By Ryan Boonstra
Senior Editor, 2018-2019

 

In November of 2018 nearly 20,000 Google employees staged a walk out of the company to protest the company’s sexual harassment policy.[1]  The walk out came in response to a build up of unsatisfied sexual harassment claims and the reveling of a multi-million-dollar payout to a Google executive accused of such harassment.[2]  In response, Google’s CEO promised to “double down on [its] commitment to be a representative, equitable, and respectful workplace” by revamping the company’s sexual harassment policies.[3]  It appears Google was not bluffing.  The company ended its mandatory arbitration policy regarding sexual harassment and sexual assault claims.[4]

However, the company was not done there either.  In February of 2019, Google joined several other companies by ending their mandatory arbitration policy for all employees.[5]  This came after a large number of employees formed the Googlers for Ending Forced Arbitration whose purpose is obvious from the name.[6]  Now any employee at Google can individually sue the company for any employment issue they are facing.[7]

Both the #MeToo movement and Googlers for Ending Forced Arbitration have considered these changes to be monumental, but it is yet to be seen if employees are more protected now.[8]  Forced employment arbitration creates a lack of accountability and publicity for the company involved.[9]  There are positives to arbitration though including lesser cost, confidentiality, and flexibility.[10]  Most of the criticisms of forced employment arbitration are not criticisms of arbitration itself but criticisms of the fact that the arbitration is forced and the company gets to decide the details and process.[11]  Google’s new approach is being praised because they allow the employee to choose between arbitration or litigation giving the employee the freedom to best suit their needs.[12]

The attention surrounding Google’s move has brought more attention to a current bill in Congress aimed at eliminating forced arbitration.[13]  “The Forced Arbitration Injustice Repeal (“FAIR”) Act, would eliminate mandatory arbitration from employee and consumer contracts.”[14]  Further, the FAIR Act will also invalidate forced arbitration clauses for current agreements; essentially grandfathering in all persons stuck in agreements with forced arbitration.[15]  It is unlikely that a bill like this would pass, but it currently has 155 co-sponsors, far more than previous bills aimed at combatting forced arbitration.[16]  Only time will tell how large of an impact Google’s move will have, but the company’s size and reputation certainly sends a message.

[1] See Nisha Verma & Jessica Linehan, 3 Takeaways From Google’s Harassment Policy Overhaul, Law360 (Nov. 14, 2018), https://www.law360.com/articles/1101336/3-takeaways-from-google-s-harassment-policy-overhaul.

 

[2] See id.

 

[3] See id.

 

[4] See id.

 

[5] See Alexia Campbell, Google Employees Fought for Their Right to Sue the Company — and Won, Vox (February 22, 2019), https://www.vox.com/technology/2019/2/22/18236172/mandatory-forced-arbitration-google-employees.

 

[6] See id.

 

[7] See id.

 

[8] See Nisha Verma, supra note 1; see also Alexia Campbell, supra note 5.

 

[9] See Molly O’Casey, A Movement Is Born? Google Eliminates Mandatory Arbitration, 37 ALTHCL 60, 62 (2019).

 

[10] See id.

[11] See generally id.; See Nisha Verma, supra note 1; see Alexia Campbell, supra note 5.

 

[12] See Molly O’Casey, supra note 9.

 

[13] See id. at 61.

 

[14] See id.

 

[15] See id.

 

[16] See id.

By Amelia Katherine Philips
Senior Editor, 2018-2019

 

Early in March, tennis legend Martina Navratilova, on her own personal website, released a statement intended to perhaps mitigate some of the damage that her editorial in the London Times caused in mid-February.[1] More specifically, Navratilova’s editorial commented on the eligibility of transgender women to compete in women’s athletics, constructing speculative, alarmist scenarios of men pretending to be women to secure easy wins, while opining on the supposedly inherent advantages of early testosterone development in trans women who have undergone hormone replacement therapy (HRT)—and then not exactly walking back those claims at all.[2] At the same time, Navratilova wrote of South African runner Caster Semenya’s latest challenge to the International Association of Athletics Federations (IAAF) at the Court of Arbitration for Sport, “I hope she wins.”[3] While the transphobia of Navratilova’s comments have gotten them considerable attention, they also bring to the forefront a case that may prove pivotal for gender regulations in sport generally.

 

Some explanation is necessary to illustrate how these two statements interact. Semenya has a long history with the IAAF over its gender regulations, from invasive gender verification testing following her IAAF gold medal in the 800 meters in 2009, to the recent challenge brought before the CAS over the IAAF’s latest regulations.[4] However, unlike the athletes Navritalova demonizes, Semenya is not transgender.[5] Her challenge is thus based upon rules that would require her and athletes like her to suppress their naturally elevated levels of testosterone, rather than based on any treatment such as HRT that trans athletes might undergo voluntarily.[6] This has been met with responses that have included human rights concerns, as United Nations Special Rapporteurs have argued in an open letter that “[t]he regulations reinforce negative stereotypes and stigma that women in the targeted category are not women – and that they. . . need to be ‘fixed’ through medically unnecessary treatment with negative health impacts.”[7]

 

With this in mind, consider the situation for trans women. In order for trans women to compete in many women’s sports events and leagues, organizations tend to impose a requirement that transgender women undergo some form of hormone replacement therapy (HRT) for a period of time. The International Olympic Committee (IOC) developed rules at a 2015 meeting to remove the surgery requirement for trans women to compete in women’s events that had been in place since 2003, and instead replaced it with a rule adopted in 2016 requiring simply that transgender athletes competing in women’s events have a testosterone level below a certain threshold, in this case 10 nanomoles per liter (nmol/L).[8] Some organizations, such as USA Powerlifting (USAPL), operate under IOC guidelines by virtue of being part of the International Powerlifting Federation (IPF), the governing body for the sport Navratilova claims presents the “biggest and most obvious advantage” where trans women are concerned. [9] USAPL’s president, Jack Maile, has claimed the guidelines permit discretion, however, and has prevented trans athletes from competing—as in the case of JayCee Cooper, a trans woman currently disallowed from competing in USAPL’s women’s division.[10]

 

Other organizations have adopted similar policies that allow trans women to compete in women’s sports, such as the National Women’s Hockey League (NWHL), which requires HRT but does not specify a particular level of testosterone aside from one “within typical limits of women athletes.”[11] Unfortunately, its northerly counterpart, the Canadian Women’s Hockey League (CWHL), announced late in March that it would be discontinuing operations at the beginning of May.[12] However, before its folding, the CWHL (whose Toronto Furies had Jessica Platt, a trans woman, on their roster), had been reported as using similar language to the NWHL (“typical female athlete”).[13] Even when not (explicitly) using the IOC guidelines, leagues and organizations seeking to include trans athletes within their competitions have still constructed reasonable standards.

 

More recently, however, the IOC has sought to restrict testosterone levels in women’s events even further, with regulations that would drop the ceiling from 10 nmol/L to 5.[14] Illustrating one of the many ways that Semenya’s case interacts with trans athletes, sports scientist Ross Tucker told The Guardian that the IAAF regulations being challenged by Semenya have also been set at 5 nmol/L, down from 10 previously, and that the IAAF’s change is “guided by the new IOC transgender policy.”[15] What’s more is that the IOC’s policy further lowering the testosterone threshold for trans athletes was proposed by Joanna Harper – who herself is trans, and a medical physicist studying the effects of transition on trans athletes, including herself.[16] Harper’s research and experience stands in stark contrast to the claims that trans women retain particular advantages after hormone therapy, but Harper also argues that the 10 nmol/L threshold was itself too high.[17] The CAS thus stands in a position to rule on regulations that will ultimately affect trans and non-trans athletes alike.

 

This position, in addition to being pivotal, is precarious. On one hand, we’ve seen arguments on Semenya’s behalf point to the policing of femininity, the human rights implications of forcing women to suppress their own hormones, and the like.[18] On the other, HRT’s effects are one of the strongest arguments being made in favor of trans women’s right to competition, resisting the stigma and misinformation spread about trans athletes. Harper, in the Washington Post, pointed to the exact same factors that Navratilova claimed gave trans women an innate advantage – muscle mass, bone density, and oxygen-carrying red blood cells – as things that directly suffer as a result of HRT (Harper also did this almost three years ahead of Navratilova’s editorial).[19] Katelyn Burns has also written on the subject, drawing from research such as Harper’s, her own lived experience, and the lived experiences of other trans women in athletics, to illustrate the real effects of HRT in athletic contexts.[20] Moreover, HRT is something that, in general (though not universally), trans individuals want – as the National Center for Transgender Equality found in its 2015 survey, “more than three-quarters (78%) of respondents wanted hormone therapy related to gender transition.”[21] This would of course be at odds with the goals of those arguing for Semenya’s human rights, and the general right to not be forced to suppress one’s own body to compete.

 

But while perspectives from trans advocates are often consistent, they are certainly not monolithic. One of the most vocal critics of Navratilova’s comments is Dr. Rachel McKinnon, a professor of philosophy at the College of Charleston who in October 2018 became the first trans woman to win a world championship in cycling.[22] Dr. McKinnon has also clashed not only with roundly transphobic perspectives such as Navratilova’s, but more common perspectives among trans athletes consistent with a pro-HRT stance. More specifically, while Jillian Bearden, another trans woman cyclist (and former teammate of McKinnon) generally agrees with rules designed to limit testosterone in trans women in the interest of fairness, McKinnon argues that such requirements violate the human rights of trans women.[23] This turns the above analysis on its head; such an argument tracks directly with the type of human rights argumentation made in favor of Semenya.

 

This is ultimately why the CAS is in such an important position, because there is so much at stake for athletes of all genders. There is, of course, the consideration of fairness in sports. Sports live and die by the notion of competitive equity, and this would explain why criticisms of comments such as Navratilova’s are rooted in correcting the science and proving that trans women on HRT are not at any particular advantage due to therapy – responding to the accusations of cheating with evidence of fairness. But there is also the consideration that as it is understood better that gender is more than biology, overreliance on biology can be harmful regardless of whether a person is trans or not. Gleeson and Brady in USA Today put it much more succinctly: “There’s the rub: How to reconcile science (blocking testosterone) with human rights (competing as you are).”[24]

 

The CAS is also in a particularly important position because previous cases brought before the tribunal have only shifted the IAAF’s focus, and have not produced what one might call a complete ruling on the issue. Indian sprinter Dutee Chand brought a similar challenge to the IAAF’s hormone regulations, which the CAS suspended for two years, requesting scientific evidence from the IAAF to support the regulations.[25] But after the CAS suspended the initial regulations, the IAAF’s new regulations continued to apply hormone thresholds to events that Semenya competed in while avoiding Chand’s.[26] This puts us back at square one, essentially, because it still leaves open the possibility on rulings on whether hormone thresholds are legitimate at all. (Moreover, as Martin Fritz Huber succinctly summarizes in detailing the factors in play in Semenya’s case, the IAAF has not had a great track record in these cases with producing solid scientific evidence.[27])

 

That brings us to where we are today: as of the time of this writing, the CAS decision was scheduled to be handed down by the end of March, before this article’s publication, but has since been postponed until the end of April, with the CAS stating that the final decision would be announced on May 1.[28] But even without the benefit of the decision itself just yet, it is clear that whatever decision the CAS makes in Semenya’s case will be felt throughout the sporting world. Should the CAS opt to suspend or reject the IAAF’s regulations, it might mark a victory for progressive understandings of gender and biology, but could easily spark further outrage on the subject of fair competition, and leave advocates of hormone-based regulations for trans athletes with even more questions about where to go from here.

[1] Martina Navratilova, Update on Recent Transgender Debate, Martina Navratilova, https://www.martinanavratilova.com/update-on-recent-transgender-debate [hereinafter Navratilova, Update]; Martina Navratilova (@Martina), Twitter (Mar. 2, 2019, 10:33 PM), https://twitter.com/Martina/status/1102094503048024064 (clarifying the date of the post); Martina Navratilova, The rules on trans athletes reward cheats and punish the innocent, The Times (Feb. 17, 2019, 12:01 AM), https://www.thetimes.co.uk/article/the-rules-on-trans-athletes-reward-cheats-and-punish-the-innocent-klsrq6h3x [hereinafter Navratilova, The rules on trans athletes].

[2] Navratilova, The rules on trans athletes, supra note 1; Navratilova, Update, supra note 1.

[3] Navratilova, The rules on trans athletes, supra note 1.

[4] Christopher Clarey, Gender Test After a Gold-Medal Finish, The N. Y. Times (Aug. 19, 2009) https://www.nytimes.com/2009/08/20/sports/20runner.html, Lynsey Chutel, Caster Semenya is forcing the sporting world—and South Africa—to rethink gender, Quartz Africa (Feb. 25, 2019) https://qz.com/africa/1558596/caster-semenya-challenges-world-athletics-gender-rules/.

[5] Here, it is carefully noted that there is much discussion about Semenya as an intersex athlete due to leaked testing results that were supposed to be confidential. See, e.g., Melissa Block, The Sensitive Question of Intersex Athletes, NPR (Aug. 16, 2016, 5:16 PM), https://www.npr.org/sections/thetorch/2016/08/16/490236620/south-african-star-raises-sensitive-questions-about-intersex-athletes; Lindsay Gibbs, The Importance Of Cheering For Caster Semenya, ThinkProgress (Aug. 18, 2016, 3:28 PM). This article, for space, time, and scope reasons, focuses on the reach of the CAS’s decision into issues facing trans athletes, but does not intend to erase or diminish the importance of discussions about gender regulations and intersex athletes in sports competitions. See, e.g. Murad Ahmed, Caster Semenya fights case against ‘flawed and hurtful’ rules, Financial Times (Feb. 21, 2019), https://www.ft.com/content/cd4e6374-35be-11e9-bd3a-8b2a211d90d5 (remarking on the potential “implications for intersex and transgender women across sport.”).

[6] Jere Longman, Caster Semenya Will Challenge Testosterone Rule in Court, The N. Y. Times (Jun. 18, 2018) https://www.nytimes.com/2018/06/18/sports/caster-semenya-iaaf-lawsuit.html. See infra note 20 and accompanying text.

[7] Letter from Dainius Pūras, United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Nils Melzer, United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and Ivana Radačić, United Nations Chair-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice, to Sebastian Coe, President, International Association of Athletics Federations (Sep. 18, 2018), https://www.ohchr.org/Documents/Issues/Health/Letter_IAAF_Sept2018.pdf

[8] IOC rules transgender athletes can take part in Olympics without surgery, The Guardian (Jan. 24 2016 8:04 PM) https://www.theguardian.com/sport/2016/jan/25/ioc-rules-transgender-athletes-can-take-part-in-olympics-without-surgery, https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf

[9] Alex Berg, Stuck on the sidelines: A transgender powerlifte fights fo the right to compete, NBC News (Apr. 28, 2019. 4:11 AM), https://www.nbcnews.com/feature/nbc-out/stuck-sidelines-transgender-powerlifter-fights-right-compete-n998836; Navratilova, Update, supra note 1.

[10] Berg, supra note 9.

[11] NWHL Transgender Policy, National Women’s Hockey League,  https://www.nwhl.zone/page/show/3786830-nwhl-transgender-policy

[12] Press Release, Canadian Women’s Hockey League, The Canadian Women’s Hockey League to Discontinue Operations (Mar. 31, 2019), http://www.thecwhl.com/the-canadian-womens-hockey-league-to-discontinue-operations

[13] Katie Barnes, CWHL’s first transgender woman finds comfort, confidence in professional hockey, ESPNW (Feb. 4, 2018) http://www.espn.com/espnw/culture/article/22029536/cwhl-first-transgender-woman-finds-comfort-confidence-professional-hockey. The CWHL’s official policies, unlike the NWHL’s, do not appear to be available publicly, and with the impending termination of league operations,

[14] Dan Avery, The Olympics Are About To Make It A Lot Harder For Transgender Athletes To Compete, NewNowNext (Apr. 23, 2018) http://www.newnownext.com/the-olympics-are-about-to-make-it-a-lot-harder-for-transgender-athletes-to-compete/04/2018/

[15] Sean Ingle, New IAAF testosterone rules could slow Caster Semenya by up to seven seconds, The Guardian (Apr. 26 2018, 4:13 AM) https://www.theguardian.com/sport/2018/apr/25/iaaf-testosterone-rules-caster-semenya

[16] Avery, supra note 11; Katherine Kornej, This scientist is racing to discover how gender transitions alter athletic performance—including her own, Science (Jul 25, 2018, 9:00 AM), https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including

[17] Kornej, supra note 13.

[18] Letter from Pūras, Melzer, and Radačić, supra note 7.

[19] Navratilova, The rules on trans athletes, supra note 1; Navratilova, Update, supra note 1; Joanna Harper, Do transgender athletes have an edge? I sure don’t. The Washington Post (Apr. 1 2015), https://www.washingtonpost.com/opinions/do-transgender-athletes-have-an-edge-i-sure-dont/2015/04/01/ccacb1da-c68e-11e4-b2a1-bed1aaea2816_story.html

[20] Katelyn Burns, No, Female Trans Athletes Do Not Have Unfair Advantages, The Establishment (Dec 13 2016) https://theestablishment.co/no-female-trans-athletes-do-not-have-unfair-advantages-14b8e249f93c/, Katelyn Burns, What Actually Happens When a Trans Athlete Transitions, Vice Sports (May 4, 2017 9:30 AM) https://sports.vice.com/en_us/article/vv95a4/what-actually-happens-when-a-trans-athlete-transitions

[21] Sandy E. James et al., National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey 93, https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf

[22] Frances Perraudin, Martina Navratilova criticised over ‘cheating’ trans women comments, The Guardian (Feb. 17 2019, 12:12 PM) https://www.theguardian.com/sport/2019/feb/17/martina-navratilova-criticised-over-cheating-trans-women-comments; Alex Ballinger, Rachel McKinnon becomes first transgender woman to win track world title, Cycling Weekly (Oct 17 2018, 11:46 AM) https://www.cyclingweekly.com/news/latest-news/rachel-mckinnon-becomes-first-transgender-woman-win-track-world-title-397473

[23] Scott Gleeson and Erik Brady, These transgender cyclists have Olympian disagreement on how to define fairness, USA Today (Jan 12 2018), https://www.usatoday.com/story/sports/olympics/2018/01/11/these-transgender-cyclists-have-olympian-disagreement-how-define-fairness/995434001/

[24] Id.

[25] Dutee Chand v. Athletics Fed’n of India, CAS 2014/A/3759, Interim Arbitral Award, at 160 (Ct. Arb. Sport 2014), https://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf

[26] Susan Ninan, Dutee Chand: I have found life and can run without fear now, ESPN (Apr 28, 2018) http://www.espn.com/athletics/story/_/id/23336583/dutee-chand-found-life-run-fear-now

[27] Martin Fritz Huber, Here’s What’s at Stake in the Caster Semenya Case, Outside (Feb 27, 2019) https://www.outsideonline.com/2390782/caster-semenya-hearing-arguments

[28] Media Release, Court of Arbitration for Sport, The CAS Hearing In The Arbitration Procedure Involving Caster Semenya, Athletics South Africa (ASA) and the International Association of Athletics Federations (IAAF) Has Concluded (Feb. 22, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_closing.pdf; Media Release, Court of Arbitration for Sport, CAS Arbitration: Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federations (IAAF): Planning Update (Mar. 21, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_21.03.pdf; Media Release, CAS Arbitration: Caster Sementa, Athletics South Africa (ASA) and International Association of Athletics Federations (IAAF): Decision Update (Apr. 29, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_decisiondate.pdf

By: Kathryn Meyer
Arbitration Law Review, Senior Editor

1. Introduction

 

On November 28, 2018, Shawn Carter, better known as Jay-Z, filed a memorandum of law with the Supreme Court of New York in Manhattan, requesting a stay of arbitration citing the overwhelmingly white pool of available arbitrators as a violation of New York public policy that could potentially cause “irreparable harm” to Mr. Carter’s interests.[1]  Mr. Carter and his lawyers claimed that a lack of diverse arbitrators deprives “black litigants like Mr. Carter. . . of equal protection of the laws, equal access to public accommodations, and mislead[s] consumers into believing that they will receive a fair and impartial adjudication.”[2] The Judge ultimately granted an injunction until a hearing could be held on December 11, 2018.[3] However, on December 9, 2018, Mr. Carter withdrew his motion for an injunction stating that the American Arbitration Association (AAA) had made a commitment to diversifying its pool of arbitrators.[4] While Mr. Carter brought a great deal of attention to the stark lack of racial diversity in arbitration, he also brought attention to the lack of diversity as a whole in arbitration. Not only are African-Americans largely excluded from participating as arbitrators, but other racial minorities, as well as women and members of the LGBTQ+ population, are largely lacking from arbitration institutions’ arbitrator candidate pools.

 

1. Overview of Arbitrator Demographics

 

1. Lack of Non-White Arbitrators

 

While Mr. Carter’s injunction focused mainly on the lack of African-American arbitrators available through the AAA, his court filing also brought attention to the lack of people of color available as potential arbitrators. After reviewing the initial list of arbitrators included on the “Large and Complex Cases roster,” Mr. Carter requested that the AAA provide him with the names of “neutrals of color.”[5] In response, the AAA provided him with the names of six individuals, one of whom was Asian-American, one who was “South Asian,” another who was “Latino,” and three who were African-American.[6] These six “neutrals of color” were reviewed among a list of over 200 hundred potential arbitrators.[7] That means, of the potential arbitrators available to preside over a “Large and Complex Case,” roughly three percent of the available arbitrators were people of color. The AAA is not the only organization that struggles with diversity. The Financial Industry Regulatory Authority (FINRA), which also provides arbitration services, lacks a diverse arbitrator candidate pool from which parties may choose. FINRA’s arbitrator roster is roughly 84% white.[8] With white people making up the overwhelming majority of available arbitrators, only six percent of FINRA’s arbitrators were African-American, and only four percent identified as Hispanic or Latinx.[9] Asian people make up an even smaller portion of the available arbitrators at two percent of the total arbitrator roster.[10] People who identified as “multi-racial” also only made up two percent of the total.[11] Additionally, FINRA’s arbitrator roster contained no American Indians or Alaskan Natives.[12]

When these statistics are put into context, they become even more alarming. According to the United States Census Bureau, white Americans make up just 60.7% of the total population.[13] While white people make up just over 60% of the American population, they make up a much more significant percentage of the domestic arbitrator pool.[14] Additionally, black Americans account for 13.4% of the total population.[15] That’s a much higher percentage than the number of black arbitrators available through the AAA’s Large and Complex Cases roster and through FINRA’s arbitrator pool.[16] Further, those who identify as Hispanic or Latinx are woefully underrepresented in arbitrator rosters. While four percent of FINRA’s arbitrator roster identified as Hispanic or Latinx, 18.1% of the American population identifies as Hispanic or Latinx.[17] Asian people also make up almost six percent of the American population, but these numbers are not represented in arbitrator rosters.[18] Those who identify with two or more races make up just under three percent of the population, and American Indians and Alaska Natives make up just over one percent. These statistics show that white people are overwhelmingly represented in arbitrator rosters, meaning people of color who must select an arbitrator are less likely to find arbitrators that are representative of themselves and their backgrounds.

 

1. Lack of Female and LGBTQ+ Arbitrators

 

In addition to the underrepresentation of people of color in arbitrator rosters, individuals who identify as women and/or members of the LGBTQ+ community are also largely excluded from arbitrator rosters. The AAA states that its “overall Roster of Neutrals is approximately 23% for gender and race.”[19] That means that the percentage of women included on the Roster of Neutrals is likely less than 23%, as some portion of the 23% is likely to include men of color. As for FINRA, the results are only nominally better. Only 25% of the arbitrator roster is women.[20] Additionally, JAMS states that only 12% of the arbitrators on its roster are female, while the National Academy of Arbitrators’ roster is 15% female.[21] However, according the U.S. Census Bureau, 50.8% of the population identifies as female.[22] Women make up a majority, however slight, of the American population, but are represented at a significantly lower rate in arbitrator rosters. Statistics on LGBTQ+ arbitrators are not as reported as statistics for race, gender, or age, but FINRA has statistics regarding LGBTQ+ status of its arbitrators, with two percent of arbitrators identifying as LGBT.[23] While it is possible that this number is higher, as some people may not be comfortable identifying as LGBT, this number is also lower than the number of Americans who voluntarily identified as LGBT. A Gallup Poll from 2018 reported that the number of Americans who voluntarily identified as LGBT for purposes of the poll rose to 4.5%.[24] Like people of color, women and members of the LGBTQ+ community are underrepresented on arbitrator rosters.

 

1. Lack of Young Arbitrators

 

Additionally, arbitrator rosters are largely under representative of individuals under 60 years old. Only 29% of FINRA’s arbitrator roster is made up of arbitrators under 60 years of age.[25] On the other hand, “39% of the roster is 70 or older,” and “27% is 61-69” years of age.[26] The majority of FINRA’s arbitrators are over 60 years old, while only 15.6% of American population is 65 years and older.[27] However, the lack of younger arbitrators may be due to the fact that those over 60 years of age are likely to have more experience, and thus, are more likely to be chosen as neutrals. Frequently, arbitrators only become arbitrators after years of experience as attorneys, judges, academics, or in other relevant professions, with most individuals becoming “fully-fledged arbitrators” after 50.[28]  For example, the AAA requires a “[m]inimum of 10 years of senior-level business or professional experience or legal practice.”[29] Additionally, the AAA requires arbitrators to be members of professional associations, be leaders in their respective fields, have training in arbitrator and other forms of alternative dispute resolution, and education and/or professional licenses in their respective fields.[30] These experience requirements will likely preclude younger arbitrator candidates from being added to the AAA roster. While this overrepresentation of individuals 60 years of age and up may be the result of experience, the statistics seem to suggest that people who are not heterosexual, cis-gendered, white men under 60, are significantly less likely to feel represented when looking at an arbitrator roster.

 

• Importance of Diverse Arbitrator Rosters

 

In order for arbitration to be an impartial and fair process for dispute resolution, it is essential that diversity becomes one of its many features. In Mr. Carter’s court filing he noted that he believed the lack of African-American arbitrators available to him could “irreparably harm” him.[31] If one feels that a lack of representation would prevent them from receiving a truly fair hearing, then the legitimacy of the process is put into question. Diversity has been said to contribute to the legitimacy of an institution in two ways: creating the “appearance that the justice system is open to all,” and by including “unique perspectives” that could result in changes in the institution over time.[32] Additionally, diversity can help overcome the issue of implicit bias. Individuals are more likely to relate to and empathize with other people like them. Thus, when a party to an arbitration is not an older white man, it is less likely that an older white male arbitrator could “fully understand and effectively resolve disputes between individuals whose lives are not reflective of the traditional white male experience.”[33] Diversifying arbitration panels will allow typically underrepresented parties to have their voices truly heard, and it will only make the process more fair and legitimate.

 

1. Conclusion

 

In order for arbitration to be truly fair, institutions must recognize that diversifying their arbitrator rosters is one of the first steps to take. Without diversity, those who are underrepresented in such rosters will not trust the process, and without this trust, the legitimacy of the process is undermined. Further, the distrust is not without warrant. It is difficult for individuals to empathize and relate to those who do not look like them or who have not led similar lives. This inability to relate can lead to disparities in arbitration outcomes. The makeup of arbitrator rosters should mirror the American population, and institutions must strive toward this goal. The need for a diverse pool of arbitrators becomes even more apparent as more and more people begin to participate in arbitration. Because of the importance of diversity in arbitration, it is increasingly necessary for people to address discrepancies where they see them, as Mr. Carter did in his own arbitration proceeding.[34] The purpose of arbitration is to resolve an issue fairly, and diversifying the pool of arbitrators is one step in obtaining a fair outcome.

 

 

 

[1] Brief for Petitioner at 6-7, Carter v. Iconix Brand Group, Inc., No. 10 (N.Y. Sup. Ct. 2008; David Mack, Jay-Z Says There Aren’t Enough Black Arbitrators To Hear His Legal Dispute, Buzzfeed (Nov. 28, 2018).

[2] Brief for Petitioner, supra note 1, at 7.

 

[3] Sopan Deb, Jay-Z Criticizes Lack of Black Arbitrators in a Battle Over a Logo, New York Times (Nov. 28, 2018).

 

[4] Eriq Gardner, Jay-Z Scores Diversity Commitment from American Arbitration Association, The Hollywood Reporter (Dec. 10, 2018).

 

[5] Brief for Petitioner, supra note 1, at 9.

 

[6] Brief for Petitioner, supra note 1, at 9.

 

[7] Brief for Petitioner, supra note 1, at 8.

 

[8] Jenice L. Malecki, Diversity in Arbitration: Not Being an Old White Male, 20180515A NYC BAR 351 (May 15, 2018). (This article didn’t list page numbers, so I wasn’t sure how to cite).

 

[9] Id.

 

[10] Id.

 

[11] Id.

 

[12] Id.

 

[13]U.S. Census Bureau, Quick Facts United States: Race and Hispanic Origin.

 

[14] Brief for Petitioner, supra note 1, at 8-9; Malecki, supra note 8.

 

[15] U.S. Census Bureau, Quick Facts United States: Race and Hispanic Origin.

 

[16] Brief for Petitioner, supra note 1, at 8-9; Malecki, supra note 8.

 

[17] Malecki, supra note 8; U.S. Census Bureau, Quick Facts United States: Race and Hispanic Origin.

 

[18] U.S. Census Bureau, Quick Facts United States: Race and Hispanic Origin; Brief for Petitioner, supra note 1, at 8-9; Malecki, supra note 8.

 

[19] Sasha A. Carbone & Jeffrey T. Zaino, Increasing Diversity Among Arbitrators 84-JAN N.Y. St. B.J. 33, 34 (Jan. 2012) (emphasis added).

 

[20] Malecki, supra note 8.

 

[21] Caley Turner, “Old, White, and Male”: Increasing Gender Diversity in Arbitration Panels, Int’l Inst. For Conflict Prevention & Resol., 2, 4 (March 3, 2015).

 

[22] U.S. Census Bureau, Quick Facts United States: Age and Sex.

 

[23] Malecki, supra note 8.

 

[24] Frank Newport, In U.S., Estimate of LGBT Population Rises to 4.5%, Gallup Poll (May 22, 2018).

 

[25] Malecki, supra note 8.

 

[26] Id.

 

[27] Malecki, supra note 8; U.S. Census Bureau, Quick Facts United States: Age and Sex.

 

[28] Piotr Nowaczyk, It’s Not Easy to Start Out as an Arbitrator, Expert Guides (Sept. 25, 2017).

 

[29] American Arbitration Association, Qualification Criteria for Admittance to the AAA National Roster of Arbitrators.

 

[30] Id.

 

[31] Brief for Petitioner, supra note 1, at 12.

 

[32] Hon. Candy W. Dale & Anne E. Henderson, On the Bench and Before the Bar: Diversity as a Core Value, 62-Feb. Advoc. 19, 21(February 2019).

 

[33] Turner, supra note 21, at 2.

 

[34] See Linda Gertsel, RBG and Jay-Z: A 12-Step Recovery Plan for Increasing Diversity in ADR, The New York Law Journal (Jan. 24, 2019) (outlining 12 steps for organizations and parties to an arbitration to take in an effort to improve arbitrator diversity: “[f]irst, initiate discussions within your own firm regarding the value of diversity. Second, ask prospective neutral panels about policies and practices regarding diversity. Third, select diverse neutrals whenever practicable. Fourth, consider adding the JAMS diversity inclusion language in your dispute resolution clauses. Fifth, take public diversity pledges available from various institutions and tell your friends and family to do so. Sixth, implement a multi-pronged awareness-raising campaign—at internal meetings and in industry association meetings, with outside counsel, and with ADR providers. . . Seventh, consider distributing the ADR Inclusion Network Mindbug sheet. Eighth, host seminars that educate lawyers about tools to increase diversity either through the AW Diversity Tool Kit or the ADR Inclusion Network. Ninth, when you host panels of speakers make sure that diversity is represented. Tenth, consider offering young lawyers (age is another measure of diversity) opportunities to participate in shadowing neutrals. Eleventh, host elimination of bias programs at Bar Association continuing legal education series. Twelfth and finally, keep data—both to measure your firm’s progress and to put on tap the institutional knowledge upon which recommendations to in-house counsel can be made”).

 

 

 

By Robert Gross
Arbitration Law Review, Senior Editor

In the #MeToo era, we have seen a surge of sexual assault and sexual harassment claims against many prominent officials.[1]  This activism can be seen in all manner of professions and across all aspects of public life.[2]  As of October 2018, “810 high-profile figures and counting have been publicly accused of sexual harassment, sexual assault, rape, workplace misconduct and other related behavior.”[3]  This movement prompted shifts in legislation, including some states limiting nondisclosure agreements in sexual harassment or sexual assault cases and extensions of the statute of limitations in these cases.[4]  One such area of law that warrants scrutiny is the United States’ use of mandatory arbitration clauses in sexual assault and sexual harassment contexts.

As a part of many adhesive employment contracts, employees are required to enter into arbitration agreements related to any issue with their employer.[5]  Due to the Supreme Court’s policy of favoring arbitration, these are agreements are often upheld.[6]  In fact, this strong federal policy favoring arbitration withstands state attempts to reject arbitration agreements on public policy grounds.[7]  The Economic Policy Institute has noted that the 53.9 percent of non-union private-sector employers use mandatory arbitration agreements, 65.1 percent of those companies with 1,000 or more employees use mandatory arbitration agreements, and 30.1 percent of employers also include a class action waiver provision.[8]  On top of this, arbitration is often favored as a dispute resolution mechanism due to its confidential nature, but this removes an important incentive for sexual assault victims coming forward.[9]

Despite this new pressure from the #MeToo Movement, in September 2018, the California Legislature’s Assembly Bill 3080 was vetoed by Gov. Jerry Brown.[10]  Assembly Bill 3080 attempted to curb these mandatory arbitration clauses.[11]  The Bill would have outlawed mandatory arbitration agreements in employment contracts, but would have left the ability for employees to voluntarily agree to the arbitration agreement.[12]  However, opponents of the bill stated that it would kill jobs.[13]  The United States Congress and State Legislatures across the country need to revisit the issue of mandatory arbitration clauses in the wake of #MeToo.  One consideration for the legislatures is whether the mandatory arbitration agreements really serve the freedom of contract goals espoused by proponents of the Federal Arbitration Act or if those goals would be better served by allowing employees to voluntarily agree to arbitration if they think it is a better option.  I posit that the answer to this question should be to prohibit mandatory arbitration agreements.  This would allow victims of sexual assault and sexual harassment to take control and decide whether court of arbitration is the best legal avenue for them.

[1] See Brynn Gringras, Sonia Moghe, Dakin Andone, Harvey Weinstein is charged with rape and sex abuse in cases involving 2 women, CNN, https://www.cnn.com/2018/05/25/entertainment/harvey-weinstein-to-surrender/index.html; See Jessica Bennett, The #MeToo Movement: What’s Next?, The New York Times, https://www.nytimes.com/2018/01/05/us/the-metoo-moment-whats-next.html; Joseph Ax, Cosby Sentancing is a New Milestone for # Metoo Movement, Reuters, https://www.reuters.com/article/us-people-cosby/cosby-sentencing-is-new-milestone-for-metoo-movement-idUSKCN1M30CT.

 

[2] Nicole Lyn Pesce, The #MeToo movement has changed policies across industries, but there’s still work to be done, MarketWatch, https://www.marketwatch.com/story/the-metoo-movement-has-changed-policies-across-industries-but-theres-still-work-to-be-done-2018-10-04.

 

[3] Id.

 

[4] Id.; Rebecca Beitch, The Me Too Movement Has Changed Our Culture. Now It’s Changing Our Laws., HuffPost, https://www.huffpost.com/entry/metoo-has-changed-our-culture-now-its-changing-our_b_5b60a511e4b0eb29100e5998.

 

[5] Moira Donegan, Why can companies still silence us with mandatory arbitration?, The Guardian, https://www.theguardian.com/commentisfree/2019/jan/08/forced-arbitration-sexual-harassment-metoo.

 

[6] See AT&T Mobility v. Concepcion, 563 U.S. 333, 346 (2011).

[7] Id. (Citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)).

 

[8] Donegan, supra. note 5; Alexander J.S. Colvin, The growing use of mandatory arbitration:

Access to the courts is now barred for more than 60 million American workers, Economic Policy Institute, https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration-access-to-the-courts-is-now-barred-for-more-than-60-million-american-workers/.

 

[9] See Id.

 

[10] Melanie Mason, Measures to end forced arbitration of sexual harassment claims, extend statute of limitations vetoed by Gov. Jerry Brown, Los Angeles Times, https://www.latimes.com/politics/essential/la-pol-ca-essential-politics-may-2018-measures-to-end-forced-arbitration-of-1538341555-htmlstory.html.

 

[11] Id.

 

[12] Id.

 

[13] Id.

 

By: Ryan Boonstra
Arbitration Law Review, Senior Editor

A recent Supreme Court case addressed a claim regarding a “wholly groundless” defense to delegating the arbitrability question to the arbitrator.[1]  Henry Schein, Inc. v. Archer & White Sales involved a sour business deal between Archer and White, a small dental equipment distributor, and Henry Schein, the successor in interest of a dental equipment manufacturer.[2]  The suit alleged violations of federal and state antitrust law, and Schein invoked the arbitration clause within the contract.[3]  An arbitratiblity question arose regarding the antitrust nature of the suit and according to the American Arbitration Association’s rules, which were incorporated, it was the arbitrator’s duty to decide.[4]  Archer and White, however, argued that Schein’s reasoning for arbitration was “wholly groundless” and this created an exception to the rule which would allow the district court to decide the arbitrability question.[5]

The District Court agreed with this argument and ruled in favor of Archer and White holding the arbitration to be “wholly groundless”.[6]  The Supreme Court disagreed and held that the “wholly groundless” exception was inconsistent with the text of the FAA.[7]  The court reasoned that though the exception would, “block frivolous attempts to transfer disputes from the court system to arbitration,” the FAA requires that the contract be interpreted as written.[8]  The court rejected Archer and White’s first two arguments based on precedent.[9]  Those being that the court has always allowed arbitrability to be delegated so long as it is “clear and unmistakable” and that § 10 of the FAA does not also grant the court front end power for arbitrability questions.[10]

Archer and White’s third argument of saving time and money was also not convincing to the court.[11]  The court believed that the exception would spark additional litigation that would cost just as much as the savings on the first issue.[12]  As for Archer and White’s final argument regarding policy, the court stated that it is not in their power to redesign the FAA to accommodate an exception that improves public policy.[13]  To summarize, any and all issues of arbitrability will be decided by the arbitrator is such power is delegated to them through clear and unmistakable language.

This case solved a disconnect between many district courts that were ruling differently on the issue.[14]  Now parties are on notice that so long as arbitrability delegations are present in the contract, the decision will be delegated.  There is no room for exceptions any longer.  The benefits of this is that the court has declared a strict textual interpretation of the FAA and will not allow any implied exceptions.[15]  This should come as good news to drafters of arbitration agreements since they know no implied exceptions will be lurking around the corner.[16]  The only matter left to resolve that could be possibly challenged is what “clear and unmistakable” means.[17]

* Ryan Boonstra is a Senior Editor for the Penn State Law Arbitration Law Review.

 

[1] See generally Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019).

 

[2] See Id. at 528.

 

[3] Id.

 

[4] Id.

 

[5] Id.

 

[6] Henry Schein, 139 S. Ct. at 528.

 

[7] Id. at 531.

 

[8] Id. at 529.

 

[9] Id. at 529-30.

 

[10] Henry Schein, 139 S. Ct. at 529-30.

 

[11] Id. at 530-31.

 

[12] Id.

 

[13] Id at 531.

 

[14] Id. at 528.

 

[15] Javier Rubinstein et al., Supreme Court Rejects “Wholly Groundless” Exception to Contractual Delegation of Arbitrability Decisions to Arbitrators, Kirkland Ellis (Jan. 16, 2019) https://www.kirkland.com/-/media/alerts/2019/01/supreme-court-rejects-wholly-groundless-exception.pdf.

 

[16] Id.

 

[17] Id.

By: Robert Gross
Arbitration Law Review, Senior Editor

Prior to the United States Supreme Court’s Decision in Henry Schein, Inc. v. Archer White Sales, Inc., 139 S.Ct. 524 (2019), there was a split in Circuit Court decisions as to whether there was a wholly groundless exception to arbitrator determined arbitrability in the Federal Arbitration Act.[1]  In addition to sending a dispute to arbitration, the parties to a contract can also send the issue of arbitrability to the arbitrator.[2]  The wholly groundless exception gave the courts a way to circumvent party’s delegation of arbitrability issues to arbitrators.[3]  The wholly groundless exception allowed courts to determine that there were no grounds that would put the issue within the scope of the arbitration agreement.[4]

The arbitration agreement at issue in Henry Schein specifically excluded claims for injunctive relief.[5]  When the suit was initiated, the arbitration agreement was invoked and sent to arbitration.[6]  However, Archer White objected to the use of the arbitration clause due to the issues necessitating injunctive relief.[7]  Therefore, the United States Supreme Court granted certiorari to determine whether the wholly groundless exception to arbitrability applied to the Federal Arbitration Act and whether the Court was required to send the claim to the arbitral tribunal.[8]

The Supreme Court noted in AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643 (1986) that Courts were barred from reaching the merits of disputes submitted to arbitration.[9]  The Supreme Court extended this reasoning to the arbitrability delegation clause.[10]

The first argument posited by Archer White was that the Federal Arbitration Act §§3 and 4 prohibited arbitrators from deciding the issue of arbitrability.[11]  However, the Supreme Court has repeatedly rejected this argument and did so again in this case.[12]  The second argument was the Federal Arbitration Act § 10’s statement, that Courts can review whether an arbitrator exceeded their power, allows a court to review arbitrability claims.[13]  The Supreme Court also rejected this claim because it would allow courts to review the merits of claims submitted to arbitration.[14]  The third argument by Archer White stated that the administrative costs of sending a wholly groundless claim to arbitration is too high and would result in duplicative litigation.[15]  The Supreme Court also rejected this argument because it would not be true in all cases.[16]  Finally, Archer White argued that the wholly groundless exception deterred frivolous litigation, but the Supreme Court reasoned that they could not change the Federal Arbitration Act and no such exception was in the text of the act.[17]

Under the Federal Arbitration Act § 2, there is a “declaration of a liberal federal policy favoring arbitration agreements.”[18]  It is clear from this case that this strong policy favoring arbitration will continue under the new conservative majority of the United States Supreme Court.

[1] Henry Schein, Inc. v. Archer White Sales, Inc., 139 S.Ct. 524, 528-29 (2019).

[2] Id. at 529 (quoting Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010)).

[3] David Horton, Arbitration about Arbitration, 70 Stan. L. Rev. 363, 424-25 (2018).

[4] Id. at 427.

[5] Henry Schein, 139 S.Ct. at 528.

[6] Ibid.

[7] Ibid.

[8] Id. at 528-29.

[9] Ibid.

[10] Id. at 530.

[11] Ibid.

[12] Ibid. (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Rent-A-Center, 561 U.S. at 69).

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Id. at 430-31.

[17] Id. at 431.

[18] Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

By Robert Gross
ALR Senior Editor, 2018-2019

 

In 2018, some members of Congress re-initiated the fight over employment agreements and arbitration clauses.[1]  On May 21, 2018, the United States Supreme Court, in Epic System Corp. v. Lewis, 138 S. Ct 1612 (2018), sought to determine whether employment contracts should be allowed to contain class action arbitration waivers.[2]  The plaintiffs challenged the applicability of the class action waivers through the interaction of the Federal Arbitration Act (“FAA”) Section two and the National Labor Relations Act (“NLRA”).[3]  Under Section Two of the FAA, “the saving clause allows courts to refuse to enforce arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract.’”[4]  In furtherance of the purpose of the FAA, in addressing judicial hostility toward arbitration, the majority held the savings clause was of no avail to the plaintiffs because the claims did not apply to all contracts, as required by the FAA.[5]  The majority also noted that when two statutes are in conflict, the Court should “strive ‘to give effect to both’” statutes.[6]  The Court also noted for a statute to replace another, there must be a finding of clear intention on the part of Congress.[7]  The plainiffs relied on section seven of the NLRA which specifically states “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[8]  The majority stated that there was not enough intent in the NLRA section seven in order to find a rejection of the FAA in the employment context.[9]  In its reasoning the Court noted that Congress clearly knows how to override sections of the FAA and if they intended to remove the availability of class action waivers in the employment context, Congress could pass a statute to accomplish that goal.[10]

As if in response to this charge, on October 30, 2018, Representative Nadler of New York, proposed H.R. 7109 on the floor of the House of Representatives.[11]  While the FAA is based on the theory of freedom of contract, the Bill states that employees often have little say in the contracts they sign and whether or not those contracts have arbitration or class action waivers.[12]  The proposed statute specifically cites Lewis as going against congressional intent of the NLRA.[13]  The proposed statute states that the purposes of this new legislation would be to “prohibit predispute arbitration agreements,” “prohibit retaliation,” provide protection for post dispute arbitration agreements, and finally, to amend the NLRB to prohibit the interference with employees’ rights to class actions.[14]

As noted by Justice Gorsuch, there are debatable policy questions related to restricting the FAA in the context of employment contracts but the law, as currently formulated, does not allow for those policy reasons to win the day.[15]  It will certainly be interesting to see if a new Democratic House of Representatives will take this issue up in 2019 or if this proposed legislation will die in committee as

[1] See Restoring Justice for Workers Act, H.R. 7109, 115^th Congress (2018).

 

[2] Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

 

[3] Id. at 1622.

 

[4] Ibid. (quoting 9 U.S.C. § 2).

 

[5] Ibid. (Citing Kindred Nursing Centers L.P. v. Clark, 137 S. Ct. 1421 (2017)).

 

[6] Id. at 1624 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).

 

[7] Ibid.

 

[8] Ibid. (quoting 29 U.S.C. § 157).

 

[9] Ibid.

 

[10] Id. at 1626.

 

[11] Congress.gov, https://www.congress.gov/bill/115th-congress/house-bill/7109/all-actions-without-amendments.

 

[12] Restoring Justice for Workers Act, H.R. 7109, 115^th Congress § 2 (2018).

 

[13] Restoring Justice for Workers Act, H.R. 7109, 115^th Congress § 2 (2018).

 

[14] Restoring Justice for Workers Act, H.R. 7109, 115^th Congress § 3 (2018).

 

[15] See Lewis, 138 S. Ct. at 1619.

By Kathryn Meyer
ALR Senior Editor, 2018-2019

On October 30, 2018, Congressman Jerrold Nadler of New York introduced House Resolution 7109, entitled Restoring Justice for Workers Act (H.R. 7109).[1] The purpose of H.R. 7109 is “[t]o prohibit forced arbitration in employment disputes.” [2] Forced arbitration, in the employment context, requires that an employee forgo her rights to sue her employer individually or as part of a class and must instead resolve any employment disputes through arbitration.[3] The requirement to arbitrate is often included in a mandatory arbitration clause embedded in the employment contract, which must be signed as a condition to employment.[4] If passed, employers could no longer force employees to arbitrate employment disputes, whether through forced arbitration agreements or through threatened retaliation or termination.

Beginning in the 1990s, the Supreme Court began its trend of ruling in favor of mandatory arbitration when it found that an employee who was bound to arbitration through his professional registration as a securities representative could be forced to arbitrate by his employer as a result of the registration.[5] Since then, the Supreme Court has a repeatedly ruled in favor of mandatory arbitration clauses in employment contracts,[6] including those that prevent class actions.[7] Thus, if Congress passes H.R. 7109, it will undue almost 30 years of Supreme Court decisions.

H.R. 7109 states four purposes that it hopes to accomplish. First, it would “prohibit predispute arbitration agreements that require arbitration of employment disputes.”[8] If passed, employers would no longer be able to include mandatory arbitration clauses in their employment contracts, meaning agreeing to the mandatory arbitration of employer disputes would no longer be a condition to employment. This would have a major impact, as it would likely affect over half of the “nonunion private-sector” workforce in the United States.[9] Next, H.R. 7109 would “prohibit retaliation against employees for refusing to arbitrate employment disputes.”[10] Previously, the U.S. Court of Appeals for the Second Circuit upheld as lawful an employer’s termination of an employee for refusing to submit to mandatory arbitration.[11] If passed, H.R. 7109 would protect employees from such termination or other forms of retaliation. Additionally, H.R. 7109 would also require employers “provide protections to ensure that postdispute arbitration agreements are truly voluntary and with the informed consent of employees.”[12]  Lastly, it would “amend the National Labor Relations Act to prohibit agreements and practices that interfere with employees’ rights to collectively litigate employment disputes,” likely in response to the Epic Systems decision.[13] The Court decided in Epic Systems that the ability to take part in a class action lawsuit is not a “concerted activity” under the National Labor Relations Act (NLRA).[14] Had it been a concerted activity, it would have been protected by the NLRA.[15] The Court concluded that the NLRA focused on employees’ rights to collective bargaining and forming unions but said nothing about class litigation.[16] Thus, if Congress passes H.R. 7109, the NLRA would likely have to be amended to include language that would protect an employee’s right to sue or take part in a class action suit.

If this Bill were to pass, it would have a resounding impact on both arbitration and litigation. It would greatly diminish an employer’s ability to force its employees into arbitration, while increasing employee rights. This Bill would likely result in higher accountability for employers by taking away an employer’s ability to force their employees to arbitrate according to the employer’s rules. It would also make class action litigation more accessible for employees, which means it would be more likely that employees would have to issue bigger payouts to employees for the employer’s misdeeds.

 

[1]  Restoring Justice for Workers Act, H.R. 7109, 115th Cong. (2018).

 

[2] Id.

 

[3] Arbitration, Nat’l Ass’n of Consumer Advocates, https://www.consumeradvocates.org/for-consumers/arbitration (last visited Dec. 14, 2018) (stating that forced arbitration, in the employment context, requires that an employee forgo her rights to sue her employer individually or forgo her rights to participate in a class action lawsuit).

 

[4] See also Alexander J.S. Colvin, Economic Policy Institute, The growing use of mandatory arbitration: Access to the courts is now barred for more than 60 million American workers 2 (2017); supra note 1, § 2(1) (explaining that forced arbitration agreements are often included in the employment contracts, which must be signed as a condition to employment).

 

[5] See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23, 35 (1991) (holding that by registering as a securities representative through the New York Stock Exchange, a requirement for the employee’s job, the employee was subject to the mandatory arbitration clause located within the registration application, and the employer had the authority to subject the employee to mandatory arbitration as a result); Thomas E. Carbonneau, Arbitration Law: In a Nutshell 250, 4th ed. (2017) (stating that the Court in Gilmer found that “the obligation to arbitrate claims against the employer . . . arose as a result of professional registration and was implied and direct”).

 

[6] See Circuit City v. Adams, 532 U.S. 105, 119 (2001) (holding that, under the Federal Arbitration Act (FAA), a mandatory arbitration clause in an employment contract allows for employment issues to be arbitrated and stating that the only employment contracts that cannot mandate arbitration are those of transportation workers); see also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (holding that a provision in an employment contract that only allowed for employment-related disputes to be arbitrated was legal).

 

[7] Epic Systems, Corp. v. Lewis, 138 S.Ct. 1612 (2018).

 

[8] Supra note 1, § 4.

 

^[9] Alexander J.S. Colvin, Economic Policy Institute, The growing use of mandatory arbitration: Access to the courts is now barred for more than 60 million American workers 1 (2017).

 

[10] Supra note 1, § 4.

 

[11] Williams v. Parkell Products, Inc., 91 Fed.Appx. 707 (2nd Cir. 2003).

 

[12] Supra note 1, § 4.

 

[13] Supra note 1, § 4.; Epic Systems, 1617 S.Ct.

 

[14] Epic Systems, 1617 S.Ct.

 

[15] Id.

 

[16] Id.

By Ryan Boonstra
ALR Senior Editor, 2018-2019

Electronic arbitration, or “e-arbitration” as it is more commonly known was once defined as classic arbitration which is “‘conducted wholly or substantially online . . . includ[ing] filings, submissions, hearings, and awards being made or rendered online’.”[1]  However, the more modern definition is broad and includes any arbitration that utilizes electronic submissions, or uses teleconferencing or video conferencing to conduct the hearing process.[2]  From either definition it is clear that e-arbitration is the same as traditional arbitration in procedure and process, but it involves some form of electronic medium in part or in whole.

When this type of arbitration first arose, there were questions surrounding its enforceability from two different angles.  The first, more concerning argument, was that electronic arbitration clauses were most commonly seen in digital contracts, such as licensing agreements, and due to their solely digital nature, they violated the “written provision” requirement of the FAA.[3]  However, these concerns were quickly dealt with by courts who concluded that under the Federal Electronic Signatures in Global and National Commerce Act, electronic signatures were just as sound as formal signatures and would give legal effect to electronically signed arbitration agreements.[4]  The second challenge to enforceability was similar in that plaintiffs argued the clauses were buried too deep within agreements for the signee to even know that they were there.[5]  This was also quickly dealt with by those drafting the agreements, they simply bolded the arbitration clauses, included them on the first page, or required a separate additional signature for the clause so that the consumer was put on notice to its existence.[6]

So why choose e-arbitration?  In his article, Paul Breaux[7] summarizes e-arbitration’s advantages perfectly by stating, “[t]he numerous advantages to e-arbitration versus traditional arbitration include the speed within which the entire process can be conducted, its cost-effectiveness, its accessibility and availability, and its case management efficiency.”[8]  These benefits are being embraced by arbitration services and creating arbitration service companies with a focus solely on e-arbitration such as Unum.[9]  Unum more thoroughly explains the electronic benefits by outlining how clients receive real-time updates about filings and decisions.[10]  These notifications are received by all clients involved, simultaneously, no matter where they are in the world, and are password protected.[11] Security is perhaps one of the only drawbacks to e-arbitration since the databases that conduct and maintain the documents can be compromised by malicious third parties.[12]  Another possible drawback is that not all attorneys are ‘tech-savy’ for lack of a better term and it is important to understand the digital platform being utilized in order to best represent a client.[13]

Outside of those drawbacks, both of which will be fixed with time, e-arbitration is a highly efficient model for clients interested in resolving matters quickly and it will continue to grow as technology does.

[1] Paul W. Breaux, Feature: Online Dispute Resolution: A Modern ADR Approach, 62 LA Bar Jnl. 178, 180 (2014) (quoting Mohamed S. Abdel Wahab, “ODR and E-Arbitration,” Online Dispute Resolution Theory and Practice, Chapter 18 (May 2013), www.mediate.com/pdf/ebnerl.pdf).

 

[2] Id.

 

[3] Jason E. Bring & W. Jerad Rissler, Are Electronic Arbitration Agreements Enforceable?, LAW360 (June 01, 2012).

 

[4] Id.; Campbell v. General Dynamics Gov’t Sys. Corp., 407 F.3d 546 (1st Cir. 2005)

 

[5] See Paul W. Breaux, supra note 1, at 181.

 

[6] Id.

 

[7] Paul W. Breaux is the chair of the Louisiana State Bar Association’s Alternative Dispute Resolution Section, an adjunct professor at Louisiana State University Paul M. Hebert Law Center teaching the Civil Mediation Clinic, and the owner of Peacemakers Mediation Service, L.L.C., in Baton Rouge. See Id.

 

[8] Id.

 

[9] Unum is an Alternative Dispute Resolution company that has a completely electronic platform for arbitration and mediation allowing its clients to resolve their disputes completely electronically.  See UNUM, About Unum, https://unum.world/about-unum/ (last visited Dec. 19, 2018).

 

[10] See UNUM, Arbitration, E-Arbitration, https://unum.world/arbitration/e-arbitration/ (last visited Dec. 19, 2018).

 

[11] Id.

 

[12] See Paul W. Breaux, supra note 1, at 181.

 

[13] Id.