Fighting Against Forced Arbitration
Hidden in contract boilerplate, forced arbitration agreements sign away the right to your day in court. We are becoming the arbitration nation - and giving up constitutional rights.

Forced arbitration denies your constitutional right to a trial by jury. It’s like a virus in the U.S. marketplace – hard to spot but spreading fast. Clauses requiring consumers and employees to take their disputes to forced arbitration instead of the civil justice system can be found in just about every contract a consumer signs these days – tucked stealthily into online software agreements, hidden in boilerplate cell phone and credit card deals, indecipherable in the blizzard of paperwork you sign to start a job.

About 60 million workers, or more than half of the non-unionized private sector workforce, are subject to mandatory arbitration agreements. Many such policies also require workers to waive the right to bring class claims and prohibit disclosure of complaints. A growing body of empirical research suggests that workers are disadvantaged by being forced into arbitration. As #MeToo has highlighted the ongoing pervasiveness of sexual harassment, advocates have argued that forced arbitration and nondisclosure policies may contribute to the problem by shuttling complaints into private arbitrations rather than public court filings.

These clauses are presented in “take-it-or-leave-it” fashion with no chance to opt out. To bring their case to an arbitrator, consumers who have been harmed often have to pay fees that are higher than the amount in dispute. Consumers are not entitled to the same discovery as they would in a courtroom. Arbitration proceedings are held behind closed doors and in secret. Bad practices are shielded from public scrutiny. Some arbitration clauses even allow the business to pick the arbitrator without any input from the consumer.

A U.S. Supreme Court ruling in 2011 condoned the practice, giving Big Business the green light to avoid accountability in class action lawsuits when they cheat large groups of customers out of relatively small amounts each. With these provisions, consumers are left to fend for themselves in an arbitration process that is stacked against them.

In 2017 the #MeToo movement showed how forced arbitration has been used by employers and powerful men, including President Trump, to silence women who are sexually harassed. In March 2022, Congress enacted a law that precludes employers from requiring employees to arbitrate disputes related to sexual assault or harassment. The new act, formally known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), went into effect immediately.

Our Impact
In 2019, CAOC passed legislation to ensure Californians forced to submit to arbitration as consumers or workers have options and remedies when a company stalls or obstructs the arbitration proceeding by refusing to pay the required fees. This law also requires arbitration companies to report the same kind of demographic information about their arbitrators that our judiciary is required to report about judges (including gender, race and ethnicity).

In 2023, we passed legislation to protect workers and consumers from the delay tactics corporations use when a trial court rules that a forced arbitration agreement is invalid. Our bill grants the judge discretion to determine whether a worker’s or consumer's case can move forward when a denied motion to compel arbitration is appealed. The status quo of automatic stays impedes justice for workers and consumers by opening the door to frivolous appeals from the bad actors.

Fighting Abusive Arbitration Practices
Consumer attorneys believe it is important to protect the right to trial by jury as established in the Seventh Amendment to the U.S. Constitution. No corporation or individual should have free rein to deceive or harm another person with no prospect of being held accountable for their actions.