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Lawyers’ Committee for Civil Rights Under Law Underscores Harmful Impact Of Arbitration Clauses On Minority Workers

For Immediate Release August 22, 2017

Civil Rights Groups File Amicus Brief As SCOTUS Scrutinizes Workers’ Rights

Washington, D.C. – To protect the rights of workers, the Impact Fund has teamed up with leading civil rights law firms, the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) and Cohen Milstein, to file an amicus brief on behalf of more than thirty civil rights organizations including the Lawyers’ Committee for Civil Rights Under Law from across the country in a trio of cases pending in the U.S. Supreme Court.

“Class action waivers immunize employers from claims of illegality and discrimination, and effectively prevent systemic challenges to discriminatory practices,” said Dariely Rodriguez, Director of the Lawyers’ Committee for Civil Rights Under Law’s Economic Justice Project.  “The use of class action waivers in mandatory arbitration agreements has a particularly negative effect on African-American, Latino and other minority groups who are disproportionately low-income and thereby more vulnerable to workplace abuse and discrimination.”

“What’s at stake is the right of workers to bond together to hold employers accountable for systemic discrimination,” said Impact Fund executive director, Jocelyn Larkin, adding: “There has been a disturbing trend in recent years for employers to evade their responsibilities by requiring those that work for them to waive their legal right to join together with co-workers to challenge discrimination.”

The cases address the question of whether employment agreements that prevent workers from taking “concerted” action to challenge workplace violations conflict with protections in federal labor law. Such agreements undermine the fight for civil rights.

“Workers have to be able to come together to bring disparate impact and pattern or practice claims,” said Raymond Audain, Senior Counsel at LDF and counsel of record on the brief, adding: “In most individual cases, employees are denied access to the information necessary to show widespread discrimination.”

“Had the arbitration clauses at issue before the Supreme Court been in effect before, more than 120 important civil rights cases, listed in this brief, would have never been brought,” said Joseph Sellers, chair of the civil rights and employment practice group at Cohen Milstein.  Joining the brief are more than thirty non-profits from around the country who use litigation to fight discrimination against racial minorities, women, seniors, people with disabilities, and LGBTQ communities.

The Supreme Court will review the 9th Circuit’s decision involving Ernst & Young and the 7th Circuit’s ruling involving Epic Systems Corp. It will also consider the New Orleans-based 5th Circuit’s judgment enforcing Murphy Oil USA Inc.’s waiver, which was challenged by the National Labor Relations Board.

The cases are Epic Systems v. Lewis, 16-285; Ernst & Young v. Morris, 16-300; and NLRB v. Murphy Oil, 16-307.

“If employers can preclude workers from acting together in every forum, they can—and will—effectively extinguish the civil rights claims of the most vulnerable members of the workforce,” concluded Larkin.

About the Lawyers’ Committee:

The Lawyers’ Committee, a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination.  Now in its 54th year, the Lawyers’ Committee is continuing its quest “Move America Toward Justice.” The principal mission of the Lawyers’ Committee is to secure, through the rule of law, equal justice for all, particularly in the areas of criminal justice, fair housing and community development, economic justice, educational opportunities, and voting rights.

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