Forced Arbitration: You Can't Sue Us For Discrimination
Besides banning forced arbitration in consumer and franchise contracts, the Arbitration Fairness Act bans mandatory binding arbitration clauses in employment contracts. John's story illustrates why this is necessary, inside.
When I was seven, I saved the lives of my two younger cousins who were playing on the railroad tracks. They did not notice the train coming, but I did and frantically ran to them. I was able to toss them both to safety, but I fell and my pants got caught on the rail. I have been living with one leg ever since.
Thirty surgeries and two decades later, I was doing fine as a medically trained professional, drawing blood for lab tests at the University of Southern California Hospital. I did my job just as easily on crutches as with a properly fitting prosthetic leg, and had supervisors who understood that I needed to switch between the two because artificial legs don't always fit the way they should. Padding wears down and that extra pressure causes painful blistering that can take weeks to heal, months if the blisters get infected. It also takes weeks to get my leg back when it needs to be refitted.
When staffing needs at USC changed and I had to transfer to the Tenet facility at Garfield Medical Center, my working environment turned ugly. In this day and age, when the law says employers have to accommodate the disabled, the last thing I expected to hear from my new supervisor was, "Go home and put on your leg," but it was something she told me over and over. I did what she asked for as long as I could because I did not want to lose my job, but wearing the leg on top of the blisters gave me a bad infection. Artificial limbs wear out and, at this time, I also had to get a new leg, which meant a lengthy medical review process and insurance delays to replace my basic prosthetic device which costs $34,000. Because my supervisor refused to let me do my job on crutches, I was unable to work for six months. When I returned to Garfield, my job was gone.
The only work they had for me was as a daily hire on the graveyard shift, where a new supervisor let other workers make disparaging remarks to me. When I complained to her, she said I should not take it seriously, that they were just "playing around." I could not let my situation continue, so I told the human resources department I was filing a grievance. My job performance reviews were the only thing that changed after that. They went from always good to always bad.
I thought I had an "open-and-shut case" of discrimination, so I found a lawyer and he filed a lawsuit against Tenet and Garfield. Four days later, I was fired for something I never did, mislabel specimens.
Evidence and facts matter in a court of law, but I didn't have access to one. Tenet employment contracts include a binding mandatory arbitration clause which prevented me from having my case heard before a real judge in a legitimate court. Instead, my case was reviewed by an arbitrator Tenet hired, guaranteeing I would lose and they would be protected.
I was never going to get a fair hearing, but just to make doubly sure of that, Tenet offered the arbitrator two more case to handle while she was in the process of evaluating my case. I lost, of course, but because of this treachery and the strong evidence we had, my lawyer tried to get a regular court to throw out the arbitration decision. That was a failure too.
You can ask your members of Congress to support the Arbitration Fairness Act here, you can also check out the Fair Arbitration Now website and sign a petition to ban forced arbitration.
Previously: The Arbitration Fairness Act Is In The House
Mandatory Binding Arbitration: The Worst Choose Your Own Adventure Ever
What Is Mandatory Binding Arbitration?
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Comments:
My condolences on your being shafted by the system.
Arbitration (or actually, "mediation") could be a useful first step in conflict resolution, but it should not, ever, strip away a citizen's right to redress in a courtroom.
Would the state and federal anti-discrimination laws trump the contract?
I am wondering if anyone ever thought of suing the arbitration company for conflict of intrest?
This post actually motivated me to click on those two links consumerist's always putting up. This is wildly illegally, even under the most broadly interpretation.
I don't get it. Doesn't the American's with disabilities act only apply if the disability doesn't fundamentally affect the ability of the person to do the job? So why would he put on the leg anyway if crutches didn't influence how well he did the job? My instinct here is that that is where this case will end up hinging. If he really can do the job as well on crutches as on the prosthetic, then the company would be at fault. If he couldn't do the job, then the ADA wouldn't qualify, right?
Wow.
Usually I'm not in favor of the "sue the hell out of them" mindset, but... he should have been able to sue them for every penny they were worth. What despicable behavior on the part of his (former) employers.
@Eldritch:
The idiots who constantly yell "free markets" whenever even the slightest regulation is suggested. I don't know exactly where Rand-ian Libertarians think their objectivist ideals leave the little guy, but time and again we've been shown that the market does not regulate itself fairly nor does it govern with an enlightened sense that high tides raise all ships. The gap between the poor and the obscenely wealthy has grown year after year with the middle class sinking further and further down the ladder. I'm not a fan of government regulation, but the simple fact is that if there were none, business interests would run roughshod over us even more than it has to date.
@Etoiles: He can't sue. Because he is locked into binding arbitration in his contract. Therein lies the problem.
@henwy He said that he COULD do the job without the leg, but his new supervisor kept demanding he wear it, and he complied to make it easier on himself. I imagine he wore a leg sometimes instead of crutches because ... well, he has that right.
Another compelling story, but that doesn't necessarily make arbitration evil. Who's to say that the arbitrator was biased and that his case was actually good. He could have just as easily lost in court. These anecdotes don't offer any evidence, other than "I lost", as proof that the arbitration was unfair. I will concede that given the way the system is currently configured, arbitrators have an inherent conflict of interest, but just because this guy (and the other featured victims) lost doesn't mean it was unfair.
That said, I think I could support the statutory elimination of arbitration from employment contracts. I think they are wholly different from consumer or real estate sales contracts, and our government does have a tradition of protecting employees, particularly from discriminatory practices. Further, I think employment disputes present a more important issue than disputes over a sale, making them more worthy of government protection.
I had something similar when my boss made me put my false teeth in after I had front ones knocked out in a pool accident. My first set was a "basic" partial, and I could not eat with it, had the metal tabs break off, it hurt, etc...
But doesn't this fall under federal ADA law in addition to FMLA? Can a contract override federal law?
Hey, this sounds like a perfect case for the EEOC to get involved. According to this case, a mandatory binding arbitration clause is not a bar for the EEOC to seek relief on the victim's behalf.
This article describes some of the details involved. The facts are different enough that this might be a real battle, but I can't imagine any judge not interpreting SCOTUS' holding to apply in this case. Ignore some of the biased tone of this article. Also, I love that bloody Justice Thomas woke up long enough to write (or have one of his clerks write) a dissent. Jerk.
I really hope John gets a fair hearing. Mandatory binding arbitration is a sick, twisted way for companies to get away with any amount of negligence or abuse it wants. And I can't stand it.
Right, so the whole thing would end up hinging on whether or not he could do his job with the crutches. My guess is the company will claim he couldn't, which is why they asked him to put on the leg so he could actually do the job properly. If that ends up being the truth of the case, then the ADA doesn't apply. It'll probably end up being a lotta competing testimony about what the job entails and whether it's possible to do it with arms in crutches or not.
@Esquire99: A courtroom judge is paid by the gov't/taxpayers. An arbitrator is paid by one side of the argument he is arbitrating. I'd go with the judge being more impartial than the arbitrator any day of the week.
I was on the other side of an arbitration case a few years ago. I was in management, customer slipped and fell. I put in the report it was pretty much our stores fault. Hot day, had some clerks moving ice on a dolly, some fell, melted, customer slipped and broke her leg. Seems pretty open and shut. The companies attorney got the case to binding arbitration. Sounded pretty bad for our company, I expected us to pay her $34,000 claim as I told the truth. In the parking lot, I told the attorney sorry but I couldn't lie. He said it was just a formality. The presiding ex-judge and him play racketball 2x a week and both have daughters in ballet.
I just remember going home in shock that such a conflict of interest were legal.
@Aristeia
Excellent case. I think you're probably right that he could file with the EEOC and hope they choose to pursue his case. The holding seems more than broad enough to make clear that a binding arbitration agreement doesn't preclude the EEOC from getting involved.
It seems that Mandantory Binding Arbitration abridges due process. That should be illegal.
Could mediation be a quick way to initially mediate disputes in a low-cost environment? Possibly, in theory - but it should *never* stand as the last method of redress.
@henwy They will CLAIM he couldn't, but seeing as he had done the job without his leg and with his crutches numerous times before, their claim is wrong. My guess is that the supervisor was just a jerkwad and not willing to listen to reason.
What is really sad is this was a hospital. You would figure they would know more than just about anywhere else about disability rights and law.
Remember the case of the woman contractor in Iraq who was raped and locked in a shipping container. When she tried to press charges...yep, aribitration clause.
How does having an MBA clause allow you to do an end run around the ADA? Shouldn't he be going to the Labor Board with this? I would think they'd like to know about that little clause.
@Esquire99: "I will concede that given the way the system is currently configured, arbitrators have an inherent conflict of interest, but just because this guy (and the other featured victims) lost doesn't mean it was unfair."
In a court of law, if there exists a conflict of interest between a judge and a party, that judge is precluded from presiding over the matter. It doesn't even reach the point where it has to be ex post decided whether it was "unfair" - the judge is simply out.
Now if you're conceding that arbitrators in this context are inherently conflicted, why do you think they should be able to preside over a given case, as opposed to a judge not being able to preside over the same case in a court of law?
@henwy: He doesn't say how long he worked at USC, but he says he was doing the job there just fine with crutches or the fake leg. So if that is what the case hinges on, he wins automatically. And of course the management at the new facility also gave him good reviews until he filed the grievance. Again a pretty solid case that he was able to do the job fine. And pretty solid proof that he was only evaluated bad because of the grievance. The obviousness of this case makes it almost criminal for a judge not to throw out the arbitration agreement.
In this day and age of policical correctness and being sensitive to individuals with disabilities it amazes me that any company could get away with this behavior. Where is the ACLU? Even though I'm not a fan of the ACLU is one case they should be taking on.
I'm going to agree with the poster who said that this story, while sad, doesn't prove that arbitration is evil. We really don't know enough about this gentleman's case to know if he would have won a claim even if he had been allowed to sue in regular court. All we're hearing is his side of the story.
The US has a long history of arbitration of employment disputes, and its been the preferred method of most courts for settling complex employment disputes for about 50 years. I think we're throwing the baby out with the bath water here. For every horror story of someone getting "screwed" in arbitration, there are ten times as many about people getting "screwed" in traditional court room settings. Consumerist is doing its readers a disservice by not doing a better job reporting on both sides of this issue, and acting like just getting rid of arbitration would fix all of the world's ills.
@Wants A CU Labcoat_GitEmSteveDave: No, because not having teeth isn't a disability.
What kind of job was it that the guy made you put the teeth in? If it's customer facing? And why would it matter if you had them in while eating? Why not take it out?
@Citizen Kang: People may disagree about the amount of control over business government has, but government protecting individual rights is the point of having government. "Free market" talk doesn't have anything to do with giving the market the right to ruin people's lives.
How can you not be allowed to sue under the Constitution period? Wouldn't a lawsuit brought under one of these clauses for, say, discrimination possibly end up declaring these arbitration contracts unconstitutional???
To those saying that this is an example of the failure of free markets, no one has ever been forced to sign an MBA. Just as capital is free to move in a free market, so is labor. The OP could have taken his labor elsewhere or not signed a contract with an MBA. Now I am in no way in favor of MBA's, but this is not a failure of the free market because we, as laborers, have the ability to take our labor elsewhere if we don't like the policies of our employers.
@rugman11 So do away with all labor discrimination laws?
@henwy: You'd be surprised. As a person with hearing loss, I am not allowed to be discriminated against getting a job as a (just an example - I'm not one) telemarketer, because the employer would be required to buy me a phone that will work with my hearing aids. The only times the ADA doesn't apply is when it's quite literally impossible, i.e. you can't hire the blind to be a chauffeur nor would the ADA be applicable in the case of a cripple applying to be a building inspector who has to walk stairs all day long, since such a person would be irrevocably limited in his efficiency. ADA simply requires employers to make adjustments that are practical and affordable for them to do.
In this case... that's pretty fucked up. Another reason why the American legal system needs revamping in a world where contracts are all-powerful over common sense and decency and people continually turn into greedy, inconsiderate bastard vampires.
@Coelacanth: It seems like the only problem is the mandatory part. You remove that and the arbitrator would be much more inclined to give out settlements closer to what a court would give or at least settlements that cover the quantifiable damages like lost pay or any bills that need to be paid.
@Eldritch: How the hell is binding arbitration even legal?
It doesn't make sense. At all. It's a part of so many contracts, it is simply impossible to *not* get forced into it.
Let's not confuse mediation and (mandatory) binding arbitration. At least in the jurisdiction where I live, there are voluntary mediation services affiliated with the court. The goal of mediation is to facilitate a settlement without taking the suit to trial. The suit enters mediation only if both parties agree to it, and if no agreement is reached both parties are free to proceed to court.
Mediation can be a good thing that saves people time, money, and the uncertainty of a verdict in court. That said, it lends itself best to simple cases, especially those filed in small claims court.
Is it possible to sue individuals within a company, or are they also protected by binding arbitration? The supervisors ought to be on the hook for something.
@rugman11: Or, translated from the vernacular Randian, the "free market" and contracts are superior to the constitutional rights of citizens.
@Ichiro51: Because some free-market types think lawsuits are all evil and arbitration is some kind of A=A fair resolution of disputes. Or something, I can't say I follow the logic.
In courts, the parties may also challenge the judge if they believe the judge to be unfair. Where I practice, each side has ONE opportunity to strike a judge they are assigned to (before you appear in front of them - no waiting until you get a bad result and then complaining). This makes it very easy to avoid truly biased judges.
@JGKojak: MBA means you waive your right to your day in court. That's why misbehaving companies love it.
@rugman11: Nobody asked you to come in and give an Ayn Rand speech, okay?
The OP may not have known he had a MBA, or understood what that meant.
@mythago:
I don't think lawsuits are evil at all. I do think they are expensive, time consuming and are frequently abused by people raising frivolous claims. I think, in theory, arbitration is a more efficient way to handle disputes over consumer contracts that are simple enough to not need the full power, and expense, of litigation.
What a shame. This country's laws need a major overhaul.
@Ichiro51:
My argument is only that arbitration, in theory, is not evil and unbiased. The current manner in which it is administered does result in inherent conflict of interest and potential bias. I take issue with the argument that potential bias = real bias. The fact a conflict of interest exists doesn't mean the person acted on it. That said, that person shouldn't even be put in that position. I think the appropriate thing for congress to do is fix the arbitration system, not eliminate it.
@Corporate_guy:
I've got to agree with mythago here. I'm not sure I see how making it non-mandatory would fix the problem. The bias comes from the way arbitrators are selected and paid, not the fact that it's mandatory.
@JGKojak: If you can "knowingly and voluntarily" waive constitutional rights. I forget which Supreme Court case it was.
Think of the cops shows when they read Miranda rights to suspects. They've informed you of your rights, so if you decide to talk, you've knowingly and voluntarily waived those rights.
Same principle applies here.
@rugman11: Ah yes, the same "free market" that let little kids work, had no safety regulations for workers, created factory owned towns where people would end up further in debt to the companies they worked for, allowed employers to keep wages for any reason they dreamed up, allowed them to lower wages without telling the workers....that free market?
@Corporate_guy: You also have to randomize the arbitrator, and any bias on either side should be filed in a detailed report along with the results of arbitration in the event that the result is appealed by a civil court/court of law and reviewed.
@ Red_Flag: I know, that's why I said should have been able to. And it's definitely a crying shame that he couldn't and can't.
(I'm falling victim to the "can't reply" bug again.)
Welcome to capitalism as the rich and greedy intended it to be. It is not arbitration as the the "arbitrator" only actually works for one side.
That's awful!
What the fuck is wrong with this country.