Equal Employment Opportunity Commission v. Luce, Forward, Hamilton & Scripps

REINHARDT, Circuit Judge,

with whom PREGERSON, Circuit Judge, joins, dissenting:

While I join Judge Pregerson’s dissent fully, I write separately to emphasize two points.

1. In 1991, Congress decided it would no longer tolerate the federal judiciary’s assault on Title VII of the Civil Rights Act of 1964. Motivated by a series of highly conservative Supreme Court decisions that “seriously undermine[d] the effectiveness of Title VII,” H.R.Rep. No. 40(1) at 80, reprinted in 1991 U.S.C.C.A.N. 549, Congress adopted, and the first President George Bush signed, the Civil Rights Act of 1991. In that Act, Congress took the extraordinary step of explicitly overturning several Supreme Court decisions — decisions “Congress thought represented an unduly narrow and restrictive reading of Title VII,” Duffield v. Robertson Stephens & Co., 144 F.3d, 1182, 1190 (9th Cir.1998) — and replacing them with statutory provisions designed to protect the civil rights of American workers. Among those provisions was one that for the first time gave working men and women the right to trial by jury in Title VII race and sex discrimination cases. Civil Rights Act of 1991, § 102(c), 42 U.S.C. § 1981a(c). It also directed the federal courts to apply particular legal standards, protective of their rights, when such claims were litigated in the federal courts.

The battle to secure the right to a jury trial in employment discrimination cases was long and hard fought. Congress failed to provide the right to a jury trial in 1964 when Title VII was first enacted, and subsequent Congresses rejected amendments that would have done so. When the *762 1991 Civil Rights bill with its provision for jury trials came before Congress, there was considerable opposition to the proposal. Up until the moment the Senate defeated a Republican substitute measure to allow employers to force compulsory arbitration on workers, the right to a jury trial in Title VII cases remained in doubt. Today, this en banc court enacts the failed Republican substitute, and by judicial action effectively deprives American workers of their hard-won legislative victory.

At the time Congress adopted the jury trial provisions of the 1991 Act and afforded victims of race and sex discrimination the remedy they had so long sought, it added a section that encourages the use of arbitration in appropriate circumstances. But Congress qualified its encouragement, explicitly instructing courts not to interpret its approval of some arbitration “to preclude rights and remedies that would otherwise be available.” H.R.Rep. No. 40(1), at 97. Indeed, as Judge Pregerson irrefutably argues in dissent, Congress always intended arbitration to supplement, not supplant, jury trials. Today the majority announces precisely the type of callous anti-civil rights, pro-employer decision that Congress condemned when it enacted the Civil Rights Act of 1991; its decision transforms Congress’s cautious and partial encouragement of arbitration into an unequivocal and all-encompassing invitation to employers to refuse to hire, and even to fire, workers who wish to exercise then-jury trial rights. It makes no sense that Congress would have given civil rights victims their much desired victory only to have taken it away from them in the very same bill. Yet that is what the majority concludes. In doing so, my colleagues continue the current judicial trend of closing the doors to the federal courts to those who most need our protection. This time the majority closes those doors to employees against whom employers discriminate on the basis of race or sex.

Regrettably, my colleagues in the majority have joined a number of other circuits in rewriting Title VII’s mandates to comport with the judiciary’s historic disregard for workers’ rights and its elitist preference for fewer jury trials and less crowded appellate dockets. It is ironic that today’s decision eliminates an important protection that Congress enacted when overturning anti-civil rights decisions of the very type we announce today. This time we hold that employers may compel their employees to surrender their rights to jury trial in race and sex discrimination cases; and that those who refuse to do so may be consigned to welfare or worse. Contrary to the views of the majority, this is surely not what Congress intended when it finally granted civil rights plaintiffs the right to a jury trial.

2. The majority claims that this case can be decided by looking to a few unambiguous words in a federal statute. It cannot. Despite repeated assurances to the contrary, the majority does not engage in a simple or obvious construction of the Civil Rights Act of 1991. Rather, my colleagues gloss over the unmistakable ambiguity of the 1991 Act’s text and characterize it as if the words directly foreclose the result we reached in Duffield. This effort amounts to little more than sophistry — the text does no such thing.

Here is the text that my colleagues contend states unambiguously that employers may force their workers to sign compulsory arbitration agreements or lose their opportunities for employment: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title.” Pub.L. No. *763 102-166 § 118, 105 Stat. 1071 (codified at Notes to 42 U.S.C. § 1981). Duffield did not dispute that employers could use arbitration in a variety of different circumstances; nor do I now. The relevant questions are when and how Congress intended to encourage the use of arbitration. Nowhere, of course, do the words mandatory or compulsory arbitration appear. The plain meaning of this statutory text is that Congress offered its encouragement to arbitration only when two conditions are met: in “appropriate” circumstances, and when legally authorized. I shall come later to the question of what Congress thought constituted an appropriate use of arbitration.

With respect to the phrase “the extent authorized by law,” all seem to agree that the text refers to Congress’s understanding of the law at the time. The majority asserts that Congress thought that compulsory arbitration agreements in general were authorized by law. My colleagues reach this conclusion almost entirely on the basis of a Supreme Court case decided shortly before the passage of the 1991 Civil Rights Act. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (interpreting the Age Discrimination in Employment Act (ADEA) and holding that the Act did not preclude employers’ use of compulsory arbitration agreements with respect to age discrimination). The majority infers from the mere existence of this case that Congress (a) knew of it; (b) agreed with it; and (c) intended to incorporate into an act designed to combat race and sex discrimination the Court’s interpretation of an act regulating age discrimination.

In its effort to show that Congress actually considered Gilmer, the majority retreats to a legal fiction that is directly contrary to the facts: Congress, my colleagues say, “surely became aware[, in the few months between the Gilmer decision and the 1991 Act’s passage,] that Gilmer, and not Alexander, provided the Supreme Court’s prevailing assessment of employment arbitration agreements.” Swpra at 752. This argument is wrong for two principal reasons. First, all of the official written legislative history, in the form of two years worth of committee hearings and official committee reports, was written before Gilmer was decided on May 13, 1991.1 As Duffield explained, and as Judge Pregerson’s dissent demonstrates, even a cursory search through the painstakingly thorough legislative history demonstrates Congress’s belief that arbitration schemes such as the one at issue here were illegal under the law it perceived to be controlling.2 Second, despite Gilmer’s seemingly obvious relevance to the Act, the majority is unable to point to a single *764 statement in the statutory text or legislative history demonstrating Congress’s recognition that Gilmer was controlling, or for that matter that it had been decided. Surely, if Gilmer were as obviously relevant to the meaning of the Act as the majority asserts it is, Congress would have mentioned the legal standard adopted by the case.

The majority’s assertion that Gilmer obviously defined the meaning of “authorized by law” in the 1991 Act is equally erroneous. Even though the language describing the remedy is the same in Title VII as it was in the ADEA, the levels of protection sought to be achieved by the two statutes are different. As the Supreme Court has recently recognized, statutes regulating race and gender discrimination implicate much graver constitutional concerns than statutes dealing with the disabled or the elderly, see Nev. Dep’t of Human Res. v. Hibbs, — U.S. -, -, 123 S.Ct. 1972, 1981-82, 155 L.Ed.2d 953 (2003). Thus, it would be no surprise if Congress were to enact more robust statutory protections for individuals threatened by race and gender discrimination.

Moreover, even assuming that the majority’s assumption were true, it is worth noting that the assumption by necessity recognizes that the meaning of the statute cannot be deduced through its words alone. Faced with words (“authorized by law”) that by themselves do not lead to obvious and immediate conclusions, the majority has turned to contemporaneous evidence — in the form of a perceived congressional reaction to a Supreme Court case — in order to add context to words that without context are unquestionably ambiguous. Yet the majority pretends that it has merely picked up the statute, read those words, and come to an obvious and undeniable conclusion.

The majority’s suggestion that the plain meaning of the 1991 Act compels its conclusion is plainly absurd. This is not a case in which the majority has looked to other parts of the statute to determine statutory coherence; the majority cites none of the traditional canons of statutory construction. Instead, solely by virtue of its assumption- — without any supporting evidence — that Congress intended to incorporate the legal standard adopted in Gilmer, my colleagues today decide that the words “authorized by law” are completely unambiguous in a bill designed to protect workers against race and sex discrimination. In truth, there can be no doubt that the majority is inferring meaning about ambiguous words in a text by examining historical context. In such circumstance, the numerous cases cited in the majority opinion, all of which forbid courts from searching for additional context when confronted by plain meaning, are simply inapposite.3 If judges may guess as to what Congress might have thought about a particular Supreme Court case, we surely may not ignore what members of Congress and official committee reports actually said about those cases in the legislative history.4

*765 Even worse is the manner in which the majority has distorted Gilmer to reach its result. According to the majority, Gilmer created a specific method by which Congress could outlaw compulsory arbitration agreements. Congress, they say, simply failed to add the necessary statutory text. See also Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 205-06 (2d Cir.1999) (noting that Congress knew how to preclude waivers of judicial remedies in the statutory text and did not, and that “the absence of that language is a meaningful omission”). It is, no doubt, true that Gilmer did specify how Congress could preclude the use of compulsory arbitration agreements. But it is not true that the Gilmer Court required Congress to speak magic words — no reasonable legislator would have read Gilmer as suggesting that writing certain words into the statutory text was essential in order to preclude waivers of a federal judicial forum. To the contrary, Gilmer’s inquiry was solely about congressional intent — an inquiry distinct from a search for literal textual meaning or for the original understanding of the words — and the Court was unambiguous about what evidence is relevant to a determination of congressional intent. “If such an intention exists, it will be discoverable in the text of the [Act], its legislative history, or an ‘inherent conflict’ between arbitration and the [Act’s] underlying purposes.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647. I must here emphasize what should be obvious from this passage: the Supreme Court in Gilmer told Congress that it could use legislative history to express its intent to preclude waiver of a judicial forum.

Assuming for a moment that Congress had learned of Gilmer by the time the Committee Reports were written, then one would have to examine the Act’s exhaustive legislative record to determine whether Congress had responded to the Court’s invitation to express its intent via legislative history. Duffield quoted the legislative history at length, as does Judge Pre-gerson’s dissent. I do not wish to repeat material cited in either. But there is one passage worth reexamining now that it is plain that the Court invited Congress to prohibit compulsory arbitration either through the text of the statute or by clarifying statutory text in the legislative history.

*766 H.R. 1 includes a provision encouraging the use of alternative means of dispute resolution to supplement, rather than supplant, the rights and remedies provided by Title VIL The Republican substitute, however, encourages the use of such mechanisms “in place of judicial resolution.” Thus, under the latter proposal employers could refuse to hire workers unless they signed a binding statement waiving all rights to file Title VII complaints. Such a rule would fly in the face of Supreme Court decisions holding that workers have the right to go to court, rather than being forced into compulsory arbitration, to resolve important statutory and constitutional rights, including employment opportunity rights. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). American workers should not be forced to choose between their jobs and their civil rights.

102 H. Rpt. 40(1), at 104 reprinted in 1991 U.S.C.C.A.N. 549, 553-54. It would be difficult to imagine a clearer expression of legislative intent. Far from viewing the Gilmer standard as governing in Title VII cases, and far from agreeing with the Supreme Court’s later pronouncements that arbitration is substantively no different from resolution of claims in a judicial forum, the majority in Congress who voted for the 1991 Civil Rights Act plainly thought that the Act did not allow employers to force their workers to sign compulsory arbitration clauses forfeiting their right to trial by jury in Title VII cases.

My colleagues may not like legislative history. They may agree with various academics that what Congress intended is irrelevant to determining the meaning of what Congress said. No matter, for the point on which the majority, Judge Pre-gerson, and I all seem to agree is that the Gilmer Court told Congress how to express its intent. The majority opinion asserts that Congress knew of Gilmer, yet pretends that the Court’s invitation to specify intent through legislative history never existed. Acting in a manner that accords fully — even if unwittingly — with Gilmer’s instructions, Congress used its official committee reports (agreed upon by majority votes in the authoring committees) to declare unambiguously that Title VII does not permit employers to force their workers to sign compulsory arbitration clauses as a condition of employment. Such was our holding in Duffield. Today, the majority overrules Duffield by reading out of Gilmer the portion that instructed Congress to consider both statutory text and legislative history as possible sources of intent. The majority’s reliance on one part of Gilmer and utter disregard of another may be a necessary step in its mystifying interpretive routine, but it is no way to make good law.

Even if Congress thought that compulsory arbitration agreements were authorized by law, we must still inquire whether Congress thought that it was appropriate to allow employers to demand such agreements from all employees. The majority appears to believe that these two questions are coterminous. They are not. We must give meaning to all words in the statute, not just the ones that support our chosen result. And certainly it is at least plausible that Congress believed that certain types of agreements were constitutional and legal under acts like the Federal Arbitration Act yet still not appropriate if for use with respect to Title VII claims. Indeed, had Congress desired to authorize all arbitration authorized by law, it would not have needed to include the word “appropriate” at the start of § 118.

*767 It is utterly implausible that Congress considered it appropriate to encourage the system the majority approves today — a system in which no applicant will be able to get a job unless he first signs away his rights to pursue a Title VII claim in the federal courts. It simply makes no sense to assume that Congress went through the trouble of finally granting workers their hard won right to trial by jury only then, in the same bill, to render that provision nugatory by authorizing employers to require all potential employees to forfeit that right and choose between a job and access to the federal courts. Indeed, it seems obvious to me that Congress perceived compulsory arbitration to be entirely inappropriate for claims of employer discrimination on the basis of race or sex.

We held in Duffield that any measure of “appropriateness” must consider the overall purposes of the Act. The majority casts aside those purposes, accusing the Duffield Court of resting its decision on “the faulty presumption that arbitration undermines the 1991 Act’s purpose.” This is simply not true. Duffield did not arise out of distrust of arbitral forums or of federal arbitrators. Rather, Duffield’s holding had its genesis in Congress’s unmistakable desire to expand, rather than to contract, the remedies available to workers under the nation’s civil rights laws. See Duffield, 144 F.3d at 1192 (noting that Congress demonstrated a clear preference “to expand employees’ rights and ‘to increase the possible remedies available to civil rights plaintiffs’ ”). Even if the decisions of arbitral fora were substantively identical to those in the federal courts, the mere approval of compulsory arbitration agreements decreases the options available to employees under the Act. Moreover, Duf-field did not rule out the use of voluntary arbitration agreements, or even of compulsory arbitration agreements in appropriate circumstances. All Duffield held illegal was the practice of requiring current or potential employees to choose between a job and statutorily guaranteed rights.

It is no answer to say that requiring arbitration does not affect workers’ “substantive rights.” Indeed, the question whether arbitration is a more or less effective forum than the federal courts through which to pursue discrimination claims is immaterial. The point we made in Duf-field, a point which is no less true today than it was then, is that federal courts may not allow employers to eliminate a right-even a procedural right — guaranteed by Title VII simply because of a general federal policy favoring the resolution of some disputes via arbitration. This would be true even if the procedural right were not deemed important both by Congress and the victims of racial and sexual discrimination to whose benefit it inured. And even if one thinks that compulsory arbitration was “authorized by law” in 1991, there is no support for the claim that Congress thought that arbitration agreements were “appropriate” when they forced victims of discrimination to give up the right of access to the federal courts.

By allowing employers to require all workers to enter into compulsory arbitration agreements, the majority today erases the choice-enhancing aspects of the 1991 Act that Congress enacted to overturn regressive judicial decisions such as today’s. What is more, the majority has discarded the only interpretation of Title VII that can honestly claim to construe faithfully the statute’s language in accordance with Congress’s will. And it has done so despite Congress’s explicit instruction to interpret statutory terms “susceptible to alternative interpretations • • • [by] selecting] the construction which most effectively advances the underlying congressional purpose.” H.R.Rep. No. 40(1) at 88. My colleagues today inexpli *768 cably emulate the same type of statutory revisionism that provoked Congress in 1991 to do what it does on only the rarest of occasions — overturn decisions of our nation’s highest Court.

Today’s decision by this en banc court constitutes a wilful judicial rebuke of Congress’s effort to protect the rights of American workers to trial by jury in race and sex discrimination cases. Contrary to the clear will of Congress, my respected colleagues invite employers to discharge (and/or not to hire) any woman, or any African American, Hispanic, Native American, or other minority group member, who has the courage to refuse to surrender his hard won right to confront, and thereby hold liable, his persecutor in the federal courts. After today, we have a little less of a dream. I dissent.

. See, e.g., S. Rep. No. 101-315 (June 8, 1990); H.R.Rep. No. 101-644(1) (July 30, 1990); H.R. Rep. No. 101-644(11) (July 31, 1990); H.R. Rep. No. 101-755 (Sept. 26, 1990); H.R. Rep. No. 101-856 (Oct. 12, 1990); H.R. Rep. No. 102-40(1) (Apr. 24, 1991); H.R. Rep. No. 102-40(11) (May 17, 1991). Only the last of these reports was published after Gilmer came down, and it is certain that it was written long before the Gilmer slip opinion made its way to Capitol Hill.

. That case was Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (holding that an arbitration clause in a collective-bargaining agreement did not preclude a worker from bringing an individual Title VII claim in federal court).

. Desert Palace, Inc. v. Costa, — U.S. -, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), for instance, interpreted the word "demonstrates” in the 1991 Civil Rights Act. The Court looked to the statutory definition of the word "demonstrates” in the Act and several other uses of the word inside of the same statute to determine that its meaning was unambiguous. Ratzlaf v. United States, 510 U.S. 135, 148, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), involved the phrase "willfully violating,” words that could be best understood by looking to other parts of the statute and to the long tradition of interpreting mens rea requirements. Even Circuit City Stores v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), at least applied a few canons of statutory construction before dis *765 missing the legislative history. None of those cases is remotely like this one; in none did the majority transform ambiguous text into certain command in order to disregard unambiguous legislative history.

. It is sometimes argued that committee reports and floor statements by individual members of Congress are not democratically approved by a majority of Congress. But the majority does not make this argument here. Nor could it; for examining the legislative history as evidence of congressional intent is far more democratic than imposing our own view of how Congress might have interpreted a Supreme Court case. Committee reports in particular are the product of democratic compromise; they require a vote by majority and allow for expressions of concurrence and dissent. “In surveying legislative history[, the Supreme Court has] repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which 'represent the considered and collective understanding of those [members of Congress] involved in drafting and studying proposed legislation.’ " Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 784 n. 16, 154 L.Ed.2d 683 (2002) (quoting Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984)).