On Tuesday, the ride-hailing company Uber announced that it would no longer require its employees, drivers or passengers to submit to arbitration in cases of sexual harassment and assault. The decision followed dozens of accusations of abuse by female passengers and employees, and a promise by Uber’s new chief executive to “do the right thing, period.”
Uber isn’t alone in making an exception for sexual harassment claims; Microsoft and Lyft have enacted a similar carve-out for their employees. But none of these companies have done away with arbitration for other types of claims, such as race discrimination, nor have they agreed to drop companion clauses that prohibit class-action lawsuits or other group claims.
For decades, the spread of forced arbitration and its twin demon, the class-action waiver, have slowly eroded Americans’ civil rights. Sixty million employees in the United States — at places from Buffalo Wild Wings to Facebook to Goldman Sachs — are now bound by mandatory-arbitration agreements, and of those, 25 million are bound by class-action bans.
Arbitration is an informal proceeding, in which an arbitrator, usually someone who works frequently with the same employer, decides on an employee’s claim. It’s a poor substitute for a court of law, with lopsided, inconsistent rules of evidence. When coupled with a ban on group activity, mandatory arbitration can deter aggrieved workers from coming forward in the first place.
The technicalities of arbitration rules are dreary, which is why it has taken the #MeToo movement to highlight why they are so unfair to employees. Survivors of sexual harassment and assault have rightly demanded an end to the practice, in which the proceedings are kept secret. High-profile employers are responding to this criticism cynically, at best, by agreeing to eliminate mandatory arbitration only for #MeToo-type claims.
“It’s great that we’ve started talking about forced arbitration, but it’s unfortunate we’re only talking about it in the context of harassment, not pregnancy discrimination or pay discrimination or wage theft,” said Juno Turner, a lawyer with Outten & Golden, a firm based in New York City that represents employees. “And there is no attention brought to the issue of class and collective waivers, which also have an impact on the ability of multiple women victimized by the same harasser to speak out.”
Researchers have demonstrated that individual arbitration leads to fewer wins and less monetary reward for workers. A recent study by Professor Cynthia Estlund, of the New York University School of Law, also reveals that employees bound by arbitration clauses hardly ever file complaints, most likely because they know arbitration won’t be good for them. She estimates that between 315,000 and 722,000 cases of pay and benefits discrimination, health and disability discrimination, ageism, sexism, racism, harassment and stolen wages that might otherwise have gone to court are falling into a “black hole” every year.
It’s to the tremendous credit of the #MeToo movement that Americans are now talking so openly about the disproportionate abuse faced by women on the job. The current focus on sexual harassment and bodily violence, however, should not blind us to other workplace indignities. Being cheated out of overtime pay or the minimum wage is no less a violation, nor is discrimination on the basis of illness or age. Each is an affront that must be dealt with appropriately — in state or federal court.
This is why the Senate bill solely exempting sexual harassment cases from forced arbitration is inadequate. The #MeToo movement should instead support the Arbitration Fairness Act, which would eliminate the practice for all types of employment and consumer claims. At this point, a federal law is the only cure: Case law places virtually no limits on mandatory arbitration.
We should also defend the power of collective action — through unions, nonprofit worker organizations and group litigation. The Supreme Court will soon render a verdict in National Labor Relations Board v. Murphy Oil, which asks whether employers that require class-action waivers as part of mandatory arbitration agreements are violating their employees’ right to organize. The solicitor general under President Barack Obama endorsed the view of the labor board: that it is unlawful to stop workers from acting together. But President Trump’s solicitor general took the extraordinary step of switching sides and filed a “friend of the court” brief on the employers’ behalf.
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None of us should be fooled by corporate gestures of solidarity. Uber, a global enterprise whose staff is 62 percent male and whose average driver nets, by one estimate, less than $10per hour, risks little by exempting only claims of sexual harassment and assault from forced, individualized arbitration. Harassment cases are notoriously difficult to win, especially without the pooled evidence, support and resources of group litigation. To unleash the full power of #MeToo, we must fight for much more: a rejiggering of the economy that begins with collective action and unbridled access to the courts.
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You can read the full article here: https://www.nytimes.com/2018/05/17/opinion/uber-arbitration-sexual-harassment.html
E. Tammy Kim is a freelance writer and former attorney.