The court, doing away with a holding from the National Labor Relations Board, ruled that the agreements could force workers to arbitrate the cases as individuals, rather than as groups. That made some bread-and-butter class action cases — disputes over gender pay disparity and harassment, for instance — much harder to bring.
“The court’s decisions have slowly built a wall that prevents a lot of individuals from ever getting to court, and employers have noticed that,” said Emily Martin, the Vice President for Education and Workplace Justice at the National Women’s Law Center.
She noted that in cases about pay or harassment, it can be daunting to make a case as an individual — much less muster the funds for an attorney.
“If you feel like you are the only one, you are much less likely to come forward and say, I deserve better, you can’t treat me like this,” she said.
With arbitration, “you are protecting serial predators,” said Kelly Dermody, chair of the law firm Lieff Cabraser’s employment practice group, who frequently represents women in discrimination class actions.
“There is no public record that a person has had more than one allegation of harassment against them, maybe many more,” she said. “In many instances, you make it economically irrational for an employee to bring a harassment claim, so you basically can’t enforce that entire issue of civil rights law.”
In one of the cases to be argued Monday, Lamps Plus Inc. v. Varela, No. 17-988, the court is returning to the issue of class actions.
In that dispute, the court will hear from Frank Varela, who says that he is entitled to bring a class action arbitration case against his employer, Lamps Plus, because his arbitration agreement does not expressly forbid it.
For business, the case is “critical,” according to Novak. That’s because, if the court rules in favor of Varela, employers would be “likely to lose the economic benefit of the arbitration that they’ve contracted for,” and that the court largely protected earlier this year, she said.