After months of sustained public pressure targeting sexual harassment in workplaces across the United States, the U.S. Supreme Court on Monday significantly undermined the power of workers to collectively challenge discrimination and abuse at the hands of their employers. In a 5-4 decision on theÂ Epic Systems Corp. v. LewisÂ case,Â the Court ruled that private-sector employees do not have the right to enter into class-action lawsuits to challenge violations of federal labor laws.
â[T]he Supreme Court has taken away a powerful tool for women to fight discrimination at work,âÂ saidÂ Fatima Goss Graves, president and CEO of the National Womenâs Law Center, in a press statement. âInstead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft and more, employees may now be forced behind closed doors into an individual, costlyâand often secretâarbitration process. This will stack the deck in favor of the employer.â
The case concernsÂ tens of thousands of employees at three companiesâEpic Systems Corp., Ernst & Young LLP and Murphy OilÂ USA Inc.âwho were forced to sign away their right to join class-action lawsuits against their employers as a precondition to being hired.
The workers argued that their right to file class-action lawsuits over alleged wage and hours violations is protected by the National Labor Relations Act (NLRA), which was passed in 1935 to offer employees greater leverage to collectively challenge unjust treatment on the job. But, echoing the employersâ arguments, Justice Neil Gorsuchâwho was appointed by Trumpâwrote in the majority opinion that the 1925 Federal Arbitration Act supersedes the NLRA.
The ruling means that workers do not have the right to take bosses to court over alleged violations of federal labor laws. It also means bosses can force workers to arbitrate complaints individually instead of collectively, whichÂ overwhelmingly slantsÂ in favor of employers. This ruling is poised to impact a large swath of the U.S. workforce, where 41 percent of private-sector employees have already signed away their right to class-action legislation.
These workers include those who are pushing against wage and hour violations, as well as fighting patterns of racism, sexism and other forms of harassment in the workplace. Workersâ rights advocates say they are concerned that the ruling could potentially be detrimental to the #MeToo movement, which has relied on power in numbers to confront sexual assault in workplaces from Hollywood toÂ tomato fields. Some warn that, for those facing sexual harassment in the workplace, the choice between employer-controlled arbitration or continuing on in silence is a choice between two bad options.
â#MeToo has shown us that the abuse of power is not one ârotten apple in a barrelâ: It is widespread and systemic, especially in low-wage industries,âÂ Palak Shah, social innovations director for the National Domestic Workers Alliance, toldÂ In These Times. âWe need checks on powerâlike collective actionâto counter abuses of power when they happen. While unchecked power imbalances exist between employers and workers, we can be sure abuses like sexual harassment will continue.â
Arbitration is often kept secret and, employees frequently foot the bill for the arbitration process. Experts warn that this secrecy would protect employers responsible for harmful work environments by not allowing space for workers to collectively address widespread patterns of harassment.
âIn the case of sexual harassment, say there was a group of employees who claimed that theyâd been sexually harassed, they canât proceed together. Theyâd have to go individually [to arbitration] and they canât go to court,â Alexander Colvin, a labor relations scholar at Cornell University, toldÂ In These Times.
According to Graves, the stakes are âparticularly highâ for women who âoften face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it.â
Writing the dissenting opinion, Justice Ruth Bader Ginsburg argued that the 1925 law exemplified a different age for labor relations, and that employees should not be forced into âtake-it-or-leave-itâ agreements in order to find gainful employment.
The case is one of several currently being considered by the Supreme Court that could severely undermine workersâ rights. Much like the pending decision inÂ Janus v. AFSCME, which could prevent unions from collecting union dues from non-union members, it furthers the ongoing anti-worker agenda pushed by the Trump administration.
âAs mandatory arbitration is forced on growing numbers of employees as a condition of employment,â Graves added, âthe Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.â