Civil Rights Mockery: Mandatory Arbitration Strips Employees of Hard Won Rights

by Dr. Rhonda Hackett

Published on this site: April 8th, 2005 - See more articles from this month...

So, you thought the Civil Rights movement was over. The sixties are long behind us, and ever since then America has led the free world in upholding our most basic civil liberties and rights at all costs, right? Think again. While we rest on our laurels and tout the passage of the Civil Rights Act of 1964 as proof of our nation’s insistence on fairness, equality, and as support for our self-proclaimed status as leader of the free world, employers all over the country blatantly thumb their noses at what can only be called our alleged civil rights.

Like many of you, I operated on the basic assumption that if my civil rights were ever threatened I could have my day in court. Not so. If you happen to have an employer who insists on you signing a contract with a mandatory binding arbitration clause, you my friend, are up the proverbial creek without a paddle. Agreeing to arbitration – I did because I wanted the job, never presumed I’d experience a violation of my civil rights – simply means you waive your federal law given right to have that day in court. In essence, your civil rights have no meaning in the context of arbitration because you cannot go to court to protect them.

You see, arbitration is a private forum that subjects you to a secret process that is not required to follow or uphold the letter of the law. Moreover, the secret system has absolutely no checks and balances in place. In our public system, judges are required to follow precedent and make their legal rulings on the record. Arbitrators, on the other hand, are not even required to be familiar with the law, much less know it, relevant to any case they are hearing; nor are they required to offer an explanation for their ruling. If you go to court and the judge or jury seems to have misinterpreted the law in your case, you can appeal the decision. If an arbitrator makes such an error, it does not matter. You are stuck with his or her mistake. Case closed.

If you believe you are being discriminated against because of your gender, race, age, or a disability and your employer has you bound by the mandatory arbitration clause, forget seeking justice in the public court system that your tax dollars help pay for. In my case, my pocket book was $80,000 plus change thinner after arbitration fees and attorney fees incurred while I pursued my claim of gender discrimination. An exorbitant amount? Sure, but know that most such cases will set you back a cool $20,000-$50,000 at a minimum, depending on who you ask. Can America’s Everyman afford this system?

Arbitrators and their supporters will argue that they are impartial in all cases they hear. Give me a break. They are paid by employers who are often repeat customers. An employer, who insists on including a binding arbitration clause, has more than one employee and obvious potential for continued business. As an individual bringing a case under the auspices of arbitration you only get one shot. No appeal or recourse remember? Who do you think the arbitrator will want to keep happy? And remember, he or she can engage in this seeming unethical behavior, because that is what this secret system allows.

What’s in this for employers? A stacked system in their favor; getting rid of disgruntled employees in a quicker manner than the public court system would allow; freedom to push the limits of the law, if not conduct business on the outskirts; and comfort in knowing that only a small percentage of their employees will ever be able to afford this private and secret system of so-called justice.

Attorneys, legal scholars, consumer advocates, employee advocates, the EEOC, every federal agency charged with enforcing labor and civil rights laws, government commissions, and believe it or not, the National Academy of Arbitrators and the Society of Professionals in Dispute Resolution, all slam the use of mandatory arbitration in discrimination cases. Despite this unwavering denouncement employers are increasingly turning to mandatory arbitration clauses and as a society we allow the travesty to continue. Resist such clauses and demand that your law makers put this issue on the front burner. Let’s not allow our civil rights to continue to be the joke mandatory arbitration has turned them into.

Dr. Rhonda Hackett is an advocate working to right social wrongs. She writes a regular column for the Denver Homeless Voice Newspaper and lives in the Denver Metro area.mailto:[email protected]