Tom Williams/CQ Roll Call via AP Images
Former Fox News host Gretchen Carlson, Sens. Kirsten Gillibrand (D-NY) and Chuck Grassley (R-IA), left, and Senate Majority Leader Chuck Schumer (D-NY) conduct a news conference after the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, February 10, 2022, at the Capitol in Washington.
Last week, both houses of Congress passed, by overwhelming majorities, a bill that banned forced arbitration in cases of sexual harassment and abuse. In the House, the bill not only claimed unanimous Democratic support, but a majority of Republicans voted for it as well. When the bill came over to the Senate side, it was approved on a voice vote. President Biden has said he’ll sign the bill posthaste.
It would be great if the bill were just the opening act to a ban on all forms of forced arbitration. Once it’s signed into law, there will still be an estimated 60 million American workers whose inability to sue their employer for discrimination or other unfair treatment (save only sexual harassment) will remain in place. (No such clauses exist where workers are covered by union contracts.) When these non-union workers signed their contracts going to work for their employer, the fine print contained a clause banning them from taking that employer to court for mistreatment on the job. Buried in the small-type details of the contract, the clause is carefully designed to be overlooked by the job-seeking workers, but even if they find it and read it, they still must submit to it if they want the job.
To date, California is the only state to have outlawed forced arbitration for any cause, while five other states—Maryland, New Jersey, New York, Vermont, and Washington—beat Congress to the punch by banning it for cases of sexual harassment. Federal courts have put the California and New York statutes on hold, however, as federal law, as construed by our deeply anti-worker Supreme Court, has ruled forced arbitration altogether fitting, proper, and legal. For which reason, the forced arbitration bans of those five predecessor states will only kick in when Biden signs the bill, as will the sexual harassment parts of the California law—but not the rest of it.
But as any legal empowerment of workers, especially among Republican lawmakers, has been hard to find since the 1935 enactment of the National Labor Relations Act, how do we account for last week’s votes? Part of the answer, surely, is that Republicans have to pay at least lip service and sometimes a little more to women’s empowerment, which, of course, only becomes OK with them if they can separate it out from a more general worker empowerment. Part of the answer is that Gretchen Carlson was a more sympathetic figure to their base voters than Roger Ailes.
But the other part of the answer, I’ve realized, is the term “forced arbitration” itself. For decades, the right has done a far better job than the left in branding what should be popular policies with awful-sounding names. Hence, since enabling more workers to have power on the job through union representation had to be curtailed, conservatives realized that requiring workers to pay their fair share to the union for representing them had to be blocked. They began calling such blocking legislation “right to work,” though it really meant right to freeload, which would discourage unions from organizing a worksite where the workers they represented benefited from the union’s advocacy but wouldn’t pay dues. Hence, since their campaign funding depended on rewarding wealthy contributors, they renamed the estate tax the “death tax.” Every poll shows that Americans would dearly love to raise taxes on our ultra-rich, but did the left rename the tax the “millionaires tax” or the “billionaires tax”? Unfortunately, the right got there first with the “death tax,” and the term stuck.
But “forced arbitration,” by contrast, is an accurate depiction of what workers must submit to, and by virtue of its accuracy and descriptive punch, it’s no easy task for the right to defend it (which is why the right relies in such instances on right-wing judges and Supreme Court justices, who don’t have to worry about public approval). To be sure, the news pages of The Wall Street Journal refer to the practice as “mandatory arbitration,” but even that falls well short of sounding fair to workers.
So why haven’t businesses and the right sought to rebrand the practice as, say, “speedy arbitration”? The reason, I suspect, is that business doesn’t want to call attention to the practice at all—that’s why it’s way down in the fine print. By needing to conceal, they have ceded the naming rights to worker advocates, for whom “forced arbitration” is merely a somewhat punchier way to say “mandatory arbitration.”
I’m not saying it’s all in the name, but as “right to work,” the “death tax,” and now “forced arbitration” all demonstrate, some of it is.
