Editorial

Workers lose important access to courts

Tuesday, April 26, 2005

The new Class Action Fairness Act will make it much more difficult for workers facing job discrimination and unfair pay practices to sue employers.

The U.S. Chamber of Commerce and other employer groups spent tens of millions of dollars lobbying for its passage. The Bush administration pushed it through Congress under the guise of curbing frivolous lawsuits arising from personal injury cases. In reality, the law casts a far broader net. It will curtail workers' attempts to protect their rights and enforce wage and hour laws. Efforts to modify the legislation to remove some of its unfairness were thwarted when some Democrats lined up with the Republicans.

Pretending to reform the tort system, and with little scrutiny from the public, the new law shifts the balance of power further in favor of employers. Most class action suits will now be funneled into the over-burdened federal court system, even if most of the workers represented are from a single state and the suit involves state wage and hour protections.

Although the new law was promoted as a measure to curtail product liability and other claims involving personal injuries, it will severely restrict actions arising from workplace discrimination. Workers will find it harder to protect their rights, and employers will find it easier to avoid compliance with employment laws. Under the new legislation, class action suits filed in state courts with the potential to have at least 100 members must be removed to federal court. Generally, it has been easier for workers to pursue class action status in state courts where the rules for class certification are less strenuous.

According to Jackson Lewis LLP, a law firm with a long history of defending employers and assisting them in anti-union activities, the new law will reduce the number of class action suits that workers are able to file and will prevent workers from seeking out the most favorable jurisdiction for their cause. Jackson Lewis also reports that at a recent meeting of the American Bar Association, attorneys discussed the impact of the new law on collective wage and hour actions under the Fair Labor Standards Act. In overtime pay cases, workers' attorneys have pursued a dual track strategy in both federal and state courts to increase the number of class members. They prefer state laws which sometimes provide better protection for workers than federal standards. Under the new act, however, state law overtime pay cases will be subject to removal to federal court.

Senator Edward Kennedy argued against passage of the new law, saying that it would prevent workers from filing class action suits and result in some employment cases never being heard. Class action lawsuits are one the few vehicles workers can use to fight discrimination. Lawsuits filed by individual employees are often dismissed or settled out of court.

Jackson Lewis released the results of its own survey of employers who were sued for workplace discrimination in 2004. Among them, 58 percent were charged with gender discrimination, up from 48 percent in 2003. The overall number of workplace lawsuits remained relatively stable, with 57 percent of the surveyed employers reporting that they were sued by an employee in 2004, the same percentage as in 2003.

Workers can file charges with the Equal Employment Opportunity Commission, but these cases rarely make it to court. In 2004, workers filed 79,432 workplace discrimination charges with the EEOC, well below the 84,442 charges filed in 2002 when layoffs generated by the recession spurred a high number of charges. Charges of race discrimination made up 35 percent of all charges filed. Sex discrimination accounted for 31 percent, and discrimination based on national origin accounted for 11 percent.

Religion, age or disability accounted for most of the remaining charges. The vast majority of charges are never pursued in court, however. The EEOC filed only 378 lawsuits against employers in 2004 and collected $148 million in monetary benefits, a substantial increase over 2003's $86 million, but a negligible amount in terms of total business costs and earnings.

The new law is just one more example of the extreme pro-corporate agenda of the Bush administration and the Republican Congress.

-- Greg Tarpinian is the president and executive director, Labor Research Association, a New York City-based non-profit research and advocacy organization that provides research and educational services for trade unions. www.laborresearch.org