Arbitration Providers Must Take Action on Diversity and Accessibility
By Ellen Noble
This past summer an email expressing abhorrent, racist views of a white supremacist group was circulated by a (now former) JAMS arbitrator. While JAMS quickly severed its relationship with the arbitrator, the incident revived calls for arbitration providers to do better in vetting their arbitrators and monitoring their decisions for bias. This week, Public Justice wrote to JAMS, joining the National Employment Lawyers Association (“NELA”) and its related charitable organization, in calling for aggressive vetting measures, more transparency, and a formal process to monitor and evaluate arbitrators for bias.
But Public Justice and its allies are also calling for broader reforms to promote inclusivity, equity, and diversity in arbitration proceedings more generally. That racist email is just the tip of the iceberg—the most pervasive and covert forms of bias and exclusion in the arbitration process will not simply arrive in our inboxes.
JAMS should start by tackling the lack of diversity among it arbitrators. Rapper and entrepreneur Jay-Z brought much needed attention to this issue in 2018 when he was required to arbitrate a dispute stemming from the $200 million sale of his clothing line. He argued that the arbitration clause was discriminatory because he was required to select an arbitrator from a list of 200 individuals, only three of which identified as African-American. He eventually reached a compromise with AAA, which offered him additional African-American arbitrators to choose from and agreed to take steps to improve diverse representation in future arbitrations.
But the problem persists. AAA boasts that its roster is composed of 26% women and minorities; there is no further breakdown of the numbers. And in JAMS’ roster, women and minorities are underrepresented in every category. Statistics reported a few years ago stated that 22% of JAMS’ roster were women and only 9% were persons of color. While JAMS’ website advertises the percent of its employees that are women or people of color, it provides no data as to the percent of women or people of color that are active alternative dispute resolution panelists.
These numbers are particularly concerning when you think about the kind of disputes these arbitrators are deciding. Mandatory arbitration of employment discrimination claims involves vulnerable workers of color, women, and other protected classes. The lack of diverse arbitrators damages the integrity and legitimacy of these proceedings, but it also results in unfair outcomes. A recent study revealed that male judges are more likely than female judges to rule against a plaintiff in a sex discrimination suit, and white judges are more likely than black judges to rule against a plaintiff in a race discrimination suit.
If arbitration providers care about eliminating bias, then they should develop a plan to recruit attorneys of color and female attorneys, as well as plaintiff-side attorneys, public interest attorneys, and bilingual attorneys. Providers should, as NELA recommends, publish a report detailing their efforts to recruit more diverse attorneys as arbitrators and develop a transparent plan to monitor and improve those recruitment efforts moving forward. Providers should also guarantee that every slate of arbitrators it provides includes a certain percentage of female arbitrators and arbitrators of color, and if a provider cannot offer a reasonable percentage of diverse arbitrators in any given circumstance, then the consumer or worker should be allowed to request an arbitrator that the other side isn’t permitted to strike. Finally, providers should require arbitrators to undergo implicit bias training so that they can be exposed to their own unconscious attitudes or beliefs that may affect how they consider and decide disputes.
Arbitration providers also need to look beyond the statistics and think about how their own rules structurally disadvantage parties from different backgrounds or with different abilities. For example, Rule 29 of AAA’s Commercial Arbitration Rules provide that “Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall assume the costs of the service.” In other words, anyone who is deaf or hard of hearing, or who speaks only or primarily a language other than English, is forced to bear higher costs to even participate in the arbitration proceeding.
This is discriminatory on its own terms, but it is especially abhorrent in the context of forced arbitration where employees and consumers with little to no bargaining power are required to enter into arbitration agreements with large powerful corporations in order to secure employment, set up a bank account, obtain healthcare, or just use a cellphone. AAA’s rule requiring these individuals to pay for their own interpreter if needed makes arbitration a cost-prohibitive option for many workers and consumers that primarily speak languages other than English or are deaf or hard of hearing. There is nothing equitable or inclusive about it.
Arbitration providers should ensure that individuals are provided, when needed, interpreters or other accommodations like CART (Communication Access Realtime Translation) at no cost to them. State courts are required to provide such accommodations free of cost for those with disabilities under Title II of the Americans with Disabilities Act and federal courts have a policy of doing the same. The many local and state courts and agencies that receive federal financial assistance are also required to provide accommodations free of cost for those who are “Limited English Proficient” under Title VI of the Civil Rights Act of 1964.
Providers should also develop a process by which individuals can communicate any access needs they might have, and make sure that any digital platforms being used to host arbitration proceedings during the pandemic are accessible to people with disabilities. Providers can build a more transparent and accountable arbitration process, but it requires bold action and structural reforms.
You can read Public Justice’s letter to JAMS calling for reforms to promote inclusivity, equity, and diversity in its arbitration proceedings here.