On Monday, the so-called Notorious RBG opposed the majority of her colleagues in a landmark decision that inhibits the ability for employees with mandatory arbitration contracts to collectively sue their employers. In a fiery dissent on workers' rights, Ruth Bader Ginsburg lambasted the conservative justices that decided in favor of bolstering mandatory arbitration clauses that frequently appear in employment contracts, describing the ruling as "egregiously wrong."
As part of her dissent, RBG warned that inhibiting the right for workers to collectively sue their employers for compensation-related issues, or other workplace problems, could pitch U.S. labor rights back nearly a century. "The end of the 19th century and beginning of the 20th was a tumultuous era in the history of our Nation’s labor relations," Ginsburg wrote. "Under economic conditions then prevailing, workers often had to accept employment on whatever terms employers dictated."
She recalled the bygone "yellow dog contract," which would often require employees to sign away their choice to ever join a union, which were outlawed in 1935. (In his majority opinion, Supreme Court Justice Neil Gorsuch decried such a comparison as an "apocalyptic warning" and a "false alarm.)
"The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts — including the provisions requiring employees to litigate wages and hours claims only one-by-one," Ginsburg said in summary statements read out loud in court, according to Reuters. "Federal labor law does not countenance such isolation of employees."
As for the case in question, a group of employees had sought to have the ability to collectively sue their employer over a wage dispute. However, contracts they signed requiring mandatory individual arbitration appeared to prevent them from legally doing so. As explained by CNN, the justices were tasked with deciding whether a federal arbitration statue overrode federal labor laws that protected workers' rights to collectively bargain. NBC estimated that 25 million workers may have signed off on employment contracts that prohibit them from collective action.
RBG was not having it. "[T]he edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress," Ginsburg said. She continued:
It is the result of take-it-or-leave-it labor contracts harking back to the type called 'yellow dog,' and of the readiness of this Court to enforce those unbargained-for agreements. The [Federal Arbitration Act] demands no such suppression of the right of workers to take concerted action for their 'mutual aid or protection.'
Taking concerns a step further, some have expressed worry that the ruling could have a major impact on sexual harassment cases. In other words, the ruling could affect the #MeToo movement. Because of the sweeping nature of the language involved in mandatory arbitration clauses, sexual harassment can sometimes fall under their purview.
"Typically, mandatory arbitration clauses will not mention sexual harassment specifically. Instead, they will pertain to all discrimination disputes," Yale Law professor Vicki Shultz told Quartz last month. "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."
While that is arguably an ominous assessment, all hope may not yet be lost. Both Gorsuch and Ginsburg acknowledged that Congress could still alter the arbitration statute.
"The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written," Gorsuch wrote. But he went on to explain that lawmakers could alter that if they so choose. "While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the [National Labor Relations Act] — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies."
Insofar as #MeToo is concerned, a group of congresspeople are already taking action. A bill which would prohibit sex discrimination from falling under mandatory arbitration's purview is moving forward in the House. Whether it moves forward beyond that — and whether Congress takes additional steps to protect employees' rights to take collective action against their employers — waits to be seen.
"For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers," Ginsburg wrote in her dissent. "A single employee, Congress understood, is disarmed in dealing with an employer."