What amendment found in the Bill of Rights protects all other rights? Some would say the Second Amendment. But there is an amendment that protects even the Second Amendment. It is the Seventh Amendment, which provides each of us with the right to a trial by jury. That right to trial by jury applies to both civil and criminal trials.
Trial by jury. A right so fundamental it was cited by the fifty-six founders as one of the bases to declare independence from Great Britain. See The Declaration of Independence (U.S. 1776). A right so fundamental, it was later codified in the Bill of Rights as the Seventh Amendment to the United States Constitution. It is a right found in most state constitutions.
Despite all this, every day in this country that right is being eroded away under the guise of the freedom to contract. Employers throughout the country are depriving employees the right to redress before a jury of their peers. This deprivation is not on a case-by-case, arm’s length basis, but categorically. In the case of most employers, it is not a one-off, negotiated deal – it is a categorical denial of a constitutional right to anyone who is not only employed by a company, but also those who merely seek employment with the company. In short, employers and major companies are ensuring that they will never be exposed to a jury trial in state or federal court arising out of a dispute with an employee.
Why is this important? Because mandatory, binding arbitration is not the same as a jury trial. The arbitrator will likely be a retired judge or attorney – usually white, male and over the age of 50. The arbitrator will work for an arbitration company that relies on large companies and employers for their work. Studies have demonstrated that arbitration awards are four times less than jury awards. And employees win only 21.4% of the time at arbitration. Significantly less than they win before juries.
So, if your employer discriminates against you because you are black or because you are a woman, or because you are a Muslim, but you were forced to agree to arbitration, you will have to bring your claims in private (the public will never know) and have to convince an arbitrator who receives most of his or her income from that same or similar companies to compensate you for the discrimination. It is not going to happen. And employers know this, which is why the chamber of commerce has been pushing the federal and state courts further and further away from the express, unambiguous language in the constitution. In some cases, lawsuits are thrown out because when the employee applied for the job, they clicked a box that bound them to arbitration.
Ask yourself, if you lose your ability to sue, how can you ever hold large companies accountable for discriminatory conduct? You cannot. Bills have recently been introduced in the House and the Senate to curb the mandatory arbitration clauses. Every American who cares about individual liberty and accountability should support the Forced Arbitration Injustice Repeal Act of 2019, or FAIR Act. Because it is not just women, people of color, and religious minorities who suffer from mandatory binding arbitration, it is also men, white employees, and Christians who are prohibited from bringing lawsuits. The Seventh Amendment secures all other rights. Don’t let big business erase what our founders fought for.
