The Supreme Court has given its blessing to fine-print mandatory arbitration clauses multiple times, starting with the 5–4 case AT&T Mobility v. Concepcion in 2011. Since then, this language has spread everywhere. High-profile examples include American Apparel and the Jets, which get employees to sign on to mandatory arbitration clauses that have blocked, or probably will, suits by women for sexual harassment. And I have to mention my favorite instance, even though it’s not about workers: General Mills inserting language on its website stating that people who liked Cheerios on Facebook had agreed to resolve “all disputes related to the purchase or use of any General Mills product or service” through arbitration. After taking a beating on social media, the company backed down.
That was a very rare outcome. Far more common are cases by employees or consumers getting thrown out of court or not being brought at all because of the arbitration clauses in fine print. According to Public Citizen, at least 139 class-action suits have died in the wake of Concepcion. They were brought by consumers who said they’d been stung by predatory lenders, or misleading mortgages, or false promises by vocational schools. And also on the line are complaints by employees of discrimination on the job. For example, suits women bring when they think they’re not being paid the same as men for the same work. Or when they think they can’t get hired because an employer thinks they’re likely to get pregnant.
Obama’s new executive order says that if you’re a federal contractor with a workplace complaint rooted in your sex, race, ethnicity, or religion, you get to go to court—unless you agree to arbitration voluntarily and after the dispute arises. This broadens a shield against mandatory arbitration that’s already in place for workers who say they’ve suffered sexual assault or discrimination at the hands of a Defense Department contractor. That one passed the Senate 68–30 in 2009. This time, signing the new order at a press conference, Obama repeated his refrain that he has to act on his own because Congress has become useless. “They voted to sue me for taking the actions we are doing to help families,” the president said, referring to House Speaker John Boehner’s claim that Obama exceeded his authority in delaying part of the Affordable Care Act.
From a pro-labor perspective, Obama is on a kind of roll. The lead lawyer for the National Labor Relations Board just freaked out business groups by ruling that “McDonald’s could be held jointly liable for labor and wage violations by its franchise operators—a decision that, if upheld, would disrupt longtime practices in the fast-food industry and ease the way for unionizing nationwide,” as Steven Greenhouse wrote in the New York Times.
The “if upheld” part, though, demonstrates the problems the president can run into if he goes it alone. An executive branch action doesn’t have the same weight as a law enacted by Congress. It’s more easily reversed or challenged in court. Obama’s orders also can be limited in scope. Since it applies to new contracts worth more than $1 million, the July 31 order affects only a slice of the 28 million employees who work for federal contractors. Bland argues that it’s still a huge deal because it treats forced arbitration as a central civil rights issue. “For the President of the United States to say that this is a substantial priority of his Administration, to the point that the United States will refuse to contract with corporations that force their workers into arbitration, is an enormous marker,” he wrote to me in an email.
Maybe someday, this will inspire some other Congress to throw the blanket over everyone. That used to happen, I swear. When the Supreme Court made it harder for employees to win discrimination suits in the 1980s, Congress responded with a 1991 law that rolled back those rulings. The same dynamic was in play when the Lilly Ledbetter Fair Pay Act passed in 2009, and Congress stuck up for workers complaining of unequal pay (but didn’t address mandatory arbitration, because it wasn’t widespread yet). Obama’s new order is one way to push back against a conservative Supreme Court majority with a strikingly pro-business record. But it takes two branches to go all the way.