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On Friday, the House of Representatives passed a major legal reform bill. For the first time ever, Congress weighed in on the practice of forced arbitration, and decided they didn’t like it. Over the objection of all but two House Republicans, Democrats passed the Forced Arbitration Injustice Repeal Act (FAIR… get it!). The bill would prevent companies from using forced arbitration agreements in employment, civil rights, consumer and antitrust cases.
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“[Opposition] to forced arbitration has gotten more traction than it ever has before,” said Karla Gilbride, a senior attorney at Public Justice who represents workers and consumers in cases against corporations, focusing on cases involving forced arbitration. “The more people find out about this, the more outraged and offended they get.”
Because of the role it plays in sexual discrimination, assault and harassment lawsuits, enabling companies to push women into secret courtrooms and hush up misbehavior, forced arbitration has gotten increased attention in recent years.
Law students, Google workers and many activists have spoken out against the practice. A small number of companies, including Microsoft, Uber and Facebook, have even banned forced arbitration in cases of sexual harassment and discrimination.
On Above the Law, we have covered the impressive fight law students have been putting up against Biglaw firms with mandatory arbitration agreements. (Click here to see that coverage.) It’s nice that the House has finally decided to join the fight. Whatever benefits arbitration have in terms of efficiency with the legal system have been clearly outweighed by the use of the practice to silence women who are harassed and nonwhites who find themselves in a hostile workplace. To say nothing of the fact that I shouldn’t be able to sign away my rights to court by signing a cell phone contract.
However, because forced arbitration so clearly helps predatory men and businesses, you can expect this bill to be dead upon arrival at the Republican controlled Senate. Mitch McConnell refuses to bring House bills to the Senate floor just on general obstructionist principles. But this bill would actually do something to the core Republican constituency of men who like to play grab-ass at work. There are probably a couple of Republican Senators who would vote for this bill (two Republicans voted for it in the House) which is precisely why McConnell will never let it see the light of day.
Still, the House passing this legislation counts as progress. Democrats realizing that forced arbitration is bad for women and minorities is a necessary, though not sufficient, step in the process.
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House Votes To Ban Forced Arbitration [Huffington Post]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.