The latest news about the corporation with religious rights takes irony to new heights
By Michelle D. Schwartz
AFJ Director of Justice Programs
Justice Ginsburg’s masterful dissent in Burwell v. Hobby Lobby Stores, Inc. begins with this chilling sentence:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
When I read that line, two words immediately came to mind: forced arbitration.
Except that in the forced arbitration context, you could end that sentence after the phrase “can opt out of any law.” Full stop.
The Supreme Court has already held, in decision after decision, that commercial enterprises can opt out of virtually any federal or state law merely by inserting a few words into the fine print of their contracts and online terms of service.
President Obama understands how harmful this is. Today, he plans to sign an executive order barring companies seeking government contracts from forcing their employees into arbitration over civil rights or sexual harassment claims.
Of course, Hobby Lobby isn’t likely to be pursuing government contracts. So the company will be able to continue to impose forced arbitration on its employees.
More on that below, but first, a quick review of what forced arbitration is all about (for more, check out AFJ’s page on the subject): Every day, when you use Instagram, buy a cell phone, use a Microsoft product, get a credit card, and generally live in the 21st Century, you are forced to sign away your constitutional rights. We’re all familiar with the “click-through contracts” to which we’re frequently asked to consent without any opportunity to negotiate. Today, an increasing number of those contracts in the consumer context and even in the employment realm include, in the fine print, a requirement that any dispute with that corporation be resolved not in the courtroom, but in a private, rigged system called forced arbitration.
What’s so bad about forced arbitration? The decision-maker is chosen and paid for by the corporation that harmed you—not surprisingly, a study found that an arbitration firm ruled for the company 93.8 percent of the time. The normal rules of evidence don’t apply. No appeal is possible. And everything is done in secret, so wrongdoing doesn’t get exposed and stopped.
Yet the Supreme Court has held that companies’ right to force their customers and employees into arbitration trumps not only the Seventh Amendment right to trial by jury, but all manner of rights guaranteed under federal and state laws. Sound familiar?
In short, forced arbitration is a get-out-of-jail-free card for corporations that puts such hallowed laws as the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act at risk. So if your employer harasses you at work because you’re an African American, your employer pays you less because you’re a woman, or you get fired because of your age, you could be forced out of court—and forced to grin and bear it.
And so, ever since the Hobby Lobby decision came down just over a month ago, I’ve been telling anyone who would listen about the similarities between Hobby Lobby and forced arbitration. And then things came full circle. Earlier this week, RH Reality Check reported that Hobby Lobby itself has a forced arbitration clause in its employment contract.
Hobby Lobby’s clause came to light after it allegedly fired employee Felicia Allen when she tried to take unpaid leave for her pregnancy. Then Hobby Lobby tried to prevent the employee from receiving unemployment compensation. That hardly sounds like the company that argued not only that its owners’ religious beliefs prohibited them from providing insurance coverage for certain kinds of birth control, but also that those beliefs compelled it to provide health insurance for its employees.
It gets worse. When Allen tried to sue Hobby Lobby for discriminating against her based on her pregnancy, she learned that Hobby Lobby had a forced arbitration clause. Allen’s lawyers refused to take her case after they learned of the forced arbitration clause and she—like so many other American consumers and employees—was left out in the cold.
Hobby Lobby could take its case all the way to the Supreme Court, but its employee couldn’t even get through the courthouse doors.
If you’re like me, you’re mad as hell about the Hobby Lobby decision. And if you’re mad about Hobby Lobby, you should also be furious about forced arbitration and take action to support the solution, the Arbitration Fairness Act.