In the United States, we are taught from an early age that we have a “right to our day in court.” This right to access the civil justice system is drilled into many of us as a given, something as American as apple pie. Yet upon further reflection, it is clear that this proverbial right has been tempered by forced arbitration. Most workers and consumers across the country cannot be heard by a jury of their peers in a free, public, transparent forum subject to appellate review, procedural guardrails, and substantive rights. Instead, anyone wanting a job, cell phone, bank account, you name it, is forced to use a private dispute resolution system to challenge their employer, landlord, retailer, by themselves and in secrecy.
Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration.
Green sets the stage by walking the reader through over 30 years of Supreme Court history (1991-2002), describing how the Court erected a fortress of precedents favoring the enforcement of private arbitration agreements in cases involving statutory employment discrimination claims. Relying on a sample of cases, he lays the groundwork for how and why corporate America has succeeded at privatizing the civil justice system.
Recent events finally disrupted this trend of powerful companies and employers requiring consumers and employees to use private arbitration and challenge wrongdoing alone (through mandatory class action waivers embedded in their arbitration agreements). With the vast majority of Americans (Democrats and Republicans alike) disapproving of forced arbitration, and no dearth of horror stories from women around the country complaining of sexual assaults and harassment being sheltered by the forum, Congress passed EFASASHA.
Given this welcome progress, one would think expanding this shelter to cover victims of race discrimination would easily follow suit—a no brainer. Contrary to this logic, Congress has not passed a comparable bill for cases involving racial claims, instead turning its attention to age-based claims.
This unfair and inefficient piecemeal justice has led Green to make the case for how race discrimination claims that are part of a case related to a sexual assault or harassment dispute should fall under EFASASHA’s procedural protections. Relying on the seminal work of intersectionality scholars, he describes how the theory can bridge the procedural justice gap between race and sex claims. Where the two are inextricably linked, they must travel together—away from compulsory arbitration and into court.
The article’s particularly unique and hefty contribution is in its exploration of how the principles underlying preclusion doctrine can also bridge the procedural justice gap. Judicial economy, fairness, convenience, comity, and consistency undergird res judicata and collateral estoppel, providing attractive anchors for beleaguered judges, advocates, and parties alike. However, given the Supreme Court’s stubborn tilt toward enforcing arbitration agreements under the Federal Arbitration Act (FAA), preclusion doctrine has not fared well as a tool to prevent piecemeal litigation in arbitration and court. Arbitrable and unarbitrable claims in a single case have been sent to different fora, despite the risks and inefficiencies of this approach.
While the federal supplemental jurisdiction statute does not help Green bring unarbitrable sex claims and arbitrable race claims into one proceeding, the “intertwining” doctrine does. Examining over 35 years of precedents (1985-2022), he makes a cogent argument for how the intertwining doctrine, post-EFASASHA, may be the antidote to the forced separation of race and sex discrimination claims.
Historically, disputes including “arbitrable and unarbitrable claims aris[ing] out of the same transaction, and are sufficiently ‘intertwined’ factually and legally” could proceed together in the court system, regardless of an arbitration agreement. But Dean Witter Reynolds v. Byrd overruled this practice, resolving a split among the lower courts in favor of the strong federal policy for arbitration and removing judicial discretion to lean otherwise.
Green argues persuasively that EFASASHA revives the intertwining doctrine. Byrd contains a carve out, allowing a “countervailing policy manifested in another federal statute” to trump its strict prohibition of the intertwining doctrine in the context of arbitrable and unarbitrable claims. EFASASHA, Green argues, provides that other federal statute that squares off with the FAA (although one might say they are the same statute, given that EFASASHA is an amendment of the FAA) and justifies the consolidation of unarbitrable sexual misconduct claims and arbitrable race discrimination claims in the public court system. Such consolidation protects EFASASHA’s countervailing policy of preventing a sexual assault or harassment victim from having to testify twice in two fora, compounding their trauma. Several courts seem to agree, allowing race discrimination claims related to sexual assault or harassment disputes to proceed under EFASASHA.
Green then urges employers, retailers, and other businesses not to wait for the Court or Congress to fix the piecemeal litigation problem. He presses the private sector to proactively permit race discrimination claims to escape compulsory arbitration and class action bans, emphasizing the indefensibility of procedurally favoring one protected class over another. The potential reputational harm may be more than they realize. Socially conscious millennial employees dominating the workforce and high-profile race discrimination cases challenging forced arbitration—such as one brought by Black NFL coaches—may see this corporate “two-step” in a disfavorable light. This is especially true for those companies who only a few years ago claimed alliance with Black Lives Matter (BLM) and pledged support to diversity initiatives. Green challenges these businesses to live up to their public promises, lest they be judged as purely performative.
Finally, Green recognizes and takes stock of the role that the public can and has played to bring about procedural justice. These include: mass social movements, such as the walkout by 20,000 Google employees; high profile bi-partisan legislative advocacy, such as the testimony by former Fox News host Gretchen Carlson; and plaintiff lawyers’ creativity, such as mass individual arbitration filings. Green urges labor organizers, BLM, and attorneys to coalesce to form a “Black Labor Matters” coalition to push for procedural parity.
In sum, Expanding the Ban on Forced Arbitration to Race Claims offers a way forward, an empowering menu of prescriptions to the vexing problem of racial inequity in the civil justice system.
