OCTOBER 2017 TERM
The #MeToo movement exposed what was for many a startling and unpleasant truth: Sexual harassment and discrimination persist and even thrive in the American workplace. Perhaps a more unsettling revelation was that victims, even those who are famous and successful, kept quiet about the abuse they experienced at the hands of powerful bosses, fearing they would not be believed by their employer or would face retaliation by their abuser. The sea change began when victims learned that they were not alone and, by corroborating each other's accounts, their credible and collective voice would be heard. While one victim may be doubted and discredited, the same story told by many different voices radically changes the presumption about who is telling the truth. And finally a pattern of abuse is brought to an end.
This is not, in fact, a new phenomenon. Both private and public enforcement of civil rights laws -- particularly the right to a workplace free of discrimination -- have relied on the ability of workers to share their experiences and then stand together to bring legal action to combat discrimination. That right is imperiled.
The U.S. Supreme Court is poised to decide a trio of cases -- Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and NLRB v. Murphy Oil USA, Inc. -- that could give the green light to mandatory pre-dispute arbitration agreements that prohibit employees from joining together in any combination in any legal forum to challenge workplace discrimination.
While the National Labor Relations Act, 29 U.S.C.A. Sections 151 et seq., and the Norris-LaGuardia Act, 29 U.S.C.A. Sections 101 et seq., protect the right of workers to engage in "concerted activities," the employers have argued to the high court that arbitration agreements that require an employee to litigate any and all disputes alone (whether in court or arbitration) are enforceable under the Federal Arbitration Act.
A decision for the employers will severely undermine the capacity of workers to enforce their civil rights, effectively depriving them of the rights so many of us take for granted. According to research by the Economic Policy Institute, 25 million U.S. workers are bound by a mandatory arbitration clause that prohibits collective legal action. See "The growing use of mandatory arbitration," Economic Policy Institute, Sept. 27, 2017.
Many of the legal doctrines that are crucial for combatting workplace discrimination are premised on group action. "Pattern-or-practice" claims of discrimination require a court to step back and assess an employer's actions as a whole, often using workforce statistics and anecdotal accounts to uncover clandestine and covert patterns of discrimination. When numerous workers tell a common story, and that story is mirrored in statistical proof, a hidden pattern of bias can be detected. But that method of proof will be foreclosed because most courts have held that pattern-or-practice claims cannot be asserted in cases brought by a single employee.
Similarly, "disparate impact" claims, which challenge employment practices that are neutral on their face but discriminatory in effect, are difficult to bring on an individual basis. Those cases are established through an analysis of statistical disparities in employment outcomes (between, for example, male and female employees), as well as the possible explanations for those disparate outcomes. Broad discovery of workforce data sufficient to create robust statistical analyses for disparate impact cases is more difficult to obtain in an individual case. Instead, a solo plaintiff is typically limited to discovery of a small subset of information related to her own department, a limitation that an employer can justify as proportional to the stakes in the litigation under the amended Rule 26 discovery rule. Moreover, the cost of this type of expert statistical analysis is enormous and will rarely be justified by the damages available to a single employee. In collective or class cases, broader discovery is available and the costs can be efficiently spread across larger groups.
A decision in favor of the employers also will deprive solo plaintiffs access to the full range of remedies provided by Congress. For example, the systemic injunction -- one of the most important civil rights remedies -- is typically unavailable in individual discrimination actions. Such injunctions, overseen by engaged federal judges, have been critical in dismantling the mechanisms of racial discrimination that have historically stymied equal employment opportunity. But in a single plaintiff case, the injunctive remedy is generally limited to that litigant (e.g., a promotion previously illegally denied), a result that does nothing to change the system perpetuating the discrimination.
And finally, returning to the lessons of #MeToo, collective action can allay workers' fears of challenging an employer's illegal and abusive conduct. A lone worker will understandably tolerate discriminatory conditions rather than risk the loss of the weekly paycheck that feeds her family. Even for well-paid workers, the risk of being isolated, blackballed, or publicly discredited will deter her (or him) from stepping forward. This risk lessens when workers can stand together in a group. An employer is far less likely to retaliate against a group of workers who step forward to make the same claim. And that claim, when echoed by multiple victims under oath, is far more persuasive than a lone voice. There is strength in numbers.
The ability to bring legal action with other co-workers in one proceeding is essential to fulfilling the promise of the civil rights laws. Much work remains to be done to ensure equal pay for equal work, to integrate police and fire departments, and to wipe out hostile work environments. A decision by the Supreme Court to allow employers to deprive employees of their statutory rights to take concerted action will be a giant step backwards for civil rights.
Jocelyn co-authored an amicus brief in the NLRB v. Murphy Oil cases with the NAACP Legal Defense & Educational Fund on behalf of 32 civil rights organizations. The brief identified over 100 civil rights concerted legal actions that have enforced civil rights protections in the workplace.