Trial Magazine

AAJ lobbies on hundreds of issues related to civil justice. Some of these issues develop over time in correlation with changes in technology, like driverless cars; others address immediate concerns, such as U.S. Supreme Court nominations. And others are fights that we battle for years—for example, forced arbitration.

In 2017, an entire issue of Trial was devoted to forced arbitration: the rigged, secretive process that strips people of their constitutional right to hold ­law-breaking corporations publicly accountable in court. Its endurance is reflective of its overall pervasiveness.

Forced arbitration is used today in everything from employment contracts to nursing home intake forms to ­rideshare agreements. In August, AAJ submitted comments opposing the U.S. Department of Education’s notice of proposed rulemaking, which would allow for-profit universities that defraud their students to use forced arbitration clauses in their admission contracts.

At its core, forced arbitration denies people access to justice. Corporations prefer this tactic because it keeps their misconduct out of the courtroom and out of the public eye.

At its core, forced arbitration denies people access to justice. Corporations prefer this tactic because it keeps their misconduct out of the courtroom and out of the public eye.

I hope that won’t always be the case. Last December, former Fox News host and sexual harassment survivor Gretchen Carlson joined several members of Congress in unveiling bipartisan, bicameral legislation that would eliminate forced arbitration clauses in employment contracts and restore the rights of sexual harassment survivors to hold their workplace harassers accountable in court. (Read a Q&A with Gretchen and her attorney Nancy Erika Smith on p. 20.) As AAJ CEO Linda Lipsen has so eloquently stated, the legislation could “finally unmask abusers and give survivors of sexual harassment a path to justice and public accountability.”

We have seen progress at the state level too. For example, in March, Washington passed a law encouraging the disclosure and discussion of sexual harassment and sexual assault in the workplace (S.B. 5996). It prohibits employers from requiring employees to sign a nondisclosure agreement as a condition of employment and adds a new section to the Washington Law Against Discrimination that prohibits employers from firing or retaliating against employees who report sexual harassment.

And California recently passed a law to prohibit provisions in settlement agreements that prevent disclosure of facts related to claims of acts of sexual assault or sexual harassment (S.B. 820).

Much more work needs to be done in this area, and AAJ continues to advocate for legislation that will enable trial lawyers to better represent clients who have been hurt by large corporations and their attempts to hide behind forced arbitration. AAJ’s advocacy also works to amend or modify proposed changes to the Federal Rules that would harm your clients. (For more on changes to Federal Rule of Civil Procedure 23 that will go into effect next month, see p. 26.)

But the fight to protect access to justice doesn’t just fall on AAJ staff. It falls on all of us. I encourage you to join us at an AAJ Lobby Days or find opportunities to lobby with your state trial lawyer association. Email advocacy@justice.org to get started.

Elise R. Sanguinetti is a partner at Arias Sanguinetti Wang & Torrijos in Oakland, Calif. She can be reached at elise.sanguinetti@justice.org.