Mitsch Bush: Supreme Court decision a blow to workers’ rights (column)

Diane Mitsch Bush
Valley Voices

On Monday, May 21, the U.S. Supreme Court, in a 5-4 decision, rigged the system even more against non-unionized working people.

At issue was whether an employment contract could prevent employees from engaging in class-action lawsuits that question whether company actions are lawful. The majority opinion, written by Justice Neil Gorsuch, legitimates employment contracts that deprive employees of the right to bring a class-action lawsuit and instead force employees into arbitration. His opinion relied on the 1925 Federal Arbitration Act, instead of the newer 1935 National Labor Relations Act.

The three consolidated cases decided on May 21 concerned charges that employers had underpaid their workers. The workers’ employment contracts required that they resolve such disputes in arbitration rather than in court and, importantly, that they file their claims one by one. The combined cases are EPIC Systems Corp. v. Lewis, Ernst and Young v. Morris and NLRB v. Murphy Oil.

In her dissent, Justice Ruth Bader Ginsburg called this decision “egregiously wrong.” She read her dissent from the bench, a move that underscores the importance of this dissent. In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”

Trying to arbitrate such claims individually would be too expensive to be worth it, Ginsburg wrote, and “the risks of employer retaliation would likely dissuade most workers from seeking redress alone.” Moreover, she argued that this decision will lead to more employer misconduct by changing employers’ cost-benefit calculations so that they receive greater benefit from underpaying workers and skirting legal obligations. She added that billions of dollars in underpaid wages are at issue.

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Arbitration contracts are a growing trend. Ginsburg wrote in her dissent that only 2.1 percent of non-unionized companies imposed mandatory arbitration agreements on their employees in 1992, but nearly 54 percent do so now.

The EPIC decision of May 21 makes it all but impossible for workers to legally insist on their rights when they encounter discrimination, wage theft, pregnancy discrimination, sexual harassment or other illegal employer behavior on the job. This ruling is a significant blow to non-unionized working women, the MeToo movement and all people seeking legal redress from corporations that have injured them, their communities, their families or the environment.

Arbitrations are generally held behind closed doors. Ginsburg pointed out that because they are not public, they might lead to very inconsistent results in factually similar claims.

In contrast, class-action lawsuits allow people experiencing a similar issue with a particular company to band together to fight for justice. This is nearly impossible for anyone but the wealthiest to do on their own. Since the 1980s, class-action lawsuits have held corporations responsible for their actions, especially when those actions or inactions have led to pollution, dangers to health, unsafe or unlawful impacts to employees or to civil rights. Class-action lawsuits are public, not decided behind closed doors.

The EPIC decision is part of a larger trend in which the Supreme Court has sided in favor of corporations over workers and consumers. It also affects those who seek redress for pollution or negative public health impacts of corporate wrongdoing. Ginsburg called for Congress to redress this wrong and ensure an equal playing field. As your Congresswoman, I will join with my colleagues to right the wrong and here’s how.

I will support and co-sponsor two important bills that have been proposed:

1. Rep. Beto O’Rourke’s HR 4130 that mandates transparency

2. Sen. Richard Blumenthal’s Arbitration Fairness Act, which would render arbitration clauses unenforceable in employment, consumer, anti-trust or civil rights violations.

I will stand up every day for workers, consumers, women’s rights and for all people to seek redress. That’s why the Colorado AFL-CIO, the Colorado Professional Firefighters and The Denver Chapter of The Progressive Democrats of America have all endorsed me for our 3rd Congressional District.

I invite Scott Tipton to represent us and to stand up for us in the wake of this unjust Supreme Court decision.

Diane Mitsch Bush is a candidate for Colorado’s 3rd Congressional District. Learn more at

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