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"A Civil Right to Organize,"

by Richard D. Kahlenberg & Moshe Z. Marvit January/February 2013 issue of Poverty & Race

On April 4, 1968, when Dr. Martin Luther King, Jr. was tragically gunned down in Memphis, Tennessee, he stood at the intersection of two great forces for greater human dignity: the Civil Rights Movement and the labor movement. King was in Memphis, it should be remembered, to support striking black sanitation workers who marched with King carrying posters with the iconic message, “I AM A MAN.”

The signs had resonance in part because, as black Americans, the sanitation workers were sick of being derisively referred to by racist whites as “boy.” But in addition, as garbage collectors, they were tired of being poorly treated by management and by fellow citizens, who looked down upon them. Because their employer would not provide them with a place to shower after work, garbage collectors were shunned by bus drivers and fellow passengers and often had to walk home. Managers, failing to fully recognize the basic humanity of sanitation workers, refused to install safety features on garbage trucks. After two sanitation workers were accidentally crushed to death by a defective packing mechanism on a garbage truck, 1,300 workers went on strike. Their message, “I AM A MAN,” contained a powerful demand for better treatment.

King rallied with sanitation workers and affirmed their dual message of racial and economic justice. “Whenever you are engaged in work that serves humanity and is for the building of humanity, it has dignity and it has worth,” King told American Federation of State, County and Municipal Employees (AFSCME) workers in March 1968. He told them, “All labor has dignity.”

King had long seen the connection between the labor and civil rights movements as engines for human equality for men and women alike. While some racist union locals famously resisted progress for blacks, most were far more progressive on issues of civil rights than society as a whole. The massive labor federation, the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO), became a critical supporter of civil rights legislation, including the 1964 Civil Rights Act, which, in Title VII, forbade racial discrimination in employment. In a 1961 speech to the AFL-CIO, King declared, “Our needs are identical with labor’s needs: decent wages, fair working conditions, livable housing, old age security, health and welfare measures, conditions in which families can grow, have education for their children, and respect in the community.... The duality of interests of labor and Negroes makes any crisis which lacerates you a crisis from which we bleed.”

In the last year of his life, King had begun a multi-racial Poor People’s Campaign, and in his final Sunday sermon, delivered at the National Cathedral in Washington, DC, he called his vision of economic justice nothing less than his “last, greatest dream.” In Memphis, King recounted the great victories for civil rights in Montgomery and Selma, and suggested, “You are going beyond purely civil rights questions to questions of human rights,” raising “the economic issue.” People must not only have the right to sit at a lunch counter, but also the right to afford a hamburger, he told the audience.

What Came of King’s Twin Dreams?

In the years since King was struck down, enormous improvements have been made in racial attitudes and in the life chances of African Americans. The black middle class has grown significantly, the number of black professionals has increased, and the black/white educational gap on such matters as high school graduation rates has shrunk dramatically. While far more progress needs to be made, we have since 1968 witnessed a sea change in racial attitudes, culminating in the once inconceivable idea of a black American President being elected. As Harvard Law professor Randall Kennedy has written in his 2011 book, The Persistence of the Color Line: Racial Politics and the Obama Presidency: “One of the great achievements of the Civil Rights Revolution was its delegitimization of racial prejudice.” In that sense, the 1964 Civil Rights Act has proven a tremendous success. Among the broader public in America and internationally, the Civil Rights Movement is rightly regarded as iconic in the struggle for human dignity and inclusion. While more work surely needs to be done, the trajectory on race is generally pointed in the right direction.

By contrast, since the 1960s, the American labor movement has seen enormous setbacks. Labor once dreamed that, with the vanquishing of Jim Crow, the racism that had kept working-class whites in the South from uniting with blacks would diminish and Southern states could be unionized. But organized labor did not conquer the South; instead, to a significant degree, Southern anti-union practices have spread through much of the country. From its peak in the mid-1950s, organized labor has declined from more than one-third of private sector workers (and one-half of the industrial workforce) to less than one-tenth. Today, even public sector unionism is under attack in several states. Meanwhile, economic inequality has skyrocketed to the point that the top 1% of Americans own more than the bottom 90%, and income from productivity gains have gone almost exclusively to the top 10%. Economists agree the two phenomena are connected, and that rising economic inequality in America is due in some significant measure to the weakness of the American labor movement.

The Civil Rights and National Labor Relations Acts

There are many factors that help explain why the nation has progressed on King’s vision for civil rights while it has moved backward on his emphasis on the importance of economic equality and union strength. However, among the most important—and the easiest to remedy—is the substantial difference between the strength of our laws on civil rights and on labor. Seventy-five years of experience with the National Labor Relations Act of 1935 (NLRA) and 45 years of experience with Title VII of the Civil Rights Act of 1964 suggest that the former has proven largely ineffectual in protecting workers, while the latter has been quite successful in diminishing discrimination and changing social attitudes.

The 1964 Civil Rights Act, subsequently amended in 1991, provides powerful penalties for employers who discriminate on the basis of race, sex, national origin or religion. Under the 1991 amendments, employment discrimination remedies have been expanded to include not only back pay but compensatory and punitive damages up to $300,000. Civil rights laws also provide plaintiffs with the opportunity to pursue legal discovery, something that employers assiduously seek to avoid. Furthermore, plaintiffs are given access to jury trials; and when plaintiffs prevail, defendants are liable for up to double the hourly rate for plaintiffs’ attorneys’ fees.

Under the NLRA, it is likewise illegal to discriminate against employees for trying to organize a union, because lawmakers recognized that firms should not be allowed to use their disproportionate power to intimidate workers. But the penalties and processes under the NLRA are far weaker. If employers are found to have violated the law, they must reinstate any terminated employees and provide them with back pay, normally after a lengthy and arduous process of enforcement. And under the NLRA, there is extremely limited opportunity for discovery and no jury trial. Faced with the prospect of having to negotiate substantial wage and benefit increases with a union, businesses have a strong financial incentive to fire organizing employees and risk paying the penalties as a cost of doing business. Labor lawyer Thomas Geoghegan writes in his 1991 book, Which Side Are You On?: “An employer who didn’t break the law would have to be what economists call an ‘irrational firm.’”

Amending the Civil Rights Act for Labor Organizing

The central thesis of our new book, Why Labor Organizing Should Be a Civil Right, is that the Civil Rights Act should be amended to add protection for employees seeking to organize a union. Just as it is illegal to fire someone for race or gender or national origin or religion, it would be illegal under the Civil Rights Act to fire someone for trying to organize or join a union.

Title VII of the 1964 Civil Rights Act (which now prohibits discrimination based on race, gender, religion and other factors from wrongful termination and other forms of employment discrimination) would be amended to prohibit discrimination against workers who are attempting to organize a labor union, making them eligible not only for back pay but for compensatory and punitive damages as well. (Alternatively, a stand-alone bill could be offered that would have the effect of adding Title VII-type protections for labor organizing without literally amending the Civil Rights Act.)

We argue that for labor suits under the Civil Rights Act, procedures similar to those of the Equal Employment Opportunity Commission (EEOC) should be followed, but the National Labor Relations Board should continue to administer disputes. This approach would combine a process that has proved effective with an agency that is finely attuned to the nuances of labor law through its more than 75 years of experience handling labor disputes.

Significantly, Title VII remedies for unlawful discharge of unionizing workers would likely be an even more effective deterrent than they have been for racial and gender discrimination, because unlawfully discharged workers trying to form a union would have an important financial reservoir not available to victims of race and gender bias. American labor unions have a total annual income that runs in the billions of dollars. By contrast, civil rights and women’s organizations have much smaller financial bases on which to draw, so most women and people of color must rely on contingency lawyers.

Conceivably, writing labor organizing protections into the Civil Rights Act could also spawn a cultural shift in employer behavior. Employers who are found guilty of racial or gender discrimination are today seen to have done something shameful, a seismic shift from the days when business routinely espoused racist and chauvinistic attitudes. Today, there is no lucrative industry to aid employers in thwarting civil rights laws, as there is to keep unions out. Instead, the opposite is found, where employers spend billions of dollars a year on human resource departments in part to ensure that all employees understand the requirements of Title VII.

By contrast, managers are unapologetic about wanting to silence the voice of workers. Wal-Mart CEO Lee Scott, for example, famously said—as quoted by Thomas Frank in the Nov. 19, 2008 Wall Street Journal: “We like driving the car and we’re not going to give the steering wheel to anybody but us.” Shifting labor organizing protections to civil rights legislation could, over time, bring about a cultural shift in which the country sees corporations that fire employees for trying to form a union, join the middle class, and have a say in the workplace, as morally suspect—as they already are seen in Europe.

Advantages to the Civil Rights Approach

Conceptually, an amendment to the Civil Rights Act would not break new ground, as it is already illegal under the NLRA to fire someone for organizing. But amending the Civil Rights Act to protect union organizing would offer two fundamental advantages. First, it would put teeth into the existing NLRA prohibition by applying the full force of Civil Rights penalties and procedures to businesses that break the law. Today, labor leaders note, “the right to form a union is the only legally guaranteed right that Americans are afraid to exercise” (Steven Greenhouse in the June 25, 1998 New York Times). Amending the Civil Rights Act would provide a far more effective deterrent to lawbreaking than the current statute recognizing the theoretical right to organize as authentic.

The second advantage to this approach lies in its potential to break a long-standing political logjam surrounding labor law reform. Amending the Civil Rights Act rather than the NLRA would, for the broader American public, help elevate the debate from the obscure confines of labor law to the higher arena of civil rights, which Americans readily understand. Whereas labor law is seen by many as a body of technical rules governing relations between two sets of “special interests”—business and labor—Americans understand the principle of nondiscrimination as an issue of fundamental fairness. Employment rights have long been considered civil rights, and there is no reason to exclude labor rights from this formulation. Framing labor organizing as a civil right could provide a new paradigm that might fundamentally alter the political landscape, breaking the deadlock over reform.

Since passage of the anti-labor Labor–Management Relations Act in the 1940s (known as the Taft-Hartley Act), organized labor has had four major chances to reform labor laws in order to level the playing field for workers. Each time that Democrats have controlled the presidency and both houses in Congress they have sought to alter labor law, and each time they have failed. Under Lyndon Johnson, Democrats fell short in a Senate effort to modify Taft-Hartley. Under Jimmy Carter, labor law reform that would have enhanced penalties for unfair labor practices failed by two votes in a Democratically-controlled Senate. During Bill Clinton’s first term, legislation to outlaw the permanent replacement of strikers stalled. And under Barack Obama, the Employee Free Choice Act (EFCA) to stiffen penalties for employer abuses and allow a majority of employees to authorize union representation through “card check” procedures was not even put to a formal vote in the Senate.

The fundamental problem with these efforts was that labor is caught in a political box. In order to achieve reform, labor needs political power, which requires expanding union membership; but in order to grow, unions need labor law reform. As Harvard Law Professor Paul C. Weiler noted more than a decade ago, in the Sept. 4, 1999 Wall Street Journal, “No part of American law in the last 50 years has been less amenable to reform than labor law.” The Civil Rights strategy would offer a fresh approach. Republican-controlled bodies of Congress are unlikely to support efforts to strengthen labor under any circumstances, but progressives need to begin developing a new strategy now so that when they do regain full political power, they do not miss a fifth chance to revitalize labor.

Recent developments suggest that labor may have the public on its side. Following the 2010 elections, Republican governors in Wisconsin, Ohio, Indiana and elsewhere took what had primarily been an assault on private sector collective bargaining rights to the public sector, which had previously faced a more favorable climate. These attacks on public sector collective bargaining prominently raised fundamental issues about the role of labor in American society and energized many progressives who had taken the right of employees to band together collectively for granted. Indeed, recent polling suggests that while the opinions of Americans are mixed on unions, they strongly believe, by margins of two to one, and even three to one, in the basic right of collective bargaining. In November 2011, the people of Ohio overwhelmingly voted to repeal an anti-union law that restricted public employee collective bargaining rights.

Moreover, the attack on public sector unions for receiving more generous pension and health benefits than private sector workers raises the possibility of a different discussion: Rather than pursuing a race to the bottom, where the diminishing benefits of nonunionized private employees are used as a club against unionized public employees, why not take steps to strengthen private sector unionization, so that private sector employees can enjoy the same level of benefits as those enjoyed by those employed in the public sector?

The Civil Rights Act as the Appropriate Vehicle

When we outlined our proposal in an op-ed in the February 29, 2012 New York Times, the AFL-CIO’s president Rich Trumka endorsed the idea and conservative pundit Ann Coulter denounced it on Fox News on March 12, 2012. In a classic divide-and-conquer strategy, Coulter argued that “Civil rights is for blacks.... Now they [Democrats] want to call everything a civil right, whether it’s women or immigrants, and now, labor unions?!”

We believe that the Civil Rights Act is the right vehicle for protecting those trying to organize a union, for three distinct reasons: (1) labor organizing is a basic human right, which is bound up with an important democratic right of association; (2) strengthening labor advances the values and interests of the Civil Rights Movement by promoting dignity and equality, particularly for people of color; (3) stronger unions can enhance existing protections against discrimination by race, gender, national origin and religion by reducing employer discretion and enhancing processes for redress.

Labor organizing is connected to the fundamental constitutional right of association that is recognized as part of the First Amendment. In a democracy, individuals have a right to join together with others to promote their interests and values. Just as the original Civil Rights Act extended the Fourteenth Amendment’s prohibition against government discrimination to apply to private-sector employers, adding anti-discrimination protection for labor organizing extends a First Amendment right against government restraint of free association to apply to private-sector employers. Of course, Congress already extended association rights to the private sector when it passed the 1935 NLRA recognizing the “right to self-organization.” Including labor protections in the Civil Rights Act, therefore, does not break new ground conceptually, but it does provide workers with a much better way to hold accountable employers who violate their rights.

Some may believe that civil rights laws should only protect individuals from discrimination based on immutable factors such as race, national origin and gender. However, the Civil Rights Act was never limited to these immutable characteristics. The 1964 act itself included protection against discrimination based on religion, which is a mutable characteristic. A Christian who converts to Islam, for example, is protected against an employer’s religious discrimination; the employer cannot defend discrimination on the basis that the employee chose to convert. A survey of civil rights legislation shows that such laws have incrementally been extended to prohibit discrimination based on behavioral factors such as pregnancy, prior criminal conviction, whistle blowing, indebtedness or bankruptcy.

Significantly, anti-discrimination laws apply even when they could hurt the profitability of a company. In the early days of civil rights law, for example, law firms were not allowed to justify discrimination against black attorneys based on evidence that white clients would not want to work with them. The principle already established under the NLRA and UN Declaration of Human Rights suggests that, even if unions cut into corporate profits, employers cannot abuse their economic power by firing employees for trying to organize.

Moreover, strengthening labor can advance the larger objectives of the Civil Rights Act itself: promoting greater dignity and equality, particularly for people of color. The labor and civil rights movements, while not always allied, are fundamentally bound by similar values, interests, tactics and enemies. Labor recognizes that individuals should be treated with decency, a core belief of the Civil Rights Movement; their emphasis on a shared humanity explains why labor leaders and civil rights advocates refer to one another as brothers and sisters.

Not only do the movements share similar values, King recognized that they have common interests. As a predominantly working people, blacks had much to gain from a stronger union movement. Julian Bond, as chairman of the National Association for the Advancement of Colored People, noted in a 2005 address that minorities are disproportionately represented in organized labor; that African Americans who are members of unions earn 35% more than nonunionized black people; and that black Americans are more likely than whites to want to join unions. In this way, amending the Civil Rights Act to protect workers trying to organize a union would not diminish the Act’s commitment to racial equality; it would extend and affirm that commitment in new ways.

The civil rights and labor movements have also used similar tactics, like civil disobedience, sit-ins and picket lines. And both movements faced a common source of resistance. It is no accident that the eleven states that today are most resistant to unions and have the lowest union density rates are all states that were previously governed by Jim Crow. Historical evidence is clear that the anti-union “right to work” movement was originally aimed at weakening labor’s ability to fight against racial segregation.

Finally, stronger unions, by protecting employees against arbitrary dismissals in general, provide an additional shield against the type of racial and gender discrimination that is forbidden by the Civil Rights Act. Most employees currently work “at-will”: They can be fired for “good cause, bad cause, or no cause” (the standard definition of “at-will employment”). Unions work to remove arbitrary terminations and the at-will employment system from the workplace, and limit the type of employer discretion that allows discrimination to take place. Unions also put procedures in place to address grievances, providing an employee with the possibility of faster relief should she suffer from discrimination. In this way, adding the right to organize to the Civil Rights Act does not distract from the original focus of the Act, but rather enhances it through internal non-governmental procedures that can remedy racial discrimination in the workplace in a faster and more efficient manner than litigation.

A Politically Viable Idea?

Labor law reform has been a very tough sell in the United States, but there are considerable political advantages to framing the right to organize as a matter of moral values rather than a battle of raw “interests” (labor versus management); plus the advantages of having a fight over “anti-discrimination law” rather than “labor law.”

The rhetoric of “rights” is very powerful in American political discourse. Indeed, when asked to identify government’s most important role, 59% say it is to protect individual rights and liberty. “Civil rights” are already a part of the conversation about labor, but, unfortunately, it has been anti-labor forces who employ the rhetoric and symbols of civil rights against workers. The Employee Free Choice Act to improve labor laws failed in part on the argument that workers had a right to a secret ballot. Likewise, for years, business has appropriated the slogan “right to work” to signify state legislation that allows employees to benefit from collective bargaining agreements without paying their fair share of dues—a tactic that prevailed recently even in the labor stronghold of Michigan. And the "Employee Rights Act," which is the Republican version of labor law reform, uses the language of civil rights against workers.

Belatedly, union leaders are beginning to take back the rhetoric of rights, and the AFL-CIO has sponsored rallies to protest illegal firings, likening the campaign, as reported by Steven Greenhouse in his New York Times article cited above, to “a new civil rights movement.” Connecting labor to the Civil Rights Movement is especially vital to making the issue easier to understand for young people, who may not personally know any friends or family members who are part of organized labor.

Labor law has become increasingly complex and technical, and is understood by few beyond its practitioners. As a civil right, labor law becomes almost intuitively understandable, and its importance becomes easy to communicate to those outside the field. Whereas labor law reform does not excite people, civil rights do. Thomas Geoghegan writes in Which Side Are You On?: “If we only thought of the [NLRA] as a civil rights law, instead of a labor law, then maybe liberals would wake up and do something.”

Americans long to be part of something larger than themselves, and just as promoters of equal educational opportunity and a cleaner environment have characterized their causes as part of this generation’s Civil Rights Movement, so labor organizing—which shares with the Civil Rights Movement the basic quest for human dignity—has a very strong claim to that mantle. In Memphis, Martin Luther King understood that the fate of the labor movement and the civil rights community were inextricably bound. Now is the time to write the protection of organized labor into the Civil Rights Act itself.

They coauthored Why Labor Organizing Should Be A Civil Right: Rebuilding a Middle Class Democracy by Enhancing Worker Voice (Century Foundation Press, 2012), from which this essay is adapted.

Richard D. Kahlenberg , a senior fellow at The Century Foundation, is author of Tough Liberal: Albert Shanker and the Battles Over Schools, Unions, Race and Democracy (2007).
Moshe Z. Marvit is a labor and civil rights attorney.

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