Private Justice

Cut off from court, women are forced to seek justice in the board rooms of private law firms.

She threw her shoulder into the heavy oak door to thrust it open, revealing a lobby made of polished white marble and staircases with gold banisters that spiraled upwards to the attorneys’ offices upstairs. She adjusted her load of paperwork and brushed her hair out of her eyes as she approached the law firm’s receptionist to check in for her arbitration.

As she followed the receptionist to the conference room, she froze when she saw him. He had been her boss at the hospital, in her first year of residency after finishing medical school. She knew something was wrong her first day on the job. It started with the unwanted shoulder rubs. Then he began trailing his hand down her spine and resting it on the small of her back as he stood next to her. Soon the late-night phone calls began, inviting her to his home so he could “get to know her better.” She asked him to stop one day, squirming away from his wandering hands. He glared at her and warned her not to ruin her reputation by speaking out of turn — he was an acclaimed surgeon, and she was just a resident.

Her heart pounded as she saw him there behind the glass wall. He was reclining in his chair, sipping a cappuccino as he sat across from another older man in a tailored suit. He looked so relaxed, laughing and joking with his companion. Meanwhile she was shaking as she tried to not drop all the documents she’d brought with her, painstakingly laying out the timeline of his unwanted, and unrelenting, sexual advances.

She was confused, though, when the older man in the suit didn’t sit down next to the doctor. She watched as he strode to the head of the table, seating himself behind the embossed placard that read, “Arbitrator.” She began to panic as the older man flipped open a legal pad, uncapped an expensive-looking pen, and said, “alright, are we ready to begin?”

Her hands shook as she fumbled through her notes, feeling both men’s eyes on her as they waited for her to start. How could this man, who was having a friendly coffee with her harasser moments earlier, be judging the validity of her sexual harassment claim? She didn’t understand until she read the name printed on the stationary at the table. It was the same law firm that represented her employer in medical malpractice cases — of course he knew the doctor.

She had tried to bring her case in court, requesting a jury trial. But the court dismissed her case because of the fine print in her employment contract. She had to go to private arbitration instead. She fought back the tears welling up in her eyes as she realized she would have to explain, in detail, the humiliation and harassment she’d suffered, to these two men, behind closed doors, at a private law firm. When she’d walked into court that first, hopeful day the phrase, “equal justice under law” had been engraved above the courthouse door. But because of the mandatory arbitration clause hidden in her contract, her only chance at justice was in this room, where the names of the firm’s all-male partners were engraved over the conference room door.

Arbitration is a form of private dispute resolution in which the employer and employees submit their case to a professional arbitrator (usually a private lawyer), who will hear both sides’ positions and decide who wins. The arbitrator’s decision is legally binding and generally non-appealable in court — meaning, it’s final. And usually, the arbitrator deciding the dispute is chosen — and oftentimes paid for — by the employer. Forced arbitration occurs when employers place arbitration clauses in the fine print of employment contracts, requiring employees to sign them and waive their rights to resolve disputes in court, just to get — or keep — their jobs.

*While this post focuses on women’s issues, forced arbitration affects all employees — men and women alike — for nearly any employment-related claim. Nobody should have to sign away their rights to go to court just to get a job.

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