Over the past few years, the U.S. Supreme Court has issued a string of decisions endorsing the use of “take-it-or-leave-it” contracts that require workers to arbitrate employment rights disputes arising under some of this Nation’s most precious civil rights laws. The federal judiciary’s willingness to surrender its authority to the private arbitration industry is nothing short of extraordinary. For tens of millions of workers, judges currently play no meaningful role in the enforcement of workplace rights. They are mere bystanders, rendered toothless by a series of 5-4 Supreme Court decisions decide along the usual partisan lines.
Anyone troubled by this Nation’s “incredible shrinking judiciary” should read a November 30, 2018 opinion by Pennsylvania District Judge Gerald McHugh. The opinion is entitled Styczynski v. MarketSource, Inc., 18-cv-2662, and can be found HERE. Therein, Judge McHugh explains why, under existing Supreme Court and Third Circuit precedent, he is required to compel Ms. Styczynski’s sexual harassment claim to mandatory arbitration overseen by JAMS, Inc., a large arbitration company. Importantly, however, the Judge spends the last few pages of his opinion summarizing some of the most recent scholarship regarding the potential unfairness of mandatory arbitration. Anyone who is concerned about the privatization of our Nation’s civil justice system should read Judge McHugh’s thoughtful opinion.