Senator Kirstin Gillibrand of New York announced legislation this week that would make it easier for older workers to sue over age discrimination in court.
Forced or mandatory arbitration is when a company requires that its employees sign contracts that waive their right to sue in court. Instead, if a dispute arises between the worker and the company, the case goes to arbitration.
Last year, Gillibrand, a Democrat, and Senator Lindsey Graham of South Carolina, a Republican, pushed for similar legislation banning forced arbitration in cases involving sexual assault or harassment at work. That bill passed in Congress. Now the senators, along with Senator Dick Durbin of Illinois and Representative Nancy Mace of South Carolina, are focusing on cases involving age discrimination.
“More than three out of four older workers have seen or experienced age discrimination on the job,” Gillibrand said. “They often can't seek justice or accountability because of a forced arbitration clause that they signed when they were hired.”
Gillibrand argues that employees are less likely to succeed when they’re bringing a case to arbitration. She said arbitrators are often selected by the employer, and the process prevents workers from accessing information that could help their case.
“Many employees are not even aware that they signed forced arbitration clauses when they were hired,” Gillibrand said. “So we are fighting to get rid of these harmful clauses.”
The bill, called the “Protecting Older Americans Act”, would invalidate arbitration clauses that prevent workers alleging age discrimination from suing in court. Those employees would be able to decide whether to take their case to court or to arbitration.
“There are many, many employers out there looking for ways to replace older workers with younger workers, simply because it's cheaper,” Graham said. “Binding arbitration needs to go by the wayside. We need to open up America's courtrooms, and give both sides a chance to make their case.”
About 60 million workers are locked into forced arbitration agreements across the country, according to the Department of Labor.