In the recent case of Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society, 2007 WL 702758 (C.A.8 (Neb.)) ("Woodmen"), the U.S. Court of Appeals for the Eighth Circuit held that an employee bound by an arbitration agreement may not seek damages against her employer as an intervenor in an EEOC enforcement action.  


On appeal from the district court's refusal to grant the employer's motion to compel arbitration, the Eighth Circuit reasoned that requiring Ms. Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.  The appellate court  also rejected claimant's argument that the arbitration agreement was preempted by the enforcement action under Waffle House.

The Court explained:

Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action . . . , it would not have had occasion or need to discuss the possible ramifications of an arbitration award [in its Waffle House decision].

The Woodmen court concluded that neither Title VII nor Waffle House precluded Ms. Rollins from arbitrating all of the cross-claims she asserted as an intervenor in the EEOC's enforcement action.  In fact, the FAA compelled her to do so.