The Civil Rights Act of 1991, which amended the 1964 law, permits courts to award attorney's fees to prevailing parties. InChristiansburg Garment Co. v EEOC, 434 U.S. 412, 98 S.Ct. 694 (1978), the Supreme Court held that a prevailing employer may be awarded attorney's fees only where the employee's lawsuit was "frivolous." The Supreme Court said that allowing the routine award of attorney fees to prevailing employers would undermine Title VII by deterring employees from bringing claims.

Under what circumstances should arbitrators award such fees?

In your opinion, should a court refuse to enforce an arbitration agreement in which an employee waives the right to recover attorney fees? How about an arbitration agreement with "loser pay" provisions in cases involving statutory disputes?