Less than one hour into the new Supreme Court term, which began on Monday, one of the Court’s embattled liberals warned that workplace protections that stretch back to the New Deal are in danger.
With Neil Gorsuch, the man who occupies a seat that Republicans held open for more than a year in the hopes that Donald Trump would get to fill it, now beginning his first full term, the Court’s Republican majority appears emboldened. Last week, the Court announced that it will hear Janus v. AFSCME, a suit seeking to sabotage public-sector unions. Then it opened the term with three consolidated cases, all of which are likely to give employers a license to engage in many forms of wage theft.
And looming over the entire term is Masterpiece Cakeshop v. Colorado Civil Rights Commission, a discrimination case with profound implications for workplace civil-rights laws.
Justice Stephen Breyer’s warning about New Deal–era protections coming under fire came in the consolidated cases, National Labor Relations Board v. Murphy Oil USA, Ernst & Young v. Morris, and Epic Systems Corporation v. Lewis, which together will decide whether an employer can force their workers to sign away their right to join a class-action lawsuit.
Class actions are important because they are often the only way to prevent small-bore wage theft that targets a wide swath of workers.
Consider, for example, an employer who illegally takes a few hundred dollars from each of its thousands of employees. If every worker has to file an individual suit to recover this money, it is likely that very few of them will do so. The cost of hiring a lawyer to litigate the case will massively exceed the amount each worker can hope to collect.
A class action fixes this problem by allowing the thousands of workers to join together under a single lawsuit. Together, their claims may be worth millions of dollars. That’s enough to attract a lawyer who will work on a contingency basis—meaning that they will be paid a percentage of any money they collect for their clients.
With the right to bring a class action, in other words, the employer faces a consequence if it takes millions of dollars from its employees. Without that right, the employer can do what it pleases so long as it spreads the pain across many workers.
Janus, meanwhile, seeks to starve many public-sector unions of the funding they need to operate.
At issue are “agency fees,” which unions sometimes charge non-members. By law, unions must negotiate on behalf of all workers in a bargaining unit. Thus, all workers in a unionized shop enjoy the higher wages and better benefits that often come with unionization—according to one study, unionization raises wages by about 12 percent on average. To prevent non-members from free-riding off the union, union contracts often require every worker to pay their fair share of the bargaining costs, regardless of whether they join up. Without such an arrangement, the union risks becoming so starved of funds that it can no longer operate.
Janus, however, asks the Supreme Court to declare these agency fees unconstitutional, at least in the context of public-sector unions—and it relies on an exceptionally aggressive reading of the First Amendment to do so.
Both Janus and the class-action cases, moreover, appear to be all-but-certain losses for workers. A similar agency-fees case was before the Court shortly before Justice Antonin Scalia’s death in 2016. After Scalia passed, the remaining justices split 4-4 on its outcome. Now that the staunchly conservative Gorsuch occupies Scalia’s seat, there is little doubt how he will vote.
Likewise, in the class-action cases, the Court waited to schedule oral arguments until after Gorsuch was seated—a likely sign that Gorsuch’s eight colleagues are divided and that he holds the deciding vote.
The result in Masterpiece Cakeshop, which involves a bakery owner who refused to serve a same-sex couple, is more uncertain. Justice Anthony Kennedy, a conservative who ordinarily votes with his fellow Republicans, authored a series of pro-LGBT decisions—including the Court’s landmark marriage-equality decision. It is possible that he will come down against discrimination here.
If he does not, however, Masterpiece Cakeshop is likely to have sweeping implications for many future civil-rights cases, including discrimination suits in the workplace.
There are a number of important issues in this case, including whether an individual’s religious objection can trump civil-rights law, and whether someone who bakes artistic cakes has special First Amendment rights that allow them to discriminate. The most important issue in this case, however, is probably whether or not anti-LGBT discrimination is legally more permissible than other forms of bigotry.
Even the staunchly conservative Justice Samuel Alito acknowledged in Burwell v. Hobby Lobby that the government’s interest in eradicating race discrimination is sufficiently weighty that an employer who thinks they are called by God to be a white supremacist cannot ignore civil-rights laws protecting people of color. It is far from clear, however, whether five justices feel the same way about anti-LGBT discrimination.
(It is also unclear whether five justices believe that a religious objection cannot permit someone to discriminate against women, although that issue is not before the Court—yet.)
When the justices depart for their next summer vacation in June, in other words, they are likely to leave behind a far meaner world for America’s workers and a far more profitable one for rapacious employers. There is an open question whether they will blow a giant hole in America’s civil-rights laws, but unions and victims of wage theft are almost certainly in trouble.