The Honorable Richard J. Durbin
Ranking Member
U.S. Senate Committee on the Judiciary
Dear Senator Durbin,
On behalf of the National Employment Lawyers Association (NELA), and its 4,000 national, circuit, state, and local affiliate members across the country, we write to express our opposition to the nomination of Anna St. John to fill a vacancy on the Fifth Circuit Court of Appeals.
NELA is the largest professional membership organization in the country comprised of lawyers who represent workers in employment, labor, and civil rights disputes. Founded in 1985, NELA’s mission is to empower workers’ rights attorneys through legal training, promoting a fair judiciary, and advocating for laws and policies that level the playing field for workers. Our members litigate daily in every federal district and circuit, affording NELA a unique perspective on how employment cases actually play out on the ground and an accurate understanding of the profound impact of the judiciary on the daily lives and rights of working people.
Judge St. John’s background demonstrates a strong bias in favor of employers and corporations, and a strong bias against workers, consumers, survivors of sexual harassment and sexual assault, and LGBTQ+ individuals. From her belief in forced arbitration as an advantageous forum over the civil justice system (a system in which she currently holds a lifetime judicial appointment and is now seeking elevation to a court of appeals), to her open disregard for the dignity of LGBTQ+ persons, Judge St. John’s record raises substantial doubts about her ability to adjudicate from a fundamental stance of equal justice under law for all.
Fighting forced arbitration in employment is a long-standing priority for NELA because it is a pernicious practice that impacts tens of millions of workers across industries, with disproportionate effects on low-wage workers. Companies force their workers into arbitration before a dispute has arisen, most often on a take-it-or-leave-it basis and hidden in the fine print of employee handbooks or employment contracts. Employers also contract with the same arbitration companies over and over to handle their disputes, giving arbitrators an incentive to rule in favor of the companies in order to secure future business. Rather than subjecting this unfair practice to the scrutiny it deserves, Judge St. John promotes it, even testifying before Congress in its favor during hearings for the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022 (EFASASHA). The message this sends to workers is that despite the employment arbitration system being rigged against you, forcing you into that system is valid and even preferrable.
Compounding the injustice of forced arbitration are class action waivers that are often embedded in arbitration clauses. In her EFASASHA testimony, Judge St. John lauded the avoidance of class actions saying, “Arbitration also allows consumers and employees to avoid the use of class actions when they are among a large number of people who have experienced a common injury.” (p. 4) Class actions are in some circumstances the only practical mechanism workers have to vindicate their rights, yet Judge St. John argued before a Congressional committee that a benefit of arbitration is the ability to avoid class actions. In a litigation context, Judge St. John evinces a specific hostility toward the procedural mechanisms—specifically Rule 23—that make large-scale employment and civil rights enforcement viable. For example, wage theft claims are most often prosecuted as class actions because multiple workers are affected by an employer’s illegal pay practices. An individual worker may have a legal claim to a few thousand dollars in pay owed, but multiplied by hundreds or thousands of employees, the employer is stealing millions of dollars from its workforce. Class actions not only provide workers who do not have the means to bring an individual lawsuit a mechanism to vindicate their rights, they also provide a deterrent for future illegal practices by the employer.
In addition to supporting major barriers to justice through forced arbitration and hostility to class actions, Judge St. John also has a record of undermining LGBTQ+ rights and dignity. She has supported positions including allowing businesses to discriminate against LGBTQ+ individuals under the pretense of religious freedom (303 Creative LLC v. Elenis) and allowing the Miss USA pageant to ban transgender women from competing (Green v. Miss USA) because it would intrude on the pageant’s free speech rights. The Williams Institute estimates that there are over 785,000 LGBT workers age 16+ in Louisiana, Mississippi, and Texas, the states comprising the Fifth Circuit. When those workers experience discrimination in the workplace and seek to enforce their rights, they deserve to come before a fair and independent jurist, not an advocate with a record of excluding LGBTQ+ persons.
For the reasons above, we strongly urge you to oppose Anna St. John’s nomination to the Fifth Circuit Court of Appeals. Her record speaks for itself in favoring corporations and employers and supporting barriers to justice. The people of the Fifth Circuit, and the entire nation, deserve better.
Sincerely,
Karen Maoki
Interim Executive Director
National Employment Lawyers Association
