Neil Gorsuch Just Legalized Wage Theft
How SCOTUS just gave employers carte blanche to steal from their workers, how “the environment that racism built” is killing black moms and babies, and the poverty news of the week ICYMI. Subscribe to Off-Kilter on iTunes.
Earlier this week, Neil Gorsuch and the rest of the conservative majority on the Supreme Court dealt yet another devastating blow to workers — and a huge boon to large corporations — in a 5–4 decision that effectively strips workers of their rights to sue their employers via class action lawsuits, and even allows employers to keep workers out of the courtroom altogether. To unpack the Epic Systems v. Lewis case — and get a sneak peek at what we can expect from the upcoming decisions dropping in June — Rebecca talks with Ian Millhiser, justice editor at ThinkProgress and author of Injustices: the Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
Next, on last week’s show, as part of the In Case You Missed It segment up top, Rebecca and Jeremy mentioned a heartbreaking new report highlighting terrifying racial disparities in maternal and infant health. Among its findings: Black women in the U.S., regardless of wealth or educational background, are three to four times more likely to die during or after childbirth; black babies are twice as likely to die in infancy as their white, non-Hispanic counterparts — and “the environment that racism built” is a big part of the story. For a deeper dive into how environmental racism is killing black moms and babies, Rebecca is joined by Rejane Frederick, an expert on social determinants of health at the Center for American Progress, and the author of the recent report, “The Environment That Racism Built.”
But first, Jeremy Slevin returns to help Rebecca break down how resistance killed the House #GOPFarmBill; a new study finding that nearly half of U.S. households are struggling to afford basics like food, housing, and medical care; the latest on the Poor People’s Campaign; the sinkhole on the White House lawn; and other news of the week in another installment of In Case You Missed It.
This week’s guests:
- Ian Millhiser, justice editor at ThinkProgress
- Rejane Frederick, associate director, Poverty to Prosperity Program, Center for American Progress
- Jeremy Slevin, director of antipoverty advocacy, Center for American Progress (and faithful sidekick)
For more on this week’s topics:
- For more on the Epic case and how it could spell the end of workers’ rights vis a vis their employers, read Ian Millhiser’s breakdown for ThinkProgress
- Take in Rejane Frederick’s full report, “The Environment That Racism Built: The Impact of Place on Maternal and Infant Health” and check out the New York Times feature in which black mothers share their stories of struggling to access proper prenatal and postnatal care
For more on on the headlines from this week’s ICYMI segment:
- Join the fight to stop cuts to SNAP with CAP Action’s #HandsOffSNAP toolkit and share your story of what nutrition assistance has meant to you/your family at handsoff.org
- Dig into the United Way study finding that nearly half of U.S. households don’t earn enough to afford basics like food and housing — and the Federal Reserve’s survey of economic well-being finding that 4 in 10 Americans don’t have even $400 in the bank
- Check out Greg Kaufmann’s interview with Rev. Liz Theoharis, co-chair of the Poor People’s Campaign (and stay tuned for a conversation with her as part of next week’s episode!)
This week’s transcript:
REBECCA VALLAS (HOST): Welcome to Off Kilter, the show about poverty, inequality and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas. This week on Off Kilter, the Supreme Court handed down yet another massive victory for wealthy corporations at the expense of workers effectively legalizing wage theft and more. I speak with Ian Millhiser, justice editor at Think Progress to get the skinny on the case and what it means. Next up, why iin 2018 in the U.S. of A are black women three to four times more likely to die during and after childbirth and black infants twice as likely to die in infancy as their white counterpart? I speak with Rejane Frederick, an expert on social determinants of health at the Center for American Progress who authored a major new report looking at what’s driving these horrifying racial gaps. But first Jeremy Slevin with a very long beard, Jeremy.
JEREMY SLEVIN: There’s always a tidbit.
VALLAS: You’ve been growing your beard out a lot.
SLEVIN: A lot. I’ve been growing it out at the same rate each day. It’s actually I haven’t been doing anything I’ve just been not shaving it. The absence of action.
VALLAS: The absence of action has resulted in a significant beard. You’re approaching wolf-man I think is the technical term but you’re actually doing this because of a competition.
SLEVIN: Well I don’t know if that was the original cause but Ryan Collins, our friendly member of our Government Affairs team and regular guest on reconciliation also happened to be growing a really long beard and we’re seeing who can have the longest beard.
VALLAS: So is this really a game of chicken, is that what it is?
SLEVIN: Basically, the first person to shave buys the other one a beer. By the way on our other two bets, I won both of them.
VALLAS: Well I’m going to go ahead and put my money on you on the beard because I think knowing Ryan’s girlfriend there’s going to be a point where she steps in.
SLEVIN: You hear that Ryan?
[LAUGHTER]
VALLAS: Or not, we’re going to know.
SLEVIN: See, I’m the opposite, my girlfriend’s requiring that I don’t shave it, so.
VALLAS: I love that this is, and by the way that’s the school of thought I subscribe to. I also am in love with a bearded man and I love his beard.
SLEVIN: For now, the beard for now.
VALLAS: Well, sometimes, yeah hang on I know what you’re saying about Phil. Phil, you’re good, everything’s great, I promise there’s nothing to worry about. Jeremy’s just talking out of turn.
[LAUGHTER]
SLEVIN: Out of turn, we’re now on Downton Abbey.
[LAUGHTER]
VALLAS: [BRITISH ACCENT] Jeremy, the next — I can’t even do it. It’s actually very hard to do a british accent when you’re laughing, I noticed this.
SLEVIN: Yeah, it’s hard to do a British accent when you’re not laughing too.
VALLAS: Speak for yourself.
SLEVIN: For me.
VALLAS: [BRITISH ACCENT] Speak for yourself. That wasn’t even close to British, that was embarrassing.
SLEVIN: South African, Australian.
VALLAS: I’m moving on. So Jeremy’s beard is not the only news of the week although it did feel to me because it’s —
SLEVIN: It’s the biggest news of the week.
VALLAS: It’s quite in my face so I couldn’t ignore it when it’s sitting there in front of me, right taking up so much —
SLEVIN: It’s like four feet away.
VALLAS: I can’t even see the microphone.
SLEVIN: Which is in front of me.
[LAUGHTER]
VALLAS: So that’s not the only news of the week. I feel like the place to start is that there is a giant sinkhole forming in front of the White House on the lawn.
SLEVIN: Yeah, yes. As someone said exactly a year to the day after Trump touched the orb.
VALLAS: This is what I was going to, well —
SLEVIN: And were you going to say the other sinkhole?
VALLAS: It’s exactly a year to the day, one year after the sinkhole in front of Mar-A-Lago was noticed.
SLEVIN: Yeah, I’ve never even seen a sinkhole, how do they even happen?
VALLAS: You’re asking the wrong person, I work on poverty.
[LAUGHTER]
SLEVIN: Our geology course respondent is booked for next week, unfortunately.
VALLAS: We’ll bring him back for a later segment. But I have to say nobody else seems to care about this the way that I’m caring about this because I’ve raised this with many friends who all wonder, well they all wonder why I care and maybe I’m superstitious and in fact, more than maybe, I definitely am kind of superstious. But it’s like right?
SLEVIN: Yeah, what are the odds? The fact that I’ve never seen a sinkhole in my life or even know what one is and now there are two within a year in front of the president’s house is ridiculous.
VALLAS: So what’s your theory? Is it that the hell mouth is opening up which some people have said on Twitter or is it and this was my dad joke that I made because I felt like when a sinkhole opens up on the White House lawn you have to make a dad joke.
SLEVIN: This is a giant dad joke segment.
VALLAS: It’s a giant dad joke segment.
SLEVIN: This segment is one giant dad joke.
VALLAS: Is what’s emerged, well I think that’s basically the show is one giant dad joke.
SLEVIN: Right, right.
VALLAS: Because I host it.
SLEVIN: An audience of all dads.
VALLAS: Right. Including mine, hi dad! I said that this answered the question of whether the White House could sink any lower.
SLEVIN: Oooo.
VALLAS: Whomp, whomp.
SLEVIN: Yeah, I think it’s all the orb, I think the orb conjured the mythical creature Zeus who ordered sinkholes in front of all of Trump’s residences and now this is going to expand. There was some terrible Seth Rogan movie that came out like four years ago about the end of the world and it starts with a giant sinkhole.
VALLAS: OK, that movie was really good.
SLEVIN: Wow what was it even called? The end of the world or something.
VALLAS: I think that’s exactly what it was called and it was fantastic.
SLEVIN: With Emma Watson?
VALLAS: Yes. Everybody was in that movie and it was great.
SLEVIN: That doesn’t make it good.
VALLAS: It was intentionally a bad movie.
SLEVIN: Which made it good.
VALLAS: Which made it good.
SLEVIN: OK, agree to disagree.
VALLAS: The other theory on twitter which I should give air to is also that maybe Melania is tunneling out.
SLEVIN: Oh man.
VALLAS: Which I feel like could explain both residences.
SLEVIN: You mean Melanie? You know he called her Melanie in the press statement?
VALLAS: Oh … my … God.
SLEVIN: He said Melanie is home and doing well.
VALLAS: He did not.
SLEVIN: Yeah.
VALLAS: I missed that.
SLEVIN: Yeah.
VALLAS: Oh, oh we have to move on now.
SLEVIN: Now we have to talk about the depressing stuff we normally talk about.
VALLAS: Well OK, let’s shift from that to some good news because Jeremy this is a week where I said bring some good news and boy did you deliver.
SLEVIN: Second is the good news, post-sinkhole.
VALLAS: Does the sinkhole qualify as good news?
SLEVIN: Yeah for me it does.
VALLAS: OK, well alright so second piece of good news. Give us the good news!
SLEVIN: So a huge, huge victory for millions of people last week the farm bill which we have talked about a lot on this show, the House Republican farm bill which would have taken away food assistance from about 2 million people failed magnificently on the House floor. 198 to 213, Republicans they never really do this anymore. They rarely vote when they don’t know how it’s going to turn out and they went to the floor thinking they had the votes and not only did all Democrats vote against it which is rare in the farm bill but many Republicans including about 10 House moderate Republicans who people were contacting throughout this effort to defeat this bill voted against the bill. So a huge victory, huge testament to all the people who called their member of congress, this hugely important bill. Of course, no victory in the Trump era is without it’s caveats. They are now going to bring it up again in a month with similar we hear, similar provisions, still taking away food assistance from 2 million people. And they are actually also going to bring up a far right immigration bill to appease the freedom caucus.
VALLAS: And we have to get into this a little bit. By now, hopefully this is not news to people. I think people who listen to this show follow these issues pretty closely so they know the farm bill went down in flames. On the floor last week just like you said. But a lot of the news coverage to date about why the bill collapsed was it has been about the freedom caucus. And this is where you were about to go. So the freedom caucus has widely reportedly been using the Republican farm bill as sort of a hostage in their crusade to get a vote on a really, really, really, really conservative anti-immigrant bill that’s sponsored by —
SLEVIN: Which is what they do.
VALLAS: — a Congressman named Goodlatte from Virginia so without going into details there they had a block that they were able to use to say we’re not going to give you votes on this bill. And that was definitely part of what helped the bill go down. But a piece that has been totally missing from the media’s accounting on why this bill went down so thoroughly in flames on the House floor was because every single Democrat voted against the bill and that has never happened in the history of the farm bill which has traditionally been bipartisan and that coupled with, as you pointed out, ten moderate Republicans defecting from their caucus meant that Republicans didn’t have the space that they needed and the house freedom caucus was actually able to play those kinds of politics.
SLEVIN: You’ve almost got to respect, I say this with reservation, you respect the game of the freedom caucus because they always make everything about them. This was a bill that probably would have failed even with the freedom caucus support because there was enough opposition from Democrats and moderates to tank this bill. It is a bill, the farm bill which has historically bipartisan that is worked out through committee, both parties and in this case you had a very conservative democrat, relatively, Collin Peterson is probably the most conservative Democrat in the caucus who chairs the agriculture committee and he voted against this bill and held Democrats on the agriculture committee against this bill.
VALLAS: And every single Democrat in the entire U.S. House of Representatives.
SLEVIN: This gigantic breach with basic procedure that loses the Democrats, upends the legislative process and then of course the freedom caucus manages to make it about them and the press as always takes their bait. This wasn’t just about the freedom caucus.
VALLAS: So this was a huge piece of evidence yet another that resistance works, this is just the latest example of pressure being brought to bear that really does move hearts and minds in Washington so thank you to everyone out there who raised your voices and said hands off SNAP but as Jeremy said this was just phase one of the fight. House Republicans are not done trying to get this exact same bill that would take food assistance away from two million Americans passed and the Senate, meanwhile is moving forward their own separate bipartisan process so a lot to come in the weeks ahead with a lot of activity planned in June including potential votes. We’ll be keeping you posted on this show as we always do but in the meantime Jeremy where can folks go if they want everything they need —
SLEVIN: I’m so glad you asked.
VALLAS: — to get involved in this fight.
SLEVIN: Ask people to continue going to handsoffsnap.org to tell your member of congress to vote against this awful bill that would take away food from millions. I think if anything, the stakes are even higher now they are saying the same thing they said last time. That they think they have the votes but if we know anything about how the House Republican conference works is they are often wrong and they often bluff. So we really are encouraging people to continue to call their member and flood the phones to make sure this bill is as toxic as possible.
VALLAS: And the closer we get to midterms the less likely Republicans really are going to want to take more votes on this so we can win and we need to just keep showing up. And remember in November who it was who voted yes to take food assistance from 2 million Americans to pay for tax cuts for millionaires and corporations. So Jeremy, other news this week and we’re running out of time because we spent so long on the sinkhole.
SLEVIN: What? It was all sinkhole.
VALLAS: And beard.
SLEVIN: Beard and sinkhole.
VALLAS: That was my fault.
SLEVIN: So other news that the media is getting wrong or in this case pretty much ignoring entirely is the Poor People’s Campaign. Almost 50 years to the date after Martin Luther King in his final years launched a Poor People’s Campaign to address systemic poverty in this country.
VALLAS: More than 50 years.
SLEVIN: It was ’67, right? ’67, ’68, that would be more than 50 years.
VALLAS: Yeah.
SLEVIN: That would be 51 years.
VALLAS: Fact check. [LAUGHTER] Keep going.
SLEVIN: Reverend Barber, Reverend William Barber the second and Liz Theoharis have launched an amazing campaign, the Poor People’s Campaign: A National Call for Moral Revival that just launched last week, they are holding events in every state, they’re holding a 40 days of direct actions, teach-ins, cultural events. There were dozens arrested this week in New York outside Albany, dozens arrested in Indiana, calling for an end to racial discrimination. It is an incredible movement and an incredibly timely movement. And what has been so disheartening thus far is it has been virtually ignored in the mainstream media. And that’s why we’re mentioning on this show.
VALLAS: And we are incredibly excited, next week to feature an in-depth segment with Reverend Liz Theoharis who Jeremy just mentioned so stay tuned for more from the Poor People’s Campaign co-coordinator but really, really exciting to see what they’re doing. A huge part though of why we wanted to mention that was not just the significance of the revival of this campaign and what it stands for but a big part of their message is about poverty not being about them but being about us in today’s economy. And one of the numbers that they use a lot and you’ll hear coming from the campaign’s leads and all the organizers and folks involved with it is that 140 million Americans are either living in poverty or they’re low income. And that’s not the B.S. arbitrarily low and unmeaningfully low numbers that the poverty line in this country captures and that have nothing to do with what it actually costs to afford to live but it really helps to reframe the conversation that we should be having which isn’t about broken people but is about a broken economy to steal a phrase from Congresswoman Gwen Moore.
SLEVIN: Yeah and it couldn’t be better timed, not only because the massive levels on inequality and poverty that we see in this country but there was a lot of research that came out this week just showing how many people continue to live in poverty or live on the edge in society so United Way just this week released a massive new report of how many people can afford the basics in society and almost half of U.S> families have trouble affording basics like rent and food. That 51 million households, not people, households, which is 43% of all households in the country. That includes about 16.1 households who live in poverty according to the poverty line and then 34.7 about, 35 million who are while not officially in poverty they can’t afford basics. They call them, forgive me for using this term, asset limited income constrained employed, ALICE is their term.
VALLAS: It gets really technical but I point I think you made that is the one to take away here is that almost half of this friggin’ country can’t afford basics like rent and food and —
SLEVIN: Thank you for bringing it back.
VALLAS: It’s what I do, and this is on the heels of giving massive tax cuts to the wealthy and corporations and coincides with a Republican agenda that is all about taking away housing and food and health care and everything else away from, I said away twice, from families who they deem not to be deserving. And that coincides with, that report coincides with another report that had a lead finding that adds some more color to this.
SLEVIN: Yeah, so this is the, I apologize for again being like nerding out about the federal reserve but this is the federal reserve’s annual report on economic wellbeing. This the same report that found that about 4 in 10 adults could not pay for a $400 emergency if they needed to. Well they found that again for last year 41% of adults would not be able to afford that emergency. Over one in five expected to forgo payment on some of their bill just in that month and one fifth of adults had a major unexpected medical bill in 2017. And about 4 in 10 of them still have unpaid debt from those bills.
VALLAS: So this is not a ‘them’, this is an ‘us’ and I feel like it’s worth beating this dead horse until it’s even dead-er because as we have a national conversation and see media reports all the time about full employment and way out of the recession people are still struggling because it isn’t just about how many people have jobs it’s also about job quality and what people are earning so here is your weekly reminder that Republicans in congress still have not allowed minimum wage workers to get a raise in almost a decade and are consigning them to poverty level wages which is a big part of what’s going on in families not being able to afford even the basics. Thanks for coming back Jeremy and with some good news to boot and don’t go away more Off Kilter after the break and it doesn’t have to do with Jeremy’s beard.
Don’t go away more Off Kilter after the break, I’m Rebecca Vallas.
[MUSIC]
You’re listening to Off Kilter, I’m Rebecca Vallas. Earlier this week Neil Gorsuch and the rest of the conservative majority on the Supreme Court dealt yet another devastating blow to workers and a huge boon to large corporations in a five to four decision that would effectively strip workers of their rights to sue their employers through class action law suits. And even allow employers to keep workers out of the courtroom altogether. To unpack the case and share a sneak peek and what we can expect from the upcoming decisions dropping in June I’m thrilled to have Ian Millhiser, justice editor at Think Progress, also author of “Injustices: The Supreme Court’s History of Comforting the Comfortable an Afflicting the Afflicted” back on the show, Ian thanks so much. Also I got your book title right because guess what I did, [WHISPERING] I wrote it down.
IAN MILLHISER: Oooo.
VALLAS: Yeah.
MILLHISER: That’s black magic.
VALLAS: It was really helpful because I get your title wrong every single time.
MILLHISER: You do, you’ve gotten so much better at it, I was going to say something.
VALLAS: Should I not have told you?
MILLHISER: I didn’t know that you cheated.
VALLAS: Oh, OK well can we edit that out? JK, no we should keep it let’s be honest. So Ian, this case that was just handed down, this is Supreme Court Justice Neil Gorsuch’s first major opinion and it’s a doozy but before we get into what it means, why it screws workers and lots of other people too, remind who the esteemed Neil Gorsuch is and how he came to be a member of the Supreme Court?
MILLHISER: Sure, so Neil Gorsuch is a d*ck.
VALLAS: I’m pausing because I’m agreeing with you.
MILLHISER: That’s really all you need to know.
VALLAS: So short version, he’s a d*ck.
MILLHISER: He’s a smug d*ck.
VALLAS: Longer version? He’s a d*ck.
MILLHISER: Slightly longer version, so Neil Gorsuch is the guy who got the seat that Senate Republicans held open for more than a year until Donald Trump could fill it. You’ll recall that President Obama nominated a fairly moderate judge named Merrick Garland on the theory that he would extend an olive branch and offer up the compromise nominee that you normally see when you have a president of one party and a senate of the other party. And the Republican’s response to that was no, no, no, no, no we don’t want to compromise. We’re just going to try to hold this open for as long as it takes until a Republican is in the White House and then when Trump moved in they picked Gorsuch who is not a compromise nominee.
VALLAS: By any stretch.
MILLHISER: Yeah, I mean Gorsuch next to Clarence Thomas is probably the most radical justice we have seen since the 1930s.
VALLAS: Which is something that you as a Supreme Court watcher and many others said at the time when he was being put forward as a nominee. But now we’re actually really seeing the proof is indeed in the pudding and this decision really sums it up pretty nicely. The case is called Epic Systems v. Lewis, some people are calling it Epic for short. What in a nutshell did the Epic case hold?
MILLHISER: So the Epic case held two thing. It held that your boss can force you to sign away two very important rights. One is the right is, in case you have some sort of legal dispute with your employer to sue them in a real court. And instead you have to go to a privatized arbitration system and there’s all kinds of data showing that you’re less likely to prevail in the arbitration system and when you do win you’re going to get less money than you would if you got to go to a real court. The second thing is it forces you to sign away your right to bring a class action. Which is if your boss is not just doing something to you but is committing a massive legal violation that touches 1,000 of your colleagues as well, you can’t join together under one law suit in order to hold your boss accountable. And the reason why I say that your boss can force you to do this because the facts of this case, two of the companies in this case literally what happened is people came to work one day and they got an email that said from here on out you are hereby bound by this agreement. You must give up these two important rights and if you don’t like it you are fired.
VALLAS: So this wasn’t even something that they were presented with when they were coming on board.
MILLHISER: Right.
VALLAS: They were already working for this company and they were handed this as a condition of continued employment.
MILLHISER: That’s exactly right. In one case I think the email literally said you accept this agreement by continuing to work here.
VALLAS: So they don’t even have to sign the friggin’ piece of paper.
MILLHISER: I shouldn’t say sign. It was literally, by not immediately getting up and resigning the job. They had a choice here in the same sense I have a choice to give up my wallet when someone pulls a gun on me. But there wasn’t any kind of meaningful choice involved in this contract.
VALLAS: With those as the things that this case says it is OK for employers to hold a gun metaphorically but not that far off to their workers’ heads to say OK you can only keep your job or only have this job if you give up these rights. This case says that is now the law of the land. Neil Gorsuch seems to think this wasn’t even really a hard one to call. He seems to think it’s pretty cut and dried. You actually pull out of some of the language from an opinion in the piece you wrote for Think Progress that we’ll have in nerdy syllabus page. He says, “the parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating that their intention to use individualized rather than class or collective action procedures and this much the Arbitration Act”, the law that he’s referencing that governs all of this, “seems to protect pretty absolutely.” He makes it sounds like this just is what he had to do and the law dictated the outcome but you say it’s a lot more complicated than that.
MILLHISER: The truth is it’s actually not complicated. If you read the statute, it’s actually pretty clear what the outcome should. It’s just not the outcome that Gorsuch said the statute requires. I mean I said this guy was smug. First of all Justice Ginsburg wrote the dissent, Justice Ginsburg has I think 23 or 24 years more experience doing the exact same job that Gorsuch has and yet he proceeded to write this very condescending opinion directed at her when he is wrong. So the statute is called the Federal Arbitration Act. And the Federal Arbitration Act says that in some cases you can agree and be bound by an agreement to arbitrate and then courts have said that an extension of that is there can be a no class action clause in this agreement to arbitrate. But the Federal Arbitration Act explicitly exempts employment contracts. It literally says that workers in interstate commerce are not bound by the Federal Arbitration Act.
VALLAS: Sounds like a pretty big exception that includes workers.
MILLHISER: Yeah, basically if you are a worker the statute says this doesn’t apply to you except that the Supreme Court just said ha, sorry just kidding, it applies to you.
VALLAS: You also point in your Think Progress piece to another piece of federal legislation that also has some really import here and that’s the National Labor Relations Act.
MILLHISER: Right so this is the icing on the cake here, in addition to the fact that the Federal Arbitration Act exempts workers, there’s then this other law and this is the law that primarily deals with unions, but it’s much broader than unionization it protects the right to engage in what is called concerted activity. The theory of the National Labor Relations Act is that there’s this tremendous imbalance of power between workers and their employers and we want to try to restore some degree of balance to that imbalance by allowing workers to act collectively. And that can be done in the most agressive way by unionizing, but it can also be done in less intrusive ways such as joining together and speaking to the press about something such as joining together and deciding you’re going to share your salaries or by joining together is a class action law suit where all the people who are having their rights violated in the same way get to sue the boss at the same time. So you’ve got two pretty clear law saying that what Gorsuch said in Epic Systems is not in fact correct and yet he still decided to lecture Justice Ginsburg about how she shouldn’t worry here pretty little head because she doesn’t know what she’s talking about.
VALLAS: And I have to say, I love me some RBG and I know I am not alone in saying and feeling that. Were there any snippets from her dissent that you feel are worth sharing?
MILLHISER: I mean she, Ginsburg is not normally one for zingers. She did call the court’s decision ‘egregiously wrong’ and she’s correct about it. But —
VALLAS: For a Supreme Court justice is pretty close to a zinger.
MILLHISER: Right.
VALLAS: I mean it’s pretty strong language coming from the other side. It’s not like ‘reasonable minds could differ’ or ‘when you take into account the policy consequences of this decision I have grave concerns’. That is no, you f*cked up Neil Gorsuch.
MILLHISER: Yeah, yeah I find, I love me some ‘Notorious RBG’ as well, I also find the cult of Ginsburg kind of hilarious because Ginsburg, I mean I’ve met her a few times and she is the sort of person where you can tell everytime she says a word that she has thought about every other word she could have possibly said instead and has picked this word because it is the most precise. She is the lawyer’s lawyer, she’s the person you want as a judge because she really does think in a really precise way that clearly Mr. Gorsuch does not. But I mean she is not —
VALLAS: They’re sort of like perfect foils.
MILLHISER: Right, right.
VALLAS: Actually now that you’re describing it. I hadn’t thought of that before.
MILLHISER: But she’s not someone I would have imagined a cult of celebrity forming around because she’s just a huge geek. She’s great. She’s excellent at her job but she’s excellent at her job because it’s an extremely dorky job.
VALLAS: So let’s talk for a second, as much as I want to make this entire episode about RBG and maybe, pitch to myself, I feel like that’s something that I should do and have you back on, Ian so TBD. But getting back to the case, I want to talk a little bit about it’s real world implications for workers. I said up top and you’ve said now once or twice but I want to really unpack this so folks have the context and see how these dots collect that this cases effectively legalizes wage theft. How does it to that?
MILLHISER: So let’s talk about why class actions are important. let’s say that your boss steals $1,000 from you. So you do work, you’re owed $1,000 for that work either as wages or as salary and your boss just says hey, I’m not going to pay you. You’re not going to sue, you’re probably not going to sue. And the reason you’re probably not going to sue is because the cost of hiring a lawyer and actually pursuing that law suit is going to be a lot more than $1,000. So you’re just out of luck, unless you’re a fanatic and you have extraordinarily deep pockets and you’re willing to spend more than you’re likely to get back you’re probably not going to do it. What class actions allow is that let’s say that your boss steals $1,000 from you and 1,000 of your colleagues.
VALLAS: Each.
MILLHISER: Each yeah, so now that’s $1,000,000 that’s been stolen from you, and $1,000,000 now we’re talking about a whole lot of money, now we’re talking about enough money that you can get a lawyer to take the case on a contingency fee basis which means they just get a percentage of the winnings.
VALLAS: It’s like the lawyers who have commercials say you pay nothing unless we win.
MILLHISER: Exactly so you can get a really good lawyer. It’s not going to be a huge hassle because the stress of the litigation is being spread over a bunch of people and now there’s a real chance that you’re going to bring the suit forward and you’re going to vindicated so the idea behind these no class action contracts isn’t that the company just doesn’t want to have to deal with a class action, they’d rather have each employee sue them individually which why would you want that? That’s more hassle than dealing with one class action suit. The reason for these things is that they know that if they eliminate the class actions they have free reign not to do everything. If your boss steals $100,000 from you you’re going to sue because that’s enough money that you’re going to win more than it costs you to litigate. But if they steal maybe as much as $5,000 from you you’re probably not going to do much about it because the cost of litigating is going to exceed what you stand to gain and so the boss by putting this no class action suit in there gives themselves permission to commit wage theft.
VALLAS: Now a big part of this, you’ve I think done a really good job of explaining one half of it. I want to add in, not add but expound a little further one one other piece of this which is it’s not just about people saying well, this isn’t worth my time. And for a lot of folks who are maybe a little more middle class and $1,000 is a percentage of their annual earnings that they realize OK, I’m going to let that go because it’s not worth the trouble of getting a lawyer, et cetera, but for people from whom $1,000 is a huge amount of money, no matter how much they want to sue their employer and try to get that money back, they’re not going to be able to find a lawyer who is willing to take their case when it’s considered to be that small peanuts. And that’s a big part that was implied in what you said but I wanted to unpack it a little further because there will be no recourse for particularly low wage workers who end up being preyed upon by employers who now know how to work the system because no lawyers are going to take those cases and you’re lucky if you can find legal aid lawyers.
MILLHISER: Right so just to give you one example in one of the companies that was at issue in this case, Justice Ginsburg had a line in her dissent saying that the workers at some of these companies were cut out of maybe $1,700 and it was estimated that the cost of each individual one of them litigating to get the $1,700 back was $200,000 in legal fees. So you’re not going to spend $200,000 assuming you have $200,000 to begin with, you’re not going to spend $200,000 of legal fees to recover $1,700 from your boss. The issue here isn’t that $1,000 or $1,700 or whatever it is isn’t a lot fo money, it’s that it is less than it costs to win the lawsuit.
VALLAS: And not enough to get lawyers that want to take the case.
MILLHISER: Right.
VALLAS: So and presto, the whole reason we have class action cases for large groups of people who have suffered a similar harm and can band together and now find that really good lawyer who is going to be willing to take the case who then will actually help them have some level of leverage against the employer who otherwise would take advantage of them. So bringing us back now to basic day this now opens the floodgates as I think you’ve been making the case for employers to do a little bit or moderate amounts of harm to large numbers of people with no recourse.
MILLHISER: Right, that’s exactly right so if you are highly compensated and you’ve got $300,000 that your boss could steal and your boss steals $300,000 from you, congratulations, you’re in great shape. You still have your legal rights but if your boss is smart about it and your boss says well instead of stealing $300,000 from one person, why don’t I just steal $300 from 1,000 people. Each of those people are going to be left without recourse, without the ability to bring a class action.
VALLAS: Now we’ve been talking a lot about wage theft and that’s maybe one of the clearest examples of what this case opens the door for employers to commit against their employees, but there are whole other sets of implications when we talk about basically taking away class actions and access to even your day in court because back to the forced arbitration, that’s the other piece of this. This is a really huge deal on pretty much every front that has to do with worker’s rights vies a vie their employers.
MILLHISER: That’s exactly right. The important thing to understand about these contracts is it’s not just saying oh you give up your right to be paid a minimum wage or to get overtime pay or we’re just going to have a worse contract, we don’t have the same contract. It means no matter what your suit is, potentially it could be your employer fires you because they don’t like your skin color and no matter what the legal claim is, potentially this could force you to give up your rights. This could force you so that if you don’t have a really high dollar claim you’re just not going to be able to sue unless you’ve got a ton of money to shell out. And if you, even if you do have a really high dollar claim, you’re still being shut in to this privatized arbitration system where you’re less likely to win and when you do win you’re likely to be awarded less money.
VALLAS: So this is the consequence, this is the benefit that the donor class for the Republican Party have now paid for, this is the pay to play, they effective purchased Neil Gorsuch’s seat on the Supreme Court and now this is what he’s delivering and it is a massive, massive win for large corporations that have total carte blanche to step all over their employees who now have no rights is effectively what I’m hearing you say. How do we fix this?
MILLHISER: So the first thing we have to do is elect people who will do a better job of governing. We need people in office who think this decision is bad. It is fixable by an act of congress. So the Federal Arbitration Act, which the Supreme Court has misinterpreted isn’t in the Constitution, it’s just a law like any other and it can be amended. There’s a bill called the Arbitration Fairness Act, which would fix this. What the Arbitration Fairness Act does is it says that people can’t be forced into what’s called ‘pre-dispute arbitration agreements’. So if you and I have an active suit where I’m already suing you, we can agree after that dispute is already arisen that we’d rather do this through arbitration than go to a court. But we can’t, I can’t say to you, you must agree in advance to arbitrate any future suit that might come up and you don’t even know what it is.
VALLAS: Hey Ian, so you have to agree to continue to be friends with me no matter how I treat you, no matter what I’m like, no matter how many times I call up your mother in the middle of the night and tell her what terrible things you do at Think Progress.
MILLHISER: Right and if I don’t agree to this then I’m fired.
VALLAS: And if you don’t agree then we’re not going to be friends any more.
MILLHISER: Right, right, right.
VALLAS: I mean that’s a terrible metaphor. That doesn’t even to justice at all to what we’re talking about because this is people’s lives on the line but that’s the point you’re trying to make here is negotiating away any of your rights and recourse before you even know what you’re about to experience and it doesn’t make any sense.
MILLHISER: Right, so the Arbitration Fairness Act is the name of that bill. So I’d like to see congress pass something like that and what I’d also like to see happen is there’s a law called the Civil Rights Act of 1991. And what the Civil Rights Act of 1991 did is basically the Supreme Court screwed a whole lot of stuff up in the 1980s. and in the early ’90s congress said like ok, you guys you just f*cked a lot of sh*t up. And so we’re going to pass a big law that overrules a whole bunch of terrible Supreme Court decisions and puts the law back the way that it should’ve been. And so congress could overrule every single five to four decision that’s been handed down along party lines by the Roberts court, every one for the last 30 years if they wanted to. That’s what I would recommend and then they do that they could include something like the Arbitration Fairness Act in that package so that we don’t see this problem come up over and over again.
VALLAS: So in the last couple of minutes that I have with you, Ian, this isn’t the only case that we know has been coming. I hate to put you in the mode of needing to deliver yet more bad news on top of such an epic —
MILLHISER: I’m a Supreme Court reporter, that’s what I do.
VALLAS: Well that’s what you do these days. It wasn’t always that way and it isn’t always that way.
MILLHISER: There was that one great year.
[LAUGHTER]
VALLAS: That’s right, that’s right. Man I’m a totally dark place right now, thanks for that Ian. Not having you back on any time soon. No I will have you back on soon because we’re going to talk about RBG. So in the last couple of minutes that I have with you we have now spent most of by talking about what we’re going to talk about there are other cases coming. What should folks be looking for in terms of other big cases that we’re expecting to drop soon.
MILLHISER: So of like three, none of which is the Muslim ban which is also a huge case, so there’s the Masterpiece Cake Shop case which is essentially about whether if you’re religious and you have a religious objection to following a civil rights law you can just say I want to discriminate and God wants me to discriminate so this anti-discrimination law doesn’t apply to me. There’s the Janis case, which is a huge attack on public sector unions that will essentially allow people to get all the benefits of being in a union without having to pay their fair share of the union’s costs and it’s an effort to defund the unions so eventually the whole thing collapses and no one gets the benefits of being in the union. And then the other big thing that’s looming which could potentially be good news although I think the Supreme Court’s been setting up worrying signs is there’s two big gerrymandering cases that could potentially tear down these partisan gerrymanders we see in a lot of states but it all depends whether there’s five justices willing to do that.
VALLAS: Ian, I’ll have you back soon I’m sure because we’ve got more to talk about from some of those cases as well as the Notorious RBG but Ian Millhiser is the justice editor at Think Progress, he’s also the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted” a title that I get right when I write it down. Ian, thanks so much for coming back on the show.
MILLHISER: You don’t know how hot you are to me right now.
VALLAS: That’s all it took folks, that’s all it took.
Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.
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You’re listening to Off Kilter, I’m Rebecca Vallas. Last week on this show as part of our ‘In Case You Missed It’ segment up top Jeremy and I discussed a heart breaking new report by a colleague of ours highlighting terrifying racial disparities in maternal and infant health and the role of environmental racism in driving these disparities. For a deeper dive into the environment that racism built as she puts it and what it means for black mama’s and babies this week I am thrilled to speak with Rejane Frederick, an associate director for the Poverty to Prosperity program here at the Center for American Progress who authored the report and who is an expert in public health and it’s relationship to where we live and work. Rejane, thanks so much for joining the show.
REJANE FREDERICK: Thanks for having me, I’m so excited.
VALLAS: So just to start with the top line statistics that I just mentioned, we’ve got black mothers in the United States regardless of wealth or educational background being three to four times more likely to die during or after child birth. And their babies share the same fate and are twice as likely to die in infancy as their white non-Hispanic counterparts. Really, really, shocking horrifying statistics.
FREDERICK: Mm Hm.
VALLAS: So help us understand backing up for a little bit how this fits in with the broader context of infant and maternal mortality. Why are we seeing this in 2018 in the United States of America?
FREDERICK: And why have we always seen this I think is the deeper and older question. There has always been a racial disparity in health outcomes. We have always seen that black women are more likely to die during and after childbirth. That black babies are least likely to survive once they are born. And the disparities doesn’t stop there. Just to throw a couple more statistics out to you once black babies are here, black children are 1.6 more likely to test positive for lead in their blood than white children. When they do test positive for lead they are nearly three times more likely than white children to have highly elevated blood lead levels meaning that they have lead in their blood indicating permanent irreversible damage to major organs. Something that I talk a lot about in my column and what many people perhaps still don’t know in spite of the information we learned from Flint, Michigan is that lead is not natural within our bodies. Any contact with lead is really harmful to our organs and you see immediate impact in terms of our health outcomes and here we have black children that have three times the recommended level of lead in their blood. Aside from that we know going back to black mother, they’re five times more likely than white mothers to experience headaches, upset stomach, tensing of muscles, pounding of the heart, all things that really point to stress, the stress of their daily lives living in our society. Black women are also five times more likely to report emotional distress than white women. We have to ask the question of but why? Why is it that at every single turn when it comes to health outcomes we’re seeing a severe disparity between the health of black mothers versus white women who on all other measures are similar to them, education, income.
VALLAS: And that’s a lot of what you look at in your research is the role specifically of environment, people’s environments in driving their health outcomes and the other types of outcomes that they will face, whether that’s employment or educational and on and on. But here we’re focused on health. I’d love to hear you talk a little bit about what we mean when we talk about environment.
FREDERICK: So thank you for this, my mission in life I have to say, I will have been successful if I get anyone to say that where we live, work, play, where we learn matters. Our environment, our built environment, which is just coded speak to say the man made communities where we live out our lives are not neutral actors. They matter, they impact our health in so many different ways. We have to start looking at our built environment as active actors in not just creating good health but also creating unfair and disparate health outcomes. And where black people are living and where they have historically live matters in this country. We have a very rich racial history unfortunately that shows that black people have been placed in environments that often do not produce good health outcomes.
VALLAS: And you quote a researcher in your report whose name is Rashad Shabazz who describes the racialized environmental dynamic that you’re talking about right now as ‘a specialization of blackness’.
FREDERICK: Yes.
VALLAS: So unpack that, make that a little more concrete.
FREDERICK: I think what helps to paint the picture are a couple more statistics that are out there that a lot of people know but it really hits hard when you hear it altogether. The fact of the matter that black Americans are more likely to live in deprived low opportunity communities. Neighborhoods that are isolated often from good jobs that pay a living wage that can sustain an individual let alone a family. Black Americans are more likely to live in housing and neighborhoods poisoned by lead and asbestos as I mentioned earlier. More than a million African Americans live within half a mile of existing natural gas facilities. So you’re talking about exposure to numerous fumes that are potentially hazardous and toxic. More than 6.7 [million] African-Americans live in 91 counties with oil refineries. It’s not by mistake that we see time and time again historically up to present day that black communities are often bordering these very toxic industries that really pollute a lot of hazards into the air. Which is connected to the asthma rates that we see amongst African-Americans where we know that African-American children are most likely to have asthma. So it’s really connecting the dots and realizing but why is it that we see a persistent pattern of black residents, black communities situated in places that are really not good for their health and are really not conducive to them thriving and having a fruitful and very meaningful life.
VALLAS: And a point that I just want to underscore that you’ve made that is throughout your research but which really bears repeating this isn’t, this can’t be explained by differences in income.
FREDERICK: No.
VALLAS: That this is, all of what you’re describing is when you’re controlling for income levels and for educational background as well so that black people in this country as significantly worse off even when you control for those factors.
FREDERICK: Yeah, I think that hopefully many of your listeners are familiar with the story of Serena Williams. Serena Williams, one of the greatest athletes of all time recounts in a very harrowing story how she pretty much almost died after giving birth to her daughter because she had blood clots and when told the medical staff that she thought that she had an issue that she felt that she had potentially blood clots and they didn’t believe her. So there’s a very real conversation that needs to be had about the racial bias within the medical profession. The fact that we do see over and over again that black patients tend to get treated differently.
VALLAS: Which compounds all the disparities that we’ve been talking about.
FREDERICK: Absolutely, but aside from that I think we also have to look at the fact that the traditional or conventional wisdom is that we just need access to quality care and the reality is it’s not just that. We see that despite increased levels of education and income black women still continue to have a high risk of dying than their white counterparts. And what’s really fascinating or really scary is that when you look at increased levels of education and income that only reduces the risk dying for babies born to white women. And it only reduces the risk of dying for white women. It has minimal to zero effect on black women so it’s really something more than just education and getting more money and having greater wealth.
VALLAS: One of the things that jumped out to me that I really wasn’t even aware of in the research literature until reading your report was that it’s not just a situation where we’re seeing these consequences play out where a black woman is living in an area that’s causing hazards to her health and therefore she now is at this greater risk of having complications and of herself not making it through the pregnancy and through birth and the child, similarly, it’s also a situation of multi generational impacts.
FREDERICK: Yeah, that’s one of the scariest findings for me personally as an African-American woman to find that your health can be impacted before you’re even born. And we’re not just talking about what my mother ate or how often my mother exercised when she was pregnant. There’s very real and concrete emerging research that’s coming out of the public health field, it’s actually titled epigenetics that really looks at the fact that there’s evidence that shows that a person’s health is impacted by how their grandparents and their grandparent’s parents lived out their lives. What were they exposed to throughout their lives, how stressed were they. Were they living in good environments and you see a very tangible impact and evidence on that really preventing or circumventing the ability to be healthy for grandparents and it extends far beyond two generations. So it’s really scary when you think about in vitro before you’re even thought of that your mother’s womb could be compromised or that her eggs could be exposed to risk that impact their health. It’s still very emerging so trying to figure out what is it exactly, what kind of environments matter the most, that’s still very much developing but it’s a very scary finding.
VALLAS: But really long lasting consequences. You feature a number of quotes throughout your report, that’s one of the things I really loved is hearing the words of people who themselves have faced these challenges and health issues as a result of their environment and more as we’ve been discussing. I want to share one of those quotes which comes from a women named Nicole A. Taylor, her story was also featured in the New York Times in a round up that they did of black women’s stories of struggling to receive proper prenatal and post-natal care. And she describes what you’ve been talking about as follows, “The psychological weight of three generations of black women lives in my womb.” Powerful words.
FREDERICK: Yep, powerful words and scary and I think we’re now just having a conversation about the rising of rates of infertility that we’re seeing across the United States. A recent data came out from the CDC that showed we’re at a 40 year low when it comes to the number of children that Americans families are having. That disparities even more severe amongst black families. Folks aren’t having as many children today which is has a lot of implications, has a lot of implications towards the successful incorporation and adoption of contraceptions. Women having more agency to decide whether or not they have to have children but then we’re also seeing a trend where women who do have families are struggling more and more to get pregnant so we have to think about factors that are beyond the personal characteristics of are you healthy? Are you eating well? Are you exercising and realize that there’s something deeper going on, there’s something about the way in which we are interacting with our environments that matter and have a huge impact on our bodies’ ability to remain healthy and to be at it’s optimal level.
VALLAS: And this research and this conversation are even more timely in a moment where we’re watching one party in congress and the White House as well try to take tens of millions of Americans’ health care away, trying to take away millions of Americans’ food, trying to take away access to shelter, the very basics that even when you have these things you can still see these types of significant racial disparities as you’ve been describing and yet what they’re effectively threatening to do with this policy agenda if I’m understanding this research correctly is to set us back even further to a place where these racial disparities would only further widen.
FREDERICK: Yeah we’re dealing with almost insurmountable barriers when it comes to being able to have good health and have a life, a good quality of life, taking away what effectively creates the foundation by which people can build good health off of. Having emergency food assistance, having access to emergency care, having stable housing that you know isn’t going to be poisoned with lead and asbestos. I mean that’s the very building blocks of a good life that is currently an ongoing, under assault by the agenda of the Trump administration and the Republican controlled congress. It’s just nonsensical and fundamentally cruel.
VALLAS: And fundamentally racist as you’re describing.
FREDERICK: Absolutely.
VALLAS: A word we should not be afraid to use as we’re discussing not just the existing built environment which itself is racist for the reasons you’ve described but also this policy agenda because of it’s far reaching consequences not just for this generation but for generations to come. So if taking people’s health insurance and their housing and their food away from them isn’t the way to close these racial gaps and spoiler, it’s not what are the solutions that would start to tackle these gaps given that they have been so long standing and so difficult for policymakers to address?
FREDERICK: It’s exactly what you just said, Rebecca. We must be willing as a society to really call out racism as the primary culprit. We have to have all stakeholders, all sectors, all political structures willing to tackle racism first and foremost. Again, what I said earlier, we have to start looking at our built environment, our communities in and of itself where people are living out their lives as not neutral actors. They are very much participants in our health outcomes and the reality is that our society has been set up really to benefit a select few at the expense of many and so we really have to call into question and always ask the question of but why are we seeing the racial patterns that we are seeing when it comes to black mamas, their babies and even the larger communities and why is it that they are constantly most at risk of living near poisoned and deprived built environments being most stressed out, of being treated differently, of having, being exposed to a lower quality education system. Being isolated away from public transportation that connects them to the good jobs that pay a living wage that allows them to support themselves and their families. I mean but why, but why, but why?
VALLAS: I’ve been speaking with Rejane Frederick, she’s an associate director with the Center for American Progress’s Poverty to Prosperity program which I know and love and I get the wonderful of getting to work with her every single day and now you understand why it’s a treat. Rejane, thank you so much for this research, harrowing as it is and incredibly iimportant for all of us to have at our fingertips and as we’re thinking about the policies that will help, the policies that will hurt and what we can do about it. And thanks for coming on the show.
FREDERICK: Thank you for allowing me to have the conversation.
VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas, the show is produced each week by Will Urquhart. Find us on Facebook and Twitter @offkiltershow and you can find us on the airwaves on the Progressive Voices Network and the WeAct Radio Network or anytime as a podcast on iTunes. See you next week.
This program aired on May 24th, 2018
