“Forced arbitration” undermines
our civil rights laws

By Michelle D. Schwartz
AFJ Director of Justice Programs

When I was a teenager, I spent two summers working as a counselor at a day camp in suburban New Jersey.  Toward the end of the second summer, I received an offer to return the following year.  Later that day, I happened to be chatting with a friend who had similarly received an offer to return—for several hundred dollars more.

We had both worked at the camp for two summers, held the same job, were the exact same age and at the exact same educational level, and were well-liked and recognized as hard workers.

The only difference?  He’s a man.

“As long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.”
I was angry, but I was left with little recourse other than fuming.  That’s because my terms of employment forbade me from discussing my salary with anyone.  So did my friend’s—so my speaking up could get him in trouble as well.  So I stayed quiet, and I chose to pursue different opportunities the following summer.

For most American women, pay discrimination is far more insidious.  American women make, on average, 77 cents for every dollar men make.  That wage gap means that the average American woman had to keep working until today—April 8, 2014—just to earn what a man made in 2013.  And it means that women—often the sole or primary breadwinners—have less ability to provide for themselves and their families.

Yet just as they could half my lifetime ago, employers today can and do prevent their employees from, and penalize their employees for, discussing their pay with coworkers.  As a result, it is often virtually impossible for women to learn that they’re being discriminated against.  And, on the off chance women do learn such information, it’s even harder for them to fight back.

Today, President Obama is signing an Executive Order that would prohibit government contractors from retaliating against their employees for simply discussing their pay with one another.  And the Senate this week will vote on the Paycheck Fairness Act, which, among other things, would extend that anti-retaliation rule to all employers.  Those are both important steps that Alliance for Justice strongly supports.

But as long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.

Increasingly, employment and consumer contracts include fine print that forces Americans to sign away their right to go to court—and instead directs them into arbitration, a system of privatized dispute resolution that is rigged to benefit corporations.

A series of bad Supreme Court decisions has upheld forced arbitration even where it means that workers, consumers, and even small businesses have no way of vindicating rights enshrined in landmark federal laws.  Laws put at risk include Title VII, the Equal Pay Act, and the Lilly Ledbetter Fair Pay Act.

Recently, the Oakland Raiderettes fell down the forced arbitration rabbit hole when they brought a suit seeking fair pay.


The Oakland Raiderettes

The Oakland Raiderettes

As AFJ President Nan Aron wrote in the San Francisco Chronicle:

The Raiderette cheerleaders are trying to sue the Raiders because they’re paid only $125 per game and even that money is withheld until the end of the season. But the Raiders may be able to intercept the suit before it ever gets to court. The cheerleader contract has a forced arbitration clause requiring them to take their dispute to – seriously – the commissioner of the National Football League.

Fortunately, there is a way to protect the gains we’ve made—and any more that are yet to come.  It’s called the Arbitration Fairness Act, and it would ban forced arbitration in consumer, employment, and civil rights disputes.

On this Equal Pay Day, let’s celebrate the President’s executive action, fight for the Paycheck Fairness Act, and urge our representatives to pass the Arbitration Fairness Act without delay.

Read more about Equal Pay Day