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Copyright (c) 1998 Columbia Human Rights Law Review
Columbia Human Rights Law Review

ARTICLE: Private Justice: Employment Arbitration and Civil Rights

Fall, 1998

30 Colum. Human Rights L. Rev. 29


by Lewis L. Maltby *



These are difficult times for civil rights. Affirmative action is under siege and losing ground. The Equal Employment Opportunity Commission (EEOC) has been forced onto a starvation diet by a hostile Congress. Some of the most venerable civil rights institutions are in a state of disarray.

But among all the serious and visible threats to civil rights is possibly an even greater danger that has gone almost unnoticed. This is the privatization of civil justice. Thousands of employers are abandoning the civil justice system, establishing their own systems of resolving disputes, and requiring employees to use them. 1

The implications of this trend could not be more important. One of the most profound lessons of the civil rights struggle is that rights without remedies are meaningless. Title VII and our other civil rights laws have been reasonably effective because the judiciary has generally been willing to enforce them. But if employers are able to establish private court systems under employer control, equal employment opportunity laws may become completely unenforceable.

Paradoxically, the trend toward private justice may have potential benefits for employees. The cost of public civil justice has grown dramatically in recent years. Many people with legitimate claims against their employers never receive justice because they are unable to afford lawyers. Private dispute resolution, which relies on mediation and arbitration, is generally much less expensive than litigation, and may bring justice within the reach of many to whom it is currently denied. 2
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