Before she was on Time magazine’s cover as one of the #MeToo Silence Breakers, Susan Fowler, a former Uber engineer, had a message for the U.S. Supreme Court.
In February 2017, Fowler, who was an Uber site reliability engineer, wrote on her personal blog about the sex discrimination, harassment and retaliation that she and other female engineers faced at the ride-hailing company. Her post went viral and rocked Uber, which then hired a law firm to investigate the issues raised by Fowler and workplace problems in the company more broadly.
The law firm’s report ultimately led to 20 terminations, and by June, Uber CEO Travis Kalanich resigned.
Two months later, in August, Fowler filed an amicus brief — a friend of the court brief — in a trio of workplace cases before the Supreme Court. If employers win, she cautioned, workers would lose the ability to challenge systemic and potentially illegal practices, including sexual misconduct, in their workplaces.
The three workplace cases in the Supreme Court — the first arguments of the current term — are among the biggest cases of the high court’s term. But the trio largely has been overshadowed by the wealth of other potential blockbusters on the docket. The justices could hand down a decision anytime after they return to the bench Feb. 20.
What are arbitration agreements? Employees, usually as a condition of employment, sign employment contracts containing arbitration agreements. Those agreements often prohibit employees from joining together in collective or class litigation. An estimated 25 million employees have signed these agreements. The National Labor Relations Board has ruled that these class or collective action bans violate federal labor laws. Employers have filed dozens of lawsuits challenging that ruling and arguing that the arbitration agreements are enforceable under the Federal Arbitration Act.
Mandatory arbitration agreements have come under increasing fire as the #MeToo movement has grown. Many believe that those agreements often hide sexual misconduct behind closed door negotiations. In December, Microsoft announced it would no longer enforce pre-dispute arbitration of harassment claims in its employment agreements and it became the first major company to support federal legislation restricting employment agreements that barred employees from going to court with sexual harassment claims.
The Supreme Court is being asked to decide whether federal labor law, which says these agreements are not legal, or the federal arbitration act, which says they are, governs.
Fowler, through her lawyer Chris Baker, described for the justices Uber’s many fights with employees over workplace issues.
“These allegations include stealing driver tips, failing to pay minimum wage and overtime, lying to employees about their equity compensation, electronically spying on drivers who work for a competitor, and the list goes on,” Baker wrote. “Uber’s typical response to this litigation is to say that workers cannot engage or participate in the concerted activity of collective litigation. For Uber, even 1,000 very expensive individual arbitrations is exponentially cheaper than a single class action judgment.”
Uber is not the only company to require these arbitration agreements with class action waivers, according to Fowler. Facebook, Google and other tech companies require them.
The U.S. Chamber of Commerce, reflecting the views of the many businesses and employers in the labor-arbitration case, argues there is no clear congressional command, as required, that overrides the arbitration act. It also contends that litigation in court is often too expensive to be a realistic option for employees.
The justices appeared divided during October arguments. Justice Ruth Bader Ginsburg compared the workplace arbitration agreements to yellow-dog contracts. “This kind of contract, there is no true bargaining,” she said.
Chief Justice John Roberts Jr. seemed concerned about the practical impact of a ruling against employers. “So this decision in your favor would invalidate agreements covering 25 million employees?” he said to the employees’ lawyer.
An added twist to the high court challenge came last June. The U.S. Justice Department during the Obama administration had supported the National Labor Relations Board’s position that the class action bans violated federal labor laws. But the department in the Trump administration reversed that position, putting it in conflict with the labor board.
The justices are currently on their winter break, a period during which many of them fulfill speaking commitments and catch up with reading briefs and writing opinions. Only four decisions have been issued thus far — behind the pace of recent prior terms. So it’s unclear when we’ll see any decisions on these employment cases. The justices will be back on the bench on Feb. 20 for arguments. They could begin to issue decisions any time after that — and likely before the end of June.