I an earlier article, we proposed that the right to organize or join a union should be included in Title VII of the Civil Rights Act. We did so not because Title VII represents an ideal statutory framework, but because it provides a private right of action that is far superior to remedies included under the National Labor Relations Act (NLRA).
To be sure, no attorney or plaintiff who has ever had the pleasure of bringing a charge to the Equal Employment Opportunity Commission (EEOC) the agency tasked with investigating and enforcing Title VII violations would speak of the agency as a model of efficiency or effectiveness. It is understaffed and overworked, consistently backed up and is rarely able to resolve matters. Compared to the EEOC, the National Labor Relations Board (NLRB) the agency tasked with handling all labor charges is a model of efficiency. Though the NLRB's processes often take several years to bring resolution, and though the agency is quite limited in its ability to provide meaningful relief, it should be commended for conducting real investigations and prosecuting charges. The agency's staff are knowledgeable on the intricacies of labor relations and law, and sensitive to the needs of employers, unions and employees.
If one were to judge the NLRA and Title VII only by the agencies tasked with investigating and prosecuting cases, the NLRA would easily be found to be the superior statute. However, the effectiveness of Title VII comes not from its requirement that aggrieved employees bring their charges to the EEOC, but from its provisions allowing a plaintiff to remove the charge from the EEOC after some time has passed, and pursue private litigation in federal district court.
Removal of an employment discrimination matter to federal court is the route that many plaintiffs choose, and in that choice come the attendant procedural rights to pretrial discovery and a jury trial, and the possibility of being made whole through compensatory and punitive damages and attorneys' fees. These procedural and remedial provisions change the calculus for employers in terms of both violating the law, and whether to settle a case. Federal litigation is a costly and time consuming endeavor, leading employers to put in place and enforce internal procedures to limit and address employment discrimination. Add to this the stigma attached to allegedly violating an employee's civil rights, and most employers choose prevention and settlement rather than litigation.
It should be emphasized here that the proposal is not to subsume all labor law into the employment discrimination framework. Only employment discrimination related to an individual's seeking to form or join a labor organizing, prohibited under Section 8(a)(3) of the NLRA, would be included under Title VII. This is important for several reasons. First, it is this right to organize that is most closely related to the fundamental rights implicated in the First Amendment rights of speech and assembly. Just as Title VII originally extended the Fourteenth Amendment provision of equal protection to private employment, this proposal would extend these First Amendment provisions to private employment.
The proposed amendment largely leaves intact the collective rights framework of labor law. It provides individual rights to employees in their decision to join a union, which is often when they are already singled out by employees and punished or discriminated against as individuals. The proposal may also end up strengthening the NLRA by changing its role as a political football. Currently, the NLRA handles all labor matters, and as a result is constantly being threatened with defunding or weakening by those against unions. By allowing a segment of labor cases to proceed in federal court, some of the pressure on the NLRA will be relieved, and the agency will be attacked less as a result.
Some may argue that the federal judiciary has traditionally not been friendly towards labor, and it is a mistake to entrust labor law to federal judges. There is some validity to this concern, but today's discrimination against employees for union organizing is so blatant that even conservative federal judges would have a hard time ignoring violations of the law. Unlike racial discrimination, which is often subtle, employers today fire union advocates in order to "send a message" of intimidation to other employees, an unambigous pattern of behavior that federal judges would have difficulty tolerating. Moreover, the benefits of federal litigation come not only through winning. The very process of federal litigation, including the possibility of extensive pretrial discovery, changes the employer's calculus in violating the law in opposing the union. CEOs will not be cheered at shareholders' meetings for opposing unionization if the result is hundreds of Title VII lawsuits, each with the possibility of compensatory and punitive damages and attorneys' fees.
Furthermore, in the proposal detailed in our book, nothing would compel an employee to remove her charge to federal court if she wanted to follow the traditional NLRB route. The proposal allows for removal, but also leaves in place the existing processes under the NLRB.
The benefits of switching to a civil rights legislative model for labor organizing currently covered by Section 8(a)(3) of the NLRA are multiple. First and foremost, the process of trying to pass such a legislative amendment is in line with the movement building that would be necessary for its passage. As opposed to the important, but technical, changes encapsulated in the Employee Free Choice Act (EFCA), labor organizing as a civil right is simple, powerful and can be broadly understood. These qualities make it ideal as a central concept and rallying cry for building a grassroots and broad-based movement that would push for legislative reform. The massive protests in Wisconsin and Ohio following the legislative attempts to strip collective-bargaining rights from public employees (which is essentially equivalent to stripping the right to unionize) showed clearly that employees have the right to organize with their fellow worker to bargain collectively with the employer is a powerful message that brings people together.
Additionally, since the proposed amendment focuses on the individual's civil right, rather than on the collective rights of the organization, this proposal has the possibility of avoiding the contentious dichotomy of employers versus unions. Too many Americans have the view that unions are unnecessary today, because there are already enough protections in the workplace a view that is only held by those who have never suffered unfair treatment in the workplace and explored their legal remedies for relief. Too many Americans have the misguided, but long held, view that unions are just another special interest that is not deserving of support of anyone beyond their membership base. Too many Americans have a negative, and similarly misguided, view of individual unions, such as the Teamsters, the Steelworkers or the teachers' unions, that have been unfairly branded as corrupt, wasteful or job-killing. A new attempt at labor law reform should not fall back into the trap of arguing for unions over employers, or get into a debate on the relative merits of various unions, but instead should remain focused on the individual's civil right to join a union.
Richard Kahlenberg is a senior fellow at The Century Foundation. He writes primarily about a variety of education issues including primary and secondary education and affirmative action policies in higher education. He is an authority on teachers' unions, private school vouchers, charter schools, turnaround school efforts and inequality in higher education.
Moshe Marvit is a labor and employment discrimination lawyer.
Suggested citation: Richard Kahlenberg & Moshe Marvit, Amending Title VII: Labor Organizing as a Civil Right (Part II), JURIST - Hotline, Apr. 24, 2012, http://jurist.org/hotline/2012/04/kahlenberg-marvit-labor-ii.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com