"Arbitration in Name Only": A Race Claims Mismatch

Authors

• Michael Z. Green, Texas A&M University School of Law

Abstract

With arbitration’s meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair “arbitration in name only” that should not be enforced.

Employers have become savvier in how they require employees to agree to resolve discrimination claims in arbitration as a condition of employment after experiencing thirty-five years of Supreme Court jurisprudence establishing mostly enormous support for enforcement pursuant to the Federal Arbitration Act (FAA). Congress has addressed these bargaining power differentials in at least one setting by amending the FAA to prohibit some sex-related discrimination claims from being subjected to pre-dispute arbitration agreements. Similar race-related discrimination claims have not received this same FAA protection.

A 2025 federal appellate decision permitting a football coach, Brian Flores, to proceed in court, rather than being ordered to arbitrate, provides a helpful analysis of power differentials when employees file statutory race discrimination claims. Because the agreement in Flores made the employer’s principal executive officer the arbitrator, it represented an unenforceable “arbitration in name only.” This Article contends the Flores case shows exactly why employer use of power differentials to require arbitration of race-related claims must always be judged unenforceable as “arbitration in name only” and similar to sex-related claims.

Disciplines

Civil Rights and Discrimination | Dispute Resolution and Arbitration | Labor and Employment Law | Law | Legislation

Recommended Citation

Michael Z. Green, "Arbitration in Name Only": A Race Claims Mismatch, 27 Cardozo J. Conflict Resol. 235 (2025).
Available at: https://larc.cardozo.yu.edu/cjcr/vol27/iss2/3