Labor / Employment, On The Job

A Case of ‘Epic’ Proportion For The #MeToo Movement?

While the law may be clear (per Justice Gorsuch), the impact the decision may have on the #MeToo movement is not.

By Sarah Jamison and Evan Gibbs  
on

Ed. note: This week’s column was co-authored by one of the summer associates at my firm, Sarah Jamison, a rising 3L at the University of North Carolina School of Law. And by “co-authored,” I mean she wrote the article and I made a handful of changes and edits.

On May 21, SCOTUS issued its decision in Epic Systems, Corp. v. Lewis, holding 5-4 that employers don’t violate the National Labor Relations Act by requiring their employees to execute class waivers in arbitration agreements. The majority concluded that, under the Federal Arbitration Act, federal courts are to “enforce arbitration agreements according to their terms — including terms providing for individualized proceedings.”

Mandatory arbitration is far from a novel concept. A September 2017 report by the Economic Policy Institute estimated that approximately 60.1 million employees are subject to mandatory arbitration procedures. While there is consensus that class waivers in arbitration agreements will likely proliferate in the wake of the Epic Systems decision, there is less agreement as to what impact the holding will have — if any — on the #MeToo movement.

The Epic Systems Decision

Section 7 of the NLRA gives employees the right to bargain collectively and “to engage in other concerted activities for the purpose of collective bargaining.” The appellee-employees in Epic Systems argued that class-action waivers violated their Section 7 rights because such waivers prevented them from engaging in concerted activity.

The majority disagreed, saying, “The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum.”

The majority’s decision thus turned, in part, on what it saw as an absence of clear and manifest language in Section 7 of the NLRA supporting the notion that collective rights pertaining to the workplace trump the Federal Arbitration Act.

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The Court juxtaposed the absence of “clear and manifest congressional command” in the NLRA with the seemingly clear directive of the FAA to treat arbitration agreements as “valid, irrevocable, and enforceable,” and do so according to their terms. “The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before [the Court] must be enforced as written,” penned Justice Gorsuch.

While the law may be clear (per Justice Gorsuch), the impact the decision may have on the #MeToo movement is not.

From #MeToo to #JustYou?

One of the main concerns about the Epic Systems decision is that mandatory individual arbitration will undermine a movement premised on collective action. While the movement dates back to 2006, it gained momentum when collective action arising from the hashtag #MeToo brought the issues of sexual harassment and sexual assault out of the shadows and into the spotlight. To RBG’s point in her dissent, “For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers.”

Opponents of the decision argue that it not only poses a problem to the movement’s reliance on collective action, but also undermines the transparency that is central to the movement. Arbitration agreements, almost always requiring non-public resolution of disputes, are often coupled with nondisclosure agreements, thereby taking the proceedings and any discussions of same outside the public eye.

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The Other Side of the Argument

While the decision upholds the legality of class waivers in arbitration agreements, RBG’s dissent and others highlight that the decision shouldn’t prohibit individuals subject to class waivers from filing charges with the Equal Employment Opportunity Commission, which could then sue on behalf of the individuals.

RBG, who does “not read the Court’s opinion to place in jeopardy discrimination complaints asserting disparate-impact and pattern-or-practice claims that call for proof on a group-wide basis,” argued it “would be exorbitant to read the FAA to devastate Title VII.” Supporters of this line of thinking argue that the EEOC — as an independent third party — would not be bound by class waivers.

Further, supporters of the decision point out that employers may voluntarily elect to exclude sexual harassment and sexual assault when formulating their class waivers and arbitration agreements. For example, in December 2017, Microsoft announced that would no longer force employees to arbitrate sexual harassment claims.

Conclusion

SCOTUS concluded in Epic Systems that “the law is clear” that arbitration agreements must be enforced as written, including any class waivers, but we wondered how clear the law’s impact would be on the #MeToo movement. But if you’ve read this far, we may have unfortunately left you with more questions than clarity. It remains to be seen how the decision will ultimately impact the #MeToo movement (if at all).

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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