Private Justice
Cut off from court, women are forced to seek justice in the board rooms of private law firms.
She threw her shoulder into the heavy oak door to thrust it open, revealing a lobby made of polished white marble and staircases with gold banisters that spiraled upwards to the attorneys’ offices upstairs. She adjusted her load of paperwork and brushed her hair out of her eyes as she approached the law firm’s receptionist to check in for her arbitration.
As she followed the receptionist to the conference room, she froze when she saw him. He had been her boss at the hospital, in her first year of residency after finishing medical school. She knew something was wrong her first day on the job. It started with the unwanted shoulder rubs. Then he began trailing his hand down her spine and resting it on the small of her back as he stood next to her. Soon the late-night phone calls began, inviting her to his home so he could “get to know her better.” She asked him to stop one day, squirming away from his wandering hands. He glared at her and warned her not to ruin her reputation by speaking out of turn — he was an acclaimed surgeon, and she was just a resident.
Her heart pounded as she saw him there behind the glass wall. He was reclining in his chair, sipping a cappuccino as he sat across from another older man in a tailored suit. He looked so relaxed, laughing and joking with his companion. Meanwhile she was shaking as she tried to not drop all the documents she’d brought with her, painstakingly laying out the timeline of his unwanted, and unrelenting, sexual advances.
The receptionist asked her to wait at the large oak table in the law firm’s conference room. The Arbitrator would be in shortly to hear her case. Her palms began to sweat when her harasser strolled through the door with the man in the suit he’d been sharing a coffee with. Must be his attorney, she thought. She didn’t have one — she couldn’t afford both the costs of the arbitration and to hire a lawyer. And many lawyers won’t take contingency fees for cases that go to arbitration, because the chances of winning outside of court are lower.
She was confused, though, when the older man in the suit didn’t sit down next to the doctor. She watched as he strode to the head of the table, seating himself behind the embossed placard that read, “Arbitrator.” She began to panic as the older man flipped open a legal pad, uncapped an expensive-looking pen, and said, “alright, are we ready to begin?”
Her hands shook as she fumbled through her notes, feeling both men’s eyes on her as they waited for her to start. How could this man, who was having a friendly coffee with her harasser moments earlier, be judging the validity of her sexual harassment claim? She didn’t understand until she read the name printed on the stationary at the table. It was the same law firm that represented her employer in medical malpractice cases — of course he knew the doctor.
She had tried to bring her case in court, requesting a jury trial. But the court dismissed her case because of the fine print in her employment contract. She had to go to private arbitration instead. She fought back the tears welling up in her eyes as she realized she would have to explain, in detail, the humiliation and harassment she’d suffered, to these two men, behind closed doors, at a private law firm. When she’d walked into court that first, hopeful day the phrase, “equal justice under law” had been engraved above the courthouse door. But because of the mandatory arbitration clause hidden in her contract, her only chance at justice was in this room, where the names of the firm’s all-male partners were engraved over the conference room door.
When she’d walked into court that first, hopeful day the phrase, “equal justice under law” had been engraved above the courthouse door.
That scenario — forcing women out of courtrooms and into private arbitration — is becoming more common as the trend of employers adding forced arbitration clauses into employment contracts grows. Just ask Gretchen Carlson and the other women at Fox News who were prohibited from joining a class action for sex discrimination and sexual harassment, because of forced arbitration clauses. Or Dr. Deborah Pierce, an emergency room doctor who was forced out of court and into private arbitration when she filed a sex discrimination claim against her employer who had a pattern of denying promotions to women. The fictional depiction above illustrates cases like Dr. Pierce’s — who walked into a hearing to find her former employer having a “friendly coffee” with the private attorney who would be adjudicating her case in arbitration.
Arbitration is a form of private dispute resolution in which the employer and employees submit their case to a professional arbitrator (usually a private lawyer), who will hear both sides’ positions and decide who wins. The arbitrator’s decision is legally binding and generally non-appealable in court — meaning, it’s final. And usually, the arbitrator deciding the dispute is chosen — and oftentimes paid for — by the employer. Forced arbitration occurs when employers place arbitration clauses in the fine print of employment contracts, requiring employees to sign them and waive their rights to resolve disputes in court, just to get — or keep — their jobs.
Forced arbitration contracts bar women from access to the courts for all types of employment-related claims, including those based on Title VII of the Civil Rights Act; the Americans with Disabilities Act; the Family and Medical Leave Act; and the Fair Labor Standards Act. This means that when a woman is paid less than she is owed, is demoted for being pregnant, or is underpaid because of her race, she cannot have her claim heard in a court of law — instead, she is locked into a private arbitration process that favors the employer.*
It’s estimated that at least 60 million workers in America are subject to forced arbitration and may not even be aware of it. Because of a clause in the fine print of the contract they signed to get a job, workers must accept a process they often don’t understand, where the costs of seeking justice might be far higher, even as their chances of winning or obtaining a just award of damages are reduced dramatically.
Arbitration is like a private, for-profit court system, where the employer usually gets to pick the judge.
When it comes to fairness on the job, it matters that women are given their day in court — even when they lose, because the nation still pays attention. Take Lilly Ledbetter’s case, for example, Ledbetter v. Goodyear Tire & Rubber Co. When she found out that she was earning significantly less than her male colleagues for during her 20-year career at Goodyear, she fought her case all the way to the Supreme Court. She lost because of a flawed procedural requirement in the law — she did not file suit within 6 months from the time her employer first started underpaying her, even though she didn’t know at that time that she was being underpaid. As Justice Ginsburg rightly pointed out in her dissent, it can take time for women to discover pay discrepancies, particularly when comparative pay information is hidden from them.
But because Lilly Ledbetter spoke out in open court, the nation heard her story — and so did Congress. The first piece of legislation that President Obama signed was the Lilly Ledbetter Fair Pay Act of 2009, fixing the procedural problem in the law that was keeping women from their day in court. Having our day in court matters.
If she had been forced into private arbitration instead, the nation never would have heard about Lilly Ledbetter.
And many of the employees subject to mandatory arbitration were also forced to waive their right to be part of a class action lawsuit — out of the 60 million workers subject to mandatory arbitration, employers have required 24.7 million of them to sign away their rights to address widespread violations through class-action lawsuits.
As the #MeToo movement gains momentum, in February 2018 the attorneys general from every state and U.S. territory formed a bipartisan coalition to unanimously call on Congress to end the practice of secret, forced arbitration in cases of workplace sexual harassment. But Congress has continually failed to pass the Arbitration Fairness Act, a law that would prevent forced arbitration in employment disputes. And the United States Supreme Court is expected to weigh in on the legality of forced arbitration in employment in a case called National Labor Relations Board v. Murphy Oil, with a decision expected before Court’s term ends in June 2018.
As the Justices of the Supreme Court sit in their chambers debating the outcome of the Murphy Oil case, and as our Congressional Representatives adjourn at the end of another day failing to pass laws that would protect women’s rights to go to court, thousands of women like Dr. Deborah Pierce sit alone in law firm conference rooms and rented offices spaces. Across from their sexual harassers, or bosses who failed to promote them because they are women. And a private arbitrator. Waiting, for private justice.
*While this post focuses on women’s issues, forced arbitration affects all employees — men and women alike — for nearly any employment-related claim. Nobody should have to sign away their rights to go to court just to get a job.
