BY ELECTRONIC MAIL

Mr. Christopher Poole
Chief Executive Officer, JAMS
5 Park Plaza Suite 400
Irvine, CA 92614

Re: Accountability for Racism at JAMS

Dear Mr. Poole:

The National Employment Lawyers Association (“NELA”) and its related charitable organization, The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) write to express deep concern about the racist views that were circulated by and then defended as a piece worthy of discussion by former Judge Richard Neville, who was until recently a JAMS neutral. NELA and our 69 circuit, state, and local Affiliates, comprising over 4,000 members across the country, are following your response with interest. We note, the communications only came to light as the result of a public filing, NRA v. JAMS.

The writing that Neville circulated, which he sent out by email using a signature block identifying him as a JAMS neutral, has rightly been described as “abhorrent” and “indecent.” We further agree that it is shocking that a former member of the judiciary would disseminate such material and, when called on it, defend it as being worthy of discussion or consideration, without any direct rejection of the content. It is beyond credible debate that the content of the writing was clearly and unequivocally racist against Black people.

NELA, The Institute, their staff members, and their members, who dedicate themselves to strengthening and defending workers’ rights, have been vocal critics of arbitration when it is forced upon workers with little or most often no bargaining power as a condition of getting or keeping a job. We consistently have highlighted the ways in which the lack of transparency, oversight, and accountability in the arbitration process often make arbitration an inequitable forum for workers.

There is no way for a worker to thoroughly assess why or how a JAMS neutral was found to be qualified as such. Other than what information may be publicly available about an arbitrator’s work experience, workers and their advocates know comparatively little about the ostensible neutrals who will hold absolute power over every aspect of the final, binding, and non-reviewable adjudication of their claims.[1] Neville’s conduct demonstrates vividly why these issues must be addressed immediately.

A JAMS neutral felt comfortable disseminating blatantly racist propaganda, framing his decision to do so as the promotion of a discussion about facts and truth, all while failing to acknowledge or disavow the racist content to a list of individuals that included prominent attorneys and at least one other JAMS neutral. Judge Neville clearly felt confident that doing so would not affect his position as a JAMS neutral—that he would face no repercussion for his conduct. This is clear evidence of an internal problem that goes beyond a single incident. It is analogous to the way in which expressions of bias in the workplace can be evidence of a corporate culture that tolerates and/or condones such bias. For this reason, JAMS’s break with Neville is not enough to appropriately address any broader potential problem at hand.

The incident is a microcosm of the problems that can permeate the arbitration process in the absence of transparency, oversight, and accountability. Absent immediate steps to address these issues, no litigant or attorney participating in a proceeding before a JAMS neutral can be confident that their “neutral” is in fact that, and not someone who may entertain arguments grounded in racism. As a result, we call on JAMS to take concrete steps to address not only Judge Neville’s actions, but also any broader issues, of which his behavior may only have been a symptom. Such steps should include:

• JAMS’s investigation of Neville must include a review of every discrimination case he oversaw while at JAMS. His indulgence of such racist views raises serious questions about the kinds of discussions and/or arguments he may have indulged in cases in which bias, particularly racial bias, was alleged.
• JAMS must conduct a complete review of each of its neutrals’ records and issue a reporting of each neutral’s decisions in each type of dispute they have overseen. This assessment must be public and can be accomplished while still protecting the identity of participating parties. The results of this review are important not only to those involved in selecting an arbitrator, but also to enable JAMS to flag and investigate when there is evidence that a neutral’s decisions have potentially been tainted by bias, racism, or other prejudice.
• JAMS must implement a formal process for monitoring and evaluating each of its neutrals on an ongoing basis. This should include the review of their record, as outlined above, and would provide, if appropriate, for the removal of a neutral who is demonstrated to be motivated by or tolerant of invidious bias. Judge Neville’s actions were exposed largely by accident, and any other JAMS neutrals who may harbor or entertain arguments grounded in bias will assuredly be more careful in their communications to avoid sharing his fate. It is only through the adoption and vigilant implementation of such monitoring procedures that other neutrals demonstrating similar biases can be identified.
• JAMS must implement a more thorough and rigorous initial vetting process, wherein both the procedures and criteria used, as well as the findings, are publicly available. Neville’s conduct, if known, would not have just been material, but determinative of whether he was ever selected or agreed to in any employment discrimination case. That it was not exposed until now indicates a potentially fatal flaw in JAMS’s vetting processes.
• JAMS must understand that it is difficult to screen individuals about their biases when there is an overreliance on self-serving statements and friendly professional references. JAMS must focus on hiring neutrals who demonstrate a lack of bias through their work. We call on JAMS to issue a report, to be regularly updated, detailing what are they doing to recruit plaintiff-side attorneys, attorneys of color, public interest attorneys, and bilingual attorneys, and how they intend to monitor, evaluate, and improve those efforts going forward. Diversity among your arbitrators is essential to creating a more equitable system.

There is strong evidence that, compared to court, forced arbitration is an inferior forum for workers, both in the final adjudication of their cases and the damages awarded.[2] That does not mean that arbitration, when freely chosen after a dispute has arisen, cannot be an appropriate forum for the resolution of claims, including those alleging discrimination. For it to be so, it is vital that arbitrators be free of the type of bigotry exemplified by the propaganda Judge Neville shared so freely among his personal and professional cohorts.

JAMS must work to determine whether and how the results of cases its neutrals have administered, particularly where claims of discrimination are at issue, may have been tainted by the biases of the arbitrator. NELA and The Institute’s recommended course of action provides JAMS with the tools to honestly and transparently engage in that inquiry, address instances of improper bias that may be uncovered, and implement practices that can help ensure that similar bias is not permitted to fester among its neutrals going forward.

We would like to meet with you regarding JAMS’s response to the steps outlined above. Please contact NELA President Wade Cowan at wcowan@dhhrplc.com to begin the conversation. We look forward to hearing from you.

Wade B. Cowan
President
National Employment Lawyers Association

Rebecca Salawdeh
President
The Employee Rights Advocacy Institute
For Law & Policy

M. Nieves Bolaños
Vice President for Diversity, Equity & Inclusion
National Employment Lawyers Association

[1] Taking “Forced” out of Arbitration (The Employee Rights Advocacy Institute For Law & Policy, Oakland, CA), 2016 at 4 (…the decisions of private arbitrators cannot be overturned on appeal, even when the arbitrator clearly misapplies the law. Because employers do not have to follow rules that exist in court, by imposing forced arbitration they can severely restrict a worker’s right to obtain needed information to prove his or her case, making it more difficult for employees to collect evidence of the employer’s wrongdoing).

[2] Taking “Forced” out of Arbitration (The Employee Rights Advocacy Institute For Law & Policy, Oakland, CA), 2016 at 3.