Working for Justice

Forced Arbitration: Overriding Civil Rights

Posted July 4th, 2014 by Kate Mueting in Employment Discrimination.

A few days ago, when Kate K wrote about Hobby Lobby, she also mentioned forced arbitration.  This is a cause I’m particularly passionate about.  My focus comes from seeing so many of my clients forced to make an impossible decision.  Whatever those that support forced arbitration may like to pretend, employees do not have equal bargaining power with their employers. Employees are too often faced with a choice—either agree to pre-dispute forced arbitration or don’t take the job. For those employees who are already working, they must agree they will not seek to enforce their civil rights in court, otherwise they can be fired. These are not real choices.

Our clients are inspiring. They are strong in their ability to recognize that how they are being treated is wrong and to stand up for themselves and for others—in the hopes of improving things for future generations. Forced arbitration is a weapon corporations use to try and silence these brave individuals.

I was talking with a former client last week about her fight to stamp out gender discrimination in her workplace.  She told me that it was not until she was personally affected by her company’s policy barring her from the courts and forcing her into arbitration that she realized just how inadequate the law is in its protection of workers.  “You think you’re protected,” she told me, but our country’s arbitration laws “allow company policy to override civil rights.”

Employers are able to override civil rights through the secrecy and other unfair advantages that forced arbitration provides.  Companies are able to discriminate without facing public repercussions, as everything must be handled secretly, and other current or future employees do not learn how the employer treats its employees.  For example, even if an employer is sued by dozens of women for unfair pay in forced arbitration, women applying for jobs remain unaware that the company systematically pays women less than men.  Forced arbitration also means that decisions are made, not by neutral judges, but by private individuals beholden to the discriminating employers, and that employees are precluded from obtaining the evidence necessary to prove their claims.

Employers don’t need these kinds of unfair advantages.  As my former client and I chatted, she was insistent that if more people knew how arbitration laws eviscerate civil rights, more would be motivated to seek a change and encourage Congress to pass the Arbitration Fairness Act.  I hope she is right.  To get involved, click here for more information from the National Employment Lawyers Association and Public Citizen.

Kate Mueting is a Partner in the Washington, DC office of Sanford Heisler Sharp. Ms. Mueting is responsible for managing much of the KPMG gender discrimination litigation and also represents employees in other individual and class discrimination and overtime cases.
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