I spent a month selecting a highly-regarded orthodontic practice for my son’s treatment, even though it was on the pricier side. At my son’s first appointment, we encountered an unexpected arbitration agreement that was skewed in favor of the practice and generally unfavorable to patients. This made me uncomfortable, particularly because they whisked my son away and began treatment before I could fully read and sign the agreement. I scrutinized the agreement to understand its prevalence and discovered a clause that permitted me to cancel the agreement within 30 days, which offered me some temporary relief. This is a legal requirement in California, but not in Nevada.

I penned a letter to the orthodontist articulating my views on arbitration agreements in general, and also as they applied to my son. I proposed a few changes to the agreement. A few days later, I had a conversation with the orthodontist over the phone where he informed me that he no longer felt comfortable treating my son and suggested we seek treatment elsewhere. This took me aback as I believe trust should be reciprocal, and a good patient-doctor relationship should permit the patient to question things like the arbitration agreement. I suspect the doctor was genuinely irritated by my questioning of his business and legal practices, interpreting it as a challenge to his expertise. I concluded that I was likely the only patient in the history of his practice to have read the contract thoroughly, particularly the arbitration agreement section. For the record, it never crossed my mind that my letter would irritate the doctor. I had simply assumed that he might not fully understand what he was asking of his patients, given that legal advice for small businesses can sometimes be somewhat boilerplate.

This experience led to a thirty-minute conversation with the orthodontist, during which we discussed the nature of the agreement, patient rights, and the trust necessary between a doctor and a patient. I recommended that the orthodontist reassess the arbitration agreement from a patient’s perspective and contemplate the potential implications for his practice’s reputation. However, he displayed no intention to modify the agreement, insisting that its use was commonplace among doctors. I challenged this, indicating that based on my research, only 30% of local orthodontists employed such agreements. I harbor no ill-will towards the orthodontist, and I believe he is doing what he thinks is right for himself and his practice within the context of what he considers normal. If the orthodontist was so annoyed with me that he didn’t want to treat my son, that’s perfectly fine. He is well within his rights to do so, and I am fully cognizant of the fact that my political and legal positions can sometimes irritate people. However, the entire ordeal left me with the impression that the orthodontist was more concerned about legal safeguards for his practice than about preserving trust and respect for patient rights.

If you encounter such a situation in your life, remember one thing: you are not crazy for wanting to preserve your right to a jury trial. They are the ones who are crazy for asking you to give it up.

My encounter with this orthodontic practice is merely one instance of the broader issue with arbitration agreements. Such agreements are not confined to healthcare providers but extend across various industries, including employment. The usage and conditions of these agreements have recently been the focus of legal changes and debates, particularly in light of new legislation introduced in the U.S.

Last year, Congress approved a bipartisan bill known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (H.R. 4445). This bill, signed by President Biden, amends the Federal Arbitration Act to prohibit pre-dispute arbitration agreements for claims of sexual assault or sexual harassment. It also bans any waivers of the right to present such claims jointly or on a class basis. The legislation received overwhelming endorsement in both the House of Representatives and the Senate.

According to the law, courts, not arbitrators, decide whether a claim qualifies as sexual harassment or sexual assault. This holds true regardless of whether the arbitration agreement delegates these decisions to the arbitrator. The law applies to any dispute or claim that emerges after its date of enactment and is not retroactive.

Employers have been scrambling to reevaluate their existing arbitration agreements and revise them to comply with the new law. It is anticipated that this law will increase the number of sexual harassment and assault cases filed in court.

The Act signified a major transition for employment arbitration and may presage further changes to the Federal Arbitration Act.

A few months ago, the ability for a plaintiff to include issues such as race bias, retaliation, and pay discrimination in their lawsuit was expanded.

In a landmark decision, a U.S. District Judge ruled that a new federal law, prohibiting employers from forcing workers to arbitrate sexual harassment disputes, permits entire lawsuits against businesses to proceed in court, not just harassment claims. This ruling, one of the first of its kind, suggests that any lawsuit that includes a harassment claim can’t be referred to arbitration.

The law significantly impacts a company called Everyrealm Inc, which is currently facing a lawsuit from a former director of strategic partnerships alleging sexual harassment, race bias, retaliation, and pay discrimination. This law, which received bipartisan support and emerged from the #MeToo movement, means that over half of the private-sector U.S. workers’ agreements to arbitrate employment-related disputes are unenforceable in cases of sexual harassment. Critics of mandatory arbitration argue that the process tends to favor employers. These developments underscore the potential for arbitration agreements to evolve to better protect the rights of individuals.

My personal experience with arbitration agreements and the increasing scrutiny on their fairness highlights the urgent need for legislative reform. Against this backdrop, we observe some promising activity in Congress where there have been moves to reform the law concerning arbitration agreements beyond the issue of sexual harassment and sexual assault.

Last month, Rep. Hank Johnson (D-Ga.) and Sen. Richard Blumenthal (D-Conn.) reintroduced the Forced Arbitration Injustice Repeal Act (FAIR) Act. This legislation seeks to eliminate forced arbitration clauses in employment, consumer, and similar cases to prevent corporations from circumventing legal consequences. The primary objective of the bill is to safeguard Americans’ constitutional right to a fair trial.

Although it didn’t previously pass in the Senate, the reintroduction of the FAIR Act signifies a growing momentum to eradicate forced arbitration clauses, which many perceive as tools utilized by corporations to evade accountability. These clauses often appear in various agreements such as cell phone service contracts, nursing home admission agreements, and online user agreements.

Forced arbitration has become a pervasive practice that shields corporations from legal accountability and obstructs individuals from seeking justice in courts. It has been extensively used to deny court access to those facing workplace discrimination or encountering dangerous products.

The push to end forced arbitration has brought politicians from opposite ends of the political spectrum together. Despite some GOP lawmakers showing support, many have not. However, public opinion polls show substantial bipartisan support for ending forced arbitration. A 2019 survey found that 84% of Republican and 83% of Democratic voters believe consumers should have the option between court or arbitration.

Forced arbitration is often viewed as an unfair practice, with corporations selecting the arbitrator, resulting in reduced compensation for aggrieved parties. This situation discourages many from seeking justice or accountability. The escalating use of forced arbitration clauses effectively serves as a “get out of jail free” card for affluent corporations.

However, bipartisan support has emerged for prohibiting forced arbitration in cases involving sexual harassment or discrimination. The hope is that Republican and Democratic lawmakers will once again unite to pass the FAIR Act, terminating forced arbitration in all instances. The bill enjoys overwhelming support from voters of all political affiliations, and passing it could restore faith in Congress’s ability to bridge political divides for the public’s benefit.

The FAIR Act offers a critical opportunity to correct a significant injustice, reinforce the Seventh Amendment, and demonstrate that bipartisan cooperation in Congress is still possible. Therefore, it is crucial for The FAIR Act to be passed with the bipartisan support it merits.