Arbitration in Cases of Discrimination

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Arbitration Background The changing dynamics of the modern world are significant contributors to disputes, discrimination, and conflicts in all social settings. These social challenges occur at home, school, and the workplace. Diverse interests presented by individuals are the primary causes of conflict.

Notably, people engage in diverse activities to accomplish specific objectives in life. These activities are likely to trigger conflicts if they differ from others pursuing different interests. At the workplace, for instance, conflicts arise due to poor communication, ambiguous roles, work overload, poor leadership, and hostility.

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Singer (2018) noted a high likelihood of conflicts arising if organizational leaders employ a leadership style that does not address the interest of employees. Strict leadership styles deny employees an opportunity to participate in decisions making processes. Therefore, in such a case, the management imposes an unfavorable decision on employees creating resistance. Employers are likely to overlook the rights of employees in situations where inclusivity and active participation in decision-making are disregarded.

Discrimination against people is also a potential cause of conflicts. Discrimination occurs when some people are treated inappropriately due to age, gender, or race. Rubenstein (2018) noted a need to resolve disputes to build peace, cohesion, and positive interpersonal relationships. Dispute resolution provides a base for making decisions that eradicate and prevent conflicts from reoccurring (Dukes, 2018). Leaders need to encourage conflict resolution skills at all levels to enhance coexistence between different parties. Importantly, leaders can use various dispute resolution strategies to promote peace. The commonly used dispute resolution strategies are mediation, arbitration, lawsuit, and collaboration. Leaders need to analyze the setting where disputes occur to determine the most suitable resolution strategy to apply. This paper explores existing literature to gather relevant details concerning the arbitration of discrimination claims.

Arbitration definition Arbitration, as described by the ABA (2021), is an alternative dispute resolution process.

In this process, the disputing parties agree that an individual or several people can decide on the best intervention for resolving the dispute upon reviewing the available evidence and hearing arguments. The arbitration process starts once the disputing parties agree to refer their problems to a neutral party to decide on their behalf. This process is employed in businesses and organizations to resolve internal issues without pursuing lawsuits.

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Arbitration differs from mediation and conciliation since the neutral arbitrator can make decisions about the dispute. Mediators and conciliators, on the contrary, just give recommendations on how to resolve the dispute appropriately (Cole & Ortolani, 2020). The arbitration process resembles a trial because the disputing parties can make opening statements besides presenting evidence to the arbitrator. However, unlike traditional trials, arbitrations are less formal and much easier to handle. This process is also completed more quickly than other decision-making processes.

One of the core principles of arbitration is that the disputing parties have a right to agree on the best approach to resolve the dispute unless the contentious issue is of public interest. The target outcome of the process is to achieve a fair resolution. The courts are rarely involved in arbitration (Cole & Ortolani, 2020). A neutral arbitrator, who makes and justifies a decision concerning the dispute, facilitates the arbitration process. The arbitrator also interprets and applies rules and laws relevant to the current dispute. The arbitrator manages the scope of discovery applicable to the case.

The arbitration process can take on a binding or a non-binding approach. In binding arbitration, as denoted by ABA (2021), the decision is final. Such a decision leaves a very narrow ground for appeal. A court of law can also enforce it. In non-binding arbitration, the neutral arbitrator provides advice that becomes final when accepted by the disputing parties.

Discrimination Discrimination, as pointed out by Pérez (2017), is the socially structured prejudicial or unjust treatment of a person based on various grounds, including race, age, sexuality, pregnancy, religion, disability, and gender. These elements are generally termed as the protected characteristics. The different types of discrimination include harassment, direct and indirect

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discrimination, instruction to discriminate, and inadequate access to resources. Direct discrimination occurs in situations where an individual is subjected to unfair treatment compared to other people in a similar scenario (Thompson, 2016).

Indirect discrimination, on the other hand, describes a situation whereby an existing rule that appears neutral is disadvantageous to some people based on the protected characteristics.

The instruction to discriminate describes incidences whereby a person in authority orders other employees to discriminate against some people (Thompson, 2016). This form of discrimination is common in organizations. For instance, the employer may order that only applicants from specific origins or sexual orientations be interviewed for a job position. Such a move discriminates against other people who do not fit the stipulated criteria.

Although the law prohibits all forms of discrimination, incidences continue being reported across the continuum (Pérez, 2017). Discrimination may occur at school, at work, in the hospital, in public places, and at home. The perpetrators of this vice are individuals trying to protect their resources or perceived position in society. For instance, some powerful and privileged groups protect their interests by discriminating against vulnerable people.

HealthyPeople.gov (2021) pointed out that discrimination is a regrettably common experience in the United States. Statistical reports estimate that over 31% of the adults experience major discrimination in their lifetime. 63% of these experience discrimination daily.

Despite implementing measures to curb discrimination at the societal level, this vice is yet to be eradicated. Since discrimination profoundly impacts individuals and organizations, it is categorized into individual and structural levels. Structural discrimination is associated with macro-level conditions such as limited opportunities, residential segregation, and limited resources (Thompson, 2017). Individual discrimination, on the other hand, is defined as the

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negative interpersonal relationships between individuals in their institutional roles. Some common forms of individual discrimination occur between a health care professional and a patient, manager and an employee, and salesperson and a client.

Structural discrimination is the biggest contributor to major discriminatory events that negatively impact individuals, organizations, and communities. Thompson (2017) noted that limited access to quality education, residential segregation, and incarceration disparities are significant forms of structural discrimination. Residential segregation occurs in the housing sector, whereby housing rules are applied differently among members of different groups. For instance, as noted by Thompson (2016), Caucasians are more likely to own a house than African Americans since the existing regulations favor them.

The impact of discrimination Discrimination subjects individuals to unwarranted suffering and poor health.

Psychological studies show that discriminating against some people exacerbates psychological symptoms such as depression and anxiety (Pérez, 2017). The impact of discrimination is largely attributable to the type of discrimination. For instance, studies have shown that individual discrimination has the greatest emotional and physical health cost (Dhanani, Beus & Joseph, 2018). The effects of individual discrimination may differ from residential discrimination (Thompson, 2017). Residential discrimination leads to limited access to resources. Residentially segregated communities take their children to poor-quality schools and lack the resources necessary for high-quality health care. The social and physical support system available for these people cannot address their problems adequately.

Inappropriate application of the criminal justice policy to resolve disputes is common in settings typified by discrimination (Pérez, 2017). Many people are arrested, convicted, and jailed

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for minor offenses due to their discriminatory status. Unjustified incarcerations negatively affect the social status and psychological health of individuals, families, and communities.

Dhanani, Beus, and Joseph (2018) noted that discrimination negatively affects employee productivity. Employees working under stress and pressure find it hard to achieve personal and organizational goals (Wuryani et al. 2021). They also demonstrate low job satisfaction, decreased helping behaviors and low commitment to the organization. Some people choose to engage in inappropriate behaviors such as cigarette smoking, alcoholism and substance use to escape the overwhelming impact of discrimination (Williams, Lawrence, Davis & Vu, 2019).

These behaviors eventually affect the health of a person.

Discrimination claims In the past, very few people were willing to disclose incidences of discrimination for fear of further reprisal. However, extensive campaigns on people’s rights and the devastating effects of various social vices, including discrimination, have increased people’s awareness of their rights over the years (Scalia & Gutmann, 2017). More people are now able to identify and report discrimination incidents. Consequently, the number of discrimination claims has increased exponentially. Unfortunately, there still exist barriers that hinder people from seeking justice when their rights are violated. Some employers, for instance, bar employees from seeking justice in a court of law for fear of negative organizational reputations. Some organizations have set policies that prevent individuals from simultaneously seeking justice in arbitration and legal processes (Lau, 2018). Some workers' unions enter into contracts that prohibit members from arbitrating discrimination complaints. The Supreme Court terms these situations as unfortunate, pointing out that a discrimination complaint does not waive an individual’s right to pursue legal justice.

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The 2010 Equality Act prohibits all acts of discrimination against individuals. The law states that people, who have been discriminated against, need to follow the arbitration or the legal process in seeking justice (Lau, 2018). The equality act protects all people who provide services to an organization from discrimination. People, who have experienced discrimination, are also encouraged to make civil claims if they experience challenges in sorting discrimination claims with an organization or the perpetrator. Discrimination claims can be brought to the relevant authority by current employees, job applicants, and workers who have already left the company. These claims need to be brought forward regardless of an individual’s age and length of service or hours worked.

Lau (2018) noted that while seeking justice, one must prove discrimination to the court or the arbitrators. Importantly, the victim must present evidence that the reason for discrimination is due to protected characteristics. Scalia and Gutmann (2017) asserted that employees could bring unlawful discrimination claims to an employment tribunal even in situations where an employment contract does not exist. This rule implies that even people without work permits and those whose rights to work have expired can raise discrimination claims against their employers.

Discrimination claims must be lodged with the relevant employment tribunal within three months of the discriminatory incident. Once the tribunal receives evidence of discrimination, it initiates an investigation process that considers all inappropriate treatments as a continuing act of discrimination.

Laws enforced by the EEOC (2021) state that individuals need to report all cases of discrimination that occur at the workplace before filing a lawsuit against the employer. These laws also state that an independent entity may file a claim on behalf of the victim to protect their identity and eradicate further victimization. Once a discrimination claim is filled with the EEOC,

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this agency notifies the employer and provides direction on resolving the matter. Lau (2018) noted that to succeed in a discrimination claim, the complainant must present facts based on which the employment tribunal, the court of law, or an independent arbitrator could infer that discrimination took place due to specific protected characteristics. The employers, on the other hand, have to provide satisfactory reasons showing their actions were nondiscriminatory. The agency upholds the complainant if the employer does not provide sufficient reasons.

The arbitration of discrimination claims The law on discrimination is constantly evolving, and the number of discrimination claims is dramatically rising. Organizational leaders, employment tribunals, and the Supreme Court have recognized the need to employ appropriate dispute resolutions to deter similar incidences in the future. Following the Supreme Court’s approval of arbitration agreements, employers have been adding more arbitration programs. They, nonetheless, face the question of whether arbitration of discrimination is the best alternative dispute resolution method.

Employment law attorneys, as pointed out by Twomey (2021), argue that arbitration is the best channel for resolving discrimination claims. This method is also supported by the Human Resource Management society (SHRM), as pointed out by Shilling (2020). Arbitration provides a platform for resolving discrimination claims promptly and cost-effectively than litigation.

Irrefutably, arbitration is the most common alternative dispute resolution strategy used in resolving discrimination claims. Researchers, however, argue that the receptivity of various stakeholders, including the Supreme Court, to the arbitration of statutory complaints could lead to wholesale diversion of employment-related disputes, including discrimination claims from legal processes to arbitration through employer-drafted agreements imposed on employees employment conditions (Twomey, 2021). Such developments threaten the flawless

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implementation of anti-discriminatory rules and regulations besides posing serious questions of impartiality to individuals seeking justice. Though such issues rarely occur, when an employer drafts an arbitration agreement to gain a substantive advantage, even a neutral arbitration process may work against employees.

Shilling (2020) pointed out that for the arbitration process to be free of obstacles, the agreement must highlight several elements, including how the disputing parties will select the arbitration tribunal, the number of arbitrators, and where the arbitration will take place. While drafting the agreement, leaders also need to clarify if the process will be conducted according to the rules and regulations of a specific arbitration entity. These elements have an important impact on the process, time and cost of arbitration.

The American Bar Association (ABA) (2021) suggested that individuals entering into arbitration should seek legal advice first to ensure they do not run into problems during the process. The arbitration tribunal needs to be formally constituted and the discrimination claims identified. However, the ABA (2021) noted that arbitrators do not need a strong legal background to facilitate the process.

Furthermore, the arbitrators are not legally required to adhere to a certain set of rules unless the disputing parties so stipulate (Seiner, 2017). These elements make arbitration a less formal model of resolving critical issues in society and the workplace (Shilling, 2020).

Importantly, the disputing parties and the tribunal must decide the arbitration process and the timetable.

The arbitration proceeds in line with the adopted procedure, and each party is allowed to produce written submissions. Technical expert reports and witness statements are the key pieces of evidence supporting these submissions. After hearing the statements and arguments

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concerning the discrimination claims, the arbitrators produce an award (Twomey, 2021). The award sets out the decisions reached by the arbitrators. These decisions determine the obligations of the complainant and the perceived discriminators. Notably, though the arbitrators’ findings are not challenged, the disputing parties can appeal the arbitrators’ decisions. The ground for an appeal varies significantly depending on several factors, including the institutional rules and arbitration agreement. The disputing parties can also seek court guidance if the arbitrators made an error of law or conducted the process inappropriately.

Benefits of arbitrating discrimination claims The efficient and cost-effective nature of arbitration is the main advantage of this process.

The financial resources used in the process are much lower than other dispute resolution processes, including litigation (Seiner, 2017). Arbitration decisions are made quickly, unlike court cases which may take months to conclude. Further, the process protects the reputation of the disputants. The impact of the case on the defendant’s public relations is lessened since the filings and testimonies are not disclosed to the public. Arbitration yields better quality justice than other dispute resolution modalities since it is less time-consuming and more flexible (Shilling, 2020). Unlike judges, arbitrators are selected from a team of professionals who are conversant with the rules, regulations and procedures of trade and business.

Disadvantages of arbitrating discrimination claims Despite the perceived benefits of arbitration, the process has some important challenges.

For instance, in situations where the arbitrator has not expressly provided for “absolute confidentiality,” the disputants may talk about the case, thus affecting the aspect of privacy.

Notably, unlike the court of law, statements made by disputants in the arbitration process are not protected (Smith, 2018). Therefore, these statements could be used in newspapers without legal

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consequences. In some cases, employers may disregard the arbitration agreements and take lawsuits to court. Another disadvantage of arbitration, as highlighted by (Smith 2018), is that it may shield perpetrators from the action. Arbitrators are less receptive to claims of discrimination as compared to courts. They may also choose to ignore some defenses that are considered critical litigation elements in discrimination claims. The arbitrators may fail to connect the discrimination claim with the protected characteristics, thus denying justice to the complainant.

Conclusion Discrimination against people is a common social vice that occurs when individuals are subjected to harsh treatment due to various characteristics including age, gender, sex, race, religion and disability. Leaders employ different strategies to resolve disputes arising from discrimination. Arbitration is the commonly used alternative dispute resolution. It involves settling disputes out of court. Policies implemented the EEOC (2021) encourage individuals to report discrimination incidences to relevant authorities to receive justice. Arbitration provides a cost effective approach to resolve discrimination claims. Arbitrators make decisions that can be enforced in a court of law.

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References American Bar Association (ABA) (2021). Arbitration. https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProc esses/arbitration/ Cole, T., & Ortolani, P. (2020). Understanding international arbitration. Routledge Dhanani, L., Beus, J., & Joseph, D. (2018). Workplace discrimination: A meta‐analytic extension, critique, and future research agenda. Personnel Psychology, 71(2), 147-179. https://psycnet.apa.org/doi/10.1111/peps.12254 Dukes, E. F. (2018). Structural forces in conflict and conflict resolution in a democratic society.

In Conflict Resolution: Dynamics, process and structure (pp. 155-171). Routledge.

HealthyPeople.gov (2021). Discrimination. https://www.healthypeople.gov/2020/topicsobjectives/topic/social-determinants-health/interventions-resources/discrimination Lau, H. (2018). Sexual orientation and gender identity discrimination. Leiden: Brill.

Pérez, P. K. (2017). Redressing everyday discrimination: The weakness and potential of antidiscrimination law. Routledge.

Rubenstein, R. E. (2018). Conflict resolution and the structural sources of conflict. In Conflict Resolution: Dynamics, Process and Structure (pp. 173-195). Routledge.

Scalia, A., & Gutmann, A. (2017). A matter of interpretation: Federal Courts and the law.

Princeton University Press.

Seiner, J. A. (2017). The Supreme Court's New Workplace.Cambridge University Press.

Shilling, D. (2020). Complete Guide To Human Resources And The Law: 2021 Edition. Wolters Kluwer Legal Reg.

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Singer, L. R. (2018). Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.

Smith, A., (2018). Should Harassment Claims Be Subject to Arbitration? https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ harassment-claims-arbitration.aspx Thompson, N. (2016). Anti-discriminatory practice: Equality, diversity and social justice.

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Thompson, N. (2017). Promoting Equality: Challenging Discrimination and Oppression.

London: Macmillan Education, Limited.

Twomey, D., (2021). Anderson's Business Law & the Legal Environment - Comprehensive Edition. Cengage Learning Custom P. U.S. Equal Employment Opportunity Commission (EEOC) (2021). Filing A Charge of Discrimination. https://www.eeoc.gov/filing-charge-discrimination Williams, D. R., Lawrence, J. A., Davis, B. A., & Vu, C. (2019). Understanding how discrimination can affect health. Health services research, 54, 1374-1388. https://doi.org/10.1111/1475-6773.13222 Wuryani, E., Rodlib, A., Sutarsib, S., Dewib, N., & Arifb, D. (2021). Analysis of decision support system on situational leadership styles on work motivation and employee performance. Management Science Letters, 11(2), 365-372. http://dx.doi.org/10.5267/j.msl.2020.9.033