Susan Fowler, the former Uber engineer whose viral blog post kicked off a storm that ultimately led to the ouster of CEO Travis Kalanick, is heading to the Supreme Court.
Fowler’s lawyers are attacking Uber’s arbitration agreements — policies Uber has its employees sign that prevent them from suing the company in open court. Her legal team has filed a “friends of the court” brief specifically lashing out against the arbitration agreements’ class-action waivers — clauses that prevent groups of Uber employees from suing collectively, thereby denying them a shot at a bigger payout and broader policy change than if they sued individually.
“Class action waivers take from these workers the concerted activity for which they are most likely to engage, and from which they are most likely to benefit: The right to engage in collective litigation,” Fowler’s lawyers wrote.
The Recorder first reported the filing.
With her friend of the court brief, Fowler is jumping into a group of three consolidated cases asking the Supreme Court to determine whether class-action waivers in arbitration agreements violate the National Labor Relations Act. The cases are: National Labor Relations Board v. Murphy Oil USA; Epic Systems v. Lewis; and Ernst & Young v. Morris. The cases will be argued Oct. 2.
Fowler published a blog post in February claiming her manager at Uber sexually harassed her, and when she reported the behavior, the human resources department and management turned a blind eye. She also complained of sexism within the company. The post went viral and sparked a firestorm of controversy at Uber — including more people coming forward with similar allegations — which culminated in an external investigation into her claims, the firing of 20 employees, and the forced resignation in June of the CEO.
Uber made Fowler sign a class-action waiver as a condition of employment, her lawyers wrote in the Supreme Court brief. Such waivers are commonplace — many companies in tech and beyond use them in an attempt to mitigate the risks of collective litigation. But they’re not without controversy. Class-action waivers unfairly shift the balance of power to the company, taking away employees’ best recourse for correcting employment law violations, Fowler’s lawyers wrote.
And this isn’t the first time Uber’s own arbitration agreements have been questioned, either. In September a massive employment class-action lawsuit — filed by Uber drivers demanding to be classified as employees instead of independent contractors — was derailed when a federal appeals court ruled most drivers had to bring their claims in arbitration, instead of in court. That case had been on the verge of settling for up to $100 million, but now seems unlikely to see a major payout.
Photo: A woman leaves the headquarters of Uber in San Francisco in 2014. (Eric Risberg/AP)
Tags: arbitration, supreme court, Susan Fowler, Uber