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.
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