directions and feel should be overruled for reasons first decisions that the united states supreme court required second and on bond court should avoid an unnecessary injury circuit third the e e o c itself has conceded that the panel decision correctly conform night circuit law to united states supreme court precedents and that neither section one eighteen nor its nineteen ninety seven notice makes a condition of employment arbitration agreements on enforceable or illegal and fourth duffield was wrong when it is when it was issued and time has only emphasized that point i would start with the united states supreme court decisions and of course that begins with circuit city in its holding and in overruling this circuit's decision in c the united states supreme court the federal arbitration asked applies to not in france for taishan employment contracts nationwide that squarely pits the federal arbitration act and its policies against all of our federal gives lip service to the united states supreme court's decision in gilmer but then it also used the united states supreme court as elevating anti discrimination law above all other federal regulatory charge graver that goes to the retaliation theory when you frame it in the context of whether this individual could could prevail please remember that this individual suit loose forward in state court that that went to final judgment that one of the grounds for a loose forwards motion for summary judgment in the district court was that the e e o c could recover no victim specific relief because of the bar of race judicata and the bar of collateral  that the district court granted loose forwards motion for summary judgment on that ground as to any victim specific relief or monetary relief nobody has and nobody has a feel from that thank you your honor lets retaliation one of the theor that was the subject of dispute and the motion for summary judgment there's no question that the word retaliation was used the e e o c contended that retaliation under state law means something different from retaliation under federal law but most importantly after the district court granted summary judgment for a loose forward on that ground the e e o c has never taken up any individual or victim specific relief again so our view is is simply that it's it's off the table we have an appeal from an injunction we have an a cross appeal that says the injunction should have been different or broader or could be sustained on a different ground but there is nothing in this case that has ever said after the district court summary judgment that the individual could print could prevail or any victim specific relief could be asserting that the injunction should have been different or broader or could be sustained on an alternative ground but it is not on the table with respect to anything that struck by a free for the governor or to fix and specific relief  or the court were to disagree on that point and find something viable in a retaliation theory our view is that at a minimum there were tribal issues of fact on questions like conduct our position is very clearly that if the court agrees with each other see if any respect except if it reaffirms duffield and the injunction on the ground given we would have to go back to the factual issues is that correct i believe it is you agree with with me on duffield that and the retaliation flame please remember that mr leggett tree applied i don't know if he'd done any research he might have come up with that and that gets to his subjective statement i think arbitration is unfair he has an articulated reason for that which he spoke to in deposition i wanted to keep my which is the individual who's rare the object is part of reasonable reliance does not what i'm saying here is this record doesn't even support subjective reliance it doesn't support th ubject to believe that incorporates legal statements now but i would expect an individual who is asserting that reasonable on the reasonable grounds face to say something more than i think arbitration is unfair i telephone lawyers who are hiring you know i do not think he has to tell the lawyers who are firing him the law that arbitration is so unfair it doesn't even say i think your policy is unfair it's a complaint about arbitration complaint about arbitration by a person who initially told mr barry that he was going to sign this agreement basically who never articulated any belief that the law was on his side and never gave the employer any notice whatever that he believed that he was engaging in some kind of opposition that was somehow protected by law if he had sad i refused to sign this because i don't think i have a legal obligation that would fix the situation in terms of expeditious decisions and a reduced cost from arbitration it's said explicitly that the supposition that somehow the benefits of arbitration disappear when one of the employment context is not a true supposition and does not reflect the law of the united states supreme court it reiterated that it had been quite specific that arbitration agreements can be enforced under the federal arbitration act without contravening the policies of anti discrimination law and it said that in arbitration of a statutory claim as he had said in many other cases a person does not give up any substantive rights under any federal statute but merely engages in forum selection condition of employment say anything about that you won't find any language to that effect in the distinction you will however find that these decisions from from the united states supreme court or circuit city and so on all involve and all involved situations where the employee had no choice but to sign the arbitration agreement or not have the job and ask even if that involved house for the employee had just had to agree to arbitration in the application for him it wasn't even a waffle house it's not even delayed until you sign an employee and agree to agree to arbitration when you apply in light of those four statement that means that condition and i think one of arbitration agreements can't be criticized in the united states to go back to the core statements that are exactly on point in circuit city each one of you like i go back to in light of those four statements of the of the united states supreme court in light of reaffirming that in waffle house duffield simply cannot stand against to unite question embedded some issues of our time that i think are important to look at as phrased i hear the question almost as well as putting this issue if the employee  thinks there has been a violation a substantive violation and says i'm going to go to the sea i'm going to file a lawsuit i'm going to do whatever and then the employer says you can't file a lawsuit against me i demand you arbitrate otherwise fire you then the employee conduct in changing the form is in response to the employee's notice that the employee intends to go to the e e o c either have the e s c pursue relief or get a right to or at least the employee is reasonable in good faith belief that there was  to file a claim to pursue any remedy whatever but as my mother was your theory this is not retaliation when someone announces the intent to file suit on a hypothetical situation that he might eventually have grounds but that is retaliation when there is grounds for certainly an absence of yes that's where you draw the line yes ok yes as long as the employee is presenting and a true hypothetical if you ever discriminate against me i want to sue then the employee cannot have a reasonable good faith belief that the employer's universal policy that everyone will sign an arbitration agreement as as a condition of employment is a retaliation for anything the employee has done i'd like to return to duffield again and start with why duffield was wrong when issued and time has confirmed has confirmed that seven kinds of alternative dispute resolution it's often the list because the controversy on one is arbitration but it goes for settlement conferences mediations many trials all sorts of things and it says we hope you won't come to the federal courts or even the e e o c with with every little complaint that you might have we hope you will use alternative dispute resolution no panel any  duffield panel has ever held that section one eighteen in either authorizes or prohibits anything the other panels that have looked at it all in that context looked at the language where a lawful as invoking the federal arbitration act and invoking the state of the law under the federal arbitration act at the time congress passed the uses house reports that were issued in one before gilmer and the other four days after gilmer and it says that those reports frozen in time the debatable state of  that existed before gilmer that according to one current one of the house the courts meant that title seven claims could not be arbitrated it's worth remembering in this context that the united states supreme court conflict i start with in looking at legislative history like that if the united states supreme court is taking a case on the ground that there is a circuit conflict it is not a responsible thing to say that congress understood the law to be settled in one direction of that conflict at the time it passed the statute the legislative history analysis in duffield is too ambiguous enforcement provisions of title seven i understand in the argot of labor law enforcement provisions normally refer refers to the provisions that provide for the for the c to take a complaint to investigate and so on at the world the words civil action normally applies to civil actions it's simply not clear from those reports that they absolutely had to refer to civil actions in court the rejection of a republican substitute amendment needs to be taken first in the light of a report purports to sa why congress rejected it what we know why the authors of the report say congress rejected it but it's equally possible that the other members of the legislature both houses saw that under number of other courts and rejected by those court simply doesn't carry the weight that duffield ask ask you to death field ignored the fact that congress must be deemed to understand the law in force at the time it passes the statute and this is not just a technical point with duffield because the floor debates and these are cited in the briefs i won't try to give congressional record citations they're all here in the breeze for people to look at in  the floor debates both on the house side and on the senate side there was reference specifically to gilmer conference knowing mitsubishi versus solar chrysler plymouth and knowing that the courts w say arbitration is a fine way to enforce a federal statute unless congress has said otherwise if congress knowing those things wanted to say after section one eighteen you cannot have condition of employment arbitration agreements you knew what it had to do it had to say so in plain language you didn't know the structure ever since mitsubishi knew gilmer the committee is simply a statement on the floor that is simply at odds with other statements on the floor well they were told to look carefully at the legislative history i know there's a debate about how important read in mitsubishi or gilmer or any of the later cases that we've discussed today any direction that says that the lower federal courts should look statute is clear on its face the court is found by the statute as written and this statute is clear on its face and the examination of the legislative history does not clearly and unambiguously show as it is supposed to have congress is sending a message that there is no arbitration that arbitration is inappropriate for this kind of claim i was going to conclude  what language do you fear into the incurred the word encouraged is clear on its face the fact that the statute neither authorizes nor prohibits anything is clear on its  face i recognize duffield spend a lot of time with the issue of where appropriate where appropriate makes a lot of sense when one doesn't use a li alternative dispute resolution including and the six kinds of alternative dispute resolution that precede arbitration because in any particular circumstance where congress is encouraging the use of a d r any one or more of those tools may be appropriate or inappropriate for example it would be have certainly inappropriate to have a mini trial where there is an arbitration agreement it would be a complete waste of time and money so that humans thank you if there  further questions i would reserve my remaining time for a action provisions prohibit discrimination against an individual who refuses to wait his right to participate in statutory proceedings the refusal to employ someone because he objects to a com harassment and i'd like to go to court and the questions for this court like the quest for the court in kilmer and instructed davies and in every other court that addressed it except for the eleventh circuit in weeks and i'll get to that was primarily intended to maintain understand or accept statutory remedial mechanisms that's the primary purpose of these laws and there is a provision in the aid to get away which has that shall not interfere in that extra side or enjoyment of any statutory right mr lightning wasn't trying to get access to the court he was talking about what might happen years later if you projected that fact to suggest that signing the agreement a hypothetical future lawsuit would be improper and yet reading duffield as you do you suggested this tension between the two is this case premature retaliation wouldn't occur under that theory until he actually said if you have got a claim now i want to go to court and is contrary to the plain language of aiding in section five zero three contract with the primary purpose of the anti retaliating provisions which is maintaining unfettered access if you agree if you voluntarily agree you find on the line then you have given up your right it's a wave of all right the question and the question and can an employer require you to wait that right in order to get a job and you have to agree to put up with sexual harassment and you have to give up your statutory right to be free of sexual harassment and i think you know i really don't feel comfortable with that i don't want to sign and inflatable star we're not going to hire you that  employer to make that and in forcible conditions under any circumstances it whereas with mandatory arbitration the supreme court says that it is not against public policy to require that claim the right to go to court but gave them substantive protection for exercising their right to go to court and when this court interpret it that sucks into protection not just limited to the person who actually goes into court but somebody  contain that kind of explicit probably interference but we i think that the supreme court statement in robinson that the primary purpose of these provisions to maintain unfettered ac of intervenor donald like a tree please allow me to respond to certain of your questions the supreme court has never said you may require arbitration clause as a condition of employment it used the phrase mandatory a if you permit the party being regulated by the civil rights laws to condition a waiver of the procedures and rights provided under that law you are permitting the essential establishing the forum in which that right will be vindicated and we've got a meeting of the key who are arguing that at least in the securities industry it appears that the arbitrations are actually waiving the substantive provisions however once the arbitrator makes a mistake and you lose the right to have that mistake corrected you have lost the stuff and to write arbitration is not a law on the face of the award are not grounds for appeal so even an incorrect legal ruling cannot be appealed therefore you lose that substantive right more importantly aside from losing criminal rights to be waived all the time to our example in guilty pleas and one could argue that it is coercive to have to give up the right to appeal in order to enter a guilty plea or the right to contest pre require him to do something that was illegal in other words agree to this illegal agreement is what in the record in your view is there that would support a subjective belief argument with respect to retaliation wagner treat expressed that he wanted to retain the right to go to court and to a jury which is a right provided specifically in the statute the anti retaliation provision the interference clause one two two zero three b court or the supreme court decide whether a try view with a disability as opposed to an arbitrator no one can say that there is no material difference the right to go to court is the right that mr lacker tree refused to waive i mean let me ask you let me ask you on the on the issue of consent or correlation fly that cannot be resolved on an individual basis rather than a few appear to be arguing you want us to say as a reasons first the law was passed to regulate employers the rights belong to the plaintiff the employment relations mildred in store suppose agreements so i'm not talking we know they can be enforced my question is why can't you get at the lack of concern and if you think areas or the lack of voluntariness or intelligence or knowingness for however you want to phrase it on an individual basis once you do in a guilty plea situation in most situations you can but when you're talking about it protected relationship conditioning entering into the relationship on waving your rights is a great line it is very different than saying if i pay you ten dollars would you wave your quads that's a different equation then saying i will not allow you to enter into the relationship that congress sought desperately necessary to protect it's so important to consider to distinguish the employment relationship from a routine commercial relationship the norseman already act makes it clear that it is the public policy of this country to recognize that individual workers do not have the ability to freely negotiate terms of labor and as judge purgason pointed out in the panel decision when the when the f a a was being discussed there was concern that you saw what signing you saw signed away his birthright because that the compulsion the free market analysis has never or not since the thirteenth amendment been applied to the workplace the discrimination laws wage and hour laws osha laws have been passed because they are so necessary because that concept if you want this job weight away your rights has failed and we have to recognize that the bright line of conditioning the entrance into the protected relationship is the right bright line what what should happen is you should give someone a choice if in fact arbitration was as good as that of meekest brief which i didn't know was accepted so as it is there would be no need for compulsory arbitration you would find employees asking for arbitration you know better than i how much time you are spending striking down clauses because the statute of limitations and in this case this was not a naked arbitration agreement this agreement will shorten the statute of limitations but look at the abuses that occur only because we allow one party to set the rules limits on discovery limits on remedies and circuit city shortening of statute of limitation us unit unilateral selection of the arbitrator there are endless permutations that is why the national academy of arbitrators and the society of professionals in dispute resolution have taken the extraordinary position of opposing men through arbitration everyone who loves and cherishes the institution of  n and wants a d r to succeed knows that that can only happen if it's knowing and voluntary and the parties themselves are responsible for ensuring fairness and not the courts there is a very big difference between the arbitration of a contract case where the only rights were arbitrating hung from the contract and arbitrating statutory claims mr laboratory got those rights from the legislature the normal employment bargain of statutory rights as a condition it's a very different all of this and discrimination claims are particularly important because there's a there's a special need for discovery we can't contact president please we're trying to prove state of mind we're trying to disprove pretexts there are so many unresolved questions of law that it is so important to have a judge or someone school in the law to make that decision and to be able to appeal it and these considerations are not across the board it's very different in a contract case where a construction case where you're submitting issues of fact discrimination cases are section one eighteen whether it was before or during or after gilmer is really a red herring because the ada gate has the exact same language and that language was written with the same essential legislative history before gomer so we know what public policy whatever the public policy is in this that you undermine by a compulsory way but thank you very much any event says nothing at the end after a lot of language it says nothing more than that the e e o c will continue to accept charges not withstanding an arbitration agreement well that's great that's what the u s supreme court said is fine and waffle house and it will continue to follow  briefs about particular arbitration agreements so that policy statement really has no particular value in the e e o c has no position in saying that anyone could be lying on that just think that he or she had a reasonable or actual  belief in refusing to sign an arbitration agreement and i ask you to respond to the reading given by the e e o c of the statute when i said no language you have and they came up with different answer are a different what we have here is an employment outlook and the only employer act is to carry out its announced and universal policies not to hire somebody if they won't sign the agreement that policy stands or falls on its merits you are not coercing or intimidating anyone for interfering with the exercise of any right out of the staff know that you are and you are not interfering with any such right when the united states supreme court writing a file system including the ri filing suit when the united states supreme court says that arbitration is nothing but a change of form that means for the e e o c this argument here the us supreme court has said that arbitration and