On Tuesday, I posted a blog post entitled, Forced Arbitration Sucks, Here’s Why. In the blog post, I outlined 14 separate reasons that forced arbitration causes significant problems for employees and briefly discussed the United States Senate Committee on the Judiciary hearing on the matter.
In response, several readers reached out to ask for more information about how binding arbitration negatively impacts employees. To understand this best, it important to recognize that there is a micro or individual impact and a macro or global impact. Let me explain.
First, for the reasons identified in the last blog, an employee that has been discriminated, harassed, or wrongfully fired based on their race/color, gender, disability, or age, for example faces an uphill battle through a rigged system that increases the chances that they lose their case as a result of a bias in selecting the arbitrator, the lack of discovery allowed, and/or the difficulty in find attorneys that will take a case bound for arbitration. Looking solely at each individual employee’s increased chance to lose their case is the micro impact of forced arbitration.
Second, the macro or global impact occurs because it empowers the employers to act illegally because they know they can force employees into a rigged binding arbitration system. Because of the confidentiality and secrecy of forced arbitration, even when employers lose in arbitration, they can keep on acting the same way because they have faced no public accountability. Stated another way, while public court verdicts against discriminating employers encourages other employees to come forward (see the Me-Too movement), the engineered silence of forced arbitration makes other victims feel isolated and unwilling to come forward. So, globally or on a macro level, no changes occur at that employer.
Even more broadly, a large verdict rendered against one employer in court serves as a warning to other employers to not engage in similar religious or national origin discrimination. Companies see and can correct their cultures to avoid similar consequences announced by public court verdicts. Forced arbitration takes that away and prevents positive work culture growth on a national level.
Joanne Grace’s testimony before the Senate Judiciary Committee hit on all these points. Here is what she told the Senators:
Joanne Grace
Testimony – U.S. Senate Committee on the Judiciary
Small Print, Big Impact: Examining the Effects of Forced Arbitration
April 9, 2024
Chairman Durbin, Ranking Member Graham, and distinguished committee members, it is truly an honor to be here. Thank You for the opportunity to tell you about how I was wrongfully terminated because of my age, and how my former employer is using forced arbitration to steal my rights, my voice, and my dignity.
I started my career as a nurse in 1976, and I’ve dedicated my life to helping others. After working hard for almost 50 years as a floor nurse, a supervisor, and a nurse manager, my health care system was acquired by Steward Health System. Shortly after, I became a Patient Advocate.
I loved being a Patient Advocate because it allowed me to speak up when a patient wasn’t being heard. This is the same purpose I hope to serve here today – to speak for those that are being silenced by forced arbitration.
When Steward hired a new Director of Nursing in 2020, the overt ageism started. What was a second home became a hostile work environment. Older employees were replaced by younger employees. At least once per week, the Director of Nursing would say something like, “Why do you want to keep working at your age?” or “you should retire.” She openly talked about my age and medical conditions in meetings to embarrass me.
HR dismissed the discrimination. Do you know what HR said? They called me an “old warrior.” old … old. Why would an HR representative feel so brazen and shameless to outright call me old?
When I was out of work with Covid-19, Steward posted a supervisor position online. The job description made it very clear to me that this was my job, just with a different title.
Two days after I returned to work, one position was “reduced.” Mine. Because my position legally needed to be filled, the hospital hired someone in their 20s, who did not even meet the experience qualifications. My reduction was a lie to force me out.
I was devastated. In getting rid of more experienced nurses, the hospital put patients’ safety at risk.
I hired a lawyer to sue Steward for age discrimination. It is not about money – I love being a nurse. I want to protect nurses and keep patients safe. I hope to my lawsuit can effectuate change.
Steward moved to hide my lawsuit by forcing us into arbitration even though I never signed any forced arbitration agreement. Instead, my employer pointed to my name on a list as having attended a training about arbitration. I did not attend that training. They said that by continuing to work after the training, I lost my right to hold them accountable in court.
The wickedness did not stop there. This so-called forced arbitration agreement further rigs the process by only allowing me to call ONE witness from Stewart and limits me to requesting just 25 documents.
In Court, I could depose the Director of Nursing, the HR representative, decision makers, and all the witnesses to the age discrimination. In forced binding arbitration, I could call just one witness.
They claim this agreement allows my employer to pick the pool of potential arbitrators – which is mainly defense oriented attorneys. This means that a defense-oriented attorney will decide my case.
If I somehow make it through this rigged process and win, no one will know, and no change can happen.
As long as Congress allows companies to sweep accountability under the rug, they will continue to do that. I hope you now understand why an HR representative felt so brazen to call me old. The ability to use forced arbitration empowers companies to violate the law while nurses and patients suffer.
As more older Americans remain in the workforce, our rights need to be protected. Older workers should not be forced into retirement nor into arbitration.
Chair Durbin, Ranking Member Graham, committee members, thank you for listening to how allowing forced arbitration destroyed my dignity. Legislation is needed to end this practice and am happy to answer your questions.
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