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Hostile Work Environment

By: Paul Moreno
May 18, 2015

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A review of The Workplace Constitution from the New Deal to the New Right, by Sophie Z. Lee


oday, most Americans lack constitutional rights on the job,” Sophia Lee declares in her new book, The Workplace Constitution. “[T]hey can be fired for almost any reason, or for no reason at all.” Actually, though, it’s closer to the truth to say that almost no American’s job is quite so precarious. About 7% of private-sector workers have union contract protections. Most public employees are unionized and/or have civil service protections. Unorganized workers cannot be fired for trying to organize. State courts have also developed doctrines of “implied contract” and “covenant of good faith” to provide job security. Under anti-discrimination laws, you cannot be fired because of your race, creed, color, national origin, sex, age, or disability. Most recently, employers doing business with the federal government cannot discriminate on the basis of “sexual orientation.” Many state and local governments duplicate these federal protections. Even young, non-disabled, heterosexual white males can make “reverse discrimination” claims.

Our biggest problem in the workplace is not that workers don’t have any rights but that they have too many rights. Besides making it difficult to fire, our laws use employers as the principal conduit of welfare state benefits, collecting Social Security and Medicare taxes, unemployment and disability insurance, and now general health insurance. Add a myriad of other employment-related regulations, and it’s a wonder that our workforce participation rates aren’t even lower than they are.

Although she seems to have coined the term “workplace constitution,” Lee, a University of Pennsylvania law professor, does a poor job of defining it, calling it broadly “the idea...that workers had constitutional rights on the job and in the union.” Almost all of what she discusses—union-promotion and civil-rights laws, mostly—are statutory rather than constitutional, if not unconstitutional. Her book is really the story of the clash of entitlements, a conflict within 20th-century liberalism between unions and minority groups.

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The original Constitution had little to do with labor or employment. Although, as a reluctant compromise, the American Founders provided protection for slavery in the states where it existed, after the Civil War and the 13th Amendment, labor relations were left to state regulation. In keeping with the principles of democratic equality, most states adopted some form of “employment at will”: employer and employee were regarded as equally free to hire or fire, work or quit, according to their own judgment, although laws could restrict or regulate the wages, hours, and working conditions of women, children, or mental incompetents, as well as in especially dangerous jobs. This was sometimes referred to as “Wood’s rule,” named for Horace Wood’s treatise, Master and Servant (1887).

Men must be left, without interference to buy and sell where they please, and to discharge or retain employees at will for good cause or no cause, or even for bad cause without thereby being guilty of an unlawful act per se. It is a right which an employee may exercise in the same way, to the same extent, for the same cause or want of cause as the employer.

The courts fit Wood’s rule into the wider doctrine of “liberty of contract.”

Wood’s rule was especially frustrating for labor unions, which for decades had agitated for exceptions to the law in order to permit them to compel employers to bargain with them. (Lee comments that “Unremarked yet remarkable is that state courts also justified injunctions against union activity based on a constitutional right to work.” In fact, progressives repeatedly remarked on—indeed never stopped complaining about—this constitutional right.) Then, in 1935, under the New Deal’s National Labor Relations Act (also known as the Wagner Act, after its chief sponsor, New York Senator Robert F. Wagner), an employer was now required to bargain exclusively with whatever representative is chosen by a majority of his employees. And in that sense, far from securing a “workplace constitution,” the Wagner Act put an end to one instead. Liberals replaced the founders’ natural right to work with an entitlement to a job.

Lee fails to address the fundamental conflict at the heart of the Wagner Act. One part of the act claimed that Congress was protecting real liberty of contract by redressing the “unequal bargaining power” between week workers and strong employers. Another part of the act claimed that Congress was regulating commerce among the states, promoting unions in order to avoid labor conflict and secure “industrial peace.” The liberty of contract claim was a constitutional one; the industrial peace claim was statutory. In the end, the commerce-industrial peace basis prevailed. Thirty years later, the Civil Rights Act of 1964, too, would be based on Congress’s power to regulate interstate commerce, not its power to enforce the 14th Amendment.

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Most of these newly-empowered unions excluded or discriminated against blacks and other minorities. Neither Congress nor the National Labor Relations Board (NLRB) addressed this problem, but the federal courts devised the doctrine of “fair representation” in the 1940s and ’50s. Even unions that excluded blacks had a duty to look after their interests. The Court recognized that Congress had given the unions extraordinary—nearly sovereign—powers, so they could no longer claim to be mere private, voluntary associations. But “fair representation” was difficult to enforce, and had little impact on union discrimination. The Labor Board did not get around to declaring racial discrimination an “unfair labor practice” until Congress did the same thing in the Civil Rights Act. (Lee makes a very strained argument that the Board was a positive force for minority rights. In fact it was entirely “captured” by the discriminatory unions.) As NLRB member Howard Jenkins noted, if the Board had done this years earlier, no employment title would have been necessary in the Civil Rights Act.

Civil rights groups understandably tried to get their share of the job-entitlement state. Charles Hamilton Houston, one of the leaders of the NAACP legal community, fully absorbed the progressive idea that rights are provided by the government, so civil rights groups pressed for affirmative action in the 1960s, including racial preferences that would trump white union members’ seniority rights. This caused a major rift in the liberal coalition. Lee repeats the charge that the Nixon Administration promoted affirmative action precisely to drive a wedge into the New Deal coalition, claiming that Nixon campaigned with “racially coded calls for ‘law and order’” and “subtle race-baiting.” In fact, Nixon had long promoted race-conscious anti-discrimination policies and in the 1950s had faced the problem of entrenched union discrimination when, as Dwight Eisenhower’s vice president, he headed the Committee on Government Contracts.

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Conservatives have struggled with the competing entitlement claims of unions and minority groups. The Right supported pre-New Deal principles of the right to work or liberty of contract, which would benefit from an expansive definition of “state action” under the 14th Amendment, but opposed affirmative action’s racial quotas, which depended on that same expansive definition. When push came to shove the Reagan Administration chose limiting state action over the right to work. Liberals chose the opposite path, sacrificing union power to preserve affirmative action, and the Supreme Court sided with them in Communications Workers of America v. Beck (1988).

American employment law nicely illustrates the system of “interest group liberalism” in which the federal government intervenes to redress imbalances of power it perceives among competing groups. Liberals built up organized labor to check business interests they thought had become too powerful in the 19th century. When these unions became too powerful, affirmative action was put into place to assuage their victims, and “identity group politics” resulted. Over time, liberal policies chipped away at the original constitutional protections for a right to work in order bring back what the founders called “speculation on public measures”—also known as “rent-seeking” or the “policy lottery.” As The Federalist notes about the dysfunctional state government in the 1780s, “one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.”