Why Arbitration is Inherently Biased Against Employees

The Washington Post runs a good article on the inequities, no, let me be blunter, the inherent unfairness against employees of the arbitration system for employment matters such as discrimination, sexual harassment and retaliation: Mandatory arbitration cases have soared during the pandemic. Inherent unfairness, structural bias is another way to put it, is a strong assertion so let me explain.
The basic fundamental problem with arbitration is that the arbitrators make their living by being arbitrators and this creates an incentive, tolerated nowhere else in our justice system, for the arbitrators to favor the repeat players, the corporations.
When an arbitration is commenced, the parties are sent a list of 8-10 arbitrators and permitted to reject some number, perhaps 3 or 4. Since arbitrators are making their living by arbitrating, they don't want to be rejected by either party, they want to be selected and get paid. The best way to serve this interest is to be known as favoring the repeat players, the corporate powers.
The Family Dollar corporation discussed in the Washington Post article illustrates the point. If an arbitrator wants to be selected to arbitrate a case and to make money and their living by doing so, he or she is going to favor the party that is going to have thousands of cases per year arbitrated, as opposed to the individual employee who is very unlikely to have more than one in their lifetime. If an arbitrator is thought by Family Dollar to be pro-employee, a view that the company can be expected to take even if the face of the most correct, fairest ruling, Family Dollar will reject them, he or she will not serve on the case and won't get paid. So the arbitration system is fundamentally and inherently skewed in favor of the corporations.
The notion of equal justice under law is just not served by the widespread use of forced arbitration. Congress should act, but that is only slightly more likely, given sure-fire Republican opposition in the Senate, than any reader of this post buying soon a winning lottery ticket. 

Robert L. Abell

July 25, 2023

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"Lets have faith that right makes might; and in that faith let us, to the end, dare to do our duty as we understand it." - Abraham Lincoln
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