I 

112TH CONGRESS 

1ST SESSION H. R. 1873 

To amend title 9 of the United States Code with respect to arbitration. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 12, 2011 

Mr. JOHNSON of Georgia (for himself, Mr. JACKSON of Illinois, Mr. GRIJALVA, 

Ms. LEE of California, Mr. FILNER, Mr. MCNERNEY, Mr. SERRANO, Mr. 

NADLER, Ms. WATERS, Mr. PRICE of North Carolina, Ms. TSONGAS, Mr. 

BRADY of Pennsylvania, Mr. SCOTT of Virginia, Ms. SCHAKOWSKY, Mr. 

GONZALEZ, Mr. LYNCH, Ms. WASSERMAN SCHULTZ, Mr. BRALEY of 

Iowa, Mr. VAN HOLLEN, Ms. NORTON, Mr. AL GREEN of Texas, Mr. 

DOYLE, Ms. HIRONO, Mr. LOEBSACK, Ms. WILSON of Florida, Mr. BOSWELL, Ms. ZOE LOFGREN of California, Mr. MCDERMOTT, Mr. CONYERS, 

Ms. JACKSON LEE of Texas, Mr. HASTINGS of Florida, Ms. CHU, Ms. 

BALDWIN, Mrs. NAPOLITANO, Mrs. MALONEY, Mr. ELLISON, Mr. 

HONDA, Mr. STARK, Mr. HEINRICH, Mr. KUCINICH, Ms. SUTTON, Mr. 

CARNAHAN, Mr. VISCLOSKY, Mr. PIERLUISI, Ms. RICHARDSON, Mr. 

GUTIERREZ, Mr. TOWNS, Mr. KILDEE, Mr. CUMMINGS, Mr. DAVIS of Illinois, Mr. THOMPSON of Mississippi, Ms. WOOLSEY, Ms. CLARKE of New 

York, Ms. BASS of California, Ms. PINGREE of Maine, Mr. DEUTCH, Mr. 

BLUMENAUER, Mr. DOGGETT, Mr. LANGEVIN, Mr. WATT, Mr. FRANK of 

Massachusetts, Mr. SARBANES, and Mr. RYAN of Ohio) introduced the 

following bill; which was referred to the Committee on the Judiciary 

A BILL 

To amend title 9 of the United States Code with respect 

to arbitration. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Arbitration Fairness 

3 Act of 2011’’. 

4 SEC. 2. FINDINGS. 

5 The Congress finds the following: 

6 (1) The Federal Arbitration Act (now enacted 

7 as chapter 1 of title 9 of the United States Code) 

8 was intended to apply to disputes between commer9 cial entities of generally similar sophistication and 

10 bargaining power. 

11 (2) A series of decisions by the Supreme Court 

12 of the United States have changed the meaning of 

13 the Act so that it now extends to consumer disputes 

14 and employment disputes. 

15 (3) Most consumers and employees have little 

16 or no meaningful choice whether to submit their 

17 claims to arbitration. Often, consumers and employ18 ees are not even aware that they have given up their 

19 rights. 

20 (4) Mandatory arbitration undermines the de21 velopment of public law because there is inadequate 

22 transparency and inadequate judicial review of arbi23 trators’ decisions. 

24 (5) Arbitration can be an acceptable alternative 

25 when consent to the arbitration is truly voluntary, 

26 and occurs after the dispute arises. 


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1 SEC. 3. ARBITRATION OF EMPLOYMENT, CONSUMER, AND 

2 CIVIL RIGHTS DISPUTES. 

3 (a) IN GENERAL.—Title 9 of the United States Code 

4 is amended by adding at the end the following: 

5 ‘‘CHAPTER 4—ARBITRATION OF EMPLOY6 MENT, CONSUMER, AND CIVIL RIGHTS 

7 DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

8 ‘‘§ 401. Definitions 

9 ‘‘In this chapter— 

10 ‘‘(1) the term ‘civil rights dispute’ means a dis11 pute— 

12 ‘‘(A) arising under— 

13 ‘‘(i) the Constitution of the United 

14 States or the constitution of a State; or 

15 ‘‘(ii) a Federal or State statute that 

16 prohibits discrimination on the basis of 

17 race, sex, disability, religion, national ori18 gin, or any invidious basis in education, 

19 employment, credit, housing, public accom20 modations and facilities, voting, or pro21 gram funded or conducted by the Federal 

22 Government or State government, includ23 ing any statute enforced by the Civil 

24 Rights Division of the Department of JusVerDate Mar 15 2010 04:45 May 21, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1873.IH H1873

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1 tice and any statute enumerated in section 

2 62(e) of the Internal Revenue Code of 

3 1986 (relating to unlawful discrimination); 

4 and 

5 ‘‘(B) in which at least 1 party alleging a 

6 violation of the Constitution of the United 

7 States, a State constitution, or a statute pro8 hibiting discrimination is an individual; 

9 ‘‘(2) the term ‘consumer dispute’ means a dis10 pute between an individual who seeks or acquires 

11 real or personal property, services (including services 

12 relating to securities and other investments), money, 

13 or credit for personal, family, or household purposes 

14 and the seller or provider of such property, services, 

15 money, or credit; 

16 ‘‘(3) the term ‘employment dispute’ means a 

17 dispute between an employer and employee arising 

18 out of the relationship of employer and employee as 

19 defined in section 3 of the Fair Labor Standards 

20 Act of 1938 (29 U.S.C. 203); and 

21 ‘‘(4) the term ‘predispute arbitration agree22 ment’ means any agreement to arbitrate a dispute 

23 that had not yet arisen at the time of the making 

24 of the agreement. 


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1 ‘‘§ 402. Validity and enforceability 

2 ‘‘(a) IN GENERAL.—Notwithstanding any other pro3 vision of this title, no predispute arbitration agreement 

4 shall be valid or enforceable if it requires arbitration of 

5 an employment dispute, consumer dispute, or civil rights 

6 dispute. 

7 ‘‘(b) APPLICABILITY.— 

8 ‘‘(1) IN GENERAL.—An issue as to whether this 

9 chapter applies to an arbitration agreement shall be 

10 determined under Federal law. The applicability of 

11 this chapter to an agreement to arbitrate and the 

12 validity and enforceability of an agreement to which 

13 this chapter applies shall be determined by a court, 

14 rather than an arbitrator, irrespective of whether the 

15 party resisting arbitration challenges the arbitration 

16 agreement specifically or in conjunction with other 

17 terms of the contract containing such agreement. 

18 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

19 Nothing in this chapter shall apply to any arbitra20 tion provision in a contract between an employer and 

21 a labor organization or between labor organizations, 

22 except that no such arbitration provision shall have 

23 the effect of waiving the right of an employee to 

24 seek judicial enforcement of a right arising under a 

25 provision of the Constitution of the United States, a 


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1 State constitution, or a Federal or State statute, or 

2 public policy arising therefrom.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

4 (1) IN GENERAL.—Title 9 of the United States 

5 Code is amended— 

6 (A) in section 1, by striking ‘‘of seamen,’’ 

7 and all that follows through ‘‘interstate com8 merce’’; 

9 (B) in section 2, by inserting ‘‘or as other10 wise provided in chapter 4’’ before the period at 

11 the end; 

12 (C) in section 208— 

13 (i) in the section heading, by striking 

14 ‘‘Chapter 1; residual application’’ 

15 and inserting ‘‘Application’’; and 

16 (ii) by adding at the end the fol17 lowing: ‘‘This chapter applies to the extent 

18 that this chapter is not in conflict with 

19 chapter 4.’’; and 

20 (D) in section 307— 

21 (i) in the section heading, by striking 

22 ‘‘Chapter 1; residual application’’ 

23 and inserting ‘‘Application’’; and 

24 (ii) by adding at the end the fol25 lowing: ‘‘This chapter applies to the extent 


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1 that this chapter is not in conflict with 

2 chapter 4.’’. 

3 (2) TABLE OF SECTIONS.— 

4 (A) CHAPTER 2.—The table of sections for 

5 chapter 2 of title 9, United States Code, is 

6 amended by striking the item relating to section 

7 208 and inserting the following: 

‘‘208. Application.’’. 

8 (B) CHAPTER 3.—The table of sections for 

9 chapter 3 of title 9, United States Code, is 

10 amended by striking the item relating to section 

11 307 and inserting the following: 

‘‘307. Application.’’. 

12 (3) TABLE OF CHAPTERS.—The table of chap13 ters for title 9, United States Code, is amended by 

14 adding at the end the following: 

‘‘4. Arbitration of employment, consumer, and civil rights disputes ........ 401’’. 

15 SEC. 4. EFFECTIVE DATE. 

16 This Act, and the amendments made by this Act, 

17 shall take effect on the date of enactment of this Act and 

18 shall apply with respect to any dispute or claim that arises 

19 on or after such date. 

Æ 


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