No, 5 Men on the Supreme Court Did Not Just Decimate #MeToo

Last week, the Supreme Court released its opinions for Epic Systems Corp. v. Lewis, and the majority holding set off a firestorm of criticism from advocates for the #MeToo campaign against sexual assault and harassment.

Some advocates went so far as to accuse five men (the case was decided by a 5-4 majority) of seriously undermining the ability of women to seek recourse for sexually abusive workplace conditions.

Fortunately for women, this isn’t the case.

Epic Systems Corp. was not about sexual assault, has little impact on the ability of employers to be held accountable for workplace violations, and was decided in accordance with both longstanding legal precedent and the principles of judicial restraint.

This case was about how to interpret the interaction of two federal statutes.

Yes, you read that correctly. Although some commentators have made the Epic Systems holding sound apocalyptic for female employees, the key question in the case was fairly innocuous—did Congress intend parts of a later statute to override key provisions of an earlier statute?

In this case, employees entered into contracts with their respective employers. Those contracts stipulated that the employees agreed to use individualized arbitration proceedings to resolve any disputes with their employers that might arise during the course of employment. This meant the employees would also agree to forego class-action arbitration or lawsuits in state or federal court.

The employees nonetheless attempted to escape from these agreed-upon arbitration proceedings, and instead filed class-action lawsuits over various disputes they had with their employers.

The employers filed a motion in federal court to dismiss the lawsuits and require the employees to pursue their claims utilizing the procedure to which they had agreed in the contract. They pointed to the Federal Arbitration Act, which Congress passed in 1925 and which instructed federal courts to enforce arbitration agreements found in contracts, except in limited circumstances where the entire contract could be legally revoked.

The employees responded that the individualized arbitration clause was illegal—and therefore invalid—because the 1935 National Labor Relations Act guarantees employees the right to collective action against an employer. According to the employees, Congress intended that law to override any conflicting portion of the Arbitration Act.

The majority followed decades of clear legal precedent.

When one party claims that two federal statutes conflict, the Supreme Court follows the same mode of analysis it has utilized on many occasions over many decades to resolve the issue. The court assumes that if Congress wants to override an earlier statute with a later statute, it will make its intent to do so “clear and manifest” and will specifically address the pre-existing law it wishes to override.

If Congress doesn’t do this, the court “strives to give effect to both [statutes]” under the assumption that Congress intended the statutes to work harmoniously. It does this to avoid picking and choosing amongst various policies, a task constitutionally entrusted to Congress.

The majority rightly pointed out that nothing in the later National Labor Relations Act expresses Congress’ approval or disapproval of individualized arbitration agreements, much less expresses a clear intent to override fundamental provisions of the Federal Arbitration Act.

As Justice Neil Gorsuch, writing for the majority, noted, “[w]hen Congress wants to mandate particular dispute resolution procedures it knows exactly how to do so.” But Congress made no overt attempt to restrict the use of individualized arbitration agreements. Instead, the National Labor Relations Act focuses on the right of employees to organize unions and bargain collectively for or against contractual conditions.

Some commentators misunderstand the Epic Systems holding.

Several media outlets have reported on this narrow holding as though the Supreme Court had effectively denied the right of employees to seek collective recourse against their employers.

For example, the San Francisco Chronicle quoted one attorney as claiming that, “Collectively, women can continue to demand that employers and companies can’t silence them … . They can continue to speak out and demand that companies voluntarily change their policies. [Women] just had five men decide they couldn’t do this.”

Author Helaine Olen similarly told The Washington Post that the majority opinion “makes it all but impossible for workers who encounter discrimination, wage theft, [or] harassment … to legally insist on their rights.”

The good news is that is not what the “five men” of the majority held in Epic Systems. Employees—both male and female—absolutely maintain the right under the National Labor Relations Act to join unions and bargain collectively with their employer, and can continue to demand collectively that companies change their policies.

All the court did was interpret the straightforward language of a federal law that requires courts to enforce arbitration agreements. If employees don’t like individual arbitration agreements, they are free to bargain collectively to change them. They are also free to lobby Congress to pass legislation clearly overriding the Federal Arbitration Act.

Other commentators have insisted that this ruling deals a severe blow to the #MeToo campaign by preventing women who have been sexually harassed or assaulted in the workplace from seeking collective action against their employers.

They argue that making employees abide by the arbitration agreements in their contracts will “be chilling for the #MeToo movement, which has made getting rid of mandatory arbitration agreements paramount. That’s because arbitration shrouds workplace sexual harassment claims in secrecy, thus making it hard for victims to come forward while protecting serial abusers.”

While the description of individualized arbitration proceedings as adverse to complainants is dubious, a bigger problem is the suggestion that the Supreme Court is to blame for any alleged chilling effect.

The reality is that Congress passed the Federal Arbitration Act, and it’s not the court’s role to determine whether this law represents good or bad policy, or to tweak its meaning to avoid outcomes it doesn’t particularly like.

If enforcing individualized arbitration agreements has a chilling effect and is indeed bad public policy, the proper way of neutralizing that effect is the same here as for all poorly constructed or ill-conceived statutes that were nonetheless within Congress’ constitutional authority to enact—through the legislative process, not judicial fiat.

It isn’t egregious for judges to use standard and predictable frameworks for interpreting statutes. It is, rather, egregious for judges to take upon themselves the policymaking authority constitutionally granted to Congress, picking and choosing which parts of which statutes Congress ought to override.

The hysteria, not the Supreme Court, hurts #MeToo.

The #MeToo campaign has been criticized for a number of things, sometimes rightly and sometimes erroneously. One of the main legitimate criticisms is that it encourages a certain sense of hysteria and overreaction to innocuous events, and that at times some of its proponents lack the ability to have rational, objective discussions about the nuances of law and public policy.

This complete mischaracterization of a Supreme Court holding and its effect on women, as well as the blame shifting away from Congress as the source of any problem that may exist because of the Federal Arbitration Act, does more to damage the #MeToo movement than the judicial restraint exhibited by the justices of the majority.

It isn’t in the best interests of anyone for courts to selectively rewrite statutes, ignore longstanding rules of statutory interpretation, or leave the nation guessing as to how they will construe laws on a given day.

Consistent interpretation of the law and judicial restraint from policymaking are not enemies of justice and democracy, but rather prerequisites for them. And this makes the Epic Systems holding something to celebrate.

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