Employee and consumer advocates have been screaming for years about the harsh realities of arbitration clauses. We’ve decried them for being secret; for being unfair; and unconscionable and unconstitutional. Like the frog in the slowly heated pot of water, the public has remained idle in the face of an unprecedented erosion of their rights. Traction in the media has been hard to come by, and it has been worse among Congressional leaders.
Turns out all we needed was a little pom-pom pizazz. The media has latched onto the allegations being made by Lacy T., a former Oakland Raider cheerleader and member of the team’s Raiderettes. Lacy T. has filed a class action lawsuit against the Raiders for wholesale violations of the California Labor Code – failing to pay minimum wage for all required hours worked, failing to pay overtime, failing to provide mandated meal and rest breaks, making illegal deductions from wages for a laundry list of “infractions,” as well as for costs the employer is required to cover, and failing to pay wages on time.
The case has garnered an extraordinary amount of attention, considering the abuses alleged are endemic to low wage positions in many industries. Undoubtedly, the intense media interest is fueled by the NFL’s high profile, the fact that every story provides an opportunity to display pictures of the Raiderettes in uniform, and the prospect that this wage dispute may provide titillating details of the Raiders’ demeaning treatment of its cheerleaders. As the NFL knows, sex sells. Even if it doesn’t pay enough to buy gruel.
The latest Dickensian twist in Lacy T.’s case occurred last month when the NFL moved to have the minimum wage claims taken out of a public courtroom and put into a secret arbitration to be presided over by its $44 million man, NFL Commissioner Roger Goddell. The claims in the case, and the Raiders’ response, show just how much the team’s management has turned its back on a proud history at the cutting edge of employment civil rights. Al Davis was the first NFL owner to hire an African-American head coach (Art Shell), a Latino head coach (Tom Flores) and a female CEO (Amy Trask). But by invoking an arbitration clause unilaterally imposed on its Raiderettes, and pushing Lacy T.’s case into a secret arbitral forum, the Raiders have perverted another of the late Mr. Davis’ ends-means mottos: Just Win, Baby.
Arbitration was originally conceived by Congress in the 1920s as an alternative mechanism to resolve business disputes. In the years since, it has steadily been perverted into a means for businesses to steal from and cause injury to individuals without any real threat of liability or significant financial consequence.
It is no small irony that secret arbitration has been championed at the highest level by Supreme Court Justice Clarence Thomas. Twenty three years ago, during Thomas’ Supreme Court confirmation hearings, Anita Hill publicly accused Thomas of sexual harassment. Her testimony (and the appalling questioning by the Senate committee) riveted the country. Through her courageous actions, the entire country awoke to the existence of sexual harassment in the workplace.
Today, Professor Hill has been making the rounds publicizing “Anita,” a new documentary about the experience. Two decades after exposing an insidious workplace problem on the national stage, she is asking a new generation of workers – women and men – to consider the lessons of those hearings.
Which brings us back to Lacy T. Yes, the media is just as itchy today to publish salacious details about the Raiderettes as it was to report on Clarence Thomas’ crude statements in 1991. The difference today is that the media may not be given any such opportunity to cover the details of a modern scourge for low-wage workers: wage theft. And as long as workplace problems – of any kind – are denied public scrutiny and forced into secret star chambers, progress will be elusive. “Anita” reminds us that public testimony can be painful. But it’s often how change is made.