Forced Arbitration...

Why you probably can’t sue your employer for sexual harassment

US companies have forced about 60 million workers to sign arbitration clauses that prevent them from suing their employer over illegal conduct.

By Alexia Fernández Campbell and Alvin Chang

Millions of American workers have given up their right to go to court just to earn a paycheck. They can’t sue their employer for sexual harassment, or for racial discrimination, or for stealing their wages, or for nearly anything else.

That’s because these employees signed so-called mandatory arbitration agreements that are the new normal in American workplaces. These agreements are often buried in a stack of hiring documents that managers require new employees to sign. They usually have a legalese name, such as “Alternative Dispute Resolution Agreement.”

In signing these clauses, employees agree to take whatever claims they might have to private arbitration, a quasi-legal forum with no judge, no jury, and nearly zero government oversight. Under this process, workers are less likely to win their cases, and when they do win, they tend to get much less money than they would in court.

Chances are if you’re reading this article and you work for a private company, you probably signed one too (check our interactive tool below to see if your employer has one). About half of non-unionized workers at US companies are subject to these agreements — more than double the share in the early 2000s. America’s most well-known companies, including Walmart, Starbucks, Macy’s, Uber, Google, and McDonald’s, now require all their workers, or some of them, to sign them. (Full disclosure: Vox Media does too.)

The rise of mandatory arbitration has made it nearly impossible for workers to seek legal justice for wage theft, overtime violations, and job discrimination. This secretive system also has the potential to hamper the #MeToo movement. Women are coming forward, often for the first time, with stories of widespread sexual harassment at work, only to discover that they’ve been shut out of the court system because they signed an arbitration agreement. The practice is particularly harmful to women and black employees, as they are more likely to be subjected to arbitration agreements because they make up a large share of workers in the industries that require arbitration the most: education and health care.

“What’s really happening is that our judicial system is getting privatized,” said David Gottlieb, an employment attorney in New York who often represents workers in arbitration. “It’s being privatized in a way that really only favors one side, the employer.”

But it’s not just hospitals and universities that have gone this route. Silicon Valley tech companies are also fans of mandatory arbitration clauses. And in the wake of a recent Supreme Court ruling that allows employers to prohibit class-action claims from workers in arbitration, companies have even more incentive to add arbitration clauses to their employment contracts. Unless Congress does something to stop this practice, it won’t be long before the vast majority of American workers are forced to give up their day in court.

Arbitration is stacked in favor of employers

The remarkable rise of mandatory arbitration in the workplace is the result of multiple Supreme Court rulings that have allowed businesses to expand its use.

Arbitration, which was once limited to contract disputes between businesses, now extends to legal disputes with consumers and employees. Companies argue that it’s a quicker, less expensive forum to resolve employment conflicts, and that’s true. But there are other incentives for businesses too: Private arbitration allows companies to hide misconduct that would otherwise be made public in court; arbitrators are much more likely than jurors to rule in favor of employers; and arbitrators are far less likely than jurors to give multimillion-dollar awards to workers when they find a company at fault for breaking the law.

Information about arbitration cases is scarce because they all take place outside the court system. But in 2015, California began requiring arbitration firms with clients in the state to publish limited data about all their cases in the United States.

A Vox analysis of the data published by the American Arbitration Association, the largest arbitration firm in the US, handling about 50 percent of all employment cases, showed that it handled 8,209 complaints filed by employees bound by mandatory arbitration agreements between 2013 and 2017. Data shows that arbitrators awarded monetary damages to the workers in only 1.8 percent of those cases. The vast majority — 78 percent — were settled through an unspecified mutual resolution.

Vox’s Alvin Chang created this interactive tool for you to see if your employer requires workers to sign arbitration clauses. The data only includes companies that hired one of the four largest arbitration firms to handle disputes with employees subject to arbitration between 2013 and 2017. (If your company is not listed here, it’s possible it still requires arbitration, but it might work with a different firm or didn’t use arbitration during this time frame, as is the case with Vox Media. Ask your human resources department.)

Does your company require employees to sign arbitration agreements?

The “heavy veil of secrecy” surrounding arbitration is one of biggest problems with the process, says Cynthia Estlund, an employment law professor at New York University.

“The private and contractual nature of arbitration makes it relatively easy for firms to prevent disclosure of just about anything concerning allegations, evidence, disposition, or settlement of the disputes, not just by parties but by the tribunals themselves. ... That means that firms have less to worry about if they violate the law,” she wrote in a white paper published last October.

In the case of sexual harassment, an employee at a company would have a difficult time finding out if a manager had a history of preying on female workers, based on the limited information that arbitration firms have to report. Moreover, the workers who take part in arbitration are often required to sign nondisclosure agreements as part of the settlement process, so they are forbidden by law from talking publicly about the case. If an arbitrator decided that a boss did illegally harass an employee, that boss could theoretically continue to harass women in the same company, or at another job, without his behavior coming to light.

How arbitration works

The first thing to keep in mind is that no arbitration proceeding is the same, as there are essentially no rules that arbitrators have to follow under the law. That’s because arbitration isn’t bound by court rules and has nearly no legal oversight. The process can vary from one arbitration firm to another, or even from arbitrator to arbitrator.

“It’s a bit like the Wild West,” says David Lichter, a Florida arbitrator for the American Arbitration Association.

That said, the most well-known arbitration firms require their arbitrators to follow certain rules, which they make public, and they tend to have some things in common.

To see how arbitration is stacked against employees, it’s important to understand how the process works. Let’s use the example of two female workers who believe they were fired for reporting sexual harassment to human resources.

The first woman — let’s call her Susan — was not asked to sign an arbitration agreement when she was hired. The other woman, Ana, was required to sign one.

Susan would first have to file a complaint with the Equal Employment Opportunity Commission, the federal agency tasked with enforcing civil rights laws in the workplace. EEOC staff would attempt to mediate some sort of solution between Susan and her employer.

If they can’t reach an agreement, the EEOC will investigate the facts of the case to see if there is enough evidence to show that Susan was the victim of sexual harassment and retaliation. If there is solid evidence, the EEOC lawyers will try to negotiate a settlement on her behalf. During this entire process, which usually takes six months, Susan can reject all the proposed solutions — at any point, she can ask the EEOC to give her permission to take her case to court. Sometimes EEOC lawyers will decide to sue the employer on the worker’s behalf, though this happens in only a small percentage of complaints filed.

Now consider Ana’s situation. She signed an arbitration agreement. She can still file a complaint with the EEOC, but it’s almost pointless to do so because she signed the agreement, she cannot sue. The only logical reason for Ana to file a complaint with the EEOC is in the hope that her case may be one of the very few complaints the commission decides to take to court on behalf of a worker or group of workers. (The EEOC is not restricted by arbitration agreements, so it can sue on behalf of workers who signed them.)

The only other option for Ana is to take her claim to arbitration. As in most arbitration agreements, the employer picks the arbitration firm that will hear the case, and will pay the cost to hire the arbitrator or panel of arbitrators — creating a potential conflict of interest. (This 2015 investigation by the New York Times describes the often cozy relationship between arbitrators and the companies that hire them.)

After filing the complaint with the arbitration firm, Ana’s attorney and the lawyers representing her former boss are given a list of arbitrators to choose from. They are usually lawyers or former judges, but they don’t need to have any legal training; there are no laws that regulate arbitration proceedings.

Then the two sides schedule a conference call with the arbitrator to discuss what laws may have been broken, what kinds of evidence will be allowed, how many witnesses each side can call, and the burden of proof that Maria needs to meet to prove that her employer illegally harassed and retaliated against her. The individual arbitrator makes the final decision on all of this.

In the court system, Susan would have months to collect evidence, could compel her boss to share certain documents, and could include as many depositions and witnesses as she would like. She would also be required to prove to a jury, by a preponderance of evidence, that her boss violated the law. She would need to show that the harassment was “severe or pervasive” enough to create a hostile work environment for her, and that complaining about the alleged harassment was a motivating factor in why she was fired.

None of that is guaranteed for Ana in arbitration. She will likely have a few weeks to gather evidence and will be limited to one or two witnesses and one or two depositions. She also can’t force her employer to share evidence through a court subpoena, and the arbitrator can decide what standard of proof she has to meet — it could be a higher burden or a lower burden.

While Susan will probably go to public court hearings with her attorney, Ana will probably meet only once with everyone at her arbitration hearing. It will probably be in a hotel conference room, and lawyers from both sides will make opening and closing statements, just like a court trial. They will introduce evidence and witnesses, but unlike the court system, there is no jury weighing the evidence, just the arbitrator or panel of arbitrators.

Susan, in court, would wait for jurors to decide if she proved her case by a preponderance of evidence, and if so, what her award will be. Ana would go home and probably wait 30 to 60 days to find out the arbitrator’s decision, and the potential award, by mail.

Ana’s chances of winning her case in arbitration are much slimmer than Susan’s in the court system.

There’s a reason employers want to avoid a jury

If you ask employers why they require workers to use arbitration, they often say it’s a faster and less expensive process than the courts. They’re not wrong. But legal research, surveys, and employment attorneys point to the largest incentive of all: keeping employment claims from reaching a jury.

Juries are considered more sympathetic to workers’ claims, and more willing to award millions of dollars in damages to workers in these cases. The threat of a high jury award also gives workers leverage in negotiating larger settlements because businesses want to avoid trial.

“Juries tend to be more generous than arbitrators, so keeping a case in the courts means a [worker] is more likely to get an award,” Lichter, the arbitrator, told me.

Research shows that arbitrators can be biased toward employers who repeatedly pick them to handle their cases. This is known as the “repeat player effect,” a term coined in 1997 by Lisa Blomgren Amsler, a public affairs professor at Indiana University Bloomington whose research showed that workers were nearly five times less likely to win their case if the arbitrator had handled past disputes involving her employer. Her research involved a small sample of cases, but later studies have backed up her claim.

Alexander Colvin, a labor relations researcher at Cornell University, published a research paper in 2011 that found another level of potential bias: Not only were arbitrators more likely to rule in favor of businesses that were repeat customers, they were also more likely to award less money to their clients’ employees when they found the business at fault.

Colvin analyzed the outcome of 3,945 employment arbitration cases handled through the American Arbitration Association between 2003 and 2007. His research showed that workers were less likely to win in arbitration than in the court system, and in cases where they did win, their monetary awards tended to be smaller in arbitration.

For example, the median award amount for employees who won in arbitration was $36,500 during the time period that Colvin analyzed, but the median award for employees who won in court was about 10 times larger.

Lichter said there is an unspoken pressure for arbitrators to limit the size of awards for workers who were wronged. That’s largely because most arbitrators get paid based on the hours and the number of cases they handle. If an arbitrator gives a large award against a company, it will impact his or her ability to get picked by businesses to arbitrate future cases, Lichter said. But many arbitrators ignore that unspoken pressure, he said, and do the best they can to decide cases fairly.

“At the end of the day, I have to make sure I can sleep at night,” he said.

Arbitration has no oversight

While arbitration might seem similar to the court process, it’s not really the same thing. Arbitrators are not required to be neutral, their opinions do not need to be written, and there are few options for appeal, argues Elizabeth Roma, an employment attorney.

The Supreme Court has ruled that the courts would only overturn an arbitrator’s decision based on a “manifest disregard of the law,” something most courts have interpreted as an intentional misapplication of the law. That means most federal appeals courts will only overturn an arbitrator’s decision if it involved fraud, evident partiality, misconduct, or exceeding of powers. There’s no way for a worker like Ana to appeal an arbitrator’s decision by arguing that it was an incorrect interpretation of the law and facts.

Arbitration is not at all like the court system, but the Supreme Court seems okay with that. The nation’s highest court is largely responsible for the rise of this shadow court.

The Supreme Court unleashed arbitration on American workers

The widespread use of arbitration clauses in the workplace came after a crucial 2001 Supreme Court ruling involving sexual harassment.

In that case, Circuit City Stores Inc. v. Adams, a salesperson working at a California Circuit City store sued the company for sexual harassment. The employee, a man named Saint Clair Adams, said his co-workers harassed him because he was gay. But Adams, like all other Circuit City employees, had signed an agreement to resolve all disputes with the company through private arbitration. Circuit City argued in federal court that Adams had to move his claim to arbitration.

The judge sided with Adams, arguing that the Federal Arbitration Act — which allows businesses to resolve contract disputes through arbitration — has a provision excluding employment contracts. The ruling was upheld by the Ninth Circuit Court of Appeals.

But Circuit City took the case to the Supreme Court, where the justices overturned the lower court’s ruling, allowing businesses to extend arbitration to nearly all employment contracts.

The justices, in their 5-4 opinion, created a very narrow interpretation of the employment exclusion in the Federal Arbitration Act. It came down to this line of the act: “but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.” The justices decided that this clause limited the exemption “to transportation workers.” In other words, only workers in the transportation industry were exempt from these mandatory agreements; all other workers could be forced to take their claims to arbitration.

In May, the Supreme Court handed businesses another win in a 5-4 decision in Epic Systems Corp. v. Lewis. The Court said it’s legal for US employers to prohibit workers from joining together to sue the company over discrimination, wage theft, and other workplace violations.

The opinion delivered by Justice Neil Gorsuch, Trump’s conservative pick to replace Antonin Scalia, involved three cases, in which workers who signed arbitration agreements tried to sue their employers as a group through the court system, as part of a class-action lawsuit, for alleged wage theft and overtime violations.

The workers’ attorneys argued that the Federal Arbitration Act does not apply to class-action claims, because these lawsuits are protected under the National Labor Relations Act, which includes a provision protecting workers from an employer’s attempt to interfere with “concerted activity” related to their “mutual aid or protection.” The law has generally been applied related to efforts to unionize, but workers argue that filing a class-action lawsuit to improve their working conditions also fits into this category.

The Court’s five conservative justices disagreed and ruled in favor of the businesses. In the majority opinion, Gorsuch wrote that federal labor law does not include protection for class-action claims:

The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum.

From now on, workers who sign arbitration clauses with class-action waivers can only file claims individually through private arbitration. That means that a US worker’s effort to seek legal justice, or to force a company to change working conditions, just got a lot harder.

The ruling could have a direct impact on Chipotle workers suing for wage theft and female Google employees suing for sexual harassment. It also means other women working at Google, which is under investigation for claims of gender pay discrimination, may not be able to join together to sue the company — their best chance to change the company’s pay practices.

Mandatory arbitration is particularly bad for #MeToo and workers of color

When women began to come forward to describe rampant sexual harassment at companies like Fox News and the Weinstein Company, many realized that they could not seek legal justice in the courts because they had signed mandatory arbitration agreements.

Former Fox News anchor Gretchen Carlson was one of them. She ended up suing Roger Ailes for sexual harassment, and they settled for an undisclosed amount. But Carlson could not sue Fox News for the company’s role in allowing the sexual harassment to persist, and neither could dozens of other women who accused the media company of tolerating sexual harassment, had they decided they wanted to sue.

As more women speak up about sexual harassment in the workplace, many of them are pressuring members of Congress to restrict or abolish arbitration clauses from US workplaces.

In October, Rep. Beto O’Rourke (D-TX) introduced the Mandatory Arbitration Transparency Act, which prohibits businesses from including a confidentiality clause in their arbitration agreements related to discrimination claims.

In December, a bipartisan group of senators and representatives introduced the Ending Forced Arbitration of Sexual Harassment Act, which exempts sexual harassment cases from required arbitration.

On February 12, all 56 state attorneys general (including those in five US territories) weighed in, urging congressional leaders to vote on the bills. In their letter, they said that forcing sexual harassment cases to go to arbitration perpetuates the "culture of silence that protects perpetrators at the cost of their victims." They also questioned the process itself:

While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims. Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.

Then in March, Sen. Richard Blumenthal (D-CT) and a group of Senate Democrats proposed an even better idea: Don’t let businesses force employees and consumers to take their claims to arbitration.

Their bill, the Arbitration Fairness Act, would let workers and consumers decide where to pursue their legal claims.

“Mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review of arbitrators’ decisions,” they wrote.

So far, Republican leaders in Congress have ignored these proposals.