Dismissing Human Trafficking: Forced Arbitration of Survivors’ Civil Suits

For more than two decades, federal law has provided trafficked individuals the right to sue their traffickers in court and hundreds of survivors have filed suit. Their litigation has yielded millions in judgments and settlements, public accountability, development of the law, and a deeper understanding of human trafficking. Forced arbitration of human trafficking claims threatens these successes. Much has been written about the existence and enforcement of pre-dispute arbitration clauses, particularly in employment and consumer matters. This Article is the first to assess these pervasive contractual provisions in the context of human trafficking. It sets out the public and private functions of the federal private right of action for trafficking survivors. Informed by federal cases where alleged traffickers successfully compelled arbitration, the Article details how these important functions are undermined by forced arbitration and how the harms of human trafficking are exacerbated by it. Compelling arbitration of survivors’ civil claims erodes government efforts to combat human trafficking and to support survivors. This Article makes two recommendations to address this deepening and underappreciated problem. First, Congress should amend the Federal Arbitration Act (FAA) to invalidate pre-dispute arbitration provisions in cases involving human trafficking. Second, the regulations governing temporary work visas for foreign nationals should prohibit pre-dispute arbitration provisions in their employment contracts. In the meantime, survivors can continue to challenge these provisions in court using contract defenses.