When conservative British lawmakers bucked their leader on Brexit, many of us in the United States were left wondering, where are our principled conservatives willing to take on the president? Maybe our conservatives have lost the muscle memory of how to do something like this. It seems unlikely any will take on the president any time soon. But maybe they can begin with smaller steps to start rebuilding that muscle.
A great opportunity for taking principled action is happening this month. A bill that prohibits forced arbitration is expected to be considered on the House floor after being reported out of committee. The Forced Arbitration Injustice Repeal Act, known as the Fair Act, would end forced arbitration for consumers, workers, and small businesses, restoring the ability of people to go to court to hold corporations publicly accountable.
Forced arbitration allows big companies to get away with legal violations, protecting them against lawsuits in court. Arbitration clauses are usually in fine print and legalese, in contracts that people typically must sign to get a job, buy a phone, or open a bank account. Usually they also make people give up their right to join together and bring a class action. Companies win more in arbitration than court. Arbitration is also secret, preventing patterns of violations from coming to light.
Ending forced arbitration is a simple question of access to justice, a principle our founding fathers cherished. It is actually in the Bill of Rights. The Seventh Amendment protects the right to trial by jury in civil lawsuits. Jury orientation videos across the country emphasize the importance of this constitutional right. But forced arbitration is effectively a corporately forced waiver of an important constitutional right.
Who is harmed? Employees who work overtime but do not get overtime pay. Service members unlawfully fired because of their military service, or defrauded by predatory lenders. Elderly people abused in nursing homes, along with their heartbroken families. A New Jersey pastor was recently arrested when Wells Fargo wrongfully identified him as a fraudster. He sued the bank to cover his legal costs but may be kicked out of court. Wells Fargo whipped out an arbitration agreement he signed 22 years ago when he opened his account with a predecessor bank.
In addition to protecting workers against race and gender discrimination, our labor laws require employers to make reasonable accommodation for employees to exercise their freedom of religion. Earlier this year, a jury awarded millions of dollars to a Christian dishwasher at a Hilton hotel who was forced to work on Sundays. If she were forced into arbitration, that case would never have seen the light of day.
Ending forced arbitration would protect against corporate abuses, and by allowing disputes to be resolved through private litigation, it would relieve some of the burden that taxpayer funded government entities like federal labor or consumer protection agencies face. It would build on our foundation of access to justice and equality before the law.
Perhaps this is why ending forced arbitration is increasingly a bipartisan issue. One of the sponsors of the Fair Act is Republican Representative Matt Gaetz, who smartly voted to pass the bill out of committee. Last year, every state attorney general signed a letter calling for an end to forced arbitration in cases involving sexual harassment.
House Republicans should follow their lead and support an end to forced arbitration. It should not be hard for them to do this, especially given the legal implications. The Founding Fathers would be shaking their heads at the idea that corporations could block consumers, workers, and other ordinary people harmed from meaningful access to courts. Conservative representatives who champion the Constitution should do everything they can to make sure our foundational rights are safeguarded.
Conservative senators should do the same when the bill arrives in their chamber. There are promising precedents. Senator Lindsay Graham and Senator John Kennedy broke with their party when Republicans nullified a rule preserving class action rights against banks and other financial institutions. Surely they should support an end to forced arbitration, along with colleagues who think alike such as Senator Chuck Grassley.
If conservatives support the Fair Act, their constituents will thank them for it. A survey this year found Republicans support a bill ending forced arbitration in larger numbers than even Democrats. Respondents strongly believe consumers should have a choice between court and arbitration. It is hard to buck the party line, and it is hard to take action that donors may not welcome. But this one seems like a no brainer. Principled bipartisan action has to begin somewhere. This is a good place to start.
Terri Gerstein is director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program. Follow her on Twitter @TerriGerstein.