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Advocates call for age discrimination exemption for mandatory arbitration

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Two years after President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a law that exempted sexual assault cases from mandatory arbitration, advocates are pushing for the federal government to legislate an exemption for age discrimination claims, too. 

Former Fox News host Gretchen Carlson was among those calling for more limitations on forced arbitration, a provision in employment contracts and consumer agreements that compels arbitration in legal disputes, during a U.S. Senate Judiciary Committee hearing Tuesday. Carlson cited her own experience with forced arbitration after she accused former Fox News CEO Roger Ailes of sexual harassment. 

“My story certainly made headlines, but it could have easily been swept under the rug like countless others because of that forced arbitration clause in my contract,” said Carlson, who is co-founder of Lift Our Voices, a nonprofit targeting toxic workplace culture. “Employees have no idea that signing on the dotted line, accepting a forced arbitration clause, can strip them of their rights for future justice.”

U.S. Sen. Lindsey Graham, R-S.C., a ranking member of the committee, urged fellow lawmakers to adopt the Protecting Older Americans Act, bipartisan legislation he co-sponsored that would end mandatory arbitration in age discrimination cases. 

“What I want to do is to make sure that if you feel like you’ve been discriminated [against] based on your age, that you can have your day in court. Still, the burden is on you to prove you were,” Graham said. “I just think forced arbitration in that situation doesn’t serve the public interest.” 

Arbitration has a place, Graham argued, when it’s between two businesses, for example, and “there is a level playing field.” 

“There is plenty of space in the American economy for arbitration. But what we’ve seen is these employment contracts pretty much are written to the advantage of the employer and, in areas like sexual harassment, age discrimination and a few other areas, have gotten out of hand,” Graham said. 

U.S. Sen. Dick Durbin, D-Ill., chair of the committee and a co-sponsor of the Protecting Older Americans Act, said many people in the U.S. have unknowingly agreed to arbitrate claims when they “activated a cell phone, signed up for a credit card or bought a mattress, television or countless other products.” 

“The Seventh Amendment to the Constitution guarantees the right to a jury trial. However, for tens of millions of Americans, this constitutional right is an empty promise. Instead of having their day in court, they are forced into arbitration by the fine print buried deep in employment contracts, product manuals and terms of service,” Durbin said in an opening statement. 

Such agreements can cover up age discrimination, racial discrimination and abuse in nursing care facilities, among other harms, Durbin said. 

U.S. Sens. Marsha Blackburn, R-Tenn., and Tom Cotton, R-Ark., expressed support for mandatory arbitration as a tool to keep Americans from getting “trapped in lengthy and costly litigation,” as Blackburn said. 

“I am not in favor of expanding this prohibition on arbitration beyond that unique context that we found with sexual assault and harassment. So, while I’m glad that we prohibited forced arbitration agreements in those limited circumstances, I think we have to be very careful as we look at something that would expand these prohibitions,” Blackburn said. 

Durbin, in turn, questioned the premise that forced arbitration is “easier, cheaper, faster, just.”

“If that’s all true, why is it forced?” Durbin asked. “If the employee or the person who’s aggrieved thinks it’s such a good idea, why don’t you just make it an option to pick arbitration?”

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