When I was seven, I saved the lives of my two younger cousins who were playing on the railroad tracks. They did not notice the train coming, but I did and frantically ran to them. I was able to toss them both to safety, but I fell and my pants got caught on the rail. I have been living with one leg ever since.
Thirty surgeries and two decades later, I was doing fine as a medically trained professional, drawing blood for lab tests at the University of Southern California Hospital. I did my job just as easily on crutches as with a properly fitting prosthetic leg, and had supervisors who understood that I needed to switch between the two because artificial legs don't always fit the way they should. Padding wears down and that extra pressure causes painful blistering that can take weeks to heal, months if the blisters get infected. It also takes weeks to get my leg back when it needs to be refitted.
When staffing needs at USC changed and I had to transfer to the Tenet facility at Garfield Medical Center, my working environment turned ugly. In this day and age, when the law says employers have to accommodate the disabled, the last thing I expected to hear from my new supervisor was, "Go home and put on your leg," but it was something she told me over and over. I did what she asked for as long as I could because I did not want to lose my job, but wearing the leg on top of the blisters gave me a bad infection. Artificial limbs wear out and, at this time, I also had to get a new leg, which meant a lengthy medical review process and insurance delays to replace my basic prosthetic device which costs $34,000. Because my supervisor refused to let me do my job on crutches, I was unable to work for six months. When I returned to Garfield, my job was gone.
The only work they had for me was as a daily hire on the graveyard shift, where a new supervisor let other workers make disparaging remarks to me. When I complained to her, she said I should not take it seriously, that they were just "playing around." I could not let my situation continue, so I told the human resources department I was filing a grievance. My job performance reviews were the only thing that changed after that. They went from always good to always bad.
I thought I had an "open-and-shut case" of discrimination, so I found a lawyer and he filed a lawsuit against Tenet and Garfield. Four days later, I was fired for something I never did, mislabel specimens.
Evidence and facts matter in a court of law, but I didn't have access to one. Tenet employment contracts include a binding mandatory arbitration clause which prevented me from having my case heard before a real judge in a legitimate court. Instead, my case was reviewed by an arbitrator Tenet hired, guaranteeing I would lose and they would be protected.
I was never going to get a fair hearing, but just to make doubly sure of that, Tenet offered the arbitrator two more case to handle while she was in the process of evaluating my case. I lost, of course, but because of this treachery and the strong evidence we had, my lawyer tried to get a regular court to throw out the arbitration decision. That was a failure too.
You can ask your members of Congress to support the Arbitration Fairness Act here, you can also check out the Fair Arbitration Now website and sign a petition to ban forced arbitration.
Previously: The Arbitration Fairness Act Is In The House
Mandatory Binding Arbitration: The Worst Choose Your Own Adventure Ever
What Is Mandatory Binding Arbitration?
(Photo: mindonfire)
Best way to find out if he'd been doing the job the same with both crutches and fake leg is to read his past performance reviews. If his performance reviews were stellar up until he began having problems with this supervisor.. well, that basically speaks for itself doesn't it? You don't usually go from a 10 to a 3 without a lot of people noticing/getting fired.
]]>Big difference!
]]>Some jurisdictions may make a distinction between arbitration and mediation, but mine does not. (Some jurisdictions even elsewhere in my state may, I don't know. Locally, we don't.)
]]>2. How can an MBA "agreement" trump criminal activity? Discrimination is a criminal offense. Since a crime is a matter involving the criminal and the state, I don't see how an MBA could even apply.
]]>Wasn't mandatory arbitration brought up by one of the contractor companies in Iraq when one of their female employees was assaulted and raped by coworkers? That she couldn't sue them for lack of security but had to pursue mandatory arbitration?
]]>@Eyebrows McGee (on Twitter: LPetelle): RE: the divorce cases; is it possible you're saying arbitration when you mean mediation? I'm not trying to step on your toes here, you're a lawyer and I'm not, but I've never heard of mandatory binding arbitration used in the family context but I do know that mandatory mediation for family matters is quite common (and is becoming increasingly legislated as mediation saves the parties tons of $$$, is much quicker than litigation, and is generally appropriate in family matters). There are schemes where the parties enter into mediation and if they can't resolve their issues the mediator takes on the role of an arbitrator and rules on whatever issues are still unresolved, but I've only heard of it being used when agreed upon by the parties, as opposed to court appointed. Also from the way you're describing it, it definitely sounds like mediation -- arbitration isn't collaborative, there is no agreement sought.
]]>Frankly, you'd think they wouldn't have thrown such a shitfit over someone being on crutches in the first place. It makes you wonder how they treat patients there and why these people are working in a hospital if they have such a big problem with disabled people.
]]>I do not have trouble with requiring arbitration. However, it should not rule out further court action. A contract should be able to say we try arbitration first. However, the arbitrators should be on a list approved by the state, and both parties should agree to one- appointment by the state if unable to agree.
It still just amazes me how people are willing to screw others over for their own benefit. I know it happens everyday, but since I would feel horrible if I did that to somebody, I assume others would feel the same. I tend to forget that not only are others willing to do that, but many get actual joy from the action.
]]>It's simply not true that people "frequently" file frivolous lawsuits, outside of the "theory" of Chamber of Commerce horror stories. It is true, of course that people also abuse the court system by raising frivolous defenses, but we don't hear about that so often. Huh.
]]>It works both in simple cases (car accidents) or more complex cases (police attack political protest - dozens of witnesses, expert witnesses in police procedure and pepper spray, and issues such as qualified governmental immunity).
]]>If you sue for less than $50,000, the case goes to arbitration, and the court gives the parties a list of arbitrators to choose from. If the parties cannot agree, the court selects one from the list.
]]>All these horror stories have me pondering if anyone has actually SUCCEEDED in arbitration.
]]>MBA is a failure of the free market when there is no competition in the amount of rights afforded customers - every cell phone carrier requires them. Just about every possible good you have to sign a contract to use requires them. Cell phones are necessary to compete in today's world so MBA's are not an issue of choice, they are an issue of corporations conspiring to eliminate our right to due process.
In your view of the world, there is no difference between a free market and an anarchic market. In an anarchic market, the invisible hand does not lead to rights and happiness, it leads to profits condensing into the hands of elites. Capitalists always passionately defend the benefits of competition - but nothing is more deathly to competition than a free market, which merely leads to centralization and monopolization (which is unhealthful when done by the government in socialism or by corporations in unregulated capitalism). What is needed is a [i]fair[/i] market, with consumer protections as thorough and inviolate as our civil rights. Sports foster better competition through standardized rules. Not all rules choke competition; there are plenty that could make it better.
]]>It's not an area I have a lot of experience with, so there's probably another lawyer wandering around with a better answer. But I do know a couple of retired lawyers who looked into doing arbitration in retirement ... and couldn't get hired by the major arbitration companies because they had an honesty problem. As in, they were too honest. I've also known arbitrators who were dropped for finding in favor of the consumer too many times. (Like once.)
Arbitration CAN work really well -- my state has recently instituted mandatory arbitration in all divorce cases; you only get to go to the judge if you can't come to an agreement in arbitration, and it's working extremely well -- but it's just ridiculously broken as it's currently used between companies and individuals.
Maybe they could require individuals to go through arbitration FIRST (at the company's expense) and if an agreeable settlement can't be reached, THEN they can go to court (at each party's expense). That'd give the companies a strong incentive to reach a fair settlement in arbitration, because they can get all the cost- and time- and publicity-savings of arbitration ... but only if it's fair. If it's unfair, they're going to be paying for the arbitration and paying again for the court case.
(And, yes, some buttheads would refuse reasonable settlements, but you could have a law that if they're unreasonable in arbitration they have to pay a portion of the costs or something. I don't know, just noodling off the top of my head here.)
]]>Rand says NOTHING about mandatory binding arbitration. Based on the cases presented here on Consumerist, she'd say that it is a BAD justice system and thus should be scrapped.
Go read up on things before you insult me and other intelligent people.
]]>They wouldn't let that happen even if H*ll froze over.
]]>Imagine if an employer slipped in a line in a contract that allows them to stop paying employees without them being able to quit.
]]>Self regulation is s joke when only the big corporations are doing the regulating.
]]>So technically, NOT having teeth doesn't prevent him from eating. However, his employer is forcing him to wear a corrective device that prevents him from engaging in a major life activity. So...he could win, with the right court. Oddly enough, this parallels this article, in that the corrective device is what is causing the issue. Anyway, just my two cents.
On a similar note, I'm genetically missing a tooth near the front (to the right of my two front teeth). I wouldn't call is a disability, but it sure is annoying. Getting a missing tooth replaced is a way bigger pain than I ever could have expected. Although I'm also missing my wisdom teeth (as in, never had any, not even one), so I don't complain TOO hard. :-D
]]>However, we're dealing with the species that is not only mandatory and binding, but forced upon consumers and employees by entities that have an abundance of resources (resources that help procure the "right" arb shop). I realize you'll probably take issue with my use of "forced," but let's be honest - if a contract was being drawn up from scratch between the little guy and the big bad business, I highly doubt that MBA would be a term that both would quickly agree upon.
Anyway, this form of arbitration is the only one with which I take issue, not the general idea of arbitration.
]]>That is true, but considering that legislation is being proposed (at least as it pertains to nursing homes) to limit binding arbitration, you know someone is going to be screaming about "free markets" and government intrusion.
]]>He got the benefit of easy hiring and a higher salary from a company whose firing costs are lower. If you are hard to fire, a company will not be quick to hire you and will not pay you as much to mitigate the risk that they cannot fire an employee they do not want.
Now that he got the benefit of this in the form of being hired at the salary he got, he wants out of the costs associated with that benefit. Sorry, that's not fair.
]]>I'm glad that this post raised one of you...
]]>Can't force abritration for criminal acts.
Violation of ADA is criminal. Time for EEOC to take action.
]]>I so don't understand arbitration clauses. However, I suspect they are going to move to being less used and hopefully there will be legislation that changes the way they're used, soon.
]]>(I'm falling victim to the "can't reply" bug again.)
]]>@Corporate_guy: You also have to randomize the arbitrator, and any bias on either side should be filed in a detailed report along with the results of arbitration in the event that the result is appealed by a civil court/court of law and reviewed.
]]>@rugman11: Ah yes, the same "free market" that let little kids work, had no safety regulations for workers, created factory owned towns where people would end up further in debt to the companies they worked for, allowed employers to keep wages for any reason they dreamed up, allowed them to lower wages without telling the workers....that free market?
]]>@JGKojak: If you can "knowingly and voluntarily" waive constitutional rights. I forget which Supreme Court case it was.
Think of the cops shows when they read Miranda rights to suspects. They've informed you of your rights, so if you decide to talk, you've knowingly and voluntarily waived those rights.
Same principle applies here.
]]>The OP may not have known he had a MBA, or understood what that meant.
]]>In courts, the parties may also challenge the judge if they believe the judge to be unfair. Where I practice, each side has ONE opportunity to strike a judge they are assigned to (before you appear in front of them - no waiting until you get a bad result and then complaining). This makes it very easy to avoid truly biased judges.
]]>Let's not confuse mediation and (mandatory) binding arbitration. At least in the jurisdiction where I live, there are voluntary mediation services affiliated with the court. The goal of mediation is to facilitate a settlement without taking the suit to trial. The suit enters mediation only if both parties agree to it, and if no agreement is reached both parties are free to proceed to court.
Mediation can be a good thing that saves people time, money, and the uncertainty of a verdict in court. That said, it lends itself best to simple cases, especially those filed in small claims court.
]]>It doesn't make sense. At all. It's a part of so many contracts, it is simply impossible to *not* get forced into it.
]]>In this case... that's pretty fucked up. Another reason why the American legal system needs revamping in a world where contracts are all-powerful over common sense and decency and people continually turn into greedy, inconsiderate bastard vampires.
]]>How can you not be allowed to sue under the Constitution period? Wouldn't a lawsuit brought under one of these clauses for, say, discrimination possibly end up declaring these arbitration contracts unconstitutional???
]]>What kind of job was it that the guy made you put the teeth in? If it's customer facing? And why would it matter if you had them in while eating? Why not take it out?
]]>The US has a long history of arbitration of employment disputes, and its been the preferred method of most courts for settling complex employment disputes for about 50 years. I think we're throwing the baby out with the bath water here. For every horror story of someone getting "screwed" in arbitration, there are ten times as many about people getting "screwed" in traditional court room settings. Consumerist is doing its readers a disservice by not doing a better job reporting on both sides of this issue, and acting like just getting rid of arbitration would fix all of the world's ills.
]]>In this day and age of policical correctness and being sensitive to individuals with disabilities it amazes me that any company could get away with this behavior. Where is the ACLU? Even though I'm not a fan of the ACLU is one case they should be taking on.
]]>In a court of law, if there exists a conflict of interest between a judge and a party, that judge is precluded from presiding over the matter. It doesn't even reach the point where it has to be ex post decided whether it was "unfair" - the judge is simply out.
Now if you're conceding that arbitrators in this context are inherently conflicted, why do you think they should be able to preside over a given case, as opposed to a judge not being able to preside over the same case in a court of law?
]]>Remember the case of the woman contractor in Iraq who was raped and locked in a shipping container. When she tried to press charges...yep, aribitration clause.
@henwy They will CLAIM he couldn't, but seeing as he had done the job without his leg and with his crutches numerous times before, their claim is wrong. My guess is that the supervisor was just a jerkwad and not willing to listen to reason.
]]>It seems that Mandantory Binding Arbitration abridges due process. That should be illegal.
Could mediation be a quick way to initially mediate disputes in a low-cost environment? Possibly, in theory - but it should *never* stand as the last method of redress.
]]>Right, so the whole thing would end up hinging on whether or not he could do his job with the crutches. My guess is the company will claim he couldn't, which is why they asked him to put on the leg so he could actually do the job properly. If that ends up being the truth of the case, then the ADA doesn't apply. It'll probably end up being a lotta competing testimony about what the job entails and whether it's possible to do it with arms in crutches or not.
]]>This article describes some of the details involved. The facts are different enough that this might be a real battle, but I can't imagine any judge not interpreting SCOTUS' holding to apply in this case. Ignore some of the biased tone of this article. Also, I love that bloody Justice Thomas woke up long enough to write (or have one of his clerks write) a dissent. Jerk.
I really hope John gets a fair hearing. Mandatory binding arbitration is a sick, twisted way for companies to get away with any amount of negligence or abuse it wants. And I can't stand it.
]]>But doesn't this fall under federal ADA law in addition to FMLA? Can a contract override federal law?
]]>That said, I think I could support the statutory elimination of arbitration from employment contracts. I think they are wholly different from consumer or real estate sales contracts, and our government does have a tradition of protecting employees, particularly from discriminatory practices. Further, I think employment disputes present a more important issue than disputes over a sale, making them more worthy of government protection.
]]>@henwy He said that he COULD do the job without the leg, but his new supervisor kept demanding he wear it, and he complied to make it easier on himself. I imagine he wore a leg sometimes instead of crutches because ... well, he has that right.
]]>The idiots who constantly yell "free markets" whenever even the slightest regulation is suggested. I don't know exactly where Rand-ian Libertarians think their objectivist ideals leave the little guy, but time and again we've been shown that the market does not regulate itself fairly nor does it govern with an enlightened sense that high tides raise all ships. The gap between the poor and the obscenely wealthy has grown year after year with the middle class sinking further and further down the ladder. I'm not a fan of government regulation, but the simple fact is that if there were none, business interests would run roughshod over us even more than it has to date.
]]>Usually I'm not in favor of the "sue the hell out of them" mindset, but... he should have been able to sue them for every penny they were worth. What despicable behavior on the part of his (former) employers.
]]>Arbitration (or actually, "mediation") could be a useful first step in conflict resolution, but it should not, ever, strip away a citizen's right to redress in a courtroom.
]]>What the fuck is wrong with this country.
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