SCOTUS, don’t strip Americans of their right to sue collectively

Issues surrounding mandatory individual arbitration may not capture the nation’s attention like healthcare or the NFL, but they are at the center of debate in all three branches of government. Our commitment to equal justice is being tested, and the rights of consumers and employees hang in the balance.

Supreme Court decisions dating back to the early 1990s have enabled mandatory arbitration clauses to become nearly ubiquitous in the fine print of employment and consumer contracts.

{mosads}These take-it-or-leave-it agreements force consumers and employees to relinquish access to the public courts when their rights are violated. Instead, their claims are funneled into private, often confidential arbitration proceedings, where the corporation who wronged them may have a thumb on the scales. These clauses cover all sorts of legal claims — including civil rights claims.

The Trump administration has proposed a rule that would allow nursing homes to force their patients who are neglected or mistreated to arbitrate claims — an issue that faces increased scrutiny after 11 people died in a Florida nursing home that lost power during Hurricane Irma.

In the Senate, Republican leadership could vote any day to rescind a new agency rule that protects consumers’ access to justice when financial institutions — like Wells Fargo and Equifax — defraud or discriminate against consumers. And on Monday the Supreme Court will consider whether federal labor law protects workers against mandatory individual arbitration when employers violate their rights.

The Supreme Court case, Epic Systems Corp. v. Lewis, concerns longstanding labor law designed to even the playing field between workers and their employers. The law gives employees the right to band together to challenge their employer’s illegal conduct in court, including through class actions. Despite this law, employers routinely condition employment on arbitration agreements that force employees to forfeit their right to sue collectively in public court proceedings.

A new study from the Economic Policy Institute found that over 60 million American workers are subject to mandatory arbitration clauses, and that nearly 25 million workers have waived their right to bring a collective action. Not only must these employees bring claims against their employer in arbitration, they must do so all alone.

Individual, confidential arbitration threatens to undermine the struggle for equality in the workplace. Collective actions have long been essential to exposing and fighting employment discrimination under a variety of federal laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Indeed, the Supreme Court has recognized that “suits alleging . . . discrimination are often by their very nature class suits, involving class wide wrongs.” And discrimination suits pursued publicly and in concert have enabled workers and courts to force some of our country’s most powerful corporations to reform.

Employees are empowered when they can band together to fight for their civil rights. They can pool their resources to cover the costs of litigation and consolidate the value of individual claims, making discrimination cost-prohibitive for employers. That is especially vital for low-wage workers, whose individual claims, standing alone, may be negligible to the billion-dollar companies for which they work.

Collective actions are also uniquely suited to root out and eradicate systemic discrimination across entire industries. On the other hand, when workers are forced to challenge discrimination alone, they may not get access to the evidence required to prove widespread wrongdoing, and courts are often reluctant to order broad relief — like the complete cessation of a discriminatory practice — based on an individual claim. Employers know that, in almost every case, employees who are prohibited from suing collectively will never sue at all.

Indeed, some of the most important civil rights cases in our history would not have been possible if individual arbitration clauses had shut the courthouse door. That includes the Supreme Court’s 1971 decision in Griggs v. Duke Power, a case brought by a group of African-American power plant employees who challenged the use of irrelevant aptitude tests to award promotions. The court ruled in favor of the employees, and held that employers cannot conceal discrimination behind policies written to appear neutral, but that operate as discriminatory barriers to employment. Today, that “disparate impact” theory remains a vital tool for exposing and eliminating discriminatory employment policies 

“Equal justice under law,” engraved on the façade of the Supreme Court, is the great promise of our nation. But now that promise is imperiled for some of the most vulnerable Americans — for nursing home patients who want adequate care, for consumers who want honest banks that protect their privacy, and for employees who want an equal chance to succeed.

In Epic Systems, the Supreme Court should affirm our nation’s commitment to equal justice, and not allow corporations to undermine sacred civil rights laws by closing the courthouse doors on American workers. 

Raymond Audain is senior counsel for the NAACP Legal Defense Fund. Kyle Barry is policy counsel for the NAACP Legal Defense Fund. Teddy Basham-Witherington is deputy director for The Impact Fund. The NAACP Legal Defense & Educational Fund and The Impact Fund filed an amicus brief in Epic Systems Corp. v. Lewis on behalf of 30 civil rights organizations