Zarda, Just Work, and the Limits of Antidiscrimination Law

Today, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.

Deborah Dinner –

The stakes in Altitude Express Inc. v. Zarda, pending before the Supreme Court, are unquestionably high. The question in the case is whether the prohibition on discrimination “because of … sex” under Title VII of the Civil Rights Act of 1964 includes discrimination because of sexual orientation and gender identity. A ruling in favor of the plaintiffs would enhance the employment security of the more than an estimated eleven million adults in the United States who identify as gay, lesbian, bisexual, or transgender. It would also bolster the ability of unions and worker organizations to strengthen the power of workers by preventing employers from using gender and sexuality to divide the workforce in ways that inhibit collective organization.

As progressives push for antidiscrimination protections for LGBTQ individuals, they would do well to look for ways to connect this fight to workers’ collective struggles regarding work hours, conditions, and pay. The history of Title VII and sex-based employment laws offers lessons about the crucial importance of pursuing antidiscrimination law together with protective labor regulations. In an article titled Beyond “Best Practices”: Employment Discrimination Law in the Neoliberal Era and in a forthcoming book, I show how sex discrimination law and retrenchment in labor regulation intertwined in the late twentieth century. This history reminds us that antidiscrimination law does not itself guarantee substantive justice in the employment relationship; reveals the ways in which employers may use antidiscrimination as a deregulatory tool; and offers a vision for economic justice that synthesizes individual freedom with collective protections for workers.

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Labor Relationships & and the Legal Vision of 1L Contracts

Sanjukta Paul—

Contracts is more than an area of law; it is a key piece of the vision we lawyers bring to many other areas of law. The 1L Contracts course supplies a foundation-stone of the “pre-analytic vision” with which lawyers will eventually think about many other things, including labor relationships. Labor regulation as such is addressed only in the optional upper-level curriculum, and it is relatively marginalized even there. As a result, many lawyers, notably in the commercial and business sphere, will bring to their dealings with labor issues the contracts “vision.” That vision ultimately tends to erase the law’s deep involvement in constituting labor relationships. It thus tends to furnish apparent justification for the exercise of power by the already-powerful, in pursuit of private ends rather than the public interest, on the stage created and sustained by law.

The specific pre-analytic vision transmitted by the conventional Contracts curriculum is of atomistic individuals contracting at arms’ length. In this vision, any pre-contracting power differentials, including those power differentials that are created or sustained by law, are rendered invisible. In our historical imagination this vision is symbolized by ‘the Lochner Era,’ which was characterized by the frequent judicial invocation of contract principles to either invalidate or undermine democratic attempts to structure labor relations and markets more generally.

But apart from ignoring, for example, “the background distribution of property rights,” this vision also sits uneasily with the present-time legal constitution of labor relationships. Moreover, perhaps because of its foundation in the pre-analytic vision of contracts, commercial law is generally selective about when it chooses to treat labor contracts as “special” on the one hand, or as instances of a more general type on the other. Continue reading

The Law and Political Economy of the “Future of Work”

Brishen Rogers

How will new advanced information technologies impact work? This is a major focus of public debate right now, driven by widespread fears that automation will soon leave tens of millions unemployed. But debate so far has tended to neglect the relationship among technological innovation, political economy, and the law of work. This is a major omission, since the automation of particular tasks doesn’t just happen. Rather, it takes place under laws that are subject to democratic oversight and revision – and with different laws, we could encourage a radically different path of technological development, one in which workers have a real voice, and in which they share consistently in technology-driven productivity gains.

Take two upcoming transformations that we’re all familiar with: the automation of some kinds of driving and some kinds of fast-food work. Within a few years, truckers, delivery drivers, and taxi drivers may be able to use an autonomous mode consistently on highways. Later on, they may be able to do so on major suburban and rural streets. But given the wide variation in road quality, humans will likely need to pilot vehicles in residential areas and on city streets for some time to come. And given the wide variation in building structures that delivery robots would need to navigate, humans will almost certainly need to complete deliveries in many instances.

Similarly, in fast food, ordering kiosks are already displacing cashiers, but not in their entirety. Some customers are unable to use the kiosks, including the 70% of McDonalds customers who use the drive-through. Sometimes the kiosks will break down, and sometimes orders won’t be processed appropriately, and thus workers will need to step in. Food preparation may also be automated in part, but given the fine motor control and tacit knowledge required for cooking, it has proven resistant to full automation. Like the transformation in driving, then, this change will likely be gradual and iterative. Technology will augment human capabilities rather than replacing humans wholesale, and workers, companies, and consumers will need to adapt over time.

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