As a Republican-led Senate works to fast-track confirmation proceedings to appoint Judge Amy Coney Barrett to the Supreme Court — while early voting in the presidential election has already begun in many states — her appointment to the highest court also poses questions about legal protections for workers.
Over the next year, the high court can shape how broadly federal anti-discrimination protections apply to all workers including LGBTQ employees; the survival of the Affordable Care Act; where labor unions stand, and even workers’ ability to access the courts.
Already over the past decade, a 5-4 majority of justices appointed by Republican presidents issued rulings in a number of key cases that shifted the balance of power in employment cases. In the 2011 Wal-Mart Stores Inc. v. Dukes ruling, for instance, the high court raised the requirements for employees to form a class to address workplace discrimination.
Since then, the court has also chipped away at workers’ ability to make it to the courthouse, by upholding private arbitration agreements in employment and consumer contracts, and imposing higher requirements for workers to even arbitrate collectively, as it did last year in Lamps Plus Inc. v. Varela.
Being able to bring such cases to court, where proceedings are made public, and to join with their coworkers rather than individually pursuing claims, is commonly understood as a source of leverage for workers. But the cumulative effect of the Supreme Court’s rulings has been to enable, in effect, a divide-and-conquer strategy to unravel employees’ claims, something a 6-3 Conservative majority is expected to continue, labor experts say.
“Really to me, a lot of the more major questions are access to the courts,” said Joseph Seiner, a professor at the University of South Carolina School of Law, and a former attorney at the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces employment civil rights laws. Seiner wrote the 2017 book “The Supreme Court’s New Workplace” published by the Cambridge University Press, about how the Conservative high court had transformed worker rights and protections by that point.
“It’s not [necessarily] that the employment discrimination protections that exist are going to be taken away, whether judge Barrett is confirmed or not,” he said. The bigger concern, he said, is “courts have been making it steadily and progressively more difficult to actually get your case in the court, to be heard.”
The issues of legal protections and access to courts are particularly significant for frontline sales and manufacturing workers in the fashion and apparel industries, for whom the pandemic has introduced additional challenges for workplace safety, as well as job and financial insecurity.
In 2019, when there were roughly 4.6 million retail sales worker jobs, the median pay was just $25,440 per year or $12.23 per hour, according to the U.S. Bureau of Labor Statistics. For retail sales workers in clothing and clothing accessories stores, the median hourly wages were lower, at $11.68.
For workers in low wage roles in particular, the ability to access the courts to seek legal protections against workplace discrimination, to pursue wage and overtime claims and equal pay, and the ability to seek union representation without fear of retaliation are key concerns, experts said.
A number of those issues fall under the jurisdiction of state and federal agencies like the EEOC, which enforces Title VII of the Civil Rights Act of 1964 that protects employees from workplace discrimination; the National Labor Relations board, which enforces workers’ collective bargaining rights, and the U.S. Department of Labor, which oversees the Fair Labor Standards Act that sets wage and overtime standards.
But in practice, it is employment attorneys who often draw attention to those disputes by filing lawsuits and setting the course for those questions to make their way up to the Supreme Court, which can rule on the scope and application of all federal laws. Though the high court only hears a small fraction of the cases at its doorstep — it only takes up about 100 of the 7,000 cases it receives each year, according to the U.S. Courts web site — its rulings are foundational and encompass a broad swath of workers, experts said.
“Now, only a limited number of cases get to the Supreme Court, and typically only where there is a conflict in the lower courts, where the lower courts have disagreed on an issue is typically the only time that the Court will take a case, and decide a case under one of these statutes,” said Ann Hodges, a professor who teaches labor and employment law at the University of Richmond, School of Law.
“But once the Supreme Court has decided the issue, then that’s the law of the land,” she said. “And so the court plays an extremely important role.”
Judge Barrett’s confirmation hearings this week, a rushed exercise by Senate Republicans ahead of the election, follow the passing of Justice Ruth Bader Ginsburg last month. The prospect of Judge Barrett, who has served as a judge for just three years on the Seventh Circuit appeals court, replacing Justice Ginsburg, also raises questions about the court’s qualitative output.
Even when the court’s conservative majority ruled a certain way, Justice Ginsburg’s dissents in worker rights cases helped to shape the national discourse around those issues and even persuade Congress to change the laws, Hodges said.
In 2009, the Lilly Ledbetter Fair Pay Act was enacted to allow employees more time to seek recourse for pay discrimination, after Justice Ginsburg’s vehement dissent in the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co. Inc. in 2007.
“Justice Ginsburg recognized that it is often very true of women in the workplace, that they are being underpaid, but that they don’t know they’re being underpaid,” Hodges said. “Ultimately, Congress enacted legislation to correct the law and to provide that, in effect, that’s a continuing violation, as long as she’s being underpaid, she can make that claim.
“I think you will see a shift to ruling in favor of employers more often and without that deep understanding that Justice Ginsburg had about issues facing workers and the reality of the workplace,” Hodges said.
Labor advocates also worry about holding on to recent gains made by workers, including in the Supreme Court ruling in June this year in a trio of LGBTQ rights cases, where the court found that employers cannot discriminate against workers for sexual orientation or gender identity.
“At the end of the day, workers are going to win, workers are not going to cede their power just because they install Amy Coney Barrett on the court, but that is going to make it a lot harder,” said Molly Coleman, executive director and cofounder of the People’s Parity Project, a nonprofit advocacy group supporting workers. “It means that instead of fighting for progress, we’ll be having to fight to preserve the wins we’ve already achieved.”