Force Arbitrations Antithetical to Civil Rights

WHEREAS, the mission of the National Association for the Advancement of Colored People (NAACP) is to secure the political, educational, social, and economic equality of rights in order to eliminate discrimination and ensure the health and well-being of all persons; and

WHEREAS, the vision of the National Association of the Advancement of Colored People is to ensure a society in which all individuals have equal rights without discrimination; and

WHEREAS, Title VII of the Civil Rights Act of 1964 is a federal law that protects employees against discrimination based on race, color, national origin, sex, and religion, and under Title VII an employer may not discriminate with regard to any term, condition, or privilege of employment; and

WHEREAS, the scope of Title VII extends to areas such as recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, and providing benefits. Employers in both private and public sectors that employ fifteen or more employees are subject to this law. The federal government, employment agencies, and labor organizations are also subject to Title VII; and

WHEREAS, mandatory arbitration is a clause contained in a contract, often an employment contract, that prevents a conflict from being resolved in court; and

WHEREAS, mandatory arbitration agreements have become a commonplace and popular tool used by corporations to prevent litigation over alleged wrongdoing on their part; and

WHEREAS, in regard to employment contracts, mandatory arbitration agreements bar access to the judicial system for claims including "employment discrimination and sexual harassment claims based on Title VII of the Civil Rights Act, protections for employees with disabilities under the Americans with Disabilities Act, rights to maternity and medical leaves based on the Family and Medical Leave Act, and entitlements to minimum wages and overtime under the Fair Labor Standards Act"; and

WHEREAS, employers prefer arbitration because it is less expensive than having to litigate the conflict in court. A 2015 study found that arbitration procedures prevent employees from filing formal complaints against their employers and favor employers over employees in almost every regard; and

WHEREAS, although employment discrimination is prohibited by civil rights statutes such as Title VII, statutory claims are subject to arbitration under the Federal Arbitration Act ("FAA"); and

WHEREAS, when considering the text of Title VII, its legislative history, and inherent conflicts between arbitration and the underlying purposes of the statute, it is clear that Congress did not want the civil rights protections guaranteed by these statutes to be eviscerated by mandatory arbitration; and

WHEREAS, there is currently a federal appellate circuit split as to how to handle Title VII claims and mandatory arbitration; in particular, the Ninth Circuit uses a non-immunization principle when they interpret and apply Title VII to mandatory arbitration cases; and

WHEREAS, the non-immunization principle used by the Ninth Circuit when interpreting and applying Title VII to mandatory arbitration cases, bolstered by an analysis of the legislative history of the statutes in issue, congressional intent, and public policy, should be used by tribunals across the country when dealing with civil rights statutes and arbitration.

THEREFORE, BE IT RESOLVED, that the NAACP demand the passage and enactment of legislation and regulations in every state, the District of Columbia and all territories opposing forced arbitration as a threat to and abridgement of civil rights, and prohibiting such practices as they relate to employment contracts and business-consumer transactions.