"Commentaries on the Kahlenberg-Marvit Article: Kahlenberg & Marvit Respond"January/February 2013 issue of Poverty & Race
We are grateful that such eminent scholars, labor and civil rights leaders have taken the time to consider our argument and offered such thoughtful responses. Though we cannot address all the important issues the commentators raise in the depth they deserve, we will address here some of their central concerns, and look forward to continuing this conversation as the debates over labor law reform develop.
Each of the commentators agrees that stronger legal protections must be afforded labor rights, and several general themes stand out in the responses. Julius Getman, Larry Cohen and Theodore Shaw each make political arguments concerning the viability of our proposal, the tactic of opening up the Civil Rights Act, and additional political changes that must accompany any successful labor law reform effort. Shaw extends this critique to also question whether our proposal marks a premature shift from focusing on race to focusing on class. He also questions whether protections for activity belong in legislation designed to protect identity. Randi Weingarten argues that collective action by workers can help them enhance their economic positions and political voices. Sheryll Cashin suggests that in addition to looking to King’s Poor People’s Campaign, we must look towards his idea of the Beloved Community, especially with regard to building multi-class, multi-racial coalitions. Ross Eisenbrey questions the success of the Civil Rights Act in terms of economic improvements for African Americans, and therefore wonders whether labor reform should be built on discrimination law. Leo Gerard, using a civil rights frame, looks at the historical parallels between the opponents of labor and opponents of voting rights for African Americans, arguing that both forms of suppression constitute power grabs.
Eisenbrey takes issue with our characterization of the Civil Rights Act as a success. He argues that though the Civil Rights Act may have improved the social and legal relations of African Americans, it has not significantly improved the economic conditions of African Americans. Eisenbrey is correct that much more needs to be done to improve economic conditions of African Americans, and the national data he provides illustrate that point well. However, he too quickly dismisses the importance of the dramatic legal and social shifts with race that have occurred since the 1960s. The conferral of legal rights has created norms in America that would have been unimaginable in America 50 years ago. This shift, however incomplete it is, is a positive development that would not have been possible without legislation. Labor is in need of a similar shift, and if our proposal aids in a change in attitudes towards labor, it will open the door for the additional reforms proposed by Julius Getman. Indeed, as Leo Gerard notes, joining a union and bargaining collectively are “among the only methods working people can use to assure their economic rights.” As such, the economic goals of the Civil Rights Act will be further achieved by making labor organizing a civil right.
Larry Cohen and Theodore Shaw each support passing legislation to make labor organizing a civil right, but believe that the Civil Rights Act should not be opened at this time. As Shaw correctly notes, civil rights laws “have never been completely safe,” and there is a danger in opening up the Act when both the Supreme Court and the House of Representatives are dominated by radical conservatives. These concerns are reasonable, and the problems associated are easily avoided in a manner that does not significantly alter our proposal. Several pieces of civil rights reform, including the Age Discrimination in Employment Act (ADEA), which created civil rights protections for age discrimination, were accomplished through stand-alone legislation. Similarly, a stand-alone bill, which tracks the language of the Civil Rights Act and writes civil rights into our labor law, would have the same practical benefit as opening up the Civil Rights Act. By pursuing stand-alone labor reform legislation, we can avoid any potential dangers associated with amending the vital protections of the Civil Rights Act.
Julius Getman agrees that the protections offered by civil rights legislation would benefit workers and unions, but remains skeptical that the law would lead to any significant change in conduct by employers. He points to the extreme advantages employers currently enjoy with respect to organizing campaigns, and suggests focusing also on legislation prohibiting the hiring of permanent replacements and eliminating prohibitions on secondary boycotts.
Our proposal to make labor organizing a civil right would do much to protect workers from the high levels of discrimination and retaliation they currently face. Furthermore, it would help shift the debate from one over the private interests of employers and unions to one of basic rights of workers. We do not view our proposal as the singular answer to revitalize labor, nor do we think there is such a silver bullet. Getman is indeed correct that repealing Taft-Hartley and limiting or banning the permanent replacement of strikers is necessary to have a robust labor movement in America. However, such bills have repeatedly failed to make it through Congress under the best political conditions. The current climate in Washington and weakness of labor mean that direct labor law reform is likely impossible in the near future. Part of the political problem is the result of filibuster, as Cohen suggests, but even prior to the modern expansion of the filibuster, pro-labor legal reform proved elusive.
In order to pass these more traditional forms of labor law reform, a higher percentage of employees would need to benefit from union coverage, and labor would need to be stronger. Our proposal attempts to get around this Catch 22—where labor must be strengthened in order to effectuate significant reform but significant reform is necessary in order to strengthen labor. Randi Weingarten raises precisely this point when she discusses how the political positions of workers are diminished by low union density. She writes that “the attack on the fundamental right of workers to freely join unions not only threatens economic opportunity but also the strength of our democracy, by taking out the only true way—at either the bargaining table or the ballot box—that working families can have a say in their own destiny.” Similarly, Leo Gerard argues that essential components of self-determination are economic security and the right to a free vote. Opponents of labor have shown a propensity to attack both, and the response should be to strengthen the right to vote and the right to act collectively. Strengthening the right to join a union and bargain collectively holds the hope of creating a political environment under which workers can achieve further progressive reforms. With the increasing difficulty of passing traditional labor law reform, we propose that the debate should be centered around the civil rights of workers to associate and have a voice in the workplace. Civil and individual rights present a far more powerful and compelling argument to most Americans than the technical and often obscure confines of labor law.
As Sheryll Cashin argues in her response, in order for progressive politics to advance, coalitions must be built that defy traditional boundaries. Cashin makes the important argument that in addition to King’s Poor People’s Campaign, labor should also look to the principles of his Beloved Community. Central to King’s Beloved Community is the building of multi-racial, multi-class coalitions around common principles. Though labor fights for the dignity and voice of workers, it is too often politically, legally and socially isolated. Opponents make the incorrect charge that unions fight only for their own members, often at the expense of other workers. We believe that building a movement around labor organizing as a civil right universalizes the cause in important respects. Learning from the Civil Rights Movement, and partnering more closely with civil rights organizations, will help labor build the community and interfaith coalitions that were central to the Civil Rights Movement.
Though the protections of the Civil Rights Act would not eliminate the advantages employers have, it would do much to change their behavior by changing the employer calculus of violating workers’ rights. In addition to the increased penalties available under the Civil Rights Act, employees and unions would gain meaningful access to the courts. Getman rightly acknowledges the “pro-employer bias of the courts” and suggests that our proposal would do nothing to change that. However, workers need not win in court in order to enjoy the significant benefits of a private right of action. The courts, as Arthur Kinoy made clear in the labor battles of the 1950s, are a political institution in which labor should seek a voice. Using the liberal rules of pre-trial discovery, discriminated-against workers and unions would be able to depose management under penalty of perjury, examine the employer’s books, read e-mails and memos with anti-union consultants, and have access to the inner workings of the company. In short, this would allow workers and unions to disrupt employers in a manner currently unavailable. Furthermore, workers and unions need not win in court in order to succeed in a lawsuit. Because of the costs and uncertainty of litigation, the majority of employment discrimination cases settle well before trial. In this context, such settlement negotiations can be fruitful venues for securing important concessions in organizing campaigns, such as a card check or neutrality agreement.
Getman also suggests that “finding a way to make the Board less of a political battleground would itself be a significant reform.” Though not the primary purpose, our proposal may lead to this shift. One of the reasons the Board finds itself in the middle of political battles is that it has exclusive jurisdiction over labor disputes. Reducing funding for the Board or appointing Members who are openly hostile to labor are effective tactics because workers must proceed through the Board process. However, if workers have a private right of action, the Board loses its place as the sole labor battleground.
Shaw writes that although he is supportive of the idea of making labor organizing a civil right, he is concerned that our proposal may give ground to those who argue we are in a “post-racial America.” He argues that any legislation making organizing a civil right should not shift the focus from race to class, and points out that one of us (Kahlenberg) is a long-time proponent of replacing race-based with class-based affirmative action in education. There are principled reasons to favor or oppose Kahlenberg’s position on affirmative action in education, but our argument on labor organizing as a civil right is different. We do not call for replacing one kind of approach with another, as in the debates on race-based or class-based affirmative action. Rather, here we suggest supplementing the protected categories in the Civil Rights Act with an additional category that would help advance some of the original goals of the Act. Our intent is not to shift the focus away from race and towards class, but rather to address some of the intractable issues of class with some of the legal tools that have helped change attitudes and culture on race.
Additionally, Shaw characterizes the protections of civil rights legislation as protecting “who or what we are” (even when mutable), rather than “what we do.” He argues that conduct-based protections are analytically distinct from identity-based protections, and that the two may not fit in the same legislation. However, stand-alone legislation, as discussed above, does not require the two to co-exist in the same legislation. The deeper point here is well-taken: that going beyond the original categories of the Civil Rights Act is a conceptual leap. However, federal and state civil rights legislation has already made this leap by including as protected categories pregnancy, past criminal conviction, bankruptcy, unemployment and the like. The civil rights framework has already been extended beyond identity categories to cover conduct. The question of whether conduct is appropriate for civil rights protections should hinge on two issues: whether the additional category would help promote the original purpose of the Civil Rights Act, and whether the conduct is linked to a fundamental or constitutional right. As described in our article above, our proposal meets both of these criteria.
Each of the commentators discusses the poison of our current politics, describing it as “corrupted” and “set against common sense.” However desperate this political situation may be, the one positive benefit to this reality is that it forces progressives to build broad-based coalitions rather than individually proceeding along narrow political interests. Our proposal of making labor organizing a civil right is premised on the importance of such coalitions. This alone will not revitalize labor, but it will help workers vindicate long-held rights and help labor promote other progressive policies.
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