Who’s Afraid to Litigate?

Companies are afraid to litigate, that’s who. They’re afraid to litigate against you.  I’m fairly certain you think the opposite is true, that companies are ready to meet their opponents openly and fairly in our court system. Untrue. Because you, potential plaintiff, by being a citizen of the United States, have a great many rights provided to you that people around the globe are simply never provided. And that gives you enormous power.

It is very likely that everyone reading this blog post has, either knowingly or unknowingly, submitted to what is called a “forced arbitration clause” in exchange for goods, services, or employment. This is because companies, in an effort to immunize themselves from liability, would prefer to force potential plaintiffs to bring claims behind the closed doors of an arbitrator’s office, and further undermine the good that can be done via the civil justice system. This practice has a particularly disturbing impact on women.

While working for defunct retailer Circuit City, Tia Holloman was subjected to two months of appalling sexual harassment that included her supervisor exposing his genitals to her, grabbing her and parading her around the store when she tried to escape his abuse — an event that was recorded by the store’s surveillance camera. The Equal Employment Opportunity Commission found in Tia’s favor, but despite the evidence against Circuit City and her supervisor, Tia’s sexual harassment case was thrown out of court because of a pervasive injustice lurking in her employment agreement – a forced arbitration clause.

Tia should have been protected by laws prohibiting sexual harassment, most notably Title VII of the Civil Rights Act, but Circuit City evaded this landmark law through the use of forced arbitration. These clauses, buried in the fine print of everything from employee handbooks and loan applications to website terms of service and even school field trip permission slips, eliminate access to the courts where women can assert their rights and replaces our civil justice system with a private, and confidential, dispute mill. Arbitration also eliminates all rights to an appeal.

Forced arbitration is among the biggest threats to women’s rights in the workplace, the classroom and their communities. And yet most of us don’t know it exists.

By eliminating a woman’s right to enforce our laws in court, forced arbitration undermines Title VII of the Civil Rights Acts, the Equal Pay Act, the Lilly Ledbetter Fair Pay Act, the Pregnancy Discrimination Act and the Family and Medical Leave Act—all of which were fought for and won by courageous advocates whose legacy must be preserved.

The well-known adage “sunshine is the best disinfectant” comes to mind here. Horrible abuses and injustices always take place behind closed doors. Whereas open doors keep people honest. Often, these violations of law can be stopped only when the victims have access to a fair and open legal system, thereby shining a light on practices most citizens would find morally reprehensible. In this way, perpetrators of abuse and harrassment can be asked to answer for their behavior and are forced to take responsibility for their actions. This type of process also helps to ensure that certain policies and practices, or abuses and harrassment, do not happen to other people in similar situations.

Ah, the many benefits of civil litigation. Let’s keep the courthouse doors open. Let’s protect our friends, family members and fellow citizens from being forced to give up their Constitutional right to a jury trial. No one fears the Constitution more than those corporations that are constantly violating it.

5 thoughts on “Who’s Afraid to Litigate?

  1. IowaTriBob says:

    Excellent post and I think until a ruling throws out ‘forced arbitration’ there isn’t much us individuals can do. How do you negotiate a standard employment agreement, employee handbook, license agreement, terms of service, etc… In most all cases you can’t! You either take what is given or you go without and because most companies are now requiring arbitration, what is one to do about it?

    • thelimberlawyer says:

      Great question and, for the most part, you are right. Some companies, like Dropbox, offer customers the ability to opt-out of the arbitration provisions in their terms of use. Raising awareness of what arbitration really means, will hopefully prompt more people to take advantage of opt-out provisions. So many people don’t understand what they’re giving up by submitting to arbitration.
      Second, there are a number of legislators who are quite aware of this issue and have drafted the Arbitration Fairness Act, which will be voted on in Congress. If we can get our legislators to support that piece of legislation, it will go a long way to help preserve our right to a jury trial.

      Thanks so much for the great question, and for reading.

  2. Law Guy Seppy says:

    “No one fears the Constitution more than those corporations that are constantly violating it.”

    This spoke volumes to me. Please keep up with the great articles.

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