back to article Tesla fails to push racial discrimination lawsuit into arbitration

Tesla's attempt to force a racial discrimination lawsuit into arbitration has failed potentially clearing the way for a class-action lawsuit brought by Black workers from the EV maker's Fremont, California, factory.  A California state appeals court said [PDF] yesterday that an arbitration clause in employment letters that …

  1. aerogems Silver badge

    Shouldn't even be an issue

    Granted this is just my opinion, but if something is already against state and/or federal law, like racial discrimination, it should override any arbitration clause. Anyone alleging racial discrimination is free to take their complaint to a court of law, or an arbitrator, as they deem appropriate. Arbitration could be forced for other scenarios, like someone claiming Twitler took lessons from his buddy Ellison, and is trying to cheat people out of their bonuses. However, any time something is already illegal under state and/or federal law, arbitration cannot be forced.

    Still, I was sort of half-hoping that there'd be enough people they could arbitration bomb Tesla. Sort of like what happened with Uber, where thousands of people started filing arbitration complaints and it started adding up to real money when Uber was on the hook to pay the fees (because that usually ensures the outcome will be in their favor). Sometimes the little guy has more power than they think. What does it cost me to file a complaint with local regulators? A couple hours and a small amount of cash. A company is likely going to hire an outside lawyer who will cost several hundred an hour, so it's not hard to force the company to spend at least a couple grand to address your complaint. Even if you don't win outright, you get a sort of pyrrhic victory.

    1. Irony Deficient Silver badge

      any time something is already illegal under state and/or federal law, arbitration cannot be forced.

      From a legal perspective, signing a contract is taken to be a voluntary action unless proven otherwise; the same applies to contracts that contain mandatory arbitration clauses, even if the matters put under arbitration are allegations of illegal acts — legally, the “forced” mandatory arbitration was voluntarily agreed to by the signatories of the contract (unless proven otherwise).

      1. OhForF' Bronze badge

        Voluntary Arbitration

        Luckily local law says i can't sign away my right to a fair trial before a lawful judge.

        Arbitration is still a thing, if i agreed to it i have to go through arbitration before i can sue. If arbitration fails to create a result i can live with I'm free to move on to a regular court.

        Arbitration should not allow circumvention of the regular justice system, it should be a fair attempt to solve a conflict before it goes to court.

        Allowing Tesla to create a kangaroo court and have any employee "voluntarily" sign up for it is a mistake.

      2. gryphon


        So if someone signed a contract to sell their child as a slave then changed their mind after they'd handed it over they'd have to go to binding arbitration to get them back even though it was an illegal act in the first place?

      3. Anonymous Coward
        Anonymous Coward

        Re: any time ... surely you cannot be serious?

        It's rare for Dunning Kruger syndrome to take my breath away, but this is a tremendous effort.

        What do you think would happen if one signed an employment contract where 'written warning' as second line disciplinary measure was replaced by 'pants-down spanking' or similar? Do you think that would be legally enforceable? It's so obviously stupid to suggest that any contract whatsoever can override the laws of the jurisdiction in which it exists; so starting such a claim with "From a legal perspective...," as if you are sharing authoritative expert knowledge, is completely insane.

    2. DrSunshine0104

      Re: Shouldn't even be an issue

      *IF* I remember correctly in the US you can get out of arbitration if you petition the court to allow it. I think it is a pretty high bar it most cases but I feel an accusation of violation of Title VII the court would side on the protection of the plaintiff's rights and grant them access to the courts. You shouldn't be able to voluntarily sign off your codified rights to arbitration even if there is even only a hint of impropriety.

  2. DenTheMan

    What gives?

    I was hearing about an NDA agreement when it comes to Tesla repairs.

    There seems a similarity but can anyone detail further?

    1. Phones Sheridan Silver badge

      Re: What gives?

      We can't tell you, if there's and NDA agreement because.........

  3. Anonymous Coward
    Anonymous Coward

    Woe is Tesla?

    2022 didn't exactly end on a highnote for Tesla thanks to Musk's antics, and now another gaggle of rather expensive looking chickens has come home to roost, making the start of 2023 not exactly auspicious either.

    I may need to stock up on popcorn..

  4. Winkypop Silver badge






    1. Anonymous Coward
      Anonymous Coward

      Re: FSD

      Fools Suck at Driving?

      F*ckwits, Suckers and Doorknobs?

      Fully Self Defeating?

  5. Lord Elpuss Silver badge

    ”…lawsuit brought by Black workers“



    1. Anonymous Coward
      Anonymous Coward

      Fucked that for you

      Your english needs work, lord elpuss.

      1. Anonymous Coward
        Anonymous Coward

        Re: Fucked that for you

        Its a debate frought with dangers. For example in the UK there are some people whose ears do not work very well who are happy to be "a deaf person" while others take deafness as an identifying feature and insist that "I am Deaf". Yet others use "deaf" and "Deaf" in different circumstances, and while the d/Deaf community seems happy at the moment to have "hearing impaired" as another descriptive, it is no longer correct to call someone with problems with their eyes "visually impaired" apparently. So I can imagine that b/Black has similar convolutions and the whole thing then turns into one of those situations were you have to discover from each individual what they prefer to be called. Similar in some ways to those email sigs which now tell you of the sender's prefered personal pronoun(s).

        1. I ain't Spartacus Gold badge

          Re: Fucked that for you

          The visual impaired thing, I think, comes from the old distinction between being "blind" or "visual impaired". Certain blind people don't like the term because they have some limited sight and therefore having two terms with a distinction doesn't work. Hence I think now that everyone is lumped into one as "severely sight impaired".

          Except that for dealing with real people you need to know when someone can't see anything at all, or when someone needs help with text, or whatever. So we're creating a system where we deliberately invent confusion to make people happy. Oh well.

          On the other hand, the term blind is incredibly confusing to most people. When I was a kid I was originally diagnosed as "partially sighted" (yet another dead term again designed to mean not blind but still very bad vision). I've got about 5% vision. At some point this decade I'll move into the category of blind (which I still believe is the legal term), that will entitle me to quite a lot in the way of benefits. Just because with normal ageing process, my sight is getting slighly worse and that'll tip me under the 5% threshold. But I'll still be able to wander round and safely cross roads even without wearing my glasses. In fact my sight is so poor that I only started wearing glasses after I hit 40, because the normal ageing thingy meant my eyes had different prescriptions, and so one is corrected to be like the other. For reading it's 5x magnification so I've worn glasses for that since I was 4.

          Then again I know a guy who's blind who hates the term sight-loss. Because it makes him sound careless...

        2. Anonymous Coward
          Anonymous Coward

          Re: Fucked that for you

          I'm not sure it's much of a debate at all. We don't write african american, so we don't write black. Just like we don't write roma or hispanic. One most certainly should not correct someone else's use of Black to black (especially if one is not of the ethnicity concerned and I will eat my riding hat if Lord E is Black).

          1. Lord Elpuss Silver badge

            Re: Fucked that for you

            ” We don't write african american, so we don't write black.“

            That’s a non sequitur.

            African American is, or at least refers to, a race plus a geography. Both are legitimate bases for capitalisation. Capitalising black, by contrast, has no basis in either race or geography, and is a phenomenon founded purely in woke ideology.

            On determining whether it is acceptable to correct something patently incorrect, based solely on one’s ethnicity, is in itself an act of racial discrimination.

            To paraphrase a famous comedian who’s name escapes me; “I don’t need to be a helicopter pilot to know that when I see one upside down in a tree… dude fucked up.”

            1. John H Woods Silver badge

              Re: Fucked that for you

              You might want to read up. You're announcing* your place on the spectrum from ignorance at best to racist at worst. Glad I'm not one of your colleagues, but it's a shame I don't have a real name to avoid.

              *If you were pedantically correcting what you think is a typo, you would have mailed corrections@el reg. We've both been here long enough to know that's the procedure. You wanted to make a point. You have made one, but I doubt it's the one you think you were making.

              1. Anonymous Coward
                Anonymous Coward

                Re: Fucked that for you

                Personally, I disagree. From a pure literary PoV he was correct.

                If you add a dollop of politics and emotion to it, yes, then you have a debate but then you're no longer debating the original point he was making.

                The fact that there are people who still see the need to distinguish people by the colour of their skin is deeply sad, but that still doesn't change grammar. As a matter of fact, you could debate the point that capitalising effectively gives it the prominence we really ought to get rid of, but that is again another debate altogether.

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Fucked that for you

                  "The fact that there are people who still see the need to distinguish people by the colour of their skin is deeply sad, but that still doesn't change grammar"

                  Absolutely not but the OP's definitely in your "sad" group. Using a capital letter as in "Black" implies "of a certain heritage, background etc." and does not specify skin colour. I know someone who has an African grandparent with dark skin but who is themselves fair-skinned and red-headed! They might easily say that they have "Black heritage" and take offence at racist language.

                  Not using that capital ("correcting the grammar" as the OP claims) says "a person with black skin". This is in much the same way as i might be "white" (no capital letter probably not the best way to describe me) but am "British" not "british".

                  1. Lord Elpuss Silver badge

                    Re: Fucked that for you

                    ”Using a capital letter as in "Black" implies "of a certain heritage, background etc." and does not specify skin colour. “

                    Even if what you say was true (it isn’t), explain why this site, and many many others, perpetuates the double standard of capitalising black, whilst not capitalising white.

                    If no discrimination is intended then both, or neither, should be consistently capitalised. The grammatically correct answer is ‘neither’.

              2. Lord Elpuss Silver badge

                Re: Fucked that for you

                ” You have made one, but I doubt it's the one you think you were making.“

                Oh, it most definitely is the one I intended to make. Capitalising black is pandering to woke dogma, nothing more. If you believe there’s a logical justification beyond this, you’re misinformed; and need to educate yourself.

                Just in case my original comment wasn’t clear enough for you.

                1. Martin an gof Silver badge

                  Re: Fucked that for you

                  "Woke Dogma". A pejorative term used by bigots who can't see the need to be sensitive to other people's feelings.


                  1. Lord Elpuss Silver badge

                    Re: Fucked that for you

                    How about my feelings? Am I not entitled to believe, or even expect, that ALL people deserve to be treated equally, including me? That no one person, group, race, gender or orientation is ‘superior’ to another? That it is itself a form of discrimination to - as in this case - capitalise the word ‘black’ when referring to people of colour, whilst perpetuating the double standard of NOT capitalising ‘white’ under exactly the same circumstances, for example here, here, here, and here?

                    This double standard is DELIBERATELY intended to drive a wedge between two ethnic groups; neither of whom would have given a shit about this until the media started actively promoting one group above the other.

                    If you support this, or even fail to speak up about it, we have a name for people like you. By your action, or inaction, you are supporting discrimination. For shame.

        3. Anonymous Coward
          Anonymous Coward

          Re: Fucked that for you

          Speaking for the vast majority - Does anyone really care?

  6. Pascal Monett Silver badge

    "racist language was actually being used in a friendly manner"

    Oh sure, because calling a person of color a fucking nigger is just peachy.

    The fact that we still need to even have this kind of discussion is shameful.

    1. Binraider Silver badge

      Re: "racist language was actually being used in a friendly manner"

      With the inescapable irony that some people are allowed to use that word because of their biology, yet others are not.

      I did find it amusing that some yokels in Pennsylvania called me it, a somewhat sunburnt whiter-than-white of probably viking descent; for the sake of walking 100 yards from a hotel to a bar.

      That race comes into this is IMO a secondary factor. Jamming machine tools into someone in an offensive manner is reasonable grounds for immediate dismissal case of the offending employee irrespective of what words may or may not have been exchanged along with it.

  7. ComputerSays_noAbsolutelyNo Silver badge

    Trump defense: they are not black, so it can't be racial discrimination

    Not, that Musk is becoming more and more Trump; maybe we see a full-on Trump defense from him.

    What's reality anyway, when facts are becoming akin to opinion?

  8. Anonymous Coward
    Anonymous Coward

    You can do that you know, just not sign things.

    Especially if you put it in with a bunch of other papers that you have signed, because the chances are no-one will ever notice.

    1. Anonymous Coward
      Anonymous Coward

      mmm, careful with that some fuckers will then forge your signature.

    2. I ain't Spartacus Gold badge

      I've been listening to an excellent podcast called the History of Rock n' Roll in 500 songs. Top quality, even if it's painfully "woke" sometimes (for want of a better term). Also rather depressing as you hear about yet another artist from the 40s and 50s who was ripped off by the record companies and died penniless.

      So I was delighted by the Isley brothers. They signed their first contract, which was no doubt also pretty exploitative, with an indy label. Were starting to do well, and got offers from bigger and better labels. But oh no, we've signed you exclusively. OK, prove it!

      Turns out they signed, waited for the record exec in question to leave the room for some reason, took the contract back - and walked off with it. Naughty! But nice to see the artists getting one up on the record companies for a change.

      1. Binraider Silver badge

        One of the better features of "todays" industry is that going without a "Label" is an option.

        You might be doing without the PR engine that sits behind Labels; but you do get to set artistic direction, retain full ownership, and can spread the word through other channels.

        Regarding dodgy label's Korn's "Y'all wanna single" is quite a funny tale; and one most assuredly NSFW. The top and bottom of it is that the Label insisted on them producing a single... So they did, with appropriate nonchalance.

    3. doublelayer Silver badge

      If they used papers in a room with one person dealing with them manually, but most places don't do that so much these days, especially when they hire thousands of people. The last time I was hired, the agreements were presented and my consent collected electronically, so there wasn't any way to accidentally forget or modify a contract. I could have attempted to see if I could bypass the "Look at this and accept before you can see anything else" workflow the UI had, but there was probably something in the terms to prevent me and we've all heard the stories of what happens to the terrible hackers who try something as vicious and sophisticated as modifying parameters in a URL.

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