pre-arbitration judicial
  proceeding, is at tension with one of the principal aims of the FAA --
  to trade the "'procedures and opportunity for review of the courtroom for
  the simplicity, informality, and expedition of arbitration.'" Gilmer, 500
  U.S. at 31.  But it must be remembered that, when arbitration involves
  federal statutory claims (as opposed to purely commercial disputes),
  the objectives of the FAA must be balanced with the goal of ensuring
  that the public rights of the statutory claimant are not compromised.
  The Supreme Court has made clear that federal statutory claims may be
  arbitrated pursuant to pre-dispute agreements; it has, however, qualified
  its approval of arbitration, in the context of federal statutory claims,
  with the critical caveat that the claimant must be able to "'vindicate
  [his or her] statutory cause of action in the arbitral forum,'" thereby
  ensuring that "'the statute will continue to serve both its remedial
  and deterrent function.'"  Id. at 28.
  Further, the specter of protracted collateral litigation on the fees
  issue can be easily avoided by the arbitration proponent -- in this
  case, the employer.  The employer can simply state in the agreement that
  the arbitrator's fees will be borne by the employer, not the claimant.
  Such an agreement would ensure that the claimant is not denied "access
  to a neutral forum in which to enforce [statutory] protections."  Cole,
  105 F.3d at 1482-85 (dismissing the concern that requiring the employer
  to pay the full share of the arbitrator's fees raises "the possibility
  of arbitrators systematically favoring employers").
  The Commission fears that some employers are reluctant to take this
  simple step because they want to use arbitration procedures as a way
  of warding off discrimination claims.  In other words, they hope to
  dissuade claimants from coming forward by deliberately creating the
  specter of liability for hefty arbitration costs and fees.  The rights
  of a statutory claimant should not be hostage to the employer's
  self-serving decision to allocate a portion of the arbitrator's fees
  to the claimant.<1>
 III. REMAND FOR FURTHER FACTUAL INQUIRY IS THE PROPER REMEDY IN THIS
 CASE, GIVEN THE FACT THAT THE ARBITRATION AGREEMENT, BY ITS VERY TERMS,
 PRESUMPTIVELY REQUIRES THE FEDERAL STATUTORY CLAIMANT TO PAY ONE-HALF
 OF THE ARBITRATOR'S FEES.
  Based on the forgoing, it is clear that the proper course in this case
  is to remand for further factual inquiry on the issue of arbitrators'
  fees.  The arbitration agreement in this case is explicit.  It states
  that the arbitration "expenses" will be paid "by the parties as set
  forth in the applicable AAA rules."  Those rules, in turn, provide
  that the arbitrator's fees are to be "'borne equally by the parties.'"
  The AAA rules do leave some wiggle room, stating that the 50-50 split
  can be modified if the parties "agree otherwise" or the law "provides
  otherwise."  Nonetheless, the AAA rules, explicitly incorporated into
  the arbitration agreement,  presumptively require the federal statutory
  claimant to pay one-half of the arbitrator's fees.
  The agreement in this case falls squarely within Green Tree's
  burden-shifting framework.  In Green Tree, the Supreme Court stated
  that, once the statutory claimant satisfies her threshold burden of
  presenting evidence of the "likelihood" of incurring "prohibitive"
  arbitration expense, "the party seeking arbitration must come forward
  with contrary evidence."  121 S. Ct. at 522-23.  Arguably, the existence
  of a fee-allocation provision in an arbitration agreement,  explicitly
  assigning a portion of the arbitrator's fees to the statutory claimant,
  suffices to meet the claimant's threshold burden, thus shifting the
  burden to the arbitration proponent to adduce "contrary evidence."  The
  arbitration proponent could put in its own evidence on the fees issue,
  leaving the court to sort through the competing proofs and rule on the
  enforceablity of the agreement.  Or, the arbitration proponent could
  agree to pay all of the arbitrator's fees (an option that appears to
  be available under the agreement in this case).  At the very least,
  the existence of a fee-allocation provision of this nature would be
  sufficient to trigger the claimant's discovery rights.  Based on that
  discovery, the claimant could make the type of evidentiary showing
  required to block enforcement of the arbitration agreement.
  In this case, it could be argued that, by pointing to the fee-allocation
  provision in Scott's arbitration procedures, Blair satisfied her
  threshold burden of demonstrating the likelihood of incurring prohibitive
  expense, thus shifting the burden to Scott to put in contrary evidence.
  Not having set forth any rebuttal evidence or offered to shoulder the
  full amount of the arbitrator's fees, Scott would have defaulted in its
  burden to present contrary evidence, thus requiring the court to deny
  enforcement of the agreement.  This, however, would be unfair to Scott,
  which did not have the benefit of the Green Tree decision at the time
  the issue was litigated in the district court.  The better course,
  under these circumstances, is to give both parties a fair opportunity
  to present evidence on the fees issue.  That opportunity would include
  the right to invoke discovery procedures, if necessary, to ferret out
  the history of fee-shifting under the AAA rules.<2>
  In Green Tree, the Supreme Court did not remand for further factual
  inquiry on the fees issue, simply holding that the claimant had failed
  to meet her burden of proof.  See 121 S. Ct. at 522-23.  The key in
  that case, however, was that the record revealed "only the arbitration
  agreement's silence on the subject."  Id. at 522.  It was that "silence"
  that led to the division on the Court.  The majority believed that
  silence "alone" was "plainly insufficient to render [the agreement]
  unenforceable," because it made the risk that the claimant would
  be "saddled with prohibitive costs" too "speculative to justify the
  invalidation of [the] agreement."  Id.  The four dissenting judges
  believed that, even with a silent agreement, it was wrong to let the
  case go forward into arbitration  without some "clarification" of the
  history of fee-allocation under the agreement at issue.  Id. at 525
  (Ginsburg, J., dissenting).  Where an agreement is merely silent on the
  fees issue, invalidating the agreement on that basis alone requires
  a court to indulge a presumption against the fairness of arbitration
  procedures, the very thing that the FAA prevents courts from doing.
  121  S. Ct. at 521-22.  Where, however, an agreement explicitly requires
  the claimant to pay a portion of the arbitrator's fees, there is no
  need to indulge a presumption against arbitration; the agreement,
  by its very terms, puts the claimant at risk.
  This distinction illuminates the district court's error in this case.
  The district court faulted Blair for a failure of proof on the fees
  issue.  The district court's analysis might have been correct had
  the agreement in this case been silent on the fees issue, as it was
  Green Tree.  In this case, however, the agreement  is not silent.
  The agreement presumptively requires Blair to pay one-half of the
  arbitrator's fee.  For purposes of applying the Green Tree framework,
  there is a critical distinction between an agreement that is merely
  silent on arbitrators' fees and an agreement that, by its very terms,
  requires (or presumptively requires) the claimant to pay a portion of
  those fees.  See Geiger, 2001 WL 278120, *8 n.5 (distinguishing Green
  Tree, which involved an arbitration agreement that was "'silen[t] on
  the subject' of arbitration costs" from an agreement that "place[s]
  the burden for at least half of the fees squarely on the shoulders of
  the employee/claimant").
  Further, the district court appeared to focus on the wrong issue.
  The district court faulted Blair for failing to put in evidence
  concerning her ability to pay the "arbitration fees."  2001 WL 1728503,
  *7 (stressing that Blair's evidence failed to "assess why she cannot
  afford arbitration" or "whether it is or is not possible to cut back on
  her expenses to afford arbitration").  In Green Tree, however, the Court
  did not focus on the individual claimant's ability to pay.  The Court
  focused on the "likelihood" that arbitrators' fees would be incurred.
  121 S. Ct. at 522.  It is that issue -- the likelihood of incurring
  the fees -- that is the principal focus of a pre-arbitration judicial
  proceeding on the fees issue.
  To be sure, Green Tree does stress that, to invalidate the  arbitration
  agreement, the arbitration expense must be "prohibitive."  Id.
  But "prohibitive" does not mean so expensive that it would quite
  literally preclude the individual claimant, given her personal financial
  circumstances, from going forward on her claim.  "Prohibitive" means
  costs that pose a serious risk of deterring statutory claimants
  from pursuing their claims in arbitration because the costs imposed
  "are unlike anything that [they] would have to pay to pursue [their]
  statutory claims in court."  Cole, 105 F.3d at 1484 (stressing that a
  statutory claimant is never required to "pay for the services of the
  judge assigned to hear her or his case").  Conceivably, there could be
  cases where the additional arbitration expense is so de minimis that
  requiring the claimant to incur a portion of that expense would not
  seriously threaten to deter the claimant from "seeking to vindicate
  statutory rights" in the arbitral forum.  Id.; see also LaPrade
  v. Kidder, Peabody & Co., 2001 WL 409118, *4 (D.C. Cir. April 24, 2001)
  (affirming an arbitration award requiring the claimant to pay 12% of
  the arbitral forum fees where the 12% figure "cover[ed] only the costs
  associated with [the claimant's] non-statutory claims").  As a general
  matter, however, a statutory claimant should not be required "to pay
  for the services of an arbitrator when [she] would never be required
  to pay for a judge in court."<3>  Id.
 CONCLUSION
  The Supreme Court's decision in Green Tree provides the framework for
  resolving the fee-allocation issue in this case.  Under that framework,
  the proper course is to remand the case for further factual inquiry on
  the issue of arbitrators' fees.
         Respectfully Submitted,
             GWENDOLYN YOUNG REAMS
         Associate General Counsel
         PHILIP B. SKLOVER
             Associate General Counsel
         LORRAINE C. DAVIS
         Assistant General Counsel
         ROBERT J. GREGORY
         Senior Attorney
         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         May 14, 2001
         (202) 663-4059
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  I, Robert J. Gregory, hereby certify that this brief complies  with
  the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i)
  and F.R.A.P. 29(a).  The brief contains 4770 words.
         Robert J. GregoryCERTIFICATE OF SERVICE
  I, Robert J. Gregory, hereby certify that on this 14th day of  May,
  2001, two copies of the attached brief were sent by first-class mail,
  postage prepaid, to each of the following counsel of record:
       Ralph E. Lamar, IV
       The Atrium, Suite W-2
           301 S. Main Street
       Doylestown, PA 18901
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       DRINKER BIDDLE & REATH LLP
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         Robert J. Gregory
 1  In this case, Scott chose to adopt the arbitration procedures of the
 AAA, which presumptively require the arbitrator's fees to be "'borne
 equally by the parties.'" 2000 WL 1728503, *2.  As originally adopted
 (in 1996), the AAA procedures for employment disputes did not take a
 position on the fee-allocation issue.  See Cole, 105 F.3d at 1480-81.
 The AAA has since modified its procedures to provide for fee-sharing.
 It is unfortunate that the AAA has chosen to take this step, since it is
 a common provider of arbitration services.  This is of particular concern
 to the Commission, given the evidence of the average cost of arbitrators'
 fees in AAA proceedings.  See id. at 1480 n.8 (noting that arbitrators'
 fees of "$500 or $600 per hour are not uncommon," with arbitrators'
 fees in the "'average'" employment case totaling anywhere from "$3,750
 to $14,000").
 2  An alternative approach to fee-allocation issue in this case would
 be to read the arbitration agreement as assigning the full share of
 the arbitrator's fees to Scott.  There is support for such a reading
 in the AAA procedures referenced in the agreement, which provide that
 arbitrators' fees shall be borne equally by the parties "'unless the
 law provides otherwise,'" the theory being that, if the law requires
 the employer to pay the full share of the arbitrator's fees, the law
 "otherwise" provides for a different allocation of fees.  This approach
 has the advantage of resolving the fees issue, in advance of litigation,
 in a way that eliminates the risk of the statutory claimant being deterred
 from pursuing her statutory claim in arbitration.  The problem with this
 approach is that it would perpetuate a confusing and self-defeating
 fee-allocation rule.  If the law "provides" that arbitration fees may
 not be assigned to the statutory claimant, then why have a provision
 that presumptively requires the claimant to pay half of those fees?
 Under these circumstances, the better course may be to address the
 enforceability issue under the Green Tree framework, leaving to the
 Scott (and the AAA) the task of cleaning up the confusing fee-allocation
 provision (for future cases).
 3  As pointed out in Cole, "[e]ven if an employee is not required to pay
 any portion of an arbitrator's fee, arbitration in a program such as
 the one administered by AAA is hardly inexpensive."  Id. at 1484 n.12
 (citing the cost of filing fees and various administrative expenses).
 Because many of these arbitration costs have parallels in judicial
 proceedings (as opposed to arbitrators' fees, which do not), the mere
 imposition of these costs does not as a per se matter invalidate the
 arbitration agreement; arbitration providers may require claimants to
 incur costs that are comparable to costs that would be incurred in a
 judicial proceeding.  Nevertheless, if arbitration costs are imposed
 on different terms than court costs (e.g., no waiver of the costs
 for individuals who would qualify for in forma pauperis status in
 federal court), the imposition of such costs can provide the basis for
 invalidating the arbitration agreement.  Id.