In a 5-4 ruling written by its newest justice, Trump appointee Neil Gorsuch, the US Supreme Court declared that employers can force workers into arbitration, and essentially deny employment to anyone who refuses to waive their civil rights to participate publicly in class-action lawsuits. From the employee perspective, this means that if you’re experiencing issues such as poor working conditions or wage inequities, your employer can keep you from taking the matter to court.
Reading her dissent from the Supreme Court bench, justice Ruth Bader Ginsburg called the majority ruling “egregiously wrong,” warning that the decision will lead to the “underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” She called on Congress to intervene and update federal labor law.
What RBG didn’t explicitly state, but surely implied, is that by enabling companies to force arbitration, the Supreme Court is oppressing and silencing untold numbers of employees who experience workplace discrimination, especially sexual harassment.
Coded as the decision may be, it’s a devastating blow to the #MeToo movement, and the fight for gender equality at work. Forced arbitration often comes along with non-disclosure agreements, which can prevent survivors of sexual harassment from publicly ousting their abusers or rallying public support for their cases. Mandatory arbitration clauses also often limit the amount that can be paid to employees who’ve experienced workplace discrimination.
Under Title VII of the 1964 Civil Rights Act, all US employees are protected from sex discrimination in the workplace. Under this federal law, workers have the right to sue their employer for sex discrimination that is so frequent or severe that it creates a hostile or offensive work environment, or results in an adverse employment decision (such as demotion or firing).
Many argue that forced arbitration is effectively illegal, as it inhibits victims of sex discrimination—like sexual harassment or unequal pay—from exercising their civil right to a lawsuit. Such was the case for former Fox News anchor Gretchen Carlson, who couldn’t legally sue Fox News CEO Roger Ailes for sexual harassment, having unknowingly signed Fox’s mandatory arbitration agreement. Carlson has since become an advocate for ending mandatory arbitration.
“Forced mandatory arbitration is… a way of sweeping [discrimination cases] under the rug,” congresswoman Pramila Jayapal of Washington state told Quartz last month. (She’s working to resolve this through legislation with H.R.4734, or the “Ending Forced Arbitration of Sexual Harassment Act of 2017.”) “What happens out of that is often the employees get much less because they’re fighting on their own, and they’re fighting against a big system versus being able to take something to the court and actually force a company to follow the law.”
According to Kristen Clarke, president and executive director of the Lawyer’s Committee for Civil Rights Under Law, the Supreme Court’s mandatory arbitration ruling is particularly damning for low-income women of color, who suffer higher rates of harassment and discrimination in the workplace. “Class action waivers immunize employers from liability, and make it nearly impossible for marginalized victims of harassment to obtain systemic relief in the workplace,” Clarke tells Quartz.
What’s worse, huge numbers of employees in the US have unknowingly signed away their civil right to class-action lawsuits, as mandatory arbitration clauses are often discreetly embedded within the employment papers we’re asked to review (and usually skim) prior to starting a new job. According to a 2017 EPI study, 56.2% of American private-sector non-union employees are subject to mandatory employment arbitration procedures—which means that 60.1 million American workers do not have access to public courts to protect their legal employment rights, and instead must go to arbitration.
As Vicki Schultz, a Yale Law professor specializing in workplace discrimination, told me last month, mandatory arbitration clauses typically will not mention sexual harassment specifically: “Instead, they will pertain to all discrimination disputes. Since sexual harassment is just a type of workplace discrimination, requiring employees to arbitrate discrimination disputes automatically requires them to arbitrate sexual harassment disputes, too,” she says. “These clauses may be hidden in a paragraph that seems to protect the employee by providing that the employer will not discriminate against them.”
Whereas employees could previously challenge the mandatory arbitration clauses they’d sign, arguing such clauses violate their civil rights under Title VII, today’s Supreme Court ruling acts as a steel wall of sorts, universally upholding employers’ enforcement of private arbitration, even at the employee’s expense. It’s hard to overstate the potential harm this poses to women experiencing sex-based discrimination, who already are often intimidated by the countless social and professional pressures to stay silent.
Still, hope is not lost. As Ginsburg noted, Congress has the opportunity to band together and protect employees’ right to class action lawsuits. And that’s already underway with H.R.4734, the bipartisan bill that Jayapal introduced in the House along with representatives Walter Jones, a North Carolina Republican; Elise Stefanik; a Republican from New York; and Cheri Bustos, an Illinois Democrat. A version of the bill introduced in the Senate is sponsored by senators Lindsey Graham, a South Carolina Republican, and Kirsten Gillibrand, a Democrat from New York.
Its mission, as Jayapal told Quartz, is simple: “What we have said in this bill… is that sexual harassment should not be included in any forced arbitration agreement, and that employees who come to an employer should always be able to have the choice of bringing their complaint around discrimination, assault, or harassment either to an arbitrator, or to take action against the employer in court.”
While many legislators (including Jayapal) believe that mandatory arbitration should be banned in all cases, the implications for survivors of sexual harassment are particularly severe. Favoring forced arbitration in sex-discrimination cases implies that you believe that survivors of sexual harassment should not have the right to publicly expose their harassers, and receive full reparations for the abuse they endured.
That a fractious Congress is able to reach across the aisle on this issue only underscores how opportune a moment this is for ending a practice that helped keep stories of abuse silent for so long. It’s a shame the Supreme Court missed it.