Losing Our Civil Rights Legacy in the Fine Print

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By Ceilidh Gao, National Employment Law Project

In times of political crisis, we often look to the victories of the Civil Rights Movement for reassurance and inspiration. Those iconic images of Dr. Martin Luther King Jr. and the March on Washington from our grade school history books serve as reminders that change really is possible. After all, that movement resulted in a crucial and concrete victory: The Civil Rights Act of 1964.

Indeed, the rights we won in 1964 are so ingrained in our culture that amid much misinformation about workers’ rights, there is one employment right that can seem as basic the minimum wage or overtime pay: That it’s illegal for someone to be fired because of their race or gender.

As our current political moment shows us, however, we can’t take any progressive wins for granted. Today more than ever, it’s clear that we can move backwards—that we can lose our hard won gains.

As we’ve profiled elsewhere, forced arbitration—a fine print maneuver pushed on workers by big corporations—is robbing workers of many workplace rights, and civil rights are no exception.

In the case Epic Systems Corp. v. Lewis, the Supreme Court will soon decide whether or not employers can force employees, as a condition of getting or keeping a job, to waive their rights to pursue legal action with their coworkers. This includes class actions, but also any lawsuit that’s brought by more than one worker. Without the ability to join together in action with their peers, workers are forced to go it alone, against powerful adversaries. As the NAACP Legal Defense Fund and other civil rights groups have powerfully argued in their friend-of-the-court brief, an anti-worker ruling in this lawsuit has the potential to destroy Title VII of the Civil Rights Act as we know it.

The protections in Title VII have been crucial to making workplaces more equitable and opening doors of economic opportunity for women, African Americans, and other minority groups. These lawsuits have remedied discriminatory practices at some of the country’s leading corporations, from Abercrombie & Fitch to Xerox, Coca-Cola, Comcast, and Wal-Mart.

Had the arbitration clauses at issue in this Supreme Court case been in effect, however, more than 120 historic civil rights cases would never have been brought at all. Discrimination by its very nature is a group phenomenon. If your employer is discriminating against you because you are a woman, they are likely discriminating against the other women too. And in this type of lawsuit, the evidence of multiple employees is often crucial. Workers are usually trying to show that the discrimination against them is not an isolated incident and is part of a “pattern or practice.” Forcing employees to take action alone severely hinders their ability to prove a case.

Perhaps more importantly, being able to proceed as a class or group is often the only way current employees are willing to pursue legal action. Very few workers are willing to sue their current employer alone, and put a target on their back for termination, abuse at work, or more.

Being forced to take legal action alone also limits the legal tools available to workers, while allowing harmful and illegal workplace patterns to continue. Historic civil rights cases have won broad injunctions—giant companies have been forced to update their hiring policies, for example, or change their promotion practices. The forced arbitration clauses of today often require that workers can only win a remedy that applies to them alone. In other words, even if an African American worker wins an arbitration proceeding finding that his company’s promotion policy discriminates against African Americans, he can’t force the employer to change the policy. He can only win his individual promotion or damages, while his coworkers remain just as vulnerable to the same fate.

Landmark civil rights and class action lawsuits—from Brown v. Board of Education to Griggs v. Duke Power Co.—have historically allowed the legal system to hear and work towards rectifying the injustices faced by whole communities. Through forced arbitration, corporations are trying to take that right away. Instead of workers bringing lawsuits as a group, in solidarity with one another, corporations want to force workers to go it alone. If the Supreme Court allows this to happen, it will effectively extinguish the civil rights claims that generations have fought so hard to secure.

The Supreme Court is scheduled to hear oral argument in this case on October 2, 2017.

Originally posted here.

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