(Image
via
Getty)
Forced
arbitration
clauses
get
a
bad
rap.
Understandably
—
most
people
don’t
even
know
that
after
some
purchase
or
acceptance
of
a
job
that
they
are
waiving
their
right
to
sue
potential
wrongdoers
in
court.
Businesses,
however,
love
them;
mandating
arbitration
in
the
event
of
conflicts
is
right
up
there
with
being
sure
to
register
your
business
in
Delaware,
especially
once
you
factor
in
the
potential
to
hire
serial
arbitrators
that
“unofficially”
have
your
back
when
something
goes
wrong.
Egregious
limitations
on
a
party’s
ability
to
seek
justice
in
court
because
of
forced
arbitration
clauses
sometimes
see
the
light
of
day.
So
much
so
that
Congress
passed
a
law
called
the
Ending
Forced
Arbitration
of
Sexual
Assault
and
Sexual
Harassment
Act
(EFASASHA)
to
ensure
that
instances
of
sexual
assault
and
sexual
harassment
aren’t
swept
under
the
table
by
such
“agreements.”
There
has
been
a
recent
push
for
the
enactment
of
a
similar
law
that
would
prevent
forced
arbitration
in
response
to
race-based
conflicts.
From
Bloomberg
Law:
Last
month,
Rep.
Hank
Johnson
(D-Ga.)
and
Sen.
Cory
Booker
(D-N.J.)
introduced
the
Ending
Forced
Arbitration
of
Race
Discrimination
Act
(H.R.
3038/S.1408),
which
would
give
workers
the
option
of
bringing
their
racial
bias
claims
to
court
even
if
they
initially
agreed
to
arbitrate
such
workplace
disputes.Passage
will
be
an
uphill
battle,
but
some
see
the
bill
as
a
way
to
tilt
the
balance
of
power
and
allow
workers
to
use
class
actions
to
stop
race
discrimination
in
the
workplace.“It
would
be
highly
significant
and
definitely
shake
up
the
legal
landscape”
for
employees,
said
Jean
Sternlight,
a
law
professor
at
the
University
of
Nevada
who
specializes
in
conflict
resolution.
“I
am
not,
by
any
means,
an
opponent
of
arbitration.
But
what
I
and
other
critics
of
mandatory
arbitration
believe
is
that
arbitration
can
work
well
but
it
should
be
chosen
knowingly
by
the
parties.”
That
last
bit
about
arbitration
being
chosen
knowingly
by
the
parties
is
a
huge
part.
It
sucks
to
find
out
that
your
right
to
a
day
in
court
is
no
longer
guaranteed
because
of
something
you
didn’t
know
you
agreed
to.
Speaking
of,
did
you
know
that
if
you
have
a
credit
card,
you
likely
consented
to
a
forced
arbitration
agreement?
Credit
card
companies
love
’em
because
they
come
out
winning
an
overwhelming
amount
of
the
time.
Fair
Arbitration
Now
has
gotten
into
some
of
the
numbers
and
it’s
really
worth
reading
to
grasp
how
outcome
setting
these
clauses
can
be:
In
“The
Arbitration
Trap:
How
Credit
Card
Companies
Ensnare
Consumers,”
Public
Citizen
analyzed
nearly
34,000
arbitration
cases
filed
with
NAF
between
2003
and
2007
and
found
that
creditors
won
an
astounding
93.9
percent
of
the
cases
in
which
an
arbitrator
was
appointed.
More
than
80
percent
of
the
time,
the
arbitrator’s
decision
was
based
solely
on
documents
provided
by
the
business
party
(usually
a
credit
card
company
or
debt
collection
firm).
In
such
“documents
only”
cases,
arbitrators
ruled
in
favor
of
the
company
99.99
percent
of
the
time.
In
the
2,019
cases
in
which
the
arbitrator
held
a
hearing,
the
consumer
prevailed
only
1.4
percent
of
the
time.
Imagine,
say,
some
attorney
worked
for
a
law
firm
where
they
had
a
hunch
that
their
partner’s
decision
to
skip
over
them
for
work
was
discriminatory
and
then
found
some
very
clear
evidence
to
support
that
they
were
not
giving
classes
of
colleagues
the
time
of
day,
that’s
something
that
you’d
likely
want
a
court
to
see,
right?
It
is
not
uncommon
for
arbitrators
to
be
the
ones
who
decide
which
pieces
of
information
enter
the
conversation
at
all.
And
if
it’s
between
some
schmuck
who
had
a
bad
run
in
with
a
company
or
the
company
that’s
paying
the
arbitrator
for
their
service,
who
do
you
think
the
arbitrator
is
skewed
toward
siding
with?
Do
you
think
that
arbitrators
that
routinely
side
with
the
little
guy
get
picked
up
by
the
company
again?
These
dynamics
are
rough
enough
when
it
comes
to
credit
cards,
just
imagine
the
difficulty
of
dealing
with
an
imposed
arbitration
instead
of
court
after
one
of
your
coworkers
got
a
little
too
non-sober
and
tried
to
rip
your
wig
off
or
something.
Thinking
that
you’ll
take
the
money
to
end
the
conflict
and
do
your
best
to
go
to
the
media
to
spread
awareness
afterward?
Good
luck
not
having
to
sign
an
NDA
as
part
of
the
agreement.
Arbitration
isn’t
all
bad
—
it
can
offer
degrees
of
speed
and
cost
effectiveness
that
trials
just
do
not.
But,
and
especially
in
cases
where
there
was
a
grave
issue
at
stake,
that
option
should
be
a
choice
each
of
the
parties
agree
to.
Ending
Forced
Arbitration
of
Race
Claims
Is
New
Diversity
Focus
[Bloomberg
Law]
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at cwilliams@abovethelaw.com and
by
tweet
at @WritesForRent.