Forced arbitration hides workplace abuses. No one should forfeit rights for a job

‘Retaliation is the most undersold part of the sexual harassment story,' Gretchen Carlson says

Former Fox News host Gretchen Carlson supports a bill to end forced arbitratrion at a Capitol press conference on May 9, 2018.
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Former Fox News host Gretchen Carlson supports a bill to end forced arbitratrion at a Capitol press conference on May 9, 2018.

Imagine you’re a Stanford-educated woman at the top of your profession. You take a great job only to have the men in your office belittle you and tell you to wear tighter clothes.

When you complain, you’re told you’re “a man-hater.” When you meet with your boss to talk it out, he replies that you and he “should have had a sexual relationship a long time ago.”

AB 3080 would bar California employers from conditioning jobs on mandatory arbitration agreements. State lawmakers should pass it.

Or perhaps you’re a U.S. Navy reservist in Orange County, working for real estate company, for good money. One day you’re deployed to Afghanistan.

You’ll be back in a year, but your coworkers throw you a farewell party, with a red, white and blue sheet cake. Then the boss calls you in and fires you. By the time you get back, you’re told, the project you’re working on could be over. This, even though employers are barred from discriminating against military service members by federal law.

Or maybe you’ve worked for years for a big, blue-chip company in the Southern California office, and you’re now in your early 60s. One day, the company has a layoff. Heads start to roll.

Strangely, they’re almost all gray heads – older people, experienced people, people who are still, for the most part, high performers. Suddenly you realize that this is age discrimination, and it’s happening to you.

Nobody takes a job expecting to sue their employer. But sometimes the boss takes advantage. Indeed, recently that has been a trend.

Unfortunately, going to court isn’t an option for tens of millions of people, thanks to the rise of mandatory arbitration agreements as a condition of employment.

Private arbitration – in which disputes are settled behind closed doors, with no right to appeal, usually by a retired judge – can be a useful alternative to protracted litigation if both parties want it and are on equal footing. But the practice has been seized on by powerful corporations who use it to minimize the threat of lawsuits.

Workers aren’t on the same footing as their employers. Particularly in lower-wage jobs, they often don’t realize what they’re signing. And arbitration is notoriously favorable to employers, because those retired judges often see corporations as potential sources of repeat business. A 2011 Cornell University study found that employers won almost 80 percent of the time in arbitration, and that employees not only had a lower success rate than in employment litigation, but also got lower damage awards.

The Economic Policy Institute estimates that some 60 million non-unionized workers in the private sector are working – whether they realize it or not – under fine-print agreements that waive their constitutional right to a jury trial should they end up being the victims of workplace abuse.

Any claim they have goes automatically to private arbitration, which also means other workers with the same problem can’t find out about it. This is how sexual harassment gets to fester in workplaces, how bad bosses get away with wage theft, how big companies can flout rules against age bias (hello, laid-off baby boomers).

Nobody takes a job expecting to sue their employer. But sometimes the boss takes advantage. Indeed, recently that has been a trend.

It’s why former Fox News anchor Gretchen Carlson, the woman in the first example, had to sue her boss, Roger Ailes, personally, rather than as an agent of her employer. It’s how the Navy reservist, Lt. Kevin Ziober of Costa Mesa, ended up losing his job, and testifying on this issue in 2016 to Congress. It’s how, according to ProPublica, Diane Moos of Long Beach ended up appealing to the U.S. Equal Employment Opportunity Commission after IBM laid her off at 62 along with a thousands of senior workers.

And it’s about to get worse: On Monday in a 5-4 decision, the U.S. Supreme Court ruled that workers with arbitration agreements could be barred from joining together in class action lawsuits against employers. The ruling, argued by Trump administration lawyers and written by Trump-appointed Justice Neil M. Gorsuch, was widely interpreted as bad news for non-unionized, low-wage workers, who typically can’t afford to push back individually in civil court against employers who violate workplace laws.

As Gorsuch himself wrote, “Congress is of course always free to amend this judgment.” It’s a terrible judgment, and Congress should, in fact, rewrite the law.

In the meantime, however, California has a quick fix. Assemblywoman Lorena Gonzalez Fletcher’s Assembly Bill 3080 would bar companies here from requiring mandatory arbitration agreements as a condition of employment.

State lawmakers should pass it. From the #MeToo movement to the Fight for $15, this blue state talks a good game about worker protections. But if workers can’t work without signing away civil rights, and can’t complain unless it’s in secret in a stacked, shadow court system, those rights aren’t worth the paper they’re written on.