Employers should be concerned that just this week, Democratic lawmakers (Sen. Cory Booker of New Jersey and Rep. Colin Allred of Texas) outlined legislation that would ban the arbitration of claims involving race discrimination in the employment context -- The Ending Forced Arbitration of Race Discrimination Act.

Employers are all too familiar with challenges to the practice of mandatory arbitration. Many such challenges and the resulting rulings are crucial to employers otherwise faced with class action and PAGA claims filed in court. However, more recently and particularly since the #MeToo movement, arbitration agreements of even single-plaintiff disputes have been the subject of higher scrutiny.

Proponents of the bill argue that the practice of mandatory arbitration forces employees to “sign away their right to hold their employer accountable in court for racial discrimination” discounting the benefits of arbitration, including streamlined proceedings and prompt resolution of discovery disputes, which might resolve employees’ problems more swiftly than resorting to the courts.

The Ending Forced Arbitration of Race Discrimination Act would:

1. Define a “race discrimination dispute” as “a dispute relating to conduct that is alleged to constitute discrimination (including harassment), or retaliation, on the basis of race, color, or national origin under applicable Federal, Tribal, State, or local law.”
2. Void pre-dispute arbitration agreements or pre-dispute joint/class action...

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