September 25, 2017
Imagine that you are an employee working your way up the corporate ladder. You’ve spent years following the rules, paying your proverbial dues, and seemingly excelling in your current position. With your sights set on a move to management, you apply for a promotion. It’s denied.
Disappointed but not defeated, you apply for a promotion again the next year. And the next several years after that. Each time, you are passed over for advancement while other people, colleagues with mediocre performance and less experience, are promoted over you. Although you tried to overlook it the first few times you lost the promotion, it is now undeniable that the company is only promoting people of a certain race — people who look nothing like you. Your patience runs thin, but then again, so does the company’s rationale for denying your promotion; their reasons simply don’t add up. You consider pursuing legal action, but the idea of playing David to your company’s Goliath is terrifying. You can’t afford to lose your job, and the only evidence you have is your own story.
Now imagine you later learn that a number of other employees at your company — coworkers who look like you, sought similar jobs, and reported to the same managers — were denied promotions under nearly identical circumstances. Armed with access to this additional evidence and backed by your peers, you see a clear pattern of misconduct and become more confident in your conclusion that the promotion denials were not a matter of bad luck or mere chance; the pattern is evidence of discrimination, and you set out to prove it as such. The battle undoubtedly will be difficult, but by joining your claim with similarly situated coworkers and accessing companywide data, information that was always in your employer’s possession, you have the potential to level the playing field.
One need not stretch the imagination very far to appreciate the core premise of this scenario and others like it. Whether it is confronting discriminatory denials of promotion, exposing dangerous working conditions, opposing policies that surreptitiously shave time off employee timesheets or challenging other workplace offenses, the idea of strength in numbers — that insurmountable challenges can be overcome when tackled by a group — is part of this nation’s DNA. Indeed, this country sprang from the revolutionary decision of a few individuals to unite against a foe so formidable that collective action was not just the best option, it was the only option. And for more than 80 years, the National Labor Relations Act has been protecting the rights of workers to engage in “concerted activity” — conduct such as picketing, striking and pursing legal claims together with other workers.
This right to join together to challenge workplace misconduct is under siege and its very survival will be before the U.S. Supreme Court in early October. The court will consider whether the NLRA allows employers to require that workers, as a condition of their employment, surrender their right to jointly pursue claims challenging workplace misconduct. If our ability to challenge workplace wrongs is to have any meaning, the answer to this question must be a resounding no.
In each of the three related cases, Epic Systems Corp. v. Lewis; Ernst & Young v. Morris and NLRB v. Murphy Oil USA, Inc., an employer demanded of its employees, as a condition of employment, that they submit every workplace dispute over the entire course of their employment to private arbitration. Their claims would only be tried individually and arbitration would be conducted in secret before a private arbitrator.
The right to join together to challenge common grievances has long been an essential component of our nation’s slow but deliberate progress toward a “more perfect union.” Without this bedrock right, our country would have fallen far short of achieving many of the protections against discrimination on which we now depend and may take for granted.
Many of the workplace protections we enjoy today were achieved through legal action brought by groups of workers. They include routine protections, such as the right to work as a flight attendant regardless of your gender; to work beyond the age of 60 as an engineer; to work in the front of a showroom regardless of your skin color; to be compensated when your boss asks you to stay past your shift to restock the shelves; to seek and keep certain jobs even if you’re pregnant, and many other protections established by courts through cases brought by workers who joined together to challenge a common injustice.
Achieving these victories would have been far more difficult, if not impossible, had the challenge fallen to a single person rather than a group of workers. It is rare that people who engage in discrimination or harassment publicly state their intentions. Much more often, claims of discrimination and other workplace misconduct rely on evidence of a pattern of misconduct that can be proven only when claims challenging the same conduct are tried together. And, where workers who proceed alone do succeed in proving discrimination, the remedy may be limited to the individual worker. The chance to eradicate more deep-seated discriminatory policies and longstanding bias is typically reserved for occasions where groups of workers prove a pattern of bias. Indeed, had the bans on bringing worker claims together, now before the Supreme Court, been the law of the land over the last half century, more than 120 landmark civil rights cases would never have been brought.
Barring workers from joining together to challenge injustice in their workplace could set back by a century this nation’s progress toward social justice for all Americans.
Published in the September 25, 2017 edition of the The Los Angeles ❘ San Francisco Daily Journal. Joe Sellers is a partner and Shaylyn Cochran is an associate in the Civil Rights & Employment practice at Cohen Milstein Sellers & Toll PLLC.