SCOTUS Backs Forced Arbitration, Taking Away Workers’ Right to Band Together to Challenge Sexual Harassment and Other Misconduct

Washington, DC. Following is a statement by Christine Owens, Executive Director, National Employment Law Project:

“Today, in a 5-4 decision written by Trump-nominated Justice Neil Gorsuch, the Supreme Court has dramatically tilted the legal system against working people, paving the way for corporations to break workplace laws with impunity.

“America’s workers have long understood that when their bosses break the law – whether it’s wage theft, discrimination, or sexual harassment – workers have the right to band together to pursue legal action. Today, this is no longer the case. In Epic Systems v. Lewis et al., the Court has decided that corporations, as a requirement of getting a job, can force workers to sign arbitration clauses that nullify their right to join together.

“The #MeToo movement has shown how crucial it is for workers to be able to voice their concerns together – and how harmful forced arbitration is to women fighting sexual harassment and to anyone challenging workplace misconduct. Forced arbitration means women have to pursue their claims alone, before a private arbitrator hired by the company, with a low likelihood of success and little chance to appeal. As Gretchen Carlson recently stated, “If a woman’s being sexually harassed in the workplace and she has an arbitration clause, she’s screwed.”

“Workers’ ability to band together is crucial to making legal protections real – and bosses know it. Companies that use forced arbitration and ‘class waiver’ clauses know that individual workers face enormous barriers if they have to bring their claims alone. Very few workers are willing to take on their employer by themselves and risk termination, abuse, or worse. Few workers can afford to spend thousands of dollars to pursue an individual case. Collective and class actions exist for this very reason, so that regular people can pool their claims and get a lawyer to pursue their case.

“Every American needs to know that the Trump administration sided not with the workers in this case, but with the corporations that want to strip away workers’ rights. In fact, the Trump administration switched sides in this case, after the Obama administration had previously supported the workers. As we’ve seen repeatedly this past year, the president’s promise to put America’s workers first is hollow rhetoric. This administration is eager to let corporations write the rules for the rest of us.

“Currently, an estimated 60.1 million workers in America – 56 percent of private-sector nonunion employees – have been subject to forced arbitration clauses, and of those, nearly one in three (30 percent) have lost the right to challenge wrongdoing through collective legal actions. We can expect those numbers to rise. After today’s decision, forced arbitration will become standard employer practice.

“Forced arbitration takes away people’s right to have their day in court. It’s a backdoor way of repealing laws on the books. Wage laws, anti-discrimination laws, anti-harassment laws, and more – these protections are of little use if workers can’t enforce them. Now we must demand from Congress a legislative solution that restores the fundamental right of workers – including women fighting sexual harassment – to band together.

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