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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AB5: Regulating the Gig Economy is Good for Workers and Democracy

Veena Dubal –

Poverty is not a suspect classification under our Constitution, but it is an affront to life and dignity and to democracy more broadly.  With the evisceration of the U.S. welfare state and the judiciary’s deference to political outcomes in the area of “economics and social welfare,” employment is the primary legal and political means to address economic inequality. In turn, employment is—for better or for worse—key to our democracy.  It provides access to the tools for basic sustenance in modern America: the minimum wage, health insurance, safety net protections, and even the right to organize and collectively bargain. Our capacity to participate in life and partake in politics, depends, in no small part, on our employee status. In the words of political theorist Judith Shklar, We are citizens if we ‘earn.’”  To this observation, I might add that we are citizens if we earn enough.

AB5—a bill which was just signed into law in California—is the first state law in the country to push back against an alarming trend of the last half decade: the use of app-based technology to proliferate work outside the regulatory framework of “employment.”  The potential for labor platforms relying on non-employee labor to exacerbate poverty looms large in debates about the future of work and of workers.  While the number of app-based workers remains comparatively small, the potential for this sector to grow and for industries to reproduce this model across the service economy looms large.

AB5 is the first significant step in pulling these workers back under the “employee” umbrella. It codifies the presumption of employee status under state law and puts forth an exacting, conjunctive test that hiring entities must meet if they wish to engage workers as non-employees.  Because labor platforms have posed risks to employment regimes and the security of workers the world over, the bill has been internationally lauded and states across the U.S. seek to replicate it.

How did California manage to pass this law, and what implications might AB5 hold for the relationship between work, poverty, and democracy more broadly?

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The Law and Political Economy of Sex Work: Symposium

The Law and Political Economy of Sex Work: Symposium

This post is part of our symposium on the political economy of sex work. Read the rest of the symposium here.

Lorelei Lee –

I am approaching my 20th year of living in the world as a sex worker. This year, presidential candidates are being asked whether they believe sex work should be decriminalized. Decrim NY and the Sex Worker Advocates Coalition have introduced decriminalization bills in New York State and Washington, D.C. California passed SB 233, joining a handful of other states in prohibiting the use of condoms as evidence in prostitution arrests, and expanding a San Francisco policy that prevents police from arresting sex workers who choose to report client violence. The public conversation is shifting. That shift is the result of hundreds of years of resistance and movement building by people who trade and have traded sex. As Juno Mac and Molly Smith explain in their new book, Revolting Prostitutes, “sex workers have shaped and contributed to social movements across the world.” Despite state, local, and new federal laws promoting profiling, surveillance, and exclusion of people in the sex trades from fundraising and communication platforms and from otherwise-public spaces, sex workers have continued to speak, to build coalitions, to insist on being heard.

People interested in law and political economy have a particular reason to listen to people in the sex trades. The conversations that sex workers are having are about markets, work, and coercion under neoliberalism. They are critiques of a legal system that implements policing to keep the “sacred” out of markets while enabling corporations to profit on the caging of human beings. In this symposium, Gilda Merlot will explain how the U.S. failure to “end demand” for migrant labor through the Immigration Reform and Control Act illuminates the unlikelihood of “ending demand” for sexual labor through criminalization. Aziza Ahmed and Jason Jackson will bring a political economy lens to sex work, critiquing the moral claims that justify criminalization. Finally, suprihmbé will unpack the false binary between the “agency/empowerment” of sex work and the “oppression/coercion” of trafficking.

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The Uber/Lyft “Workers’ Association” Debate: A Response to Dubal

N.B.: Benjamin Sachs penned this response to Part I of Veena Dubal’s post on comparing solidarity unionism with company unions earlier this week. In the spirit of debate, we’re cross-posting from On Labor. 

Benjamin Sachs –

Veena Dubal writes an important piece that raises concerns about Uber and Lyft’s suggestion that drivers in California form a “workers’ association.” Dubal worries that such an association would amount to a company union that would “necessarily impede” the development of fully independent, exclusive-representative unions at the gig firms. Given the essential role that independent unions play in our economy and our politics, Dubal is highly critical of the workers’ association idea.

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Gig Worker Organizing for Solidarity Unions

Veena Dubal – 

The “gig economy” is one place where organizing outside of traditional trade unions is undoubtedly happening in surprising and perhaps unexpected ways. For example, on May 8, 2019, a group of independent app-based drivers in Los Angeles called the LA Rideshare Drivers United organized and launched an unprecedented international picket and work stoppage against Uber and Lyft. They were joined by similar driver groups all over the United States (including in New York City) and as far off as Nigeria, Australia, and the United Kingdom.   This was an incredible feat given that, as my co-authors and I have argued, gig workers—particularly those who work for a platform-based company—face unique hurdles to organizing. Among other factors, these workers are unusually dispersed, atomized, and differentially dependent on gig work.

Having studied gig workers for over a decade, I was surprised by the magnitude of the May 8 strike. Two things stood out to me. First, I was struck by the large number of driver-led groups in the U.S. which participated in the coordinated work stoppages. Drivers’ groups from Boston, San Diego, Los Angeles, Chicago, New York City, and Washington, D.C. issued a joint statement calling their action a “strike” (not just a rally or protest) and announcing themselves “united as one joint council of grassroots driver labor organizations with the shared goal of winning job security, livable incomes, and respect for App drivers.” Not all drivers’ groups that participated in their regions signed onto this statement—presumably because of the legal risks of calling this action a “strike.”

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Solidarity Unionism v. Company Unionism in the Gig Economy

Veena Dubal – 

The CEOs of the two top-competing gig firms—Uber and Lyft—penned a June 12, 2019 OpEd in the San Francisco Chronicle in which they claim that after over six years of local, state, federal, and international law-breaking, ignoring the concerns of drivers, and viciously fighting any efforts to achieve living wage and benefits, they are ready to compromise…in California. They claim that in exchange for getting rid of a bill that just passed the state assembly—which would extend California labor protections to many “gig workers” by making it easier for them to claim employee status under state law—they will agree to establish a wage floor, a “workers’ association,” and potentially, a deactivation appeals process.

Why, after six years of legal and political intransigence, are these companies so ready to come up with a salve? And what should we make of their concessions?

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Is Labor’s Future in Labor’s Capital? A Debate, Part III

This is Part III of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–-usually a problematic proposition in these pages–-then shouldn’t workers have a say in how these companies are run? Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

LPE: We now have several potential obstacles on the table. Let’s take a closer look at some of them. First, the legal obstacle—what does fiduciary law really require, and is this a problem for prioritizing something other than short term financial return in fund governance? Second, politics—what will it take for labor to demand a seat at the table, or a majority of the seats?

David H. Webber: Though I do not view current fiduciary law as an insurmountable barrier to the activism I describe, it could be better. ERISA comes from trust law, though the statute explicitly states one should be cautious in using trust law to interpret it. I have argued that, in many respects, the more flexible fiduciary duties found in trust law’s cousin, corporate law, may be a better fit for pension plans as they exist today than trust law itself. Historically, because shareholders were thought to be comparatively more empowered vis-à-vis corporate boards and managers than beneficiaries were vis-à-vis trustees, more flexible fiduciary duties evolved in the corporate sector.

But I think that in the case of many pension plans, these distinctions have broken down. First, public pension plans now make regular disclosures through Certified Annual Financial Reports, the pension law equivalent of the 10-K. Second, plan participants and beneficiaries get to vote for worker and retiree representatives on boards, and in their capacity as citizens, they also get to vote for the elected officials who serve as employer representatives on those boards. So there is a measure of accountability not found in traditional trusts. Third, on the corporate side, diversified shareholders have effectively lost their capacity to exit. Divesting is expensive, can often hurt you on the way out, and may undermine diversification. Many shareholders are locked in the same way pension beneficiaries are. It may be time for greater convergence between pension law and corporate law, one that takes account of the new institutional realities.

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Is Labor’s Future in Labor’s Capital? A Debate: Part II

This is Part II of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–usually a problematic proposition in these pages–then shouldn’t workers have a say in how these companies are run?Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

David Webber: Though I think he somewhat overstates the case, I agree with Michael’s observation that these pensions have, at times, been used against labor. And not just historically. I discuss (and decry) contemporary examples of this phenomenon in my book, such as pension fund investment in privatization. And it is also true that both private and public sector pensions have been used in favor of labor, as my book demonstrates. Before digging into those issues, I want to clarify some important distinctions between the public and private fund context, respond to some of Michael’s claims about ERISA and fiduciary duty, and point to examples of why, regardless of what has occurred historically, things are changing and have the potential to change further, if acted upon.

First, Michael shifts the focus to private union pension plans. Fair enough. I discussed them above and I’ll return to them below. But the bulk of my discussion focused on public pension plans, and with good reason. In part that’s because they are far larger. The public pension funds of California alone significantly exceed the assets of all private union pension plans combined. But there’s another reason to focus on public pension plans: they are not governed by Taft-Hartley or by ERISA. They are governed by state pension codes. That matters for two issues: board control, and fiduciary duties.

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Is Labor’s Future in Labor’s Capital? A Debate

This is Part I of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–usually a problematic proposition in these pages–then shouldn’t workers have a say in how these companies are run? Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

LPE: Let’s start with where we are now and how we got here. How did we get to a place where some workers get to decide how their retirement assets should be invested, while others don’t? What were the key fights between labor groups, employers, and financial industry players on this question, and what were the outcomes?

David Webber: Worker shareholder power can be found mostly in public sector pension plans, which are publicly-created retirement plans that invest the retirement savings of public-sector workers. These large state, city, and county employee retirement plans hold at least $4 trillion in assets, roughly 10% of the U.S. stock market, and at least a third of “alternative investment vehicles” like private equity. The most famous examples are the California Public Employees’ Retirement System ($350 billion in assets), the California State Teachers Retirement System ($223.8 billion), the New York City Pension Funds ($195 billion), and the New York Common Retirement Funds ($207.4. billion), among many others. Almost all public pension plans have worker representatives on the boards of trustees, the equivalent of worker representation on corporate boards. These workers are elected by other workers (or retirees) who participate in the funds. Sometimes those worker slots are controlled or heavily influenced by unions. Sometimes workers outright control the board; more often they constitute a minority of trustees.

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Law and Politics in Employee Classification

Benjamin Sachs – 

As has been widely reported, the U.S. Department of Labor issued an “opinion letter” yesterday concluding that an unnamed “virtual marketplace company” does not employ the workers who make the company viable. Instead, the letter finds that these workers are independent contractors. The letter is flawed in multiple ways. As Sharon will explain, deciding a major issue of employment law – maybe the major contemporary issue of employment law – through an informal process that allows one party to present all the facts is decidedly inappropriate. There are also multiple substantive problems: as Charlotte pointed out, the letter considers relevant to the control inquiry the fact that this VMC’s workers can also work for other VMCs. I suppose the fact that Wal-Mart workers can also work for Target suggests that Wal-Mart workers are independent contractors of Wal-Mart. Generalizing, I suppose if low wage workers must rely on multiple jobs to make ends meet this should incline decisionmakers to conclude that those workers are all independent contractors.

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