Does Employment Discrimination Law Still Have Permission to Exist?

On Monday, I described a longstanding need to provide justifications for my professional existence. I am not the only one so searching, these days. The (admittedly, somewhat snarky) term I used was "permission to exist" for specialty practice areas, and I suggested it was only asked of the laws represented by the courses that come after the first year of law school. At least, it has always been asked of the practice areas in which I began my career as a lawyer: labor and employment law.

The passage of the Wagner Act in 1935 was not the result of a consensus being reached on the question of whether the federal government should regulate labor relations. No such consensus has ever existed, making it difficult to debate the question of the form such regulation should take. The withering of labor is well-documented, and with each passing year, the sentiment in the country regarding the lofty goals of promoting collective bargaining and labor peace seems to grow either more hostile or dispirited, depending on the direction it's coming from.

The law of employment discrimination is another of my practice areas for which permission-to-exist was hotly contested from the outset, and in many respects, today such permission - to the extent it ever existed - has been substantially withdrawn. This has led me on a search for the reasons why permission was ever given for these laws in the first place, and that search took me all the way back to the Reconstruction era.

I blame Ken Burns, and PBS generally, for my original interest in this time period, which I most recently visited in an article about the Thirteenth Amendment's application in prison. The era has also invaded my clinical practice over the past year, in the form of two Title VII/Section 1981 cases. 42 U.S.C. § 1981 is the descendent of the first Civil Rights Act, from 1866, and it nestles comfortably alongside Title VII, from the better-known Civil Rights Act that LBJ signed, in modern suits alleging race or national-origin discrimination.

The end of human slavery raised hard questions of labor and economy that could not be answered by market logic alone, and the path our system of laws embarked upon in that era led to the employment discrimination statutes of today. Nobody today defends human slavery on principle, and the conservative case against it can be made on the same basis as the liberal one - that of universal, individual human freedom. But the market system requires no such thing, only the laws of property, contracts, and torts, plus the criminal law for the sovereign to maintain the peace.

Charles Lindblom - whose definition of market activity includes that goods and services are obtained without compulsion by voluntary exchange - recognized that voluntariness only matters for these purposes at the level of market actors, which he defined as three institutions - the state, the corporation, and the family or household. None of these entities need internally run along market principles for the market system to function. 

Amy Dru Stanley has terrifically documented how slaves fit into the Southern economy by being incorporated into both the domestic and enterprise spheres, and how a freedman's right to contract was central to the freedom contemplated by abolitionists. But simply decreeing that former slaves could operate in the labor market in the same way as whites, as the first Civil Rights Act did, was not enough. Only rights discourse could fully reach into where slavery was neatly slotted into a system otherwise built on free exchange. Charles Flynn has described the progression in Reconstruction, from the Thirteenth Amendment, through the Civil Rights Act of 1866, the Reconstruction Acts, the Fourteenth and Fifteenth Amendments, and the anti-Klan act, as a series of steps, each meant to protect the step before. Congress could not rest on its laurels lest it give away the benefits of the nation's military victory to recalcitrant Southerners and a hostile executive.

A venerable statute like Title VII seems in some sense immutable, in that people now expect non-discrimination, and so society would in theory voluntarily order itself around these principles in the absence of a statute mandating them. There is support, as well as reason to believe otherwise, in the very visible example that we have for this proposition - our population of undocumented workers, to whom only some of the workplace protections available to the rest of the workforce apply.

Next week, I will explain in more detail how I think the labor rights of the undocumented illustrate why the historical reasons our employment discrimination statutes first arose still matter today. Until then, the view from Mars just keeps getting better.