Adjusting to the Conservative Supreme Court
By Bert Black |
The bitterly toxic hearings on Brett Kavanaugh’s recent appointment to the Supreme Court focused largely his past treatment of women and his truthfulness. Many are also concerned about his position regarding Roe v. Wade, the case that recognized the right of women to make their own decisions about pregnancy and health. These are deeply valid areas of inquiry. But add this: how will Kavanaugh’s appointment will negatively affect consumer and employment rights?
Based on the track record of the other conservative Supreme Court justices, we can expect more anti-employee and anti-consumer decisions, like these:
Impeding Equal Pay for All
Equal pay for equal work? Not so fast, according to five conservative Supreme Court justices when they decided Ledbetter v. Goodyear Tire & Rubber in 2007. Justice Kavanaugh would surely have voted with them to deny Lilly Ledbetter the same pay as male co-workers doing the same job. For years she was paid less than men holding the same position with Goodyear. But the five conservatives interpreted the law as narrowly as possible and ruled that because she’d not filed a claim within 180 days from when the discriminatory policy was originally adopted, she was plain out of luck. Mind you, she did not know about this biased pay policy until years later. Under the Obama Administration this abomination was corrected with a new law, appropriately called the Lilly Ledbetter Fair Pay Act. If the new law is challenged, will Kavanaugh protect equal pay for women or will he vote with the other conservative justices to deny it?
Protecting Corporations, Not Employees
How about the right take your employer to court if you’ve been treated unfairly at work? Guess again, according to five conservative justices earlier this year in Epic Systems Corp. v. Lewis. Building on earlier conservative decisions upholding non-negotiated arbitration provisions in employment contracts, the Court held that employees who claimed they had been misclassified for overtime pay purposes could not sue as a group because their contracts required arbitration on an individual case basis.
Apathy Toward Consumer Rights
Is it safe to assume consumers will be protected from fraudulent practices? Not so fast. The Court’s ruling against collective action is even more absurd in an earlier 2011 case, also decided by five conservatives like Kavanaugh. In AT&T Mobility v. Concepcion, the Court held that consumers, each defrauded out of a few dollars by a cellphone service provider, could not sue collectively because their contracts included a class action waiver. What, then, are you to do if you’ve lost a few bucks because your internet provider, or credit card company, or mortgage company has made some relatively small error in calculating your bill? Will each defrauded customer have to arbitrate, and do so one case at a time? Not likely many people would spend the required time only to recover a small amount, and thus does the company in question get to keep what in total can come to millions of dollars.
Finding the Silver Lining of a Conservative Supreme Court
So the sad story goes in case after case in which conservative Supreme Court justices favor big corporations over the little guy. But all is not necessarily lost. Employment law plaintiffs who have to arbitrate can still prevail, and their cases may get resolved more quickly. Recoveries in arbitration are usually lower than in cases that go to trial, but the process generally is quicker and less expensive. And while companies can now dodge class actions by putting waivers into contracts, that does not mean one firm can’t take on multiple small cases and prosecute them as individual actions. It requires innovation and efficient management by skilled lawyers, but it can be done.
Like it or not, the Kavanaugh appointment means the Supreme Court has taken a sharp right turn, which will likely impact employee and consumer rights, so that plaintiffs and the lawyers who represent them will have to adapt to find ways to obtain justice