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"Commentaries on the Kahlenberg-Marvit Article"

January/February 2014 issue of Poverty & Race

Theodore M. Shaw

Professor of Professional Practice, Columbia Law School, tshaw@law.columbia.edu

Richard Kahlenberg’s and Moshe Marvit’s précis of their book left me with deeply conflicted feelings and reactions. It is provocative and thought-worthy in a manner that requires more time and greater reflection. Consequentially, my initial reactions may not survive further reflection; still, they are strong enough that they demand articulation, if only because I cannot get to where Kahlenberg and Marvit (K&M) are without jumping significant hurdles and reordering long-held principles and beliefs. My own views of class and race invite a “gut rush” acceptance of K&M’s thesis; yet I am left with a profound discomfort that defies my ability to organize adequately into thoughts.

The invocation of Dr. Martin Luther King’s last campaign, grounded in an understanding of historical and contemporary relationship between class and race, and of the need to adopt the politics of a movement for racial and economic justice, exerts a powerfully seductive force on progressives. Dr. King did not want to go to Memphis, but the strike by black sanitation workers appealed to his core beliefs in a way that coincided with his development as a leader that took him beyond the struggle against racial segregation and discrimination. By 1968, King could no longer stay silent about the Vietnam War and American militarism. Nor could he pursue his dream of a just society without addressing economic inequality, not only for black Americans whose struggle against racial discrimination had left them economically disadvantaged, but for all Americans. King was charting new territory, not because no American had challenged economic injustice before him, or even because no African-American leader had done so. King’s position as the pre-eminent and eloquent Civil Rights Movement spokesperson, as Nobel Peace Prize laureate, and as an international human rights advocate, uniquely positioned him to challenge the conscience of America, even if it was by no means certain that if he had lived his campaign against poverty would have succeeded. Indeed, it is the unfinished nature of his life’s work that invites 21st Century advocates and activists from varying ideological backgrounds to claim him. Right-wing conservatives embrace their version of Dr. King in support of a color-blind paradigm that would render illegal all conscious efforts to voluntarily address systemic vestiges of slavery and Jim Crow segregation. Progressives invoke King in their quest to awaken the Nation to the dangers and the injustice of the yawning chasm between “the 99%” and working- and middle-class Americans.

K&M correctly point to the complex role of labor unions during the era of the Civil Rights Movement. Labor unions were, in some instances, some of the biggest obstacles to equal employment opportunity. On the national level, however, labor became some of the staunchest allies of the Civil Rights Movement. Today, public employee unions represent a disproportionate number of black and brown people in the labor force, and unions in general have largely aligned their interests with those of people of color. This alignment is clearly visible in partisan politics at the state and local level, with the Republican Party seen as the party of white people and the wealthy, and the Democrats viewed as the party of “minorities” and labor. And of course, regardless of how much of 21st Century economic polarization is attributable to the weakened position of American labor unions, K&M correctly point to the assault on labor and the right to organize as an important battleground between conservatives and progressives. The right of workers to unionize is as old as the labor movement in America; late 19th and early 20th Century America far surpasses the bitter political debates that characterize our time. Nonetheless, contemporary assaults on the right to organize pose profound threats to the well-being of working- and middle-class people in the United States, and raise important civil and human rights issues.

My discomfort with K&M is not with their belief that the right of labor to organize should be recognized as a civil right. My discomfort stems from a sense that while K&M pay lip service to the fact that “more work surely needs to be done,” their sense that “the trajectory on race is generally pointed in the right direction” may give more ground to those who are arguing that in the age of Obama we have entered into a “post-racial” America. At a time when conscious efforts to address stubborn, intractable and systemic racial inequality for many African Americans and other people of color are under assault from the forces of “color-blindness,” we cannot let up. Kahlenberg for some time has promoted the notion of class-conscious affirmative action or diversity efforts as a response to the assault on race-conscious affirmative action and diversity efforts. While I suffer no illusions about the fact that many, if not most, progressives have abandoned and fled the terminology of “affirmative action,” or the facts about the direction of the Supreme Court as presently constituted, and while as a matter of principle I independently believe in the importance and the correctness of addressing class-based inequality, I refuse to surrender to the intellectual or legal equation of race-conscious affirmative action and racism. I support, as does Kahlenberg, class-based affirmative action, but I refuse to cede the ground he has ceded on issues of race. Nor do I believe that the tremendous progress to which he and Marvit rightly point is reason to think that we need to shift our focus to a greater degree on issues of economic inequality. We are presently facing an assault on diversity efforts in admission to selective institutions of higher education, an avenue that has desegregated leadership and governance in America for the last 35 years. We face an assault on the constitutionality of the Voting Rights Act. The Fair Housing Act is under assault, and indeed the underpinnings of Title VII of the Civil Rights Act of 1964, which K&M venerate so dearly, are in the crosshairs of radical conservatives whose race project since the days of the Warren Court has been to undo its jurisprudence.

It is this reality that leads me to my core concern with K&M’s proposal. Civil rights legislation has been successful, and many Americans have come to an understanding of its importance they once did not have. Nonetheless, since the enactment of Title VII, which K&M propose to amend, and of The Voting Rights Act of 1965, and of the Fair Housing Act of 1968 (which shares the standard known as “the effects test” with Title VII, despised by radical conservatives), these statutes have never been completely safe. They have been under assault by the progenitors of the radical right-wing race project. They have been opened for amendment only when necessity demanded it and when the politics of the moment allowed or demanded it. Opening Title VII for amendment two years after the Supreme Court’s decision in Ricci, with a House of Representatives in control of radical conservatives, is a risky proposition at best.

Moreover, the amendment to Title VII proposed by K&M would change the nature of a long-existing statute. Even granting their “religion” retort to the “immutable characteristics” argument some might pose to K&M, there is another distinction their proposal would create. Whether it is race, gender, national origin or religion, these are all aspects of who and what we are. (Yes, arguably one can change religion, but I doubt that takes religion out of the “who or what we are” category.) Organizing is “what we do.” In other words, to borrow terminology from a Supreme Court decision, the protected class to be added to Title VII is arguably “analytically distinct” from those already in the statute. That does not mean the classification could not be protected in independent legislation; it may pose a question of “fit.”

In sum, I support the effort to create the right of labor to organize as a civil right. I support the effort to bring human rights norms to the United States that would, among other things, protect the right of labor to organize. For tactical as well as conceptual reasons, I do not support opening Title VII at this time to rest protection of the right of labor to organize there. I believe that independent legislation is a better path toward the ends K&M seek.

Ross Eisenbrey

Vice President, Econmoic Policy Institute, reisenbrey@epi.org

I disagree with a fundamental premise of the article. The premise is that the Civil Rights Act has so improved the status of black Americans that we should use the same legal model to improve the status of workers. But as the authors note, Dr. King did not accept that legal rights, even backed by strong sanctions, are enough. We have to judge the success of the Civil Rights Act with a yardstick that includes economic progress: “People must not only have the right to sit at a lunch counter, but also the right to afford a hamburger.”

However great the improvements for African Americans have been in legal rights and social relations, the economic gains have been less impressive:

• In January 1966, the ratio of black median family income to white median family income was 60%. Forty-five years later, in January 2011, the ratio was virtually unchanged: 63%.
• The ratio of median household wealth among blacks and whites has worsened over the past three decades, falling from a tiny 6.6% in 1983 to an even tinier 5.0% in 2010. Even in absolute terms, median black household wealth is less today than in 1983.
• The homeownership rate for black families was 45% in 2011, essentially unchanged since 1975, the first year for which we have racial data.
• And by some measures, residential segregation is no less today than it was in 1950.

I support much stronger sanctions for employer violations of employee rights to organize, to bargain collectively, and to strike. But the economic results obtained from the Civil Rights Act make me skeptical that the authors have found a silver bullet. I believe much more powerful tools will be necessary to restore these rights and make them as effective as they were in the 1940s and 1950s.

Julius Getman

Professor of Law, Univ. of Texas School of Law, JGetman@law.utexas.edu

It is time to amend the National Labor Relations Act. It has failed to meet the stated statutory goal of “encouraging the practice and procedure of collective bargaining,” and it has failed to protect the right of employees to unionize. Kahlenberg and Marvit recognize the law’s weakness and suggest strengthening it by bringing the right to organize under the Civil Rights Act. This would have the beneficial effect of increasing penalties imposed on employers who discharge or otherwise penalize union supporters. They suggest that the National Labor Relations Board administer the new approach, describing the Board as “an agency that is finely attuned to the nuances of labor law through its more than 75 years of experience handling labor disputes.”
Kahlenberg and Marvit anticipate a cultural change occurring once this new approach is tried. They see their proposed change in the law as a step towards making anti-union discrimination as culturally despised as racism. If this occurs, employers might stop opposing unions so fiercely. “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,” they write.
I favor their proposal because it would grant significant protection to employees who are now legally vulnerable to economic devastation. I do not, however, see this as something likely to have a major effect on organizing. It would not eliminate the advantages that employers now have in campaigning against unions, such as the right to make captive audience speeches and to keep union organizers off their premises. It is unlikely to alter the pro-employer bias of the courts. Nor would it be wise for unions and their supporters to anticipate this law leading to “a cultural shift in employer behavior.”
I think that the authors are too kind to the NLRB. It would, for example, have been extremely difficult for observers to note any deep understanding of nuances in the decisions of the Bush Board. If Romney had won, there is reason to believe that the Board would have become openly and consistently anti-union and anti-worker. Finding a way to make the Board less of a political battleground would itself be a significant reform.
A cultural shift in attitudes towards unions would be highly desirable. I do not believe that it can be achieved to any significant extent by using the language or applying the law of employment discrimination. It will require more sweeping changes in the law, such as prohibiting the hiring of permanent replacements in strikes and eliminating or reducing the secondary boycott prohibitions. It will also require changes in the labor movement, such as more consistent mobilizing of the rank-and-file, continuing aggressive struggle against the “malefactors of great wealth” (think Walmart and Sheldon Adelson), and making common cause with other progressive movements. There is reason to be hopeful that needed changes are in fact taking place, but the process is slow and the obstacles formidable.

Despite my criticisms, the authors are to be commended for stimulating discussion about needed changes in our dysfunctional labor laws.

Leo W. Gerard

International President, United Steelworkers, lgerard@usw.org


Unions put power in the hands of working people, just as the vote put power in the hands of black people. Immediately after President Abraham Lincoln emancipated the slaves, former slave-holders—that is, the wealthy of the Confederacy—conspired to prevent black people from exercising their franchise, to prevent them from wielding the power of the vote to improve their lives. Immediately after the Wagner Act was passed in 1935, right-wing politicians, at the behest of robber barons, conspired to prevent working people from exercising the right to organize enshrined in the law, a right that enabled working people to improve their lives.

Over the years, those intent on denying black people their human rights devised numerous ways to obstruct them from voting, including poll taxes, literacy tests and terrorization by the KKK. They lynched black people to repress an entire race. They lynched union organizers to repress a powerful idea. The great Rev. Martin Luther King embraced unionization as a method for all working people to ensure that they received a just portion of the profits derived from the fruit of their labor. On the day he died, he had supported striking Memphis sanitation workers who carried signs that said, “I AM A MAN.”

Inherent in manhood—in personhood—is self-determination. For self-determination, a person must have the ability to exercise the right to vote. And for self-determination, people must have the ability to support themselves and their families. In recent years, right-wingers have once again openly and actively sought to deny the vote to whole categories of people, including the poor and black people, by demanding specific photo identification at polling places. And they’ve passed union suppression laws in state after state.

In 1944, President Franklin Delano Roosevelt proposed a second Bill of Rights, what he called an Economic Bill of Rights. He said: “We cannot be content, no matter how high that general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth—is ill-fed, ill-clothed, ill-housed, and insecure.” Unfortunately, this great proposal was one he did not live to achieve. Now, collective bargaining is among the only methods working people can use to assure their economic rights. Like voting rights, the right to unionize should be strengthened, not weakened.

Sheryll Cashin

Professor of Law, Georgetown Law Center, cashins@law.georgetown.edu

I will leave it to others more expert than me to comment on the substantive merits of the proposal to amend the Civil Rights Act put forth by Richard Kahlenberg and Moshe Marvit. I will say this: They are surely on to something important, perhaps transformative. I agree with them and Dr. King that there is a profound congruence between the goals of the labor movement and the demand for universal human dignity that animated the Civil Rights Movement. The forgotten march, The Poor People’s Campaign of 1968, which King envisioned but did not live to see to fruition, embodied this convergence. The Campaign would bring blacks, Chicanos, Native Americans and rural whites from invisible hamlets of poverty to occupy the National Mall in a tent city that lasted six weeks. As King imagined it, this multiracial coalition united by economic oppression would kick-start the second phase of the Movement. Mere civil rights, the ability to sit at any lunch counter, were irrelevant without economic means, and so he conceived of a civilly disobedient campaign to put pressure on national leaders to adopt an “economic bill of rights.”

The Campaign is forgotten largely because it was unsuccessful and ended badly, with a forced eviction by police. Sound familiar? It is ironic that Kahlenberg and Marvit seek to leverage the success of the Civil Rights Act in order to improve the political saliency of the labor movement. They acknowledge, as they must, that politics is currently set against their proposal, just as politics is currently set against common sense. What is missing from most progressive issue briefs is a strategic plan for altering the political landscape in order to make progressive policy choices possible. The real unfinished business of the Civil Rights Movement is completing the Beloved Community that King imagined. In 1956, when the Movement was in its infancy, King delivered a speech entitled, “Facing the Challenge of a New Age.” He expounded on the ultimate ends of the civil rights revolution that Rosa Parks had ignited a year before. The end of the Movement was not the rights of Negroes per se but reconciliation and the creation of the Beloved Community.

In pragmatic terms for progressives today, that means bringing more working-class whites into their multiracial tent. While pundits and armchair analysts lecture Republicans about demographics and its Latino problem, the GOP is able to adopt “right-to-work” laws in states like Michigan and Indiana in part because the party has become a cultural home for blue- collar workingmen. Without a multiracial majority that consistently gets to 55% in elections and policy battles, there is little chance of enacting sound policies that might promote collective bargaining, much less correct the underlying structures that create racial and economic inequality. In the case of anti-democratic measures like super-majority requirements to break a filibuster in the U.S., even more cross-racial political cohesion is required. We can begin to reconcile, to move past racial resentments, and create a politics of economic fairness by being quite intentional in our choice of policies and language. Our best hope for a saner politics is a language based upon common harms and the common weal. The best place to start in building multiracial, multi-class coalitions for the common good is with numerous faith-based coalitions that are already working in scores of communities, often in a bipartisan manner. Elsewhere, I have written about this wonderful, righteous work. (See Cashin, “Shall We Overcome? Transcending Race, Class and Ideology Through Interest Convergence,” 79 St. John’s L. Rev. 253-91 (2005)).

Throughout American history, economic elites used racial categories and racism to drive a wedge between working-class whites and people of color they might ally with. In the colonial era, indentured servitude gave way to white freedom and black slavery, so that white servants no longer had incentive to join blacks in revolt, as they did in Bacon’s Rebellion. In the late-19th Century, Jim Crow laws proliferated when a biracial farmers’ alliance threatened to change unfair financial policies imposed by elites. And the GOP devised a cynical, race-coded Southern strategy that broke up the multiracial alliance that made the New Deal possible. Given this history and its current manifestations, intentional efforts are sorely needed to begin to rebuild trust among “we the people” and to fully realize the Beloved Community.

Larry Cohen

President, Communication Workers of America

Using Dr. King as their vehicle, Kahlenberg and Marvit write on how Labor and Civil Rights are intertwined, and they note the ascension of civil rights and decline of labor rights since the 1960s.

On a tactical level, our partners in the Civil Rights Movement tell me that they would be opposed to opening the Civil Rights Act, but would be supportive of adding private right of action to their existing support for collective action in the workplace.
Any such initiative will be the target of the same sustained U.S. Chamber of Commerce campaign which has rolled back worker rights, our standard of living and the U.S. economy. In the U.S., our collective bargaining framework has been systematically destroyed by the Chamber’s 40-year campaign, resulting in flat real wages for 30 years.

This frame is correct for the United States, but not globally. In Brazil, South Korea and South Africa, we’ve seen the rise of strong labor movements linked to political movements from the ashes of military dictatorships or even worse, apartheid. Their success should embolden us to see the possibilities of a resurgent movement linking workers’ rights to other economic justice and democracy issues.

Let’s note that the U.S. House of Representatives, led by Speaker Pelosi, overwhelmingly passed the Employee Free Choice Act. In the U.S. Senate, we had a majority as well, but the expansion of filibuster rules prevented even debate not only on Employee Free Choice but nearly every major piece of legislation passed by the House in the last Congress. Richard and Moshe dismiss Free Choice too quickly and incorrectly.

Yes, in 2013 we must broaden our approach to workers’ rights in many ways, and speak to 100 million U.S. working women and men, currently with no effective bargaining or organizing rights. We should include encouragement for new forms of collective action as well as the private right of action.

Our democracy is corrupted. Money is not speech. Corporations are not people. Our path to change must rely on massive movement-building, uniting economic justice and democracy.

[Pls. if you have feedback you’d like to get to him, send it to me—chartman@prrac.org—and I’ll pass all such on to him—CH]

Randi Weingarten

President, American Federation of Teachers, rweingar@aft.org

We’ve always been a nation built on the simple belief that everyone deserves equal access to economic opportunity and a path to the American dream. That no matter who you are or where you are from—immigrant or native-born—each of us should have a fair shot to achieve our dreams and care for our families. Today, that fair shot, that path to economic opportunity, is under attack by a group of elites seeking to enrich themselves at the expense of the rest of us.

And one of the biggest threats to economic opportunity is the coordinated effort to strip Americans of their right to collectively bargain for fair wages and benefits and a better life for their families and communities. Consider this: Between 1973 and 2007, union membership in the private sector dropped from more than 34% to 8%. During that time, wage inequality in the private sector increased by more than 40%. As we saw in Michigan, extremist politicians continue to ram through policies dubbed “right-to-work" which instead choke the ability of unions to act effectively. These so-called “right-to-work” laws have depressed wages and suppressed the ability of workers to collectively bargain. Today, when workers seek to join unions, 25% of employers fire at least one pro-union worker. And workers are routinely harassed, intimidated and threatened for trying to form or join a union.

We know that workers who belong to unions earn 28% more than non-union workers; nearly 87% of union workers have guaranteed pensions; and 84% of union workers have jobs that provide health insurance benefits. Back when more than one-third of Americans belonged to unions, we were able to set wage-and-benefit standards for entire industries—for union and nonunion workers alike.

This 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. Collective bargaining is a necessary part of a capitalist democracy; it ensures economic fairness and reduces income inequality. Given how the scales have tipped against working families, and that economic inequality is at the highest level since the Great Depression, it is time to amend the Civil Rights Act to make it illegal to fire or discriminate against workers who are trying to form a union and to better their lives and their communities.

Kahlenberg & Marvit Respond

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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