Unprotected: A Quick Guide to Your (Lack Of) Rights

On Behalf of | July 2, 2014 | Employment Discrimination

I didn’t plan our launch this way at all. Originally, I planned to talk about how today is the fiftieth anniversary of the signing of Title VII. I wanted to write about how incredibly important Title VII has been to this country. I wanted to write about what it meant to have laws on the books that said we, women, were entitled to the protection of our federal government when we were at work. I wanted to write about how generations of women (my own included) have been able to imagine and craft lives for themselves that would have been unthinkable fifty years earlier. This is true because Title VII opened the doors to the justice system to working women. I envisioned an uplifting piece that, while acknowledging how far we have yet to go, really celebrated how far we have come.

While mentally outlining this encouraging narrative, I weighed the appropriate angles to take. Should I share the stories of my passionate clients who have used Title VII to make a difference? Should I focus on the statistics and research of where and at what pace progress has been made? Should I review the very real, very meaningful reform that Title VII litigation has yielded in the past?

The Supreme Court’s decision on Monday in the now-infamous Hobby Lobby case shifted all that. Obviously, there is plenty of solid analysis already written on the decision like this and this. The initial political and public responses were, as expected, at two diametrically-opposed ends of the spectrum. There are certain disputes within this conversation that will inevitably divide folks – disputes about religion and reproduction and the proper role of the judiciary vs. the proper role of Congress. These disputes serve to partition us off into our polarized camps.

However, there are some things that don’t fall as easily into right or left — things that anyone paying attention should care about. Most important, the Supreme Court’s decision in Hobby Lobby is part of a larger trend. When given a chance, the Supreme Court will protect employers (especially large corporations) at the expense of the hard-working Americans who are that corporation’s employees. There are too many decisions in the last few years that illustrate this point for me to review all of them. When read all together, though, it is quite clear that the Supreme Court is committed to doing everything it can to close the courtroom doors to employees who come seeking justice.

First, on April 27, 2011, there was ATT Mobility v. Concepcion. Five of the nine justices ruled that the Federal Arbitration Act should be applied broadly. This sounds boring, but what it means in real life is that employers are able to require employees give up their rights to actually go to court when they believe their employer has broken the law. Instead, employers can force employees to go into a secret process where instead of a judge or a jury, there is a decision-maker who is paid by the very same employer that the worker is trying to sue. I am not kidding. You just read that correctly. Later cases have expanded this rule to also say that employers can also require employees entirely give up their right to join with other employees in a class action when in forced arbitration.

Just a few months later, there was Wal-mart v. Dukes. On June 20, 2011, that same group of five justices issued a ruling that made it significantly more difficult for employees to band together when trying to hold corporations accountable for breaking our nation’s antidiscrimination and labor laws—even when they are able to avoid forced arbitration and proceed in courts. The practical effect of the Wal-mart ruling has been that employees face a David and Goliath scenario, where – in many cases – individual Americans have no choice but to battle major national or multinational corporations (with all of their billions of dollars of resources) by themselves. This is not a set-up for success.

In the intervening years, the five men who wrote these opinions also wrote other decisions that made it easier and easier for employers to push even the most meritorious of cases out of court. In order to protect corporations in this way, the five men on the Supreme Court issuing these decisions – Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito – were forced to rely on increasingly absurd misstatements of the evidence in the cases and increasingly bizarre contortions of the law. For a good sense of how crazy this five-man majority has been in issuing these pro-employer decisions, just read some of the inspiring and scathing dissents that Justice Ginsburg has written.

Which brings us back to Hobby Lobby. Again, Justice Ginsburg swings for the fences, authoring a passionate and damning takedown of the five-man majority’s decision to side with an employer against the interests of its employees. The Hobby Lobby opinion deserved nothing less. It is absurd on its face. It says that corporations can exempt themselves from federal law by invoking protections for religious freedom. Protections that were originally designed to protect the interests of the little guy against the big guy — an imposing government.

Employees of America, if the Supreme Court is allowed to have its way, it would leave us all as unprotected every day in the workplace as it has now left working women who are too poor to be able to afford contraception on their own. And make no mistake about who bears the brunt of being unprotected. It is the women, the people of color, the disabled and the old.

The question is, then, what are we all going to do about it? Because giving up just isn’t an option.