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Sunday, March 24, 2019

By Michael Hiltzik, Los Angeles Times

Little noticed in coverage of President Barack Obama’s signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called “one of the most important positive steps for civil rights in the last 20 years.”

The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He’s right; what he’s referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that’s plenty.

The arbitration provision got little public attention after the signing, in part because business lobbyists were so busy carrying on about other aspects of the executive order.

As my colleague Christi Parsons reported, businesses are exercised about a rule requiring prospective federal contractors to disclose labor law violations dating back three years and government agencies to take those violations into account when handing out federal contracts. The idea is to goad employers into settling the violations before they apply for contracts.

Business mouthpieces complain that the provision will create a “blacklist” barring companies with even minor violations from hopping on the government gravy train. Repeat after me: “Tough.”

The arbitration provision, however, addresses what may be an even more important abuse. As a private venue for dispute resolution, arbitration may be an effective way to keep commercial disagreement from clogging court dockets. That’s true chiefly when all the parties come to arbitration with roughly equivalent resources.

When it’s used by employers against employees, or by corporations against aggrieved customers, and when it’s forced down complainants’ throats against their wishes, however, it’s a scourge.

Arbitration provisions have proliferated everywhere, and it’s a safe bet that many, if not most, people forced into arbitration didn’t even know they were subject to the requirement until after their dispute arose — arbitration clauses are buried in the boilerplate you sign when you enroll with a cable company, go to a doctor or hospital, or take a new job. Arbitration typically favors the bigger party — they know their way around the process better, and they can take better advantage of what are often very loose standards of evidence and testimony in arbitration.

The Obama order strikes at the heart of this injustice by allowing complaints about workplace discrimination or abuse to be arbitrated only with the consent of the parties after the disputes arise. Surprise arbitration clauses, in other words, are out.

It’s hard not to see the order as a reproach to the Supreme Court and other courts. Judges are big fans of arbitration, in part because it keeps tedious commercial disputes out of their hair. The key case upholding arbitration clauses involved AT&T and a customer dispute over the real cost of “free” cellphones sold by the mobile carrier.

A California federal judge and the 9th Circuit Court of Appeals rejected AT&T’s demand to compel arbitration. But the Supreme Court sided with the company in a 5-4 ruling (naturally).

This was a reflection of what legal scholar David Cole recently called the court’s “unremittingly conservative” narrowing of access to the judiciary to remedy legal wrongs. The Earl Warren Court, he observed in the New York Review of Books, “viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process.”

The Roberts Court has put its thumb on the other side of the scale.

The Obama order shifts the balance just a little bit back the other way.

Michael Hiltzik is a columnist for the Los Angeles Times. Readers may send him email at mhiltzik@latimes.com.

AFP Photo/Jim Watson

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7 responses to “Obama’s Executive Order Rights A Wrong”

  1. Dominick Vila says:

    Companies guilty of discrimination should be barred from getting Federal government contracts forever. It doesn’t matter if the problem involved not hiring members of certain ethnic groups or women, or whether it involved satisfying minority quotas by offering minorities and women menial jobs, or failing to promote minorities and women to positions of authority, or equal pay for everyone based on qualifications and performance. Any form of discrimination is wrong, has no place in the 21st century, and cannot be condoned or rewarded.

  2. That’s some desperate talk for citizens who on a whole of average have average reading abilities of a 7 year old. Fortunately there’s a resident expert on stand by to provide exacting descriptions of the laws surmising you have an even $5000.00 for a retainer, or get passed the free 30 minutes attempting to understand what the hell the guy sticking up for Obama and the new wage ISIS are talking about. Most people who want civil rights would just like answers to why young men get shot by the police. Don’t for one moment think that has anything to do with your race either.

    If you’ve got to explain a law like that, then it’s useless.

    • iowasteve says:

      What in the living hell are you talking about?

      • DurdyDawg says:

        I agree steve.. Nitpickers should have their short hairs clipped so that other nitters can form even more conspiracies. Nim nod needs to stay on THAT side of the pond.

      • ps0rjl says:

        And guess who picks the arbitrator? The company. They always use the same arbitrator and it behooves the arbitrator to realize who is helping to pay his fee. So the person who goes to arbitration is not only fighting the resources of the company but also the arbitrator. A very steep hill to climb.

  3. Allan Richardson says:

    In my opinion, ALL mandatory arbitration clauses in one-sided contracts (between a large corporation which doesn’t need any particular customer or any particular employee enough to “negotiate away” their standard boiler plate wording, and a customer or applicant who wants a product or needs a job from SOME company and finds that ALL of them have such clauses) should be ruled VIOLATIONS OF THE SEVENTH AMENDMENT.

  4. ps0rjl says:

    A little off topic but when will President Obama also sign an executive order to deny federal contracts to companies that suddenly are going offshore to claim a lower tax status? Those contracts are paid for by taxpayers and as such should only go to companies who stay in the US and pay taxes here. Foreign companies should never get federal contracts.

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