By Janine Jackson
Janine Jackson:Just as the #MeToo movement demonstrates the power of solidarity in fighting workplace harassment, a Supreme Court ruling aims to force individuals with workplace complaints back into isolation. In Epic Systems v. Lewis, the Court’s conservative majority ruled that lower courts have to enforce individual arbitration clauses in employment contracts, which means that workers have toaddress complaints not through the courts, but in closed-door, one-on-one proceedings.
The ruling affects millions of people on the most fundamental level, but it didn’t get a great deal of explanatory press coverage. Joining us now to discuss what the ruling could mean, and how we can resist its impact, is Joanne Doroshow, founder and executive director of the Center for Justice and Democracy, and cofounder of Americans for Insurance Reform. She’s also adjunct professor at New York Law School. She joins us now by phone from here in town. Welcome back to CounterSpin, Joanne Doroshow.
Joanne Doroshow:Thank you; it’s great to be back.
JJ:This 5-4 ruling is not a total surprise, given the makeup of the court and the majority’s illustrated favoring of employer power over worker power, you could say, put broadly. But it does concretize or sanction practices that we know about, and that we’ve already seen harmful impact from, wouldn’t you say?
JD:This is, as you say, not a completely unexpected decision; particularly, we weresuspecting after the oral argument that workers might have been in trouble on this case. But it is distressing that the court—and I think that Justice Ginsburg delivered her dissent from the bench is an indication of what a dramatically unfortunate case result this is, in the impact that it’s going to have on workers around the country who have been cheated or harassed, discriminated against or harmed in any way—this really makes it almost impossible for them to vindicate rights in court anymore, this decision.
JJ:In the specifics, it’s about what looks like a wage-theft case. But it’s really about a number of, potentially, reasons or instances in which workers might have an individual complaint, but to take that complaint through individually costs a lot of money, first of all. And then, also, you’re alone, up against your employer. And that’s the very reason that workers band together, and that’s what this is undermining.
JD:Yes, and just to step back for a minute, it’s not, of course, just workers that are affected by the problem we’re talking about. And the problem we’re talking about are forced arbitration clauses that are buried in the fine print of, these days, most credit card, cell phone, any kind of online terms-of-use agreements; nursing home admission forms; many other everyday contracts, including employment contracts.
And what they mean is that if the company cheats, defrauds, discriminates against or harms you in some way, you cannot sue the company in court, or have any kind of judge or jury trial. And instead, you’re forced to resolve your case in a private, secret, rigged arbitration system that’s controlled by the company. And you may have to pay the arbitrator. There’s no right to appeal.
And these clauses also have what’s called “class action bans” or “class action waivers,” which means that you—as you say—you cannot join with others, you have to only litigate your dispute individually, your small claim, let’s say. In most cases, this is going to mean that you’re not going to be able to bring your dispute to any kind of resolution at all, because you’re not going to be able to afford to do that.
That’s why class actions are so important: It allows you to join with others, cover the expenses that way. And also, when we’re talking about discrimination, let’s say, or harassment, it’s critical that you be able to join with others, in order to show a pattern or a practice of discrimination, or a systemic company policy. You can’t do that as an individual. So there are many reasons why class actions are so important. And what this decision did, it basically said that an employer can unilaterally prevent you from bringing class action, and force you into these secret arbitration systems.
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