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TSPR Commentaries

Trampling the Right to a Day in Court


As the 50th anniversary of the March on Washington for Jobs and Freedom is celebrated, Americans increasingly are forced to surrender one of freedom’s most basic rights: the right to their day in court.

More and more, workers, consumers and other everyday citizens are required to sign agreements giving up certain rights in return for a job or other, more mundane, transactions, such as a smart-phone.

Paul Bland, a senior attorney with Trial Lawyers for Public Justice, said, “Over the last 15-20 years, a concerted effort by corporations … has resulted in the insertion of binding mandatory arbitration clauses into virtually all consumer, employee, investor, small farmer and other small business contracts. In many cases, the consumer never even signed that contract (and most are one-sided standard form contracts, anyway, not negotiable contracts); rather, it was amended with a ‘blow-in insert’ to a monthly credit card or other bill, sometimes with a ‘right’ to opt-out or decline the change.

Employees have no real choice, either, of course, other than quitting. As for the farmers, when the agribusiness truck full of baby chicks arrives, they don't get the truckload unless they sign the receipt that includes an ‘I agree to arbitration’ line.”

Empowered by U.S. Supreme Court decisions as well as nagging unemployment that creates an employers’ job market, a lot of companies are forcing arbitration as the exclusive remedy for disputes, whether wages, discrimination or product satisfaction. Corporations justify the new tactic as less expensive than traditional court claims.

The Supreme Court in 2011 ruled in two cases – AT&T Mobility v. Concepcion and Wal-Mart v. Dukes – that businesses can insulate themselves from class-action suits by employees and consumers, and that such arbitration agreements are enforceable.

Catherine Fisk, Professor of Law at University of California- Irvine, co-authored a piece in Duke Journal of Constitutional Law & Public Policy and wrote, “Collectively, they reflect the belief of the five conservative justices in the majority that companies must be protected from litigation that is large simply because companies are large. Rarely has the Court been more explicit in its desire to protect big business than in its statement in AT&T that corporations need to be protected from the ‘in terrorem’ effect of class actions resulting in settlement of even non-meritorious suits.

“Implicitly,” she added, “the conservative majority indicated that courts cannot be trusted to manage large litigation, even if it means that the state and federal laws protecting consumers and employees will go unenforced.”

Apart from organized workplaces – where labor agreements have contract-enforcement mechanisms such as grievance and arbitration language – citizens’ option had been to sue. Of course, an alleged victim may not be able to finance the legal fees for a lawsuit individually, so if a “class” of plaintiffs could be established, they could pool their resources to press their claim.

Not under the forced arbitration situation. Now, attorneys will be less likely to take cases because the playing field, if not the rules themselves, are now stacked against victims.

“Because the overwhelming majority of companies now have formal policies that prohibit discrimination, the result is plain: Class action intentional employment discrimination cases will be very difficult to bring,” Fisk said. “If there is a small workplace where one or two people make the hiring, promotion and pay decisions, it will not have the numerosity required for a class action. But if there is a large workplace where many people make the employment decisions, the court said that there is not the commonality required for a class action.

“It is hard to imagine the ‘Goldilocks’ situation where the corporation has just the right number of decision-makers for both numerosity and commonality,” the article continued. “The opinion thus sends a clear message to big businesses that they do not need to worry about employment discrimination class actions of this type so long as they have an official policy forbidding employment discrimination.”

If it’s unprofitable for people to have their day in court, when does bending to Big Business’ will become unconstitutional?  

Bill Knight’s newspaper columns are archived at

The opinions expressed are not necessarily those of Tri States Public Radio or Western Illinois University.