D.R. Horton, Inc. v. National Labor Relations Board – a case decided this week by the Fifth Circuit Court of Appeals – puts yet another roadblock in the path of employees who try to come together to enforce their rights. In a 2-1 opinion, the Fifth Circuit upheld a construction company’s policy of requiring its employees to sign an agreement to arbitrate all employment disputes and to forgo any opportunity to pursue their claims through a class action. The court’s ruling overturned a National Labor Relations Board order holding that the employer’s policy was invalid because it violated the right of workers to engage in collective activity under the National Labor Relations Act (NLRA).

The majority reasoned that the Federal Arbitration Act (FAA) requires the enforcement of arbitration agreements, including this one, even though its enforcement meant trampling employees’ ability to come together to challenge the terms and conditions of their employment under the NLRA. The dissent argued forcefully that the FAA does not require litigants to “forgo the substantive rights afforded by a statute.” The dissent further argued that because the FAA permits invalidation of an arbitration agreement for any “grounds as exist at law or in equity for the revocation of a contract,” this arbitration agreement should be invalidated for violating employees’ rights to engage in “concerted activity” under the NLRA.

We couldn’t agree more. Workers need to be able to band together to challenge workplace abuses, including discrimination. Without this procedural right, the civil rights that advocates fought so hard for during the last century will be rendered meaningless for many. Workers in low-wage jobs in particular – a group that is majority female – are far less likely to be able to seek justice when they are discriminated against if they cannot come together to challenge workplace discrimination.

Here’s why:

  • There is strength in numbers – acting as a group helps workers overcome the fear of retaliation associated with sticking their necks out alone.
  • Few individuals can afford to hire a lawyer for their discrimination claims, which can often be very expensive to pursue but lead to damages that – while critical to the injured worker – are relatively small in the overall scheme of things. Bundling a number of claims together increases the likelihood that a group of workers can find a lawyer to represent them.
  • A group action can result in an employer-wide remedy that ends systemic discrimination for all the affected employees, rather than just the one individual who brought the suit. This can be particularly important when a discriminatory practice is not obvious to the employee experiencing the discrimination – as in many instances where employers impose pay secrecy policies that prohibit employees from discussing pay and prevent women from finding out that they are not being paid fairly.
  • The possibility of being held liable to all the employees affected by a discriminatory practice increases the incentive for the employer to proactively avoid discrimination in the first place.

Today’s decision in D.R. Horton is unfortunate, and follows on the heels of two Supreme Court decisions that put a chokehold on workers’ ability to come together to seek their day in court– AT&T Mobility v. Conception and Wal-Mart Stores, Inc. v. Dukes.

While those seeking to block employees’ access to the courts rejoice, we are redoubling our efforts to keep the courthouse doors open for all workers. After all, what good is a right without a remedy?