Last week, a bare majority of the Supreme Court did something this Court rarely does — it made life markedly better for millions of Americans by striking down the unconstitutional Defense of Marriage Act. This decision, however, should not overshadow the blow the Court’s conservatives dealt to the franchise by striking down a key prong of the Voting Rights Act. Nor should it displace two other decisions handed down last week that delivered big victories to abusive bosses throughout the nation. Indeed, the Court’s five conservatives have become a worker’s worst enemy in Washington. Here are five examples of how the Supreme Court has made life more difficult for workers:
1. Waving Off Workplace Harassment
Federal law provides very robust protection to workers who are sexually or racially harassed by a supervisor, but it is far more difficult to win a lawsuit if you have been harassed by a co-worker. This distinction exists because supervisors are capable of intimidating their victims into keeping silent, and so there needs to be additional protections for workers harassed by their bosses so that these workers feel safe complaining about their supervisor’s actions.
Yet, in Vance v. Ball State University, the five conservative justices virtually wrote these protections for victims of boss-on-employee harassment out of the law. Under Vance, your boss only counts as your “supervisor” if they have the power to make a “significant change in [your] employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Thus, in many modern offices where hiring and firing decisions are made by a distant human resources manager, few bosses will actually qualify as “supervisors.” Vance also ignores the authority often given to senior workers to direct the actions of junior employees — and to potentially abuse this power in the process. In one case described by Justice Ruth Bader Ginsburg in her dissent, a senior truck driver coerced a newly hired woman to have unwanted sex with him because she feared he would fail her on an important exam. Yet this man no longer qualifies as a “supervisor” thanks to Ginsburg’s conservative colleagues.
2. Unwinnable Lawsuits
The second big anti-worker decision last week cut off an important mechanism ensuring that employers are held accountable if they retaliate against workers who file civil rights complaints. In University of Texas Southwestern Medical Center v. Nassar, the five conservatives nixed what are known as “mixed motive” lawsuits in retaliation cases, a decision that effectively forced many workers to develop extra sensory perception if they want their employers to comply with anti-retaliation law.
Under the mixed motive framework, a worker only needs to show that racism, sexism or a similarly improper motive was part of the reason driving an employer’s decision to lash out at a worker. The burden then shifts to the employer to prove that discrimination did not drive their decision. These suits force an employer to reveal what they were actually thinking at the time that they fired an employee, rather than forcing the worker to read their boss’ mind.
Without mixed motive lawsuits, many victims of retaliation will discover that it is impossible to prove their claims in court. Worse, Nassar builds off a similar decision, Gross v. FBL Financial Services, that gutted the ability of many victims of age discrimination to hold their employers accountable.
3. Signing Away Your Rights
The Court’s five conservatives are staunch supporters of forced arbitration, a practice that enables businesses to shift lawsuits against them out of real courts and into a privatized arbitration system where the corporate party is often able to select an arbitrator with a record of siding with corporate interests. Indeed, one notorious arbitration company behaved as such a rubber stamp for corporate parties that it ordered a woman to pay more than $11,000 that she did not owe because she had the same name as another woman who did owe money. (This company is now out of the consumer arbitration business, largely due to a settlement with Minnesota’s attorney general.)
Federal arbitration law explicitly exempts “workers engaged in foreign or interstate commerce.” Yet, in Circuit City v. Adams, five conservative justices joined an opinion holding that forced arbitration contracts could be imposed on workers engaged in foreign or interstate commerce. The upshot of this opinion is that your employer can force you to sign away your right to sue them in a real court — under penalty of termination if you don’t comply.
4. Dividing and Conquering
Two years ago, the Court shut down a class action lawsuit brought by more than 1 million women against the giant retailer Walmart. Walmart, however, was only the second most important class action case that Supreme Court term. Two months earlier, the five conservative justices held in AT&T v. Concepcion that your employer can force you to sign away your right to bring a class action against them just as easily as they can force you into privatized arbitration. Indeed, the Court based this decision on the same Federal Arbitration Act that forms the basis of their forced arbitration decisions, despite the fact that that act has nothing to say about class actions.
Class actions, which allow multiple parties with common claims to join together under the same lawsuit, are often the only cost effective way to hold a company accountable. Lawyers are expensive, and plaintiffs’ attorneys are often paid a percentage of their client’s winnings rather than an hourly fee. For this reason, it is often impossible to hire a competent plaintiffs’ attorney unless your claim is valuable enough that a lawyer can earn a living representing you. Class actions make it possible for multiple workers whose individual claims may only amount to a few thousand dollars — a lifeline for the workers but rarely enough to entice a good lawyer — to join together in order to hire counsel and share the costs of litigation among themselves. Cases like Concepcion, render many workers with relatively small claims against their employer powerless to fight back.
5. Unequal Pay for Equal Work
Finally, the Court’s five conservatives famously tossed out Lilly Ledbetter’s claim that she, as a woman, is entitled to earn just as much as her male colleagues earned for doing the same job. Ledbetter became a political celebrity after this decision, and her name is now attached to the law President Obama signed overruling the Supreme Court’s rejection of her case.
Ledbetter’s story, however, demonstrates just how difficult it is to fix a Supreme attack on workers’ rights after the justices have decided. Ledbetter became a national figure. President Obama ran ads touting his support for her. And yet the Lilly Ledbetter Fair Pay Act barely overcame the Senate’s de facto 60 vote threshold after Obama took office backed by enormous super-majorities in both houses of Congress.
Laws overruling anti-worker decisions are all but certain to die in the House today, even if they somehow overcome a Senate filibuster. And few people know the names of Jack Gross or Naiel Nassar or Vincent and Liza Concepcion, even though their cases likely did far more to harm workers than the Supreme Court’s decision in Ledbetter. Absent a dramatic shift in Congress — or a new justice to replace one of the Court’s conservatives — the Court’s anti-worker march will likely continue with impunity.
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