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Bill aims to end forced arbitration for racial discrimination claims

Congress passed a similar law last year for workplace sexual assault and sexual harassment claims

Sen. Cory Booker, D-N.J, and Rep. Colin Allred, D-Texas.
Sen. Cory Booker, D-N.J, and Rep. Colin Allred, D-Texas. (Tom Williams/CQ Roll Call)

Democratic lawmakers outlined legislation Tuesday that would ban forced arbitration for workers with claims they faced racial discrimination on the job.

High-profile sexual misconduct revealed by the #MeToo movement brought a focus to the practice of mandatory arbitration, and Congress passed a law last year to allow employees with sexual harassment claims to take their cases to court rather than pursue them in the confidential process.

Sen. Cory Booker of New Jersey and Rep. Colin Allred of Texas introduced legislation that would do the same for racial discrimination claims. Booker said the practice of mandatory arbitration is contrary to the fundamental American ideal of fairness.

“And we know that these arbitration agreements just aren’t fair, they aren’t just,” Booker said at a press event. “There is a clear power imbalance when your prospective employer tells you, ‘You have to agree to arbitration.’ And if you need that job, do you really have a choice?”

Critics of forced arbitration say the process prevents workers from seeking justice and is used by big businesses to conceal egregious behavior and avoid accountability.

Allred said in a news release that the bill would ensure Americans are treated fairly under the law. “No matter what you do for a living, no one should be denied their day in court or denied accountability for racial discrimination because of forced arbitration,” Allred said.

Booker also said the practice allows for secrecy that permits bad actors to avoid real accountability and denies too many Americans a choice over how to enforce their rights.

Rep. Hank Johnson of Georgia and Sen. Kirsten Gillibrand of New York are original cosponsors on the bill.

Johnson, at the press event, said forced arbitration agreements are widespread and the practice requires consumers and workers to sign away their rights to a jury trial. While the public civil justice system is based on statutes, case law and the rule of law, there’s no such rule-of-law requirement for the forced arbitration process, he said.

That process fails to provide procedural guarantees like due process, undercuts the concept of justice and instead allows “corporations to stack the deck against the little guy,” Johnson said.

Johnson described forced arbitration as a “rigged system that allows corporations to keep things hidden, secret and avoid accountability.”

At the press conference, former Tesla employee Jasmin Wilson, who is Black, said she experienced a hostile work environment with rampant racism while under a forced arbitration provision.

“I had to give myself a pep talk every single day to go to work,” Wilson said. “I dreaded it, yet I needed my paycheck.”

The push to prohibit forced arbitration on racial claims comes over a year after President Joe Biden signed legislation giving employees the opportunity to move forward with sexual assault and sexual harassment claims in public courts.

That legislative push was backed by former Fox News anchor Gretchen Carlson, who filed a lawsuit against past Fox News CEO Roger Ailes. Carlson’s story was later the basis for the 2019 movie “Bombshell” featuring Nicole Kidman.

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