UPDATE: On March 17, the House passed the FAIR Act (H.R. 963), sending it to the Senate for consideration. Read my brief statement urging the Senate to quickly pass this crucial bill.
UPDATE: On February 10, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445), sending it to President Joe Biden for his signature. Read my brief statement on the importance of this legislation.
A few years ago, Roschelle Powers took a routine trip to visit her mom, Roberta, at her nursing home in Birmingham, Alabama. When Roschelle opened the door, she found her mother vomiting, disoriented — and clutching a handful of pills. Roberta’s son, Larry, visited a few days later and found his mom alone and unresponsive. She died soon after – with 20 times the recommended dose of her diabetes medication in her blood.
The Powerses charged the nursing home with misconduct, but the company denied responsibility — and the Powerses couldn’t take their case to court because they had signed a contract that robbed them of their right to a free and fair trial. Instead, contractual legalese forced them to settle their dispute in a rigged system of arbitration rather than in an impartial court of law.
My colleagues and I share this story, chronicled in a New York Times investigation of forced arbitration, in the opening pages of our new report about the disproportionate toll this widespread practice has on marginalized and vulnerable groups.
This system favors corporations over individuals for a number of reasons: Arbitrators, for example, have financial motives to rule in favor of corporations. They don’t have to follow the rules of evidence or other standard legal procedures, like explaining their decisions in writing or applying the law consistently. And they often can’t be overruled by a court.
It’s no surprise, then, that individuals seldom prevail in forced arbitration.
What’s more, few workers or consumers are even aware they are subject to forced arbitration clauses when they take a job, lease an apartment, buy a product, hire a service provider, or agree to receive health or medical care because the clauses are buried in legal fine print. The ban on class action lawsuits, meanwhile, blocks individuals from holding companies accountable for relatively small individual harms that affect large groups of people.
Robbing Marginalized People of Justice
As my colleagues and I explain in our new report, this system is especially harmful to vulnerable people, like Roberta Powers and others who live in nursing homes, as well as other disadvantaged groups, like people of color, women, and low-income people. Our report — Private Courts, Biased Outcomes — is the first to explore the especially harmful effects of forced arbitration on these communities and comes as we as a society consider the ongoing effects of systemic oppression during Black History Month.
We argue that low-income people, for example, are less likely to be able to pay required arbitration fees, absorb financial losses in a dispute resolution system that is stacked against them, or hire attorneys on a contingent fee basis. And low-income workers of color are more likely to be victims of wage theft and subjected to forced arbitration clauses.
Women and people of color, meanwhile, have fewer opportunities to obtain evidence in support of discrimination and sexual harassment claims and are more likely to be victims of implicit bias in arbitration because most arbitrators are white males.
And nursing home residents are forced to settle claims that go beyond financial harm and relate to physical injury or death caused by substandard care, neglect, and physical and elder abuse in a system that favors those accused of the harm.
These groups are already marginalized by racism, sexism, classism, ageism, and other entrenched systems of oppression. Forced arbitration disadvantages them further, barring them from holding companies accountable for harm and robbing them of their right to justice.
Widespread and growing
Unfortunately, the Powers family is not alone.
The practice of forced arbitration began in the 1990s in the wake of a U.S. Supreme Court case that gave companies the power to determine how claims are decided. Just three decades later, the practice now affects nearly every American consumer and more than half of all workers. And it’s spreading, quickly, creeping up in all manner of contracts.
The system is dismantling our nation’s storied system of civil justice — particularly for disadvantaged groups and vulnerable people like the Powers family.
We must put an end to it and, fortunately, we can. Congress can restore our ability to hold corporations accountable in the courts and can restore access to class action lawsuits, as well as federal judicial authority to enforce laws protecting people of color, women, and others from discrimination and other harms.
Legislation that would take steps toward these essential goals just passed Congress. Earlier this week, the House passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445) by a wide margin, and the Senate passed the bill by voice vote on February 10.
Readers can also urge representatives to support the Forced Arbitration Injustice Repeal (FAIR) Act (S. 505) and call on House and Senate leaders to move it through Congress.
Now’s the time. Justice for all cannot wait.
To learn more, read our report, subscribe to our email list, and follow us on Twitter, Facebook, LinkedIn, and Instagram.
Showing 2,834 results
Marcha Chaudry | February 9, 2022
A few years ago, Roschelle Powers took a routine trip to visit her mom, Roberta, at her nursing home in Birmingham, Alabama. When Roschelle opened the door, she found her mother vomiting, disoriented -- and clutching a handful of pills. Roberta’s son, Larry, visited a few days later and found his mom alone and unresponsive. She died soon after – with 20 times the recommended dose of her diabetes medication in her blood. The Powers family charged the nursing home with misconduct, but the company denied responsibility -- and the family couldn’t take their case to court because they had signed a contract that robbed them of their right to a free and fair trial. Instead, contractual legalese forced them to settle their dispute in a rigged system of arbitration rather than in an impartial court of law. My colleagues and I share this story, chronicled in a New York Times investigation of forced arbitration, in the opening pages of our new report about the disproportionate toll this widespread practice has on marginalized and vulnerable groups.
Darya Minovi | February 8, 2022
Last week, my colleagues and I advocated for a pair of clean water bills in Maryland and Virginia, which were spurred by research completed by the Center for Progressive Reform (CPR). This two-part blog series explains why. Part I, which ran yesterday, explores our collaborative work to protect clean drinking water in Maryland. Today, we look at our efforts to protect Virginia’s health and environment from toxic chemical spills.
Darya Minovi | February 7, 2022
Last week, my colleagues and I advocated for a pair of clean water bills in Maryland and Virginia, which were spurred by research completed by the Center for Progressive Reform (CPR). One would create a Private Well Safety Program in Maryland, and the other would create an aboveground chemical storage tank registration program in Virginia. Both laws are sorely needed. This two-part blog series explains why. Today’s piece looks at our efforts to protect clean drinking water in Maryland; check back tomorrow for Part II, which explores our collaborative efforts to protect Virginians from toxic chemical spills.
Daniel Farber | February 3, 2022
In recent decades, the U.S. Supreme Court has become increasingly interventionist on issues relating to the appointment and removal of officials. Nondelegation arguments have also escalated and even non-constitutional doctrines such as Chevron are debated in constitutional terms. But according to originalist scholars, who say that the Constitution should be understood based on its meaning at the time of drafting, these are necessary developments. Although I am not an originalist, I had assumed that the originalist case must be a powerful one to justify such a forceful effort to overturn existing precedent. That turns out to have been a mistake on my part. Writing a book on presidential power led me to take a much closer look at the historical record and the recent scholarship on these questions. The work of scholars such as Nicholas Bagley, Daniel Birk, Julian Mortensen, Nicolas Parrillo, and Jed Shugerman, as well as that of their critics, have made me realize that originalist arguments for presidential appointments and removal power and nondelegation positions are not only debatable, but in some cases really shaky.
Robert L. Glicksman | February 2, 2022
During the Trump administration, the U.S. Department of the Interior undermined its statutory obligations to protect lands and natural resources managed by the federal government. It also accelerated the extraction of fossil fuels from federal lands and constructed barriers to a shift to renewable energy, hindering efforts to abate climate disruption. On March 15, 2021, the Senate confirmed Deb Haaland as new secretary of the department, which houses the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management (BLM) -- three agencies that together are responsible for managing millions of acres of some of the nation's most precious terrain. Before Haaland's confirmation, the Center for Progressive Reform identified five priorities for the department. Here is an update on progress so far.
Jake Moore | February 1, 2022
Virginia's recent environmental and climate laws have been heralded as among the nation's most progressive. In recent years, Virginia passed landmark laws supporting renewable energy and environmental justice and joined the Regional Greenhouse Gas Initiative, priming it to address the challenges posed by growing flood risks, climate-related disasters, and industry-related public health crises. However, Gov. Glenn Youngkin's election has shrouded Virginia's green future in gray.
Darya Minovi | February 1, 2022
Climate change is quickly evolving into climate catastrophe, and there’s a narrow window of time to do something about it. While the world works on solutions, there’s surprisingly little focus on the chemical industry, which accounts for roughly 7% of global greenhouse gas emissions -- as well as other environmental harms.
David Driesen | January 31, 2022
The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance." In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats.
Daniel Farber | January 31, 2022
The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry. Public information about OIRA is so limited that it's impossible to know one way or the other, due to the veil of secrecy that surrounds the place.