In 1938, a forty-two-year-old autoworker named Florence St. John learned that she was being paid less than men working the same machines on an assembly line at GM’s vast Olds Motor Works in Lansing, Michigan. She was angry, and she sought to make things right. When her union couldn’t or wouldn’t help her, she banded together with two dozen other women, filed a lawsuit against one of the world’s most powerful companies, and—to the astonishment of all involved—won a judgment of $55,690, or some three-quarters of a million dollars in present-day value. In so doing, St. John obtained the first significant damages payout in a discrimination case in the history of America law.
When St. John’s stunning win became national news, campaigns to enact “equal pay” laws spread like wildfire to state legislatures and Congress. But before any laws were enacted, there came another surprise. Politically powerful unions quietly killed off dozens of the bills that would have empowered women like St. John to bring lawsuits using a distinctly modern set of legal technologies, including class action authority, damages multipliers, and attorney’s fees. Unions did so, the archives show, because they saw in the design of the new pay equity laws a fundamental, and even existential, choice: Would the American industrial order continue to be built around collective bargaining as the best way to distribute benefits and burdens between workers and management? Or would the new pay equity laws instead let workers make a judicial end-run around, and even a kind of collateral attack upon, that system? Pay equity, in short, was a battle over how best to structure collective rights in the emerging New Deal order. And the class action lost.
Florence St. John was a hero, and her gutsy story is worth telling in its own right. But her story also offers rich insights into the continuing American struggle to achieve equality in the workplace.
For one, between St. John’s improbable victory and Congress’s enactment of the Equal Pay Act in 1963, gender-based wage discrimination went largely unregulated. During this time, labor market outcomes for women did not improve and, in some ways, grew worse. Given the view of economists that a lot of gender discrimination is the product of a slow-moving, path-dependent process of labor-market segmentation, the mid-century struggle to enact pay equity laws was a massive missed opportunity. A robust regulatory response at the time might have fundamentally altered the postwar American workplace and women’s place in it. If we’d taken a different path back then, women might be making way more than 83 cents on the dollar today.
St. John’s lawsuit and its aftermath are also worth highlighting because they go to the heart of a blockbuster trio of cases argued in the Supreme Court earlier this month. The question presented is whether workers are bound by company-imposed employment contracts requiring that they bring workplace complaints via arbitration rather than via traditional lawsuits and, further, that workers forfeit their right to bring such complaints as class actions.
The cases are among the most watched in a banner term, and for good reason. Estimates are that as many as half of companies impose such agreements—and that’s without a Supreme Court ruling on their validity. This matters because workplace disputes, particularly those involving low-wage workers, aren’t usually worth enough for a single wronged worker to pay a lawyer or front court or arbitration costs. But aggregated, these claims become viable. If workers can’t join together, they likely can’t seek vindication at all. The alternative to collective arbitration is no arbitration.
St. John and the unions come in because of the legal issue at the core of the cases. The Federal Arbitration Act (FAA) says arbitration agreements must be enforced. And the Supreme Court has read the FAA for all it’s worth, repeatedly holding that individuals who agree to contracts with arbitration clauses are bound by those provisions no matter what. This, by the way, is why you probably can’t sue your cellphone provider or credit card issuer in a court and, once pushed into arbitration, you can’t join together with fellow customers who have suffered the same wrong.
But there’s a wrinkle when it comes to employment. The National Labor Relations Act (NLRA) which postdates the FAA and established the present system of union-based collective bargaining, is also relevant, as it protects “other concerted activities” by workers. In the trio of cases now before the Court, the justices must ask: What exactly was Congress thinking more than eight decades ago when the NLRA was enacted? Should class actions initiated by aggrieved workers count as “other concerted activities” and enjoy protection?
On the one hand, it might be tempting to use labor’s opposition to class actions in the wake of St. John’s lawsuit so many years ago to construe the NLRA’s protections narrowly and let the FAA trump. Why would unions lobby Congress for protections for class action lawsuits they saw as a threat?
But St. John’s story, by providing a healthy dose of context, in fact points in the opposite direction. There are many ways we can try to make workplaces safe and fair. We can rely upon unions and management to work out workplace rules via collective bargaining. We can empower agencies to promulgate and enforce workplace rules. Or we can empower workers to bring lawsuits to enforce the rules themselves.
In theory, all of these options are perfectly viable. But in recent decades, the first two have mostly fallen by the wayside. Union membership is near an all-time low. And agencies, after a sustained conservative attack, are on the ropes. The cases currently before the Court are so momentous because they could complete the circle by killing off the last remaining way workers can seek to remedy workplace injustices long after the alternatives have faded from view. Were she still with us, Florence St. John, who gathered her co-workers and filed a lawsuit when her union failed her, would surely see the bitter irony of such an ending. SL
David Freeman Engstrom, professor of law and Bernard D. Bergreen Faculty Scholar, is completing a book on the history of American employment laws.