Abstract
In this short yet comprehensive book Richard Kahlenberg and Moshe Marvit argue that incorporating the right to organize into the legal framework of the Civil Rights Act would allow workers to exercise their rights more effectively than they are able to under current labor law. The Civil Rights Act currently prohibits employer discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Why do Kahlenberg and Marvit feel it would be an effective mechanism for protecting the right to organize?
First, it would mean that if an employee wished to make a claim against an employer she would be able to gain access to lawyers and courts more readily than under the current National Labor Relations Board regime. Second, it would allow for both more significant financial penalties for offending employers and corollary rewards for aggrieved workers. Finally, the legal process of the Civil Rights law allows for pretrial discovery whereas current labor law does not. The possibility of having to reveal information about the company to opposing counsel would be a significant incentive to settle a case and would, the authors claim, greatly enhance the effectiveness of labor law. While the authors’ legislative proposal is thought provoking, it is one about which I have reservations and that I would like to see subjected to significant debate.
Kahlenberg and Marvit’s book lays the groundwork for just such a debate in a clear, concise, and accessible way. The authors first present a review of recent literature on income inequality and show how unions work to counter inequities by boosting the income and political power of working Americans. Next they devote a chapter to research that provides evidence that the ineffectiveness of labor law has contributed significantly to decline in union strength over the last few decades. They proceed to explain their legislative proposal, providing a primer of labor and employment law along the way and highlighting how the two legal structures work to empower, or indeed disempower, citizens seeking their protections.
In the final section of the book Kahlenberg and Marvit offer arguments to support their legislative proposal. They suggest that it is appropriate to use the Civil Rights Act to protect workers’ rights because, like the right not to suffer discrimination, the right to join a union is a basic human right. Further they argue a strong labor movement is good for minorities, boosting their economic status and, in the contemporary era, providing protection against discrimination. Politically, Kahlenberg and Marvit contend their proposal is strong because of its simplicity and the appeal of claims of “rights” to the culture of individualism in America. Moreover, they claim that because their proposal has potential to appeal to a broad coalition of supporting groups, it avoids the usual criticisms of “special interest” legislation.
My primary reservation about Kahlenberg and Marvit’s proposal is that, as the authors acknowledge, it protects workers’ rights to organize on the basis of individual claims and in so doing, draws attention away from the collective nature of unions. While employers might be less eager to dismiss individual organizers if the authors’ proposal were adopted, it is not obvious how it would protect workers from the more common collective threat employers make in the face of organizing efforts—namely, that unionization will compel them to close or relocate their businesses. Each of these employer tactics aims to intimidate workers seeking to organize, but while the former targets individual workers, the latter is directed toward workers as a group.
Reservations aside, I urge people to read this book. It presents an intriguing argument about how workers’ rights might be strengthened in a politically expedient way and makes clear why such rights are important to our democracy.