Adrian Moss, a 41-year-old Black man who moved to Maine in 1999, was fed up with the pervasive racist harassment to which he says he was subjected while working on a scaffolding crew for the industrial services firm Brock Group. He gave up on the state in 2017 and moved his family to Florida for a lower-paying job.
“I came down here with the intention of leaving Maine in Maine,” Moss said from his new home in central Florida. But he found he couldn’t put out of his mind the work environment left for the remaining Black and brown people on his crew or the company’s refusal to take action. He decided to make his experiences with Brock public.
In September 2017, Moss filed a complaint with the Maine Human Rights Commission, the state agency charged with enforcing Maine’s anti-discrimination laws. Investigators at the commission found reasonable grounds that racial discrimination had occurred. But more than two years since filing his complaint with the state, Moss’ case is now being pushed out of the courts and into private arbitration, a closed-door tribunal which involves a mediator often paid for by the employer.
This is not how he thought the case would go.
“To have gone through the harassment in the first place was mentally and physically draining,” Moss said. “At this point, I’m ready for it to end, but at the same time, it’s bigger than me.”
‘You can’t pay me enough money to go back to Maine’
Moss began working throughout Maine as a scaffold builder for Brock in 2010. He requested a transfer in 2015 to escape the racist harassment he was receiving on the job site from fellow crew members. He was granted a transfer, but it didn’t pan out, and he soon found himself coming back to Maine for his old job.
“I thought I could tough it out,” he said, but his working conditions only got worse. He says he was called the N-word and “boy.” He went to his supervisor.
“I was getting to the point where I told them I was going to have to go hands on,’” he said, suggesting a physical confrontation was inevitable unless management interceded. But he said management wasn’t responsive. They didn’t ask for names and instead sent a company-wide email to supervisors, relaying a concern about not treating employees in a “respectful manner.”
“That was taken as a joke,” Moss said. “Literally, they were laughing and making fun of it while they were reading it.”
“He lost trust in his co-workers,” said his attorney, Lisa Butler. “He’s working on scaffolding. It’s really unnerving not to have the support of your co-workers when you’re doing dangerous work of that sort.”
In June 2017, Moss opted to be transferred to Florida, despite a cut in pay. His wife, who has family in Maine, wants to return.
“Right now, I’m on the verge of a divorce because she wants to go back to Maine, and I just simply will not go,” he said. “You can’t pay me enough money to go back to Maine.”
‘Disproportionate power on the side of the employer’
Moss thought he had taken all the right steps to address the racial discrimination he experienced at Brock. He filed a complaint with the Maine Human Rights Commission, which found “reasonable grounds to believe that discrimination in violation of the Maine Human Rights Act occurred in Mr. Moss’s employment by Brock,” and he hired Butler to take his case to court.
But Brock invoked a “Dispute Resolution Agreement” Moss unknowingly signed when he was first hired on. Last August, Federal District Court Judge John Woodcock agreed with the company, ruling that Moss’ case should be settled by the company’s arbitrator, not in a courtroom.
“Your employer comes to you with a bunch of papers. None of it is negotiated,” Butler explained. “Often it’s robo-signing, where you’re just signing documents on a computer. If you want to go on, if you want a job, you click the box.”
Butler, who has practiced employment law for workers in Maine, Florida and Maryland for over 15 years, has witnessed the growth of “forced arbitration” as a hiring practice during her career. Employment contracts similar to the one Moss signed have proliferated since a 2018 U.S. Supreme Court decision, Epic Systems Corp. v. Lewis, gave the green light to employers to resolve any wage and hour claims through arbitration.
As many as 56 percent of Maine employers may be using forced arbitration, according to an estimate in December by the Economic Policy Institute, a progressive economic think tank.
“It started as a way of resolving disputes between businesses, to try to cut down on the costs of litigation,” Butler explained. “It was a new development for them to say, ‘Okay, we’re going to take employment claims and resolve them in that same context.’”
“Under those rules, the bargaining dynamics, the economics of it, there’s grossly disproportionate power on the side of the employer,” she said.
Butler believes that in addition to greatly advantaging the employer against their employees during disputes, forced arbitration, which makes secret its findings and rulings, removes other positive effects of a public hearing.
“A large part of the curative effect in a discrimination case is being able to sue in state court or federal court so that what happened is put on public view and is judged by public fact finder.”
This is especially critical in a case like Moss’, Butler added, which she said demonstrates a pervasive pattern of racist harassment in an industry rife with such abuse.
“The claim is about a culture,” she said. “This is not an uncommon experience in the realm I practice in, in employment discrimination. Groups of people who are not typically part of certain blue-collar sectors can be marginalized and ostracized, and often as a consequence, driven out of that workforce.”
Deputizing private attorneys to break forced arbitration contracts
Some states have begun to push back against the corporate move to consolidate the power of employers over their workers. California passed the Private Attorney General Act in 2004, which essentially deputizes private attorneys like Butler and grants them the force of the state, which is not bound by private arbitration agreements made between employers and their employees.
Labor advocates see California’s model as a way to give back workers’ access to the courts. Laws similar to the Private Attorney General Act are being considered in other states, including Maine, where consideration of LD 1693, “An Act To Enhance Enforcement of Employment Laws,” is scheduled to resume at the State House on Feb. 5. That bill, introduced last year but tabled by the legislature’s Labor Committee, would allow Maine Attorney General Aaron Frey to extend his office’s power to private attorneys to act on behalf of workers facing exploitation or discrimination.
Without lawmakers pushing back against corporate power, Moss believes the state and federal discrimination protections already on the books are compromised.
“There’s already laws protecting those rights. But there’s ways around that,” Moss said. “You hear about all these protections, blah, blah, blah, but in the end, what rights do you have?”
Editor’s note: This article originally misattributed a quote from the Equal Employment Opportunity Commission to the Maine Human Rights Commission.
Daily Updates