A CONFLUENCE OF RESISTANCES
Cultural shifts aren’t always easy to identify as they’re occurring. Entrenched power perpetuates itself. It mobilizes to resist challenges. Change seems to come in fits and starts, sputtering out, gaining life, and frequently disappearing again. Then change seems to happen at once, when all the factors align the right way.
Cases in nearly every issue of the Bulletin, including this one, demonstrate the continued resistance of the courts to mandatory arbitration. The resistance is for good reason: arbitration, in the employment context, does not occur between parties of equal bargaining power. The employee needs the job, but the employer can choose from among many applicants to fill it. So in exchange for being able to make a living, employees must give away their constitutionally-guaranteed right to a jury trial.
Worse, arbitration isn’t a level playing field. A study from Cornell University in 2011 showed that employees win only half as often in arbitration as they do in court, and when they do win, the arbitral awards are only about a quarter of a courtroom verdict on average. The same study found repeat-player bias in arbitrations, meaning that an employee’s chances of winning are cut in half or less if the employer has more than one case before that arbitrator. See https://digitalcommons.ilr.cornell.edu/articles/577/ (last visited 3/16/18).
The negative impact of arbitration affects even the current movement against workplace sexual harassment. We’ve seen the highest levels of government and private industry shaken by seedy actions at last made public. For many subjected to unwanted sexual advances and even assault, however, justice never comes and the perpetrator gets to keep his secret. Arbitrations frequently come with a confidentiality provision, so even a victim who wins her hearing – which again, the data shows arbitration makes significantly less likely – gets no public vindication. The harasser can keep on harassing as long as his employer’s insurance company can still write checks.
This February, however, a confluence of resistances asserted themselves. Attorneys General from every State and Territory in the union signed a letter urging Congress to end mandatory arbitration provisions in employment contracts for those alleging sexual harassment. See http://myfloridalegal.com/webfiles.nsf/WF/HFIS-AVWMYN/$file/NAAG+letter+to+Congress+Sexual+Harassment+Mandatory+Arbitration.pdf (last visited 3/16/18).
The last time the Attorneys General came together like this was a decade ago. In 2008, they asked Congress to restore funding to a popular criminal justice program. Their request was granted in the following year’s budget. Congress apparently listens to a unified voice.
Perhaps history is in the making here. Maybe the rulings from the state and federal courts, and now the voices of the bipartisan Attorneys General, will change the long-seated status quo. We could be witnessing the beginning of the end of mandatory arbitration agreements in employment contracts, all while enabling sexual harassment victims to have their day in a public courtroom. The interests of justice could only be advanced by such a change.