The #MeToo movement has offered an important lesson on the collective power of voices joining together to take on individual experiences of injustice. On Monday, the Supreme Court dealt a huge blow to precisely this kind of collective power, ruling against the ability of workers to join together to take on employment discrimination and abuse.

The court ruled that employers are free to force workers who have been victims of unfair labor practices into private arbitration to address their claims — even in cases where workers sought to bring a collective legal action. The decision came in a case about failure to pay overtime, but its implications are far broader and extend to many of the claims of harassment and discrimination that have surfaced thanks to the #MeToo and #TimesUp movements.

Arbitration contracts are agreements to bring any future legal dispute through a private system rather than through the public courts. Employees are often required to sign such agreements along with a raft of paperwork on their first day on the job, and many have no memory of signing them.

The Supreme Court has long held that employers are free to enforce arbitration agreements for individual lawsuits. Monday's decision extended that principle to cases brought on behalf of a “class” of individuals who claim they were harmed in the same way by discriminatory or unfair policies and seek to bring a single legal action on behalf of the group.

Justice Neil Gorsuch, writing for the court’s conservative majority, held that even though another federal law, the National Labor Relations Act, protects the rights of workers to “engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection,” that guarantee does not prevent employers from forcing classes of workers into arbitration.

The court’s decision — which Justice Ginsburg, in dissent, called “egregiously wrong” — tips the scales even further in favor of employers and large corporations, at the expense of workers. Limiting workers’ rights “to band together in confronting an employer,” she wrote, will likely prevent such claims from ever seeing the light of day. This is because individuals have less bargaining power compared with their employers. Additionally, the high risk and cost of bringing individual lawsuits, and the low dollar amounts typically involved — particularly for low-wage workers — disincentivize individual action. The ACLU joined an amicus brief in the case, authored by the NAACP Legal Defense and Education Fund and the Impact Fund, raising these arguments.

Companies are increasingly requiring employees to agree to forced arbitration as a condition of employment. A recent study by Cynthia Estlund at the Economic Policy Institute showed that 56 percent of non-unionized private sector employees — that’s 60.1 million American workers — are currently subject to forced arbitration.

Arbitration affects us as consumers, as well. For example, Uber recently came under attack for seeking to compel arbitration against a group of 14 women who claim they were sexually assaulted by Uber drivers, but were prevented from taking their case to court by a forced arbitration clause in Uber’s terms of service. After the women sent a public letter requesting that the company release them from mandatory arbitration, Uber announced that it would abandon the use of forced arbitration, as well as the practice of requiring non-disclosure agreements in private settlements, which can serve to silence survivors.

Lyft quickly followed suit. While these announcements were important, their effect was limited: The policy changes apply to sexual assault and harassment only, and not to other forms of discriminatory treatment. They also leave in place forced arbitration for those who seek to bring their cases as class actions. These companies, and others, should do better.

To be sure, some people may prefer arbitration to the lengthy and costly process of litigation, and they should have the right to pursue that course if that’s their preference. But arbitration has been criticized as biased in favor of companies and employers, and lacking in the procedural protections afforded by the justice system. Rather going before a judge or a jury of one’s peers, cases in arbitration are decided by a panel of lawyers who may have little or no training on the legal or emotional issues surrounding discrimination, harassment, or abuse, and they are not required to follow legal precedent. Perhaps unsurprisingly, few survivors actually achieve justice through these forums. And, perhaps most critically in the #MeToo era, the entire proceedings are subject to strict confidentiality. This shrouds the process and the results in secrecy, preventing public accountability for repeat harassers or the employers who enable them.

The problem of forced arbitration run amok is within Congress’ power to fix — a solution that, in Justice Ginsburg’s words, “is urgently in order.” To safeguard everyone’s rights to be treated with dignity, lawmakers should support legislative reform efforts with the broadest coverage for all victims of discrimination, and with explicit protection for class actions.

We hope that #MeToo will lend some urgency to these proposals. Until Congress acts, consumers must continue to insist that businesses and corporations tear down the barriers they have set up against the collective struggle for justice and accountability.

Kasandra Reddington has been a proud Montanan ever since her family moved to the state when she was 10 years old. She is a graduate of Montana State University Billings with a degree in psychology and now resides in Helena, where she works as a tutor at a public college. She enjoys a lot of things about Montana, but especially the state parks.

Unfortunately, an anti-trans ballot initiative is threatening Kasandra’s ability to work and do the activities she loves, solely because she is transgender.

Kasandra is not alone. Around the country, opponents of LGBTQ equality are targeting transgender and non-binary people in all aspects of their lives. In recent weeks, we’ve seen attacks from the Trump administration impacting transgender people’s ability to attend school, join the military, be free of violence in prison, and obtain health care. These attacks are happening in states, cities, and school districts as well.

Right now, in Montana, Oregon, and Pennsylvania, the ACLU and transgender people are fighting back.

After losing the marriage equality battle — both in the court of law and in the court of public opinion — anti-LGBTQ groups have escalated their attacks on transgender people. These attacks aren’t new, but they have reached a new level of intensity. Many of these efforts have targeted transgender people’s right to access public spaces, particularly restrooms and locker rooms in places such as schools, libraries, parks, and government buildings. By exploiting fear and misunderstanding about transgender people, anti-LGBTQ advocates are trying to spread a false narrative about safety and privacy that endangers the health and well-being of trans people and thwarts progress for the LGBTQ community as a whole.

In Montana, an anti-LGBTQ group drafted a dangerous ballot measure, I-183, which seeks to bar transgender and non-binary people from using public spaces consistent with their gender identity. For Kasandra, the measure represents a serious threat to her personal safety and her livelihood. “[I-183] would attempt to force me into the men’s restroom, where I don’t belong,” she explains. “It puts me at risk for physical assault and loss of my job.” Kasandra decided to join the ACLU in our lawsuit challenging I-183 because she was inspired by transgender activists and public figures who came before her to help make things better for the next generation.

The impact of I-183 would be sweeping, preventing localities from passing or enforcing nondiscrimination ordinances and forcing trans people out of public places like schools, jobs, parks, courts, and libraries. “[I-183] doesn’t make it any more illegal to assault someone in a public restroom,” Kasandra explains. “All it does is assault the freedom of trans people. It is making the public less safe for people to enjoy.”

Montana is not the only place where the right of transgender and non-binary people to exist in public spaces is under threat. In Oregon and Pennsylvania, anti-LGBTQ organizations are targeting schools that have implemented policies to protect LGBTQ students from discrimination and harassment. These groups are trying to convince the courts and the public that the mere presence of transgender and non-binary people in public restrooms and locker rooms violates their privacy, despite the fact that these arguments have been rejected and debunked time and time again.  

In both Oregon and Pennsylvania, the ACLU is working alongside local LGBTQ organizations to counter these unfounded arguments in court. In Pennsylvania, the lower court already found that schools have an obligation to treat transgender students equally under the law, including when accessing common restrooms and locker rooms — an important precedent for transgender students around the country. Now, we’re fighting the same battle in Oregon and defending the victory in Pennsylvania.

No matter what form these attacks take, our response is the same. We will represent transgender and non-binary people facing discrimination and intervene when anti-LGBTQ groups target districts and localities for doing the right thing. We will also continue to confront myths about safety and privacy, as we did in Anchorage, with trans people leading the way.

Our opposition wants to legalize discrimination. We will keep working until transgender and non-binary people in all 50 states have the freedom to live their lives freely and equally.

Attorney General Jeff Sessions has claimed that the settlement of a lawsuit brought by the ACLU of Illinois against the Chicago Police Department resulted in approximately 236 additional victims killed and over 1,100 additional shootings in 2016 alone. This represents a new low for Sessions. He is wrong on the facts — there was no ACLU lawsuit — and wrong on what is required by the Constitution. 

This is not the first time Sessions has been wrong on the facts and argued for bias-filled unconstitutional policies that have been abject failures. He said nothing when the president expressly encouraged police officers not to worry about injuring suspects during arrests. In one of his first actions, he sought to back out of a consent decree imposed on the Baltimore Police Department, but the judge in the case refused his request. He has opened no investigations of systemic policing abuse since taking office, even refusing to act on a scathing report issued by the Justice Department on the Chicago police. 

The ACLU of Illinois did not sue the Chicago Police Department. A lawsuit was not necessary. It wrote a report, backed up by the department’s own data, demonstrating that its stop-and-frisk policy was unconstitutional and ineffective. The policy was characterized by random stops conducted under circumstances where there was no reasonable suspicion that any criminal activity was occurring or had occurred with respect to the person or people being stopped.  

Chicagoans under this policy were stopped more than four times as much as New Yorkers before New York altered its stop-and-frisk practices. In 2014, more than 700,000 stops in Chicago did not result in a person being charged with a crime. There were a total of 129,166 arrests that year.

Even if one assumes all arrests in 2014 were done during a stop-and-frisk encounter — rather than, say, based on detective work, on-view crimes, or 911 calls — more than 84 percent of the stops were of completely innocent people. The Chicago police, faced with overwhelming evidence of unconstitutional conduct, entered a voluntary agreement in August 2015 that allowed them to do constitutional stop and frisk (based on reasonable suspicion) but required them to respect the rights of Black and brown Chicagoans by banning the use of random, racially biased practices. 

Sessions, however, refuses to accept this reality. Instead, he has claimed that the agreement caused 236 murders. He points to a journal article written by Paul Cassell, a former federal judge, and Richard Fowles, that asserts the reductions in stop-and-frisk encounters from 40,000 a month to 10,000 a month caused the additional murders in 2016. While the report accurately states the reduced number of stop-and-frisk encounters and the spike in murders in 2016, it provides no causal link between the two events. 

The authors essentially suggest that a huge number of random stops will reduce crime because no one will ever know when they might be stopped and, therefore, will not carry weapons. Apparently, they are fine with randomly stopping hundreds of thousands of people, a practice with a greater than 84 percent error rate. It is astounding that a former federal judge and the sitting attorney general would advocate a method of policing that is blatantly unconstitutional. Their lack of respect for the law is glaring and alarming, but it's nothing new from the Trump administration.

If the authors are correct, one would expect that the police took a lot more guns off the street under the old stop-and-frisk policy. But the stats show that less than 5,000 guns were seized in 2014, and less than 5,000 in 2015. After the agreement went into effect, gun seizures went up, with 5,114 in 2016 and 7,684 in 2017. More guns were seized when police limited their stops to those people who were doing something that was reasonably characterized as suspicious. Maybe part of the reason more guns were seized is that officers saw more suspicious behavior because they were not otherwise occupied stopping and frisking innocent people.

And what about the experience in other cities?   

When New York changed its stop-and frisk-policies, murders stayed the same or dropped. The authors of the study say this is an anomaly, but they ignore Seattle, Cleveland, Boston, Newark, and Philadelphia — cities that had the same experience as New York, where ending the practice of stopping thousands of people who were doing nothing suspicious did not cause more homicides.   

Why would Sessions make such an accusation without sound evidence? He is clearly trying to defend a retrograde view of policing. He has nothing to offer when it comes to thoughtful, evidence-based policies that support effective, bias-free, constitutional policing. He is desperate for evidence to defend the indefensible, and here he has resorted to a report that is long on opinions but short on factual analysis. And he forgets that our Constitution is a set of guiding principles, not something to get around.