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

345 F.3d 742

Opinions

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge PREGERSON; Dissent by Judge REINHARDT.

OPINION

TASHIMA, Circuit Judge.

Donald Scott Lagatree was refused employment as a legal secretary by Luce, Forward, Hamilton & Scripps LLP (“Luce Forward”) because he refused to sign an agreement to arbitrate all claims arising from his employment. Lagatree unsuccessfully sued Luce Forward in California state court. On Lagatree’s behalf, however, the Equal Employment Opportunity Commission (“EEOC”) brought this action against Luce Forward for retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12203(a), the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(d), and the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 215(a). The EEOC sought make-whole relief, lost wages and benefits, as well as emotional distress and punitive damages for Lagatree. The EEOC also sought a permanent injunction forbidding Luce Forward from (1) requiring that employees sign arbitration agreements as a condition of employment, and (2) engaging in unlawful retaliation.

The district court refused, on res judica-ta grounds, to award make-whole relief and rejected the EEOC’s request for in-junctive relief under the ADA, the ADEA, and the EPA. Relying on our decision in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir.1998), however, the district court enjoined Luce Forward from requiring applicants to agree to arbitrate Title VII claims and from enforcing existing agreements to arbitrate those claims. EEOC v. Luce, Forward, Hamilton & Scripps, LLP, 122 F.Supp.2d 1080 (C.D.Cal.2000) (“Luce Forward I ”). Luce Forward appealed and the EEOC cross-appealed.

A three-judge panel reversed the district court’s grant of injunctive relief, holding that “employers may require employees to sign agreements to arbitrate Title VII claims as a condition of their employment.” EEOC v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994, 997 (9th Cir.2002) (“Luce Forward II ”). The panel concluded that the Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), implicitly overruled our decision in Duffield. Luce Forward II, 303 F.3d at 997. Concluding that Lagatree had not engaged in protected activity in refusing to sign the agreement, the panel also rejected the EEOC’s argument that Luce Forward’s refusal to hire Lagatree because of his refusal to sign the agreement constituted illegal retaliation. Id.

Because of the importance of the issue, we agreed to rehear this case en banc. EEOC v. Luce, Forward & Hamilton, & Scripps, 319 F.3d 1091 (9th Cir.2003). While we disagree with Luce Forward II’s conclusion that Circuit City implicitly overruled Duffield, we need not explore that disagreement in detail.¹ It suffices to note that the panel opinion has been withdrawn. Id. We now conclude that, although Circuit City did not overrule Duffield, Duffield was wrongly decided; we therefore overrule it ourselves.

FACTUAL BACKGROUND

Lagatree was presented with Luce Forward’s standard offer letter on his first day of work. The offer letter included an arbitration provision requiring Lagatree to submit all “claims arising from or related to [his] employment” to binding arbitration. It provided:

In the event of any dispute or claim between you and the firm (including employees, partners, agents, successors and assigns), including but not limited to claims arising from or related to your employment or the termination of your employment, we jointly agree to submit all such disputes or claims to confidential binding arbitration, under the Federal Arbitration Act. Any arbitration must be initiated within 180 days after the dispute or claim first arose, and will be heard before a retired State or Federal judge in the county containing the firm office in which you were last employed. The law of the State in which you last worked will apply.

Lagatree objected to the arbitration provision, explaining that he “couldn’t sign ... the arbitration agreement” because “it was unfair.” In his deposition, Lagatree testified that he believed he needed to retain his “civil liberties, including the right to a jury trial and redress of grievances through the government process.”

Luce Forward told Lagatree that the arbitration agreement was a non-negotiable condition of employment. When Laga-tree still refused to sign the agreement, Luce Forward withdrew its job offer. It is undisputed that Luce Forward refused to hire Lagatree only because he would not sign the arbitration provision.²

Lagatree sued Luce Forward in state court, alleging wrongful termination in violation of public policy and in violation of the California Unfair Competition Law. Cal. Bus. & Prof.Code §§ 17200-17209; Cal. Civ.Code § 1668. Lagatree sought lost wages, damages for emotional distress, and punitive damages. The state court sustained Luce Forward’s demurrer to the complaint, holding that Luce Forward did not unlawfully discharge Laga-tree when he refused to sign a predispute arbitration agreement as a condition of employment. The California Court of Appeal affirmed, and the California Supreme Court denied review. Lagatree v. Luce, Forward, Hamilton & Scripps LLP, 74 Cal.App.4th 1105, 88 Cal.Rptr.2d 664 (1999), review denied, 2000 Cal. LEXIS 262, at *1 (Cal.2000).

While his state court suit was pending, Lagatree filed a discrimination charge with the EEOC, alleging that he was wrongfully terminated in retaliation for refusing to sign the Luce Forward arbitration provision. The EEOC sued Luce Forward on behalf of Lagatree and in the public interest, arguing that (1) Duffield prohibited Luce Forward from requiring Lagatree to sign an arbitration agreement, and (2) by refusing to hire Lagatree, Luce Forward unlawfully retaliated against him for asserting his constitutional right to a jury trial. The EEOC sought make-whole relief for Lagatree, including “rightful place employment,” back wages and benefits, and compensatory and punitive damages. The EEOC also sought a permanent injunction enjoining Luce Forward from engaging in unlawful retaliation and ordering Luce Forward to “desist from utilizing mandatory arbitration agreements.”

The district court denied monetary relief on res judicata grounds, finding that the state court judgment precluded the EEOC from obtaining monetary relief on Laga-tree’s behalf. Luce Forward I, 122 F.Supp.2d at 1086. The district court further ruled, however, that “[although the EEOC is in privity with Lagatree with respect to the claims for individual relief ..., the same is not true for the EEOC’s claims for injunctive relief pursuant to its duty to vindicate the public’s interest in preventing employment discrimination.” Id. at 1088. Observing that “Duffield is the law of the Ninth Circuit,” the district court permanently enjoined Luce Forward from:

1) requiring or requesting its employees to agree to arbitration of their Title VII claims as a condition of employment; and

2) attempting to enforce any such previously executed agreements to arbitrate Title VII claims.³

Id. at 1098.

The district court did not expressly rule on the EEOC’s retaliation theory, apparently considering it to be a subset of the question of monetary relief.

Luce Forward timely appealed the district court’s injunction. The EEOC cross-appealed, seeking to enjoin Luce Forward from engaging in an “unlawful retaliatory practice by denying employment to any applicant ... who refuses to waive his right to participate in statutorily protected ... proceedings.”⁴

STANDARD OF REVIEW

We review a grant of summary judgment de novo. See Clicks Billiards Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 816, 151 L.Ed.2d 700 (2002). “Here, the facts underlying the district court’s conclusion ... are not in dispute; therefore, the only question we must determine is whether the district court correctly applied the law.” TriState Dev., Ltd. v. Johnston, 160 F.3d 528, 529 (9th Cir.1998).

DISCUSSION

A. Duffield Erred in Concluding that the Civil Rights Act of 1991 Precludes Mandatory Arbitration of Title VII Claims

1. The Civil Rights Act of 1991

Federal law prohibits an employer from discriminating against an employee or applicant for employment “because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(l) (Title VII), “disability,” 42 U.S.C. § 12112(a) (ADA), or “age,” 29 U.S.C. § 623(a)(1) (ADEA). The EPA makes it unlawful to pay lower wages on the basis of an employee’s sex. 29 U.S.C. § 206(d)(1). The Civil Rights Act of 1991 (the “1991 Act”) was enacted to restore civil rights limited by then-recent Supreme Court decisions and to “strengthen existing protections and remedies available under federal civil rights laws to provide more effective deterrence and adequate compensation for victims of discrimination.” H.R.Rep. No. 102-40(11), at 1 (1991), reprinted in 1991 U.S.S.C.A.N. 549; see also Desert Palace, Inc. v. Costa, — U.S. -, -, 123 S.Ct. 2148, 2151, 156 L.Ed.2d 84 (2003) (“Congress passed the 1991 Act ‘in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964.’”) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 250, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (brackets in the original)). The 1991 Act provided for the first time a right to damages and to trial by jury, and expanded Title VII’s fee-shifting provisions. See H.R.Rep. No. 40(1) at 30; H.R. Rep. No. 40(11) at 1-4 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 694-96. The 1991 Act also included a “polite bow to the popularity of ‘alternative dispute resolution.’” Pryner v. Tractor Supply Co., 109 F.3d 354, 363 (7th Cir.1997) (internal quotation marks omitted). Specifically, § 118 of the 1991 Act provided that “[w]here 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. 102-166, § 118, 105 Stat. 1071 (codified at Notes to 42 U.S.C. § 1981).

Six months before the November 1991 enactment of the 1991 Act, the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In that case, decided on May 13, 1991, the Court held that a claim under the ADEA could be subjected to compulsory arbitration pursuant to an arbitration provision in a securities registration application requiring arbitration of “[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative.” Id. at 23, 111 S.Ct. 1647. The Court noted that statutory claims established by several different congressional acts may be the subject of arbitration agreements, enforceable under the FAA. Id. at 26, 111 S.Ct. 1647 (listing various acts). The Court also reiterated its position that “ ‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

The Court stated that statutory claims can be made subject to arbitration, “ ‘unless Congress itself has evinced an intention to preclude a waiver of judicial remedies.’ ” Id. (quoting Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. 3346). The Court placed the burden on Gilmer to demonstrate that Congress intended to preclude a waiver of a judicial forum as “discoverable in the text of the ADEA, its legislative history, or an ‘inherent conflict’ between arbitration and the ADEA’s underlying purposes.” Id. The Court also explained that such an inquiry must by guided by a “ ‘healthy regard for the federal policy favoring arbitration.’ ” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

Gilmer is clearly a shift from the Court’s earlier position in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), which held that a unionized employee’s earlier exercise of the compulsory arbitration provision in a collective bargaining agreement did not preclude him from later pursuing a Title VII discrimination claim in a judicial forum. Id. at 49, 94 S.Ct. 1011. Alexander also contained dicta suggesting that the judicial forum could not be waived for Title VII claims. See id. at 45, 94 S.Ct. 1011 (“[F]ederal courts have been assigned plenary powers to secure compliance with Title VIL”), id. at 52, 94 S.Ct. 1011 (“[A]n employee’s rights under Title VII may not be waived prospectively.”). Many courts interpreted Alexander as precluding mandatory arbitration of Title VII claims. See, e.g., Utley v. Goldman Sachs & Co., 883 F.2d 184, 187 (1st Cir.1989) (“As Congress has made the policy against discrimination ‘a highest priority,’ Alexander, 415 U.S. at 47, 94 S.Ct. 1011, we rule that an employee cannot waive prospectively her right to a judicial forum at any time, regardless of the type of employment agreement which she signs.”); Swenson v. Mgmt. Recruiters Int’l, Inc., 858 F.2d 1304, 1306-07 (8th Cir.1988) (“The analysis of Alexander lends strong support that Congress did not intend federal judicial proceedings in discrimination cases to be preempted by employment arbitration agreements enforceable under the FAA. The Court pointed up an inherent conflict between arbitration and the underlying purposes of Title VII which evince a congressional intent to prohibit waiver of judicial forums .... We conclude that in the passage of Title VII it was the congressional intent that arbitration is unable to pay sufficient attention to the transcendent public interest in the enforcement of Title VII.”); Rosenfeld v. Dep’t of the Army, 769 F.2d 237, 239 (4th Cir.1985) (stating that the “plain lesson” of Alexander is that Congress entrusted the final resolution of Title VII claims to the federal courts).

In Gilmer, the Court did not explicitly overrule Alexander, but limited its holding to the collective bargaining context. 500 U.S. at 35, 111 S.Ct. 1647. We have previously stated that “[although ‘the Supreme Court [did] not overrule Alexander in Gil-mer, it [did] reject a reading of Alexander as prohibiting the arbitration of employment discrimination claims.’ ” Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir.1994) (quoting Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 308 (6th Cir.1991)).

In the post-Gilmer world, our decision in Duffield stands alone. All of the other circuits have concluded that Title VII does not bar compulsory arbitration agreements. See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, 170 F.3d 1, 21 (1st Cir.1999) (holding that “there was no congressional intent to preclude pre-dis-pute arbitration agreements manifested in the [1991 Act]” but finding enforcement of the agreement inappropriate on facts of the ease); Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 206 (2d Cir.1999) (holding that the plaintiff did not meet his burden of establishing that Congress intended to preclude waiver of judicial remedies for Title VII claims); Seus v. John Nuveen & Co., 146 F.3d 175, 182 (3d Cir.1998) (finding “Title VII entirely compatible with applying the FAA to agreements to arbitrate Title VII claims”), abrogated on other grounds by Blair v. Scott Specialty Gases, 283 F.3d 595, 599-602 (3d Cir.2002); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir.1991) (holding that Title VII claims can be subject to compulsory arbitration); Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, (7th Cir.1999) (holding that “Congress did not intend Title VII to preclude enforcement of pre-dispute arbitration agreements”); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 837 (8th Cir.1997) (holding that Title VII claims are subject to pre-dispute arbitration agreements under the FAA); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir.1994) (holding that Title VII claims are subject to mandatory arbitration); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699 (11th Cir.1992) (per curiam) (holding that Title VII claims are subject to securities industry compulsory arbitration); cf. Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 881-82 (4th Cir.1996) (Title VII no bar to collective bargaining agreement to first pursue arbitration); Willis, 948 F.2d at 307 (holding that, under Gilmer, an arbitration agreement in securities registration is enforceable with respect to Title VII claims, but noting that it is not an employment contract).

2. Our Decision in Duffield

In Duffield, we held that for Title VII claims, the 1991 Act precludes enforcement of arbitration agreements entered into as a condition of employment. 144 F.3d at 1185. We considered the 1991 Act’s text, legislative history, and general purpose to discern whether Congress had evinced an intent to preclude waiver of judicial remedies for the statutory right at issue. Id. at 1190-1200. We based our holding that the 1991 Act precludes “compulsory arbitration”⁵ of Title VII actions on three bases: (1) We read the purpose of the 1991 Act to be at odds with compulsory arbitration agreements. (2) We read the text of § 118 to limit arbitration agreements to those entered into voluntarily. (3) We read the legislative history of § 118 to evince a congressional intent to so limit its application. On reconsideration en banc, we now conclude that our holding in Duffield was in error.

a. Purpose of the 1991 Act

In Duffield, we found the purpose of the 1991 Act to be at odds with compulsory arbitration agreements. We noted that the “purpose of the [1991] Act was uniformly to expand employees’ rights and ‘to increase the possible remedies available to civil rights plaintiffs.’” 144 F.3d at 1192, (quoting Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1304 (9th Cir.1994)⁶ (emphasis added in Duffield)). We concluded that the most plausible reading of the statutory provision encouraging arbitration directed it towards voluntary agreements:

It thus would be “at least a mild paradox” to conclude that in the very Act of which the “primary purpose” was “to strengthen existing protections and remedies available [to employees under Title VII],” Congress “encouraged” the use of a process whereby employers condition employment on their prospective employees’ surrendering their rights to a judicial forum for the resolution of all future claims of race or sex discrimination and force those employees to submit all such claims to compulsory arbitration. It seems far more plausible that Congress meant to encourage voluntary agreements to arbitrate....

Id. at 1192-93 (citations and footnote omitted) (brackets and emphasis in the original).

The presumption in Duffield, however, that allowing compulsory arbitration weakens the 1991 Act is inconsistent with the Supreme Court’s endorsement of arbitration. See Gilmer, 500 U.S. at 30, 111 S.Ct. 1647 (“Such generalized attacks on arbitration ‘rest[ ] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,’ and as such, they are ‘far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.’ ” (quoting Rodriguez de Quijos v. Shearson/Am. Express, Inc., 490 U.S. 477, 481, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989))). In addition, the view that compulsory arbitration weakens Title VII conflicts with the Supreme Court’s stated position that arbitration affects only the choice of forum, not substantive rights. See EEOC v. Waffle House, Inc., 534 U.S. 279, 296 n. 10, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002); Gilmer, 500 U.S. at 26, 111 S.Ct. 1647. Moreover, the EEOC, which “was intended ‘to bear the primary burden of litigation,’ ” Waffle House, 534 U.S. at 286, 122 S.Ct. 754 (quoting Gen. Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)), retains this role. Despite the presence of an employee-employer arbitration agreement, the EEOC can still pursue judicial remedies because it is not a party to such agreements. Waffle House, 534 U.S. at 294, 122 S.Ct. 754 (“It goes without saying that a contract cannot bind a nonparty. Accordingly, the proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.”).

We also reject the argument of certain amici that the 1991 Act’s provision of a right to jury trial precludes arbitration of Title VII claims. As Duffield acknowledged, that right provides no general bar to voluntary arbitration. 144 F.3d at 1189 (“We [previously] rejected the argument that simply because the 1991 Act’s amendments to Title VII provide for the right to jury trial, that right evinces a congressional intent to allow claimants to escape the binding effect of arbitrations that they initiated.” (citing Nghiem, 25 F.3d at 1441)). Although Duffield distinguished compulsory from voluntary arbitration, see id., we now join several other circuits in concluding, pursuant to Gilmer, that the right to jury trial presents no bar to compulsory arbitration. See Desiderio, 191 F.3d at 205 (“[I]t is untenable to contend that compulsory arbitration conflicts with the Act’s provision for the right to a jury trial, because Gilmer ruled that compulsory arbitration clauses could be enforced in claims under the ADEA, a statute that explicitly provides for jury trials.”); Rosenberg, 170 F.3d at 11 (“The district court’s comment that an endorsement of arbitration would be at odds with the 1991 [Act’s] creation of a right to a jury trial ... ignores Gilmer’s endorsement of arbitration under the ADEA — which also provides for jury trials. It may also evince a distrust of arbitration that the Supreme Court has long since disavowed. While people may and do reasonably disagree about whether predispute arbitration agreements are a wise way of resolving discrimination claims, there is no ‘inherent conflict’ between the goals of Title VII and the goals of the FAA, as Gilmer used that phrase.”).

We thus disagree with Duffield’s conclusion that a conflict exists between the purpose of Title VII and compulsory arbitration of Title VII claims.⁷

b. Text of Section 118

As noted, § 118 provides: “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 [1991] Acts or provisions of Federal law amended by this title.” Nothing in the text directly demonstrates a congressional intent to preclude compulsory arbitration agreements. Nonetheless, in Dujfield, we concluded that the “text of the section is, at a minimum, ambiguous — and that, at a maximum, it stands for a proposition” that compulsory arbitration is precluded. 144 F.3d at 1193 (emphasis in the original). We concluded that the terms “where appropriate” and “to the extent authorized by law,” in § 118, limited congressional encouragement of arbitration to situations where it would be “both legally permissible and appropriate.” Id. at 1193 (emphasis in the original). We then read the term “where appropriate” to limit arbitration to situations furthering the objectives of the 1991 Act, which we construed to be limited to providing an opportunity for discrimination victims to employ an alternative forum if they desired. Id. at 1194. We found this purpose to be at odds with compulsory arbitration because it conflicted with Title VII’s purpose to expand employee rights. Id. This reading merely repeats the faulty presumption that arbitration undermines the 1991 Act’s purpose. The phrase “where appropriate” simply provides no direct indication that Congress intended to preclude a waiver of the judicial forum.

We interpreted “to the extent authorized by law” to refer to Congress’ understanding of the law at the time. The Dujfield court concluded that Congress understood the law as articulated by Alexander and cases following it, rather than Gilmer. Duffield’s rationale for this interpretation was that “as of the time § 118 was drafted and reported out of the House Education and Labor Committee, the circuit courts, without exception, had ‘widely interpreted’ Title VII as prohibiting ‘any form of compulsory arbitration.’ ” Id. at 1194 (quoting Lai, 42 F.3d at 1303) (emphasis added by Dujfield). Dujfield acknowledged that, prior to the enactment of the 1991 Act, the decision in Gilmer made the law less clear, but suggested that “it was still at least an open question whether Gilmer applied to Title VII claims.” Id.

This analysis is problematic in several respects. First, the AJDEA, at issue in Gilmer, contains a section identical to § 118. See 42 U.S.C. § 12212 (“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 this chapter.”). Although the Gilmer Court did not expressly interpret the ADEA’s text because Gilmer conceded that nothing in the text precluded arbitration, 500 U.S. at 26, 111 S.Ct. 1647, it squarely held that claims under the ADEA can be subjected to compulsory arbitration. Id. at 23, 111 S.Ct. 1647. In addition, although the Court decided Gilmer close in time to the passage of the 1991 Act, we must “assume that Congress is aware of existing law when it passes legislation.” Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Gilmer was decided in May 1991 and the 1991 Act was not enacted until November of that year. During this intervening six months, Congress surely became aware that Gilmer, and not Alexander, provided the Supreme Court’s prevailing assessment of employment arbitration agreements. Moreover, the legal landscape encompassed by the phrase, “to the extent authorized by law,” must also include the FAA. See, e.g., Sens, 146 F.3d at 183 (“[I]t seems most reasonable to read this clause as a reference to the FAA.”). This aspect of the law also incorporated the “liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp., 460 U.S. at 24, 103 S.Ct. 927.

Finally, as other courts have pointed out, it would be ironic to interpret statutory language encouraging the use of arbitration and containing no prohibitory language as evincing Congress’ intent to preclude arbitration of Title VII claims. See, e.g., Armendariz v. Found. Health Psychcare Serv., Inc., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 677 (2000) (“[I]t is difficult to believe that Congress would have chosen to ban mandatory employment arbitration by means of a clause that encourages the use of arbitration and has no explicit prohibitory language, when it could have simply and straightforwardly proscribed mandatory employment arbitration of Title VII claims.”); Seus, 146 F.3d at 183 (“Nor do we believe this straightforward declaration of the full Congress can be interpreted to mean that the FAA is impliedly repealed with respect to agreements to arbitrate Title VII claims which were executed by an employee as a condition of securing employment.”).

We therefore conclude that the text of § 118 does not present any ambiguity suggesting that it may be intended to preclude compulsory arbitration.

c. Legislative History

In Duffield, we also concluded that Congress had precluded applicability of arbitration agreements to Title VII claims because of the legislative history of the 1991 Act. We stated that it was the “unusual force and clarity of the statute’s legislative history that is ultimately dispositive in this case.” 144 F.3d at 1195. The legislative history does contain language suggesting that Congress intended to retain the judicial forum.⁸ We conclude, however, that this history should not be relied on to establish that Congress intended to preclude waiver of a judicial forum in derogation of a clear and unambiguous statute.

Because the text of § 118 is unambiguous, we are precluded from considering legislative history. See Desert Palace, — U.S. at -, 123 S.Ct. at 2153 (“And where, as here, the words of the statute are unambiguous, the judicial inquiry is complete.” (citations and internal quotation marks omitted)); Circuit City, 532 U.S. at 119, 121 S.Ct. 1302; Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’”) (quoting United States v. Ron Pair Enter., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear”).

As the Second Circuit aptly explained in Desiderio:

While the language cited from the Committee reports suggests the preservation of the right to a judicial remedy under Title VII, such language is not found in the text of the statute. Rather, the Act says that the use of arbitration is to be “encouraged.” We recognize that Congress’ aim to foster arbitration, by itself, does not thereby require us to preserve an agreement waiving rights to a judicial forum. But, we assume, as does the Supreme Court, that the drafters of Title VII and the amendments introduced in the [1991] Act were well aware of what language was required for Congress to evince an intent to preclude a waiver of judicial remedies. In construing Title VII, the absence of that language is a meaningful omission. Moreover, the substantive rights found in the statute are not in any way diminished by our holding that arbitration may be compelled in this case, since only the forum — an arbitral rather than a judicial one — is affected, and plaintiffs rights may be as fully vindicated in the former as in the latter. As a result, and primarily because we find the language of the statute to be clear, we need not consider the inconsistent legislative history.

191 F.3d at 205-06 (citation omitted).

If Congress intended to preclude Gilmer from permitting enforcement of arbitration agreements, it knew how to do so. In fact, other provisions of the 1991 Act are devoted to overruling Supreme Court decisions. See H.R.Rep. No. 102-40(11), at 2 (1991), reprinted in 1991 U.S.S.C.A.N. 549 (discussing the Supreme Court cases that the 1991 Act overrules).⁹

B. Retaliation Claim

In its cross-appeal, the EEOC appeals the district court’s denial of a permanent injunction to “enjoin [Luce Forward] from engaging in an unlawful retaliatory practice by denying employment to any applicant or employee who refuses to waive his or her right to participate in statutorily protected enforcement proceedings under all the federal anti-discrimination laws: Title VII, the ADA, the ADEA, and the EPA.” Except for applying Duf-field to the Title VII claim, the district court did not address the issues raised by the EEOC’s request for injunctive relief on these claims.

At least on the surface, it would appear that, if an employer can compel its employees to submit all claims arising out of their employment to arbitration, no retaliation would be involved in an employer’s exercise of such right, because an employee opposing such a practice would not be engaged in any protected activity. At oral argument, however, the EEOC advanced a novel theory why, even assuming our overruling of Duffield, an employer’s adverse action against an employment applicant for his or her opposition to compulsory arbitration would still amount to retaliation under the Civil Rights Acts. Because this argument was not fully developed on appeal, we leave it to the district court to address on remand.

CONCLUSION

For all of the foregoing reasons, we overrule our decision in Duffield. Because it was based on Duffield, we reverse the judgment of the district court insofar as it granted the EEOC’s request for injunctive relief. With regard to the EEOC’s request for injunctive relief on its retaliation theory, we remand this issue to the district court to address in the first instance. Each party shall bear its own costs on appeal.

In No. 00-57222, the judgment is REVERSED.

In No. 01-55321, the judgment is VACATED and REMANDED.

1 . A three-judge panel can overrule a prior decision of this court when " 'an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.’ " United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992) (quoting United States v. Lancellotti, 761 F.2d 1363, 1366 (9th Cir.1985)); see also Miller v. Gammie, 335 F.3d 889, 899-900 (2003) (en banc). Duffield and Circuit City, however, are not closely on point. In Duffield, we held that, pursuant to the Civil Rights Act of 199.1, Title VII claims are not subject to mandatory arbitration agreements entered into as a condition of employment. 144 F.3d at 1185. Circuit City involved an entirely different issue under the Federal Arbitration Act ("FAA”), 9 U.S.C. §§ 1-16, reserved by the Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), concerning the reach of an exception in the FAA for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in ... interstate commerce,” 9 U.S.C. § 1. In Circuit City, the Court held that the exemption applied only to transportation workers and not to employees in interstate commerce in general. 532 U.S. at 109, 121 S.Ct. 1302. In Circuit City, the underlying cause of action was a state employment discrimination claim. Id. at 110, 121 S.Ct. 1302. The case did not involve a claim under Title VII or any other federal employment discrimination statute. Although the Court stated that "arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination,” id. at 123, Circuit City simply did not address the specific question whether Congress had demonstrated an intent to preclude arbitration of Title VII claims in the text, legislative history, or purpose of the 1991 Act.

2 . Lagatree actually worked two days without a contract while execution of the contract was pending.

3 . The injunction did not enjoin compulsory arbitration of ADA, ADEA, or EPA claims.

4 . The EEOC did not appeal the district court's ruling that monetary relief was barred by res judicata.

5 . In Duffield, we defined "compulsoiy arbitration” to apply "when individuals must sign an agreement waiving their rights to litigate future claims in a judicial forum in order to obtain employment with, or continue to work for, the employer.” 144 F.3d at 1187.

6 . In Lai, decided under the FAA, two employees of Prudential signed a form that indicated an agreement to arbitrate; however, they were told the document meant something else and were not allowed to read it, and were not given a copy of the arbitration procedure incorporated by the document they signed. 42 F.3d at 1301. The court held that the employees were not bound to arbitrate "because they did not knowingly contract to forego their statutory remedies in favor of arbitration.” Id. at 1305.

7 . We also decline to join in Duffield's leap, equating a purpose to encourage arbitration with a purpose to prohibit compulsory arbitration.

8 . In particular, in Duffield, we focused on the following language in the Committee Reports:

The Committee emphasizes ... that the use of alternative dispute mechanisms is ... intended to supplement, not supplant, the remedies provided by Title VII. Thus, for example, the committee believes that any agreement to submit disputed issues to arbitration, whether in the context of collective bargaining or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). The Committee does not intend this section to be used to preclude rights and remedies that would otherwise be available.

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 VII. 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 equal 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.

H.R.Rep. No. 40(1) at 97, 104.

Other courts, however, have noted that "additional statements by members of Congress expressed the view that section 118 did not preclude binding arbitration.” Rosenberg, 170 F.3d at 10 (citing 137 Cong. Rec. S15,-472-01, S15,478 (daily ed. Oct. 30, 1991) (statement of Sen. Dole)).

9 . We also note that not only did Congress not include express statutory language precluding waiver of a judicial forum for Title VII claims, it has subsequently rejected legislation that would have such an effect. See Rosenberg, 170 F.3d at 10 (listing legislative proposals that Congress rejected).