In recent years, the Supreme Court has put up roadblocks for workers who seek relief in court for wrongs committed by their employers. This development is a consequence of the Court’s arbitration jurisprudence. Epic Systems Corp. v. Lewis, a 2018 decision, was par for the course. The Supreme Court held that employers could prevent group wage-and-hour claims by enforcing individual arbitration agreements. It rejected the plaintiffs’ argument that their litigation activity was protected by labor law. In dissent, Justice Ruth Bader Ginsburg questioned the application of the decision to Title VII pattern-or-practice cases. Indeed, Epic Systems puts potential Title VII plaintiffs in a bind. Class waivers in arbitration agreements prevent employees from banding together in group actions. But every circuit court to consider the question has determined that only a class—not an individual plaintiff—can litigate a claim of a pattern or practice of discrimination under Title VII. Taken together, the Supreme Court’s arbitration cases and the circuit courts’ Title VII jurisprudence would seem to eviscerate the pattern-or-practice suit.
In this Comment, I argue that Epic Systems does not reach all Title VII plaintiffs. First, I contend that some Title VII litigation is protected by the National Labor Relations Act (NLRA), notwithstanding Epic Systems. Congress gave Title VII plaintiffs the ability to obtain broad remedial relief to address discriminatory conditions, unlike in the wage-and-hour context. Like strikes or collective bargaining, litigation is one way that employees can reform the workplace. Then, I suggest that courts should borrow a test from securities law to evaluate whether a group of employees is sufficiently independent and cohesive to bring a pattern-or-practice case. Courts can give effect to the NLRA and Title VII without scrapping arbitration agreements entirely.