In 1988, Minnesotan workers filed Jenson v. Eveleth Taconite Co., the first federal class-action sexual harassment lawsuit in American history. The case began on the Iron Range, where Lois Jenson and her female co-workers at the EVTAC mine experienced years of harassment and threats from men threatened by their presence. The lawsuit eventually settled for an undisclosed sum and is credited for launching the wave of anti-sexual harassment policies adopted in workplaces around the country in the following years.
The bravery of the women who launched this case and changed the country is something for Minnesotans to take pride in. But thanks to big corporations and the Supreme Court, workers in Minnesota and around the country are losing the right to follow in the footsteps of the women. Not only are we losing our right to file class actions, we’re losing our right to sue our employers for illegal conduct at all.
Forced arbitration clauses
How can we lose rights that we already had? The answer is forced arbitration. Forced arbitration clauses have proliferated in employment and consumer contracts in recent years. Buried in the fine print and shrouded in legalese, forced arbitration provisions prevent workers and consumers from taking law-breaking corporations to court, even if they face illegal treatment on the scale seen at the EVTAC mine. Did your employer stiff you? If you’re like 56% of workers in private, non-unionized workplaces, you’ll never see the inside of a courtroom. Were you fired after your boss found out your sexual orientation? If you’ve signed one of these contracts, your claim is headed to an arbitrator whether you like it or not.
While corporations claim that arbitration proceedings are cheaper and faster for everybody involved, research from the Economic Policy Institute shows that workers and consumers win less often in arbitration than in court. In the rare cases where they do prevail, the damages recovered are likely to be significantly less than what they would win in court. Given that these “agreements” are increasingly likely to include “loser-pays” clauses, individuals looking at long-shot odds of winning are even less likely to bring their claim in the first place, lest they be on the hook for exorbitant arbitration fees.
Often paired with class action waivers
Most insidiously, forced arbitration clauses are often paired with class action waivers. Not being able to join claims with other wronged individuals is a death knell for many potential claims. It allows companies to get away with workplace abuses, no matter how significant the collective harm, because individual cases might not be enough to prove a pattern of wrongdoing. And because arbitration proceedings are conducted in secret and the outcomes are almost never public, serial abusers are able to escape public scrutiny, whether it’s an individual sexual harasser or a company that systematically flouts the law.
Not surprisingly, the workers most likely to be harmed by forced arbitration are those who are already the most vulnerable in the workplace: low-wage workers, people of color, women, and immigrants. Minnesota has a proud tradition of workers standing up for their rights, seen most recently as Somali workers — led largely by women — at Amazon’s Shakopee facility took on the megacorporation. On Prime Day, Somali workers at Amazon struck for six hours, unprecedented in Amazon’s history. Indeed, it was the first time in U.S. history that warehouse workers have struck on a high-profile shopping day. But should these workers attempt to bring their claims in court, in order to vindicate the rights Minnesotan workers have won over decades, they would be barred: Amazon is among the 80% of Fortune 100 companies to subject their workers to forced arbitration.
Four members of delegation aren’t on board
Members of Congress are standing up against this epidemic of injustice through the Forced Arbitration Injustice Repeal (FAIR) Act. The act would ban forced arbitration in employment, consumer, civil rights, and antitrust disputes. So far, nearly all the Democrats in Minnesota’s congressional delegation are on board — but Reps. Collin Peterson, Jim Hagedorn, Tom Emmer, and Pete Stauber are not.
Minnesota workers will always fight for our rights, but we deserve representatives who will have our backs. Access to courts need not be a partisan issue. Rep. Peterson and the Republicans in our delegation should stand with us and join the FAIR Act coalition.
Molly Coleman is a St. Paul resident and current student at Harvard Law School, as well as the co-founder and co-director of the People’s Parity Project, a national nonprofit dedicated to demystifying — and dismantling — coercive legal tools that allow the powerful to get away with violating workers’ rights, ripping off consumers, and shielding corporations from accountability.
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