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More than just the pay gap: arbitration’s stealth attack on women’s rights

It’s true we’ve come a long way, baby but we’re not quite there.

Earlier this week, “Equal Pay Day” marked the amount of time into a new year a woman is estimated to need to work to make up for the pay gap between genders.  Yet, legislation to right this imbalance failed in the U.S. Senate and in the House of Representatives.  As women’s rights advocates fight to end pay inequality, there’s a less known problem that’s affecting women: forced arbitration.

Last month, Americans celebrated the achievements of females during Women’s History Month, including our partners in the Fair Arbitration Now coalition who joined together to highlight the special problem of the impact of forced arbitration on women.

The battle for women’s rights is an ongoing campaign, and we have seen hard-fought successes. Through a series of landmark cases starting in the 1970’s, the concept of Equal Protection under the 14th Amendment of the U.S. Constitution, as codified by the Civil Rights Act of 1964, was firmly established as law of the land to treat women as equal to men. While the struggle there continues, women’s rights are also affected by our diminishing right to access the court system. The Seventh Amendment of the U.S. Constitution grants all citizens the right to a jury trial. Yet corporations consistently have been allowed to thwart that right by inserting arbitration clauses in contracts for employment and consumer products such as credit cards, cell phones, nursing homes, and even home construction.

These predispute binding mandatory (or forced) arbitration clauses deny consumers and employees access to the court system, and instead require them to resolve disputes with corporations in secret, costly tribunals. Many of them also prohibit consumers from participating in class actions against the companies. Simply put, forced arbitration deprives women AND men of a choice. Only corporations get to choose.

So, even though Equal Protection has been key to stopping gender discrimination in the workplace, education, the military, and elsewhere, forced arbitration has created a stealth war on women’s rights. By robbing women of their ability to go court to seek redress in instances of discrimination or for other wrongs, forced arbitration is sending women’s rights backward.

Just as women take on the fight to address the pay gap, we hope they also stand up and call for an end to forced arbitration and the backdoor war on women’s rights.  In that spirit, we offer the following list of some of the worst of the worst when it comes to women and arbitration clauses.

Top Seven Stealth Strikes on Women’s Rights



1. Unfortunately, despite Equal Protection requirements under the law, employers are still attempting to shortchange their female employees. Take for example, the story of Dr. Deborah Pierce, a physician who was passed over for partnership and was then denied the opportunity to bring her claim to court because her employment contract contained an arbitration clause.

Huge retailers like Nordstrom have historically employed large numbers of female employees yet their employment contracts still contain an arbitration clause. If a woman employed by the retail giant were to be discriminated against, she would not be able to bring her case to court, and would instead be forced to use expensive and likely biased, arbitrators.


2. Not only do women play the predominant role in the direct care industry, females make up more than 71% of nursing home residents. Kindred Healthcare is one of the nation’s largest providers of nursing home care. However, when the estate of Gladys Reed, a deceased patient, sued the company for negligence and other charges, the arbitration clause hidden in their contract shielded the company from having to try the case in the courts.


3. D.R. Horton has for years held a top spots for the largest homebuilding companies in the U.S. The company has an extended warranty provision that ironically shuts off buyers from bringing cases of faulty construction before judges. Numerous alleged instances of bad foundations, leaky windows, moldy basements and the like have gone without justice because homeowners were forced into expensive and unfair arbitration. Since single women outpace men for buying homes, they should beware of hidden arbitration clauses in home building contracts and warranties so that they will retain their right to sue if there are major issues with the homes they purchase.


4. Besides having a feminine name, Sallie Mae is America’s largest student loan lender. With the pay gap causing women to have a disproportionate student loan debt burden, Sallie Mae’s arbitration clause and class action ban has a very large impact on women’s lives.  As more women find themselves in a credit crunch, it may be a surprise to them that they won’t have the opportunity to bring their case in a court of law.

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5. Though women are still working to change the situation of unequal pay, some females actually make enough money to invest it using financial services companies.  With a female President at its helm, Fidelity Investments should be a model of protecting women’s rights. However, the firm’s service contract has a hidden arbitration clause


6. Today’s busy woman is frequently seen with her cell phone practically surgically attached at the hand. AT&T, as the nation’s largest telecom company, is providing coverage for a large percentage of American women. AT&T also has been lauded as a top company for women employees. Why then are they blocking a woman’s right to bring a case to court by inserting terms that force arbitration and prohibit class actions in their cellular service contracts?


7.Chick flicks” and other mainstream media outlets are quick to pander to the stereotype of ladies looking for love. The truth is that the women (and men) who are searching for companionship might be getting less than they expected, not counting dating duds, when they use online dating sites like Match.com, since their contract contains a hidden arbitration clause and class action ban.

It’s true that pay inequity is a huge deal.  But, without upholding the right to our day in court, even if the pay gap is removed, we may lose the right to challenge clear examples of discriminatory pay.  Your sisters worked hard for women’s rights and we must not allow the stealth attack on Equal Protection and other rights to continue unchallenged.

Susan Harley is the deputy director for Public Citizen’s Congress Watch division.