The EEOC must stand against forced arbitration to stand for anything
Sep 20, 2019
When an employee is forced arbitration over a claim of misconduct, she is left with no recourse in the courts. However, one agency can still hold employers accountable: the U.S. Equal Employment Opportunity Commission, a federal agency that administers and enforces civil rights laws against workplace discrimination.
We reached out to Electra Yourke and Michael Rojas at the EEOC for answers to the following questions:
1 — Tell us about the EEOC for someone who may have never heard of it.
EEOC was created by Title VII of the Civil Rights Act of 1964, the Federal law prohibiting discrimination in employment. The bases first identified were race, national origin, sex, and religion and EEOC offices were opened all over the nation to accept charges by individuals who believe that they have suffered an unfair job action because of their identity. Later, protections on account of age and disability were enacted. Today, EEOC accepts some 80,000 charges annually.
2 — What are the biggest workplace issues that you see?
Here are the figures for FY2018. (They add up to more than 100 because some charges allege multiple bases.) Retaliation is the top because it often accompanies charges on the other bases. Note that it is a completely separate basis. It only addresses whether the charging party engaged in protected activity (complained, assisted someone else who complained, served as a witness, provided information, etc.) and was discriminated against for that reason; it is analyzed only on those relevant facts.
Retaliation: 39,469 (52% of all charges filed)
Sex: 24,655 (32%)
Disability: 24,605 (32%)
Race: 24,600 (32%)
Age: 16,911 (22%
National Origin: 7,106 (9%)
Color: 3,166 (4%)
Religion: 2,859 (4%)
Equal Pay Act: 1,066 (1%)
Genetic Information: 220 (.3%)
3 — Walk us through what happens, from someone visiting your site all the way to someone filing a suit.
A person who believes they may have been discriminated against in employment or potential employment can get specific step by step instruction as to filing a charge on our website (EEOC.gov) and then actually take the first steps toward filing. The office with geographical jurisdiction will conduct an intake interview (phone or in-person) and, if the issue is within our jurisdiction, a charge drafted. The employer will be served with a copy of the charge and must provide an answer. Some charges are sent for mediation; for others, the process depends upon an analysis of the facts. Where discrimination is found (this is a very small percentage of charges filed), conciliation is attempted, wherein the charging party receives an appropriate remedy. If it fails, the person may file suit in Federal court (with or without an attorney) or, in rare cases, EEOC files a lawsuit. Be warned, this process may be lengthy.
For a more detailed and official description of the charge process, consult our website: https://www.eeoc.gov/employees/charge.cfm.
4 — How does the EEOC interact with labor unions?
The EEOC has jurisdiction over labor unions. Individuals who are applying for membership or apprentice programs may file with EEOC if they believe that they have been denied admission on account of their identity (race, age, disability, religion, etc.). Members who believe that their union has not referred them to jobs because of their identity or has failed to represent them in a dispute with management, may file charges with EEOC against their union local.
5 — What is the EEOC’s position on forced arbitration?
No response.
When the EEOC refused to take an official position on forced arbitration, it confirmed our fears that the “arbitration shell game” was in full swing. So we looked to the former chair and commissioner of the EEOC, Jenny Yang, for her stance. And she did not mince words:
If we are serious about ending harassment and workplace abuse, we need to end forced arbitration. Fortunately, Congress has the chance to right this workplace wrong. The bipartisan bill, the Forced Arbitration Injustice Repeal (FAIR) Act heads to a floor vote in the U.S. House of Representatives this week. It restores the original intent of the Federal Arbitration Act (FAA) and reinstates the constitutional rights of all Americans to trial by jury.
The public, on a bipartisan basis, strongly supports protecting their right to go to court. A poll earlier this year of 1,200 voters by Hart Research Associates found that 84% supported legislation to end arbitration requirements. Close to 90% of Republicans and 83% of Democrats responding supported the bill, and by a two to one ratio preferred to have their own disputes heard in court.
There are good reasons for this broad public support. Over 60 million American workers are now subjected to forced arbitration. Only 2% of the workforce confronted forced arbitration in 1992. Today, it is 54% overall, and 65% for companies with over 1000 employees. Congress enacted the FAA in 1925 to facilitate dispute resolution between businesses that are equal parties. But over the years, the courts have expanded its reach to consumer and employment disputes. Unlike disputes between companies, employees and consumers have little if any ability to negotiate an agreement’s terms, and, unlike employers, they are unlikely to be a “repeat customer” of the arbitrator. When employees do come forward, research shows that companies overwhelmingly prevail. This is not surprising since corporations select and pay for the arbitrator. This creates strong incentives for arbitrators to avoid substantial awards, and indeed when workers do prevail, they obtain lower recoveries than in court.
Forced arbitration is a broken system. One that creates a cloak of secrecy silencing survivors, shielding predators, and keeping problems from public view. This breeds a lack of accountability by encouraging employers to hide problems, rather than invest proactively in addressing them. The secrecy of forced arbitration also keeps workers from learning about colleagues who experience similar concerns. And forced arbitration typically bars workers from coming together collectively in one case to demonstrate the existence of widespread problems. As we have seen, when multiple women show they have experienced a similar pattern of harassment, they are much more likely to be believed. Sunlight is the best disinfectant: when employees and consumers can hold companies publicly accountable for violations of the law, this creates one of the strongest incentives to correct problems.
Forcing workers into arbitration also stymies enforcement. Because workers can’t go to court, they are often deterred from reporting discrimination to EEOC. This deprives EEOC of critical information that can help identify patterns of discrimination. Indeed, although 60% of women working in Silicon Valley experience unwanted sexual advances, according to a 2016 survey, EEOC receives a surprisingly few number of charges from the tech industry.
Forced arbitration clauses have been widespread across the tech industry, but the tide is starting to turn. Workers have been standing up against efforts to bar access to the courts. Last year, 20,000 Google employees across the globe walked out to protest the company’s policy of forced arbitration. Google listened and made headlines for ending forced arbitration for its employees — first for sexual assault and harassment claims, and later for all employment disputes. Students at Harvard Law School — equally outraged by the increasing threat of forced arbitration — led to some of the nation’s largest law firms abandoning it. Last year, a number of other companies announced that they would allow employees with sexual misconduct complaints to bring their cases in court — but importantly, for other discrimination claims and workplace disputes, workers remain banned from court.
Workers are standing up because it is wrong to be forced to choose between keeping a job or giving up their rights under our nation’s employment laws. For those who argue forced arbitration is better for business and workers, there is a simple solution — make arbitration voluntary. We must give workers and consumers back their freedom to decide what is truly in their best interest.
Well, looks like Congress is listening this time. The House votes on the FAIR Act today. Watch the vote on CSPAN or at https://live.house.gov/.
#EndForcedArbitration #FAIRAct
