This month (June 2021) the American Association for Justice (AAJ) issued a report entitled “Where White Men Rule: How the Secretive System of Forced Arbitration Hurts Women and Minorities” that stated, “While federal and state judiciaries have struggled for years with the lack of representation within their ranks, they are positively diverse compared to arbitration.”
“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. Take 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.””
“If arbitration is ever to be a credible means for justice, it cannot, as it is currently, be a tool to silence victims of workplace harassment and discrimination. In employment cases resolved by AAA between 2016 and 2020, the top 10 most frequently-used male arbitrators—all of whom are white—awarded monetary damages to employees in just 2.1% of cases (JAMS does not reveal arbitrator names). Female arbitrators, on the other hand, awarded monetary damages 3.4% of the time. Female arbitrators also tended to award higher damages than their male counterparts.”
The AAJ report concluded: “Trust in the civil justice system is enhanced when the public sees that the judges deciding their cases reflect the diverse racial, ethnic, and cultural background of American society. As such, there have been, and continue to be, significant efforts to increase diversity in the federal judiciary. But the arbitration world is far behind even the judiciary.”
Nursing Home Arbitration Agreements
Unfortunately, many nursing home residents are presented with mandatory arbitration agreements at the time of their admission to the nursing home. The residents, or their representatives, often sign these arbitration agreements without carefully reading them or realizing that they are giving up the right to file a lawsuit and have a jury determine their nursing home claims. The nursing home arbitration agreements are often part of many documents that are presented and must be signed at the time of the nursing home admission, which is already a strenuous and emotional time.
If you or a loved one may have been injured (or worse) as a result of nursing home negligence in the United States, you should promptly find a nursing home negligence lawyer in your state who may investigate your nursing home negligence claim for you and represent you or your loved one in a nursing home negligence case, if appropriate.
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