Time Isn’t Up on #TimesUp After Supreme Court Class Action Ruling

Bloomberg Law Porter Wells
May 23, 2018
  • Worker advocates worry Supreme Court decision allowing class action waivers and arbitration agreements may chill #MeToo and #TimesUp
  • Internal policies, outside resources remain viable avenues for addressing harassment

The #MeToo movement set in motion last fall hit a bit of a speed bump this month when the Supreme Court gave employers the green light to use arbitration clauses and class action waivers in employment contracts. But that doesn’t mean the book is shut on the #MeToo movement or its legal advocacy counterpart #TimesUp.

Women coming together to share their stories and challenge harassment in the workplace has been powerful, ” Emily Martin, general counsel and vice president of education and workplace justice at the National Women’s Law Center in Washington, told Bloomberg Law. However, the Supreme Court’s recent decision will affect an individual’s ability to come forward, share her experience, find legal representation, and face down her employers, she said.

The decision’s effect will ripple through the appeals and district courts in the coming weeks, where judges had taken a wait and see ” approach for some cases on the dockets. Impacts are likely to be felt in wage litigation and in considering what constitutes protected activity under federal labor law.

For the #MeToo and #TimesUp movements, the essential components have been transparency and collective action, said David Lopez, who formerly served as general counsel of the Equal Employment Opportunity Commission. He and Martin believe the Court’s May 21 decision in Epic Systems Corp. v. Lewis undermines those core principles of concerted action.

The decision basically permits companies to compel workers including low-wage workers to resolve their claims individually in secret, employer-friendly tribunals, ” said Lopez, who is currently a partner at Outten & Golden LLP in Washington.

Many stories of sexual harassment in the workplace from the gig economy to media companies to Las Vegas casinos have highlighted how company higher-ups often knew of bad behavior and either purposefully kept it quiet or mismanaged internal investigations.

Forcing women into arbitration can be a way of keeping harassment secret and under wraps, which can ensure that employers never implement a broad, systemic solution, ” said Martin.

But the movement to illuminate and eradicate harassment from the workplace will continue.

Expectations Remain in Place

The TIME’S UP Legal Defense Fund, housed at the National Women’s Law Center in Washington, was formed on Jan. 1 to help defray the costs of litigating sexual harassment claims against employers. It works in concert with the more general #MeToo movement to give voice to victims in the legal world as well as to further the general public policy conversation.

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Political Question Moving Forward

Justice Neil Gorsuch, who write the majority opinion in Epic Systems, concluded by noting that the Supreme Court is not free to substitute its preferred economic policies for those chosen by the people’s representatives, ” but that Congress is of course always free to amend this judgment. ”

Therein lies a hint of what may come in the months ahead. Both Lopez and Martin say that the likely next steps for worker advocates are political, focused on the drafting, rather than interpretation, of legislation.

I think this has the potential for being an important campaign issue for the midterm elections, ” Lopez told Bloomberg Law. He pointed out that President Trump was elected on a wave of populism and the theory that Washington is out of step with the working class. If workers feel slighted by the court’s interpretation of the law as written, he said, they can make use of the ballot box.

EEOC Not Bound by Supreme Court Ruling

Other avenues exist outside of political campaigns.

The Equal Employment Opportunity Commission enforces Title VII of the 1964 Civil Rights Act, the federal anti-discrimination law that prohibits sexual harassment in the workplace. The EEOC reviews charges filed by aggrieved workers and has the option of suing on their behalf.

Ten women filed sexual harassment charges against McDonald’s with the EEOC on May 22, supported in part by the TIME’S UP legal fund.

Even if the women signed arbitration agreements or waived their rights to class action litigation when they started working for McDonald’s, the Supreme Court’s decision to enforce those clauses likely wouldn’t affect the EEOC if it decided to sue on their behalf. As an independent third party, the EEOC theoretically wouldn’t be bound by the terms of an employment contract.

The EEOC itself is evaluating the Supreme Court’s decision, the agency said. But we don’t think the ruling would have any unique impact on sexual harassment cases, in particular, ” EEOC spokeswoman Christine Nazer told Bloomberg Law in an email.

And while the Supreme Court held that the National Labor Relations Act doesn’t guarantee a right to class action lawsuits against employers, the act is still valid and still allows for collective bargaining and action. Unions can, therefore, take up the issue of remedying sexual harassment in the workplace when they negotiate with their employers.

No matter the public policy future of #MeToo, #TimesUp, class action waivers, and arbitration clauses, there are still norms and expectations attached to running a business and overseeing employees.

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