Editorial: After Supreme Court decision, Congress must preserve workers’ right to sue

Justice Neil M. Gorsuch wrote the Supreme Court's majority opinion in Epic Systems Corp. vs. Lewis.
(The Washington Post / Getty Images)

A divided Supreme Court undercut American workers on Monday, ruling that employers can bar employees from bringing class-action lawsuits over wage and workplace disputes. The court held in Epic Systems Corp. vs. Lewis that the right to collective actions guaranteed by the National Labor Relations Act does not bar employers from requiring disputes to be resolved individually through arbitration, as provided by the Federal Arbitration Act.

“As a matter of policy these questions are surely debatable,” Justice Neil M. Gorsuch wrote for the majority. “But as a matter of law the answer is clear.”

Whether the court’s decision is sound law is an argument for those versed in the fine details of statute and precedent. But mandatory arbitration is bad policy, and bad for workers. Congress should step in restore workers’ ability to seek redress in the courts — either individually or as a group — rather than let bosses bar the door to the courthouse.


According to the Economic Policy Institute, some 60 million nonunionized private-sector employees work under agreements that preclude them from suing their employers over workplace disputes. Arbitration can be a useful way of resolving a conflict without the expense and time investment of going through the courts. But arbitration agreements are fair only if the two sides entering into them do so willingly and on equal footing. If employers routinely force applicants to sign away the right to sue in order to get hired, then the two sides are clearly not entering arbitration willingly or as equals. And studies have found that workers win arbitration cases at lower rates than they do court cases.

Requiring workers to press their arbitration cases individually makes it considerably harder for them to fight wage theft and other abuses. A single employee with a complaint over small-scale wage theft — a few hours of unpaid overtime a week, for instance — isn’t likely to go to the expense of fighting it. And lawyers aren’t likely to take on cases over small damages. But an entire workforce joining together to pursue a common complaint as a group is more likely to gain traction and narrow the workplace power imbalance.

The principle involved applies in other settings as well. Women shouldn’t have to sign away the right to report or sue over sexual harassment in the workplace as a condition of employment (California AB 3080, now before the Legislature, would bar that practice), and minorities shouldn’t have to agree to arbitration over future discriminatory practices just to qualify for a job. The right of people to seek redress of grievances through the courts is a fundamental element of American society. It must be preserved.

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