Where White Men Rule: How the Secretive System of Forced Arbitration Hurts Women and Minorities
By: American Association for Justice Research
Arbitrators in consumer and employment cases are mostly male and overwhelmingly white. At AAA and JAMS, the two largest consumer and employment arbitration providers in the country, 88% of arbitrators are white and 77% are male. And that’s as diverse as it gets. In 2019, members of the National Academy of Arbitrators determined that over the organization’s 72-year history only 35 Black, Indigenous, and people of color (BIPOC) had been admitted, just 2% of the overall membership. To put this into perspective, individuals who identify as BIPOC make up nearly 40%, and women make up 51%, of people living in the United States.
Few people realize that forced arbitration provisions eliminate their constitutional right to a trial before a jury of their peers. But for minorities and women, forced arbitration not only eliminates the jury but also all but ensures their case will be decided by a white male. A consumer is more likely to be struck by lightning than win a monetary award in forced arbitration as it is; being Black or female reduces their prospects even further.6Take for example a recent Tesla case, in which a Black employee detailed suffering at least a dozen instances of racial slurs and threats, including video of coworkers threatening him while using the n-word. Though Tesla CEO Elon Musk apologized to the employee, agreed changes needed to be made, and offered to settle the case, Tesla eventually took the case to arbitration, where a white arbitrator ruled that the slurs weren’t racist and were more “consistent with lyrics and images commonly found in rap songs.”