William & Mary Business Law Review
Privatization of Employment Claims: Perhaps a Hybrid Approach Will Free American Society from the Epic Trap the Supreme Court has Sprung Without Forfeiting All Advantages of Arbitration
Mandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections—such as relief under current anti-discrimination statutes—are privatized. Now, only a legislative fix will break those bonds. Congress and state legislatures have ventured into the fray, though preemption problems plague the latter, and both seem fixated on either excessively narrow categories (harassment claims in employment) or politically distasteful, broad solutions (no individual arbitration allowed in employment or consumer contracts). This Article acknowledges the quandary that the Epic decision, and the Court’s longstanding obeisance to the Federal Arbitration Act (FAA), have visited upon employees and employers. The Article then considers practices in other industrialized democracies, which often feature specialized employment courts. This Article recommends a hybrid. If the United States can fashion specialized employment tribunals, perhaps without calling them that, and simultaneously offer employees an effective path to opt out of employment arbitration, then employers and those workers who want arbitration can enjoy the fruits of the FAA while other employees can pursue their claims in the fashion contemplated by the drafters of federal and state employment statutes.