Expanding the Ban on Forced Arbitration to Race Claims

Authors

Michael Z. Green, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

3-2024

Journal Title

Kansas Law Review

ISSN

0083-4025

Abstract

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers.

This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results.

This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA’s ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race.

First Page

455

Last Page

512

Num Pages

58

Volume Number

72

Publisher

University of Kansas School of Law

Recommended Citation

Michael Z. Green, Expanding the Ban on Forced Arbitration to Race Claims, 72 U. Kan. L. Rev. 455 (2024).
Available at: https://scholarship.law.tamu.edu/facscholar/1988

File Type

PDF