Arbitration is a Joke
When I joined Netflix I signed an employment agreement that contains a “Mandatory Arbitration” clause. Like many people, I didn’t fully comprehend what I was signing. Now that I do, I encourage workers to push their employers to remove these clauses for all current and future employees.
What is a “Mandatory Arbitration Clause”?
In “The Growing Use of Mandatory Arbitration”, the Economic Policy Institute summarizes:
In a trend driven by a series of Supreme Court decisions dating back to 1991, American employers are increasingly requiring their workers to sign mandatory arbitration agreements. Under such agreements, workers whose rights are violated can’t pursue their claims in court but must submit to arbitration procedures that research shows overwhelmingly favor employers.
Why would employees agree to this? In most cases, it is because it is a requirement of their employment agreement. Whether an employer will give you an employment agreement without an arbitration clause is up to the individual employer as well as state and local regulations (in the US at least). Once they’ve decided they have an offer they like, many people are so excited to begin the next stage of their career that they don’t really dig in to understand the terms of their employment agreement. Plus, a lot of people who are starting a new job don’t want their first interaction as an employee with their new employer to be nitpicking over the employment agreement.
How do Mandatory Arbitration Clauses affect LGBTQ+ employees?
Like so many things that queer people have to deal with, Mandatory Arbitration disproportionately hurts LGBTQ+ people (as well as other marginalized groups). Many of the rights afforded LGBTQ+ people happen at particular levels of jurisdiction, and by forcing arbitration according to the laws and regulations of a particular jurisdiction, an LGBTQ+ person could find themselves without rights they thought they had based on where they are doing work.
In “The Man Behind the Curtain: How Mandatory Arbitration Impedes the Advancement of LGBTQ+ Rights”, Devon M. Loerch concludes:
The employment protections currently enjoyed by LGBTQ+ workers in various pockets of the country and employment rights that may be recognized in the future at the national level, including those the Supreme Court may recognize under Title VII in Zarda, Bostock, and Harris Funeral Homes will remain fundamentally meaningless unless the FAA is amended to prohibit employment discrimination claims from being mandatorily arbitrated.
Loerch also pointed out that because LGBTQ+ people (especially trans people) are generally underemployed, they have even less leverage against signing an employment agreement with a mandatory arbitration clause.
California Labor Code section 432.6
In 2019, a bill was passed into law in California (full text) that says the following:
A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act
Due to how the law is written, it only applies to contracts signed in California on or after January 1st, 2020. Also, the law is currently being disputed in the courts, though at the moment at least it is the law of the land in California. Clearly, there is a desire in California to remove the practice of mandatory arbitration, unfortunately it may be in conflict with federal law. Thankfully, there is an effort to fix this at the federal level as well, though obviously that depends on the politics of Washington, which makes it far from certain.
So What Can Be Done Now?
Fortunately, there are options that don’t involve any government entity. In 2018, workers at several tech companies got their companies to end mandatory arbitration for sexual harassment claims. In 2019, some 20,000 Google employees walked out, resulting in Google dropping the practice of mandatory arbitration entirely. If Googlers (among others) can do this, then it is possible for employees at other companies (tech companies, studios, game companies, etc.) to convince their employers to end the practice as well.
I am calling for Employee Resource Groups representing marginalized communities and their allies at more companies to take this issue up. Many workplace rights that we as marginalized people assume we have access to get whittled away by mandatory arbitration. Arbitration disproportionately favors the employer, and since our community is already disadvantaged in the workplace, why wouldn’t we want to make it easier to defend ourselves should the need arise?
If you’d like to know more, there are a number of great resources such as the information available on Public Citizen, and you can follow along with the hashtag #endforcedarbitration on Twitter.
