We are taught from a young age that there is strength in numbers. A grade school teacher hands a student a pencil and asks them to break it, an easy task. She then hands the same student a bundle of pencils. The bigger the bundle, the stronger the pencils become. A big enough bundle is unbreakable.
Yesterday, American workers became individual pencils. And we all became that much easier for corporations to break.
The U.S. Supreme Court voted 5–4 that companies can use arbitration clauses in employment contracts to stop people from joining together in class-action lawsuits to fight workplace abuses. An estimated 25 million private, nonunion employees will be affected, but don’t think of them as a collective group. Think of them as tens of millions of workers who are now forced to stand alone.
The majority ruling was written by Justice Neil M. Gorsuch, who backed the Federal Arbitration Act, a law dating back to 1925 that makes arbitration clauses generally “valid, irrevocable, and enforceable.” In reaffirming a law written when the country was ruled by robber barons, Gorsuch and the four justices who joined him in the majority are thrusting America into a new Gilded Age–one where powerful business entities have more rights than the workers who labor on their behalf.
It’s a continuation of the ruinous illogic behind the Burwell v. Hobby Lobby ruling in 2014, while affirmed that for-profit businesses can hold Constitutionally protected religious beliefs the say way ordinary citizens do. In America, corporations are people, but people are individuals.
As seems to be the case more and more often lately, Justice Ruth Bader Ginsberg wrote the dissenting opinion, an angry rebuttal she read aloud–and which was five pages longer than the majority opinion. “By joining hands in litigation,” she writes, “workers can spread the cost of litigation and reduce the risk of employer retaliation.”
More than 55% of U.S. workers are now subject to mandatory arbitration. This means that, if you have a problem with your employer, you are obligated to fight them alone, whether that problem is based on lost wages, discrimination, or even sexual harassment. And with this ruling, we can expect mandatory arbitration to increase–despite a vigorous push in Silicon Valley and Hollywood to curb the practice (along with nondisclosure agreements, which employers wield for similar ends).
Yesterday’s decision is of great concern to the #MeToo movement in particular, which at its core is about finding strength through shared oppression and driving change through shared action. Most workers don’t have the means to go to war with their employers alone–which makes Ingrid Avendaño, who earlier this week became the first former Uber employee to sue the company for discrimination after it ended forced arbitration amid intense public pressure, a laudable outlier. Lawsuits are expensive, and a simple cost-benefit analysis makes it difficult for many would-be plaintiffs to find a reason to fight in the first place.
Ginsberg points this out in her dissent, observing that a typical employee in a case against EY (formerly Ernst & Young) would likely have to spend $200,000 to recover only about $1,900 in overtime pay. It’s like David versus Goliath, if David had no rocks to load into his sling.
More important still, these cases typically involve the least powerful people in the economy: Women, minorities, and low-paid hourly workers who’ve been told systematically that they should be happy just to have a job. It’s easy to understand how much workers are willing to put up with when the alternative is not having a paycheck at all.
This isn’t the end, however. Ginsberg made it clear that Congress can correct the court’s action, and even Gorsuch has given us a way out.
“The respective merits of class actions and private arbitration as means of enforcing the law are questions constitutionally entrusted not to the courts to decide, but to the policymakers in the political branches where those questions remain hotly contested,” Gorsuch wrote. “This court is not free to substitute its preferred economic policies for those chosen by the people’s representatives.”
Basically, Gorsuch is stating that the Supreme Court’s job is merely to enforce the word of the law that comes before it. The likelihood of changing the law in favor of actual workers is slim to none while Republicans control the Senate, House, and Presidency, but if Democrats take back Congress in the upcoming midterms, those odds may improve dramatically. Indeed, there are already inklings of bipartisan support for reform: Senator Richard Blumenthal (D-CT) has sponsored the Arbitration Fairness Act, and last year Senators Lindsay Graham (R-SC) and Kristen Gillibrand (D-NY) announced legislation to end forced arbitration pertaining to sexual harassment in the workplace.
So hope does exist. While the federal government may continue to side with corporations, there’s one place where workers can reclaim their power–and where there still is real strength in numbers. Come November, we need to bundle together and vote.
Nick Jack Pappas is a writer and activist in New York City. You can follow him on Twitter at @pappiness.