IN 2016 Misty Ashworth sued her employer, Five Guys, a fast-food chain, for sexual harassment and constructive dismissal. But the judge ruled that her case could not be heard in court. When she started the job, she had agreed to take any disputes with her employer to private arbitration.

Ms Ashworth is not alone. Across private-sector workplaces in America, non-unionised employees are bound by mandatory-arbitration agreements. In the early 1990s such agreements covered only 2% of non-unionised workplaces; today they cover more than half.

The growing use of arbitration is partly an indictment of America’s courts. Rarely is it in either side’s interests to litigate for years and at great expense. Arbitration, by contrast, is quick and flexible. It lets both sides choose procedural hoops they would forgo in return for a speedy resolution. A neutral third party then hears the evidence and makes a decision.

Arbitration works well when power is balanced between the two sides: in commercial disputes between big firms, say. But the balance between an employer and an employee, particularly in low-wage occupations, is often anything but even (see article). And whereas the judicial system is designed, at least in theory, to treat people equally before the law, mandatory arbitration puts employees at a further disadvantage.

Arbitration clauses are often hidden in the contractual small print. Simply acknowledging the receipt of a staff handbook can count as a binding agreement to the terms it sets out. Even if workers do read everything, almost nobody starts a new job expecting to have to seek redress against their employer. When a dispute goes in front of arbitrators, their decisions are not subject to a review and, except in rare cases, cannot be appealed against. No public records of arbitration are kept. Even if a worker wins the case, confidentiality provisions can shield repeat offenders from exposure—as the ongoing wave of workplace-harassment revelations has shown.

This lack of scrutiny matters, because the incentives of those who adjudicate disputes are skewed in favour of employers. Arbitrators are extremely unlikely to come across the same employee in future cases, whereas repeat business with the employer is likely. Such a set-up could strain the neutrality of even the most upstanding arbitrator. Some large arbitration firms do have a code of conduct, but less scrupulous firms are not policed at all. Studies suggest that repeat business is correlated with outcomes that favour the employer.

The scales appear to be tilting even further towards bosses. Mandatory-arbitration clauses are increasingly paired with bans on class-action suits by groups of employees. That raises the bar for workers to pursue complaints, by ensuring that each must establish—and finance—his or her case separately; it also lowers the risk that misconduct will damage an employer’s finances or reputation. The Supreme Court is deliberating whether that violates labour rights. If past form is a guide, the court will rule that it does not: judges have consistently treated mandatory arbitration as just another contract.

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Given that, and the failure of past attempts by Congress to impose bans, mandatory arbitration seems likely to stay. And indeed, it does have a part to play. Employers should be broadly free to contract privately with their workers. A default, low-cost forum for resolving disputes is a good idea—as long as it is designed to achieve fair outcomes. Fortunately, decent employers, ethical arbitrators and sensible regulation can deal with many of the problems that bedevil arbitration.

For a start, firms should aim to set up a fair process, by seeking informed consent, rather than smuggling arbitration clauses into unrelated documentation. A narrower interpretation from the courts on what constitutes consent would help, as would an opt-out period for employees. The clauses should allow workers to join together and to act collectively.

Arbitrators should be required to disclose conflicts of interest, including whether they have repeat work from the employer. Options to avoid implicit bias might include mandatory rotation of arbitration firms or a system of randomised selection. A requirement for arbitrators to offer a written justification of their decision would encourage rigorous thinking. If arbitrators get the law wrong, employees should be able to seek judicial review.

Tougher disclosure requirements ought to apply to judgments reached against the firm. Employers would be less tolerant of bad behaviour if they were required to disclose to investors how many settlements they reached and if they continued to employ repeat offenders. Make such changes, and both employees and employers could benefit from arbitration without anyone sacrificing their right to a fair hearing.