Employment law and social equality.

• Author: Bagenstos, Samuel R.

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies--and that it is justifiable even if it imposes meaningful costs on employers.

This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers' privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

TABLE OF CONTENTS INTRODUCTION I. A SOCIAL EQUALITY THEORY OF EMPLOYMENT LAW A. A Description and Defense of Social Equality B. What Does Social Equality Demand? C. The Limitations of the Principle II. DOCTRINAL IMPLICATIONS A. The Employment-at-Will Rule B. Worker Privacy C. Workers' Political Speech and Activities 1. The Social Equality Case for Constraining Employers' Regulation of Employees' Political Speech 2. The Doctrinal Response 3. Constitutional Questions D. Prohibitions on Retaliation E. Arbitration F. Child Labor and Maximum-Hours Laws CONCLUSION INTRODUCTION

Last fall, as the presidential election campaign raced to a conclusion, the New Republic reported that Murray Energy, a large coal mining company, "ha[d] for years pressured salaried employees to give to the [company's] political action committee (PAC) and to Republican candidates chosen by the company." (1) According to that report, "[i]nternal documents show that company officials track who is and is not giving," (2) and that the company's CEO, Robert Murray, took an intense personal interest in which employees gave money. (3) The report anonymously quoted two individuals who had worked as managers at the company to the following effect:

"There's a lot of coercion," says one of them. "I just wanted to work, but you feel this constant pressure that, if you don't contribute, your job's at stake. You're compelled to do this whether you want to or not." Says the second: "They will give you a call if you're not giving .... It's expected you give Mr. Murray what he asks for." (4)

When Governor Romney visited a coal mine operated by a Murray-owned company for a rally, a company official acknowledged that workers were told that attendance at the event "would be both mandatory and unpaid." (5)

Are Murray Energy's activities, as reported by the New Republic, troubling? If so, why? In this Article, I argue that those activities are, indeed, troubling, and that understanding why reveals a high-level normative principle that can help us explain, justify, and critique the broad sweep of individual employment law. (6)

The problem with Murray Energy's reported activities, I submit, is that they threaten social equality. Social equality, as described by a number of scholars, seeks "a society in which people regard and treat one another as equals, in other words a society that is not marked by status divisions such that one can place different people in hierarchically ranked categories." (7) Murray Energy's reported activities threaten social equality because they enable the company to transform its economic power over its employees into an additional voice in the political realm. And that additional voice enhances the company's political power while at the same time squelching the political power of its employees. To the extent that employment law limits activities like the ones in which Murray Energy reportedly engaged--and employment laws in many states do limit these activities--the law serves social equality. To the extent that the law does not limit those activities, a social equality perspective suggests that it should.

But social equality is threatened even when employers do not seek to leverage their economic power over their employees into additional political power. Social equality is threatened as well when employer practices needlessly lead to hierarchies within or outside the workplace. Although some hierarchies within the workplace may be inevitable in productive enterprises, it is not inevitable that workers should bow and scrape before their bosses. Nor is it inevitable that employees who are subordinate within the workplace should, as a result, be limited in their opportunities to participate in community life outside the workplace. When one takes these aspects of social equality seriously, they have implications for a wide array of employment law doctrines.

This Article offers a social equality theory of individual employment law. It draws on my earlier work that offered a similar theory of employment discrimination law. (8) In that earlier work, I argued that employment discrimination law serves the goal of advancing social equality. Although employment discrimination law imposes undeniable costs on employers, I argued that those costs are justified because employers can properly be required to forgo some profit to avoid contributing to a system of social inequality. A very similar argument, I contend, provides a justification for individual employment law: Individual employment law can profitably be understood as pervasively promoting social equality. And specific employment law doctrines can profitably be elaborated, assessed, and critiqued by reference to that conception of equality.

When applied to employment discrimination law, the notion of social equality has had a distinctly group-oriented cast. In my own work on employment discrimination and social equality, for example, I argued that antidiscrimination law should be understood as ensuring that socially salient racial, gender, disability, or other groups do not experience stigma or systematic disadvantage. (9) That, I explained, is what justifies the law's protection of particular classes and prohibition of particular classifications. (10)

But outside the antidiscrimination precinct, individual employment law does not protect particular axes of identity. Its protections are, in an important sense, universal. (11) The social equality that individual employment law can protect is also universal. It targets not merely those practices that entrench caste-based deprivations but also those practices that would tend to undermine any worker's status as an equal to her employer, boss, or supervisor. The application and effects of employment law may be especially important for people in lower socioeconomic classes--the social equality project seeks to ensure that hierarchies of work do not harden into class-type hierarchies of person. But the project extends more broadly than simply redistributing from a disadvantaged class. When we explore the application of employment law outside the discrimination context, we will find that concerns about social equality--although not named as such--lie at the heart of the questions the doctrine asks and answers.

This is not to say that employment law's rules, as currently structured, always do promote social equality. Indeed, one of the benefits of a social equality focus is that it offers a critical lens through which we can examine current doctrine. When viewed through that lens, many of today's employment law rules come up short. But a focus on social equality helps to show that the seemingly disparate critiques of a wide array of doctrines can be profitably understood as stemming from the same underlying goal. Although the general principle of social equality can hardly dictate answers to specific doctrinal questions, it can orient critiques of the current doctrine and ground a case for reform. Or so I hope to show.

The social equality theory differs in significant ways from the two leading normative approaches to employment law in the literature. One approach, exemplified by the work of Stewart Schwab and Alan Hyde, argues that individual employment law is justified if, and to the extent that, it serves the goal of economic efficiency. (12) Employment law rules should thus be explained, assessed, and if necessary reformed, based on whether they make labor markets more efficient.

In line with that argument, employment law scholarship fairly drips with economic-efficiency analysis. The number of employment law articles relying on economic arguments is far too numerous to cite--or even to count. But there are a couple of telling data points: A leading casebook on employment law uses economic efficiency as its first "strong unifying theme[ ]," and it "uses economics to relate seemingly disparate issues and to explore issues in a rigorous way." (13) Leading defenses and critiques of employment law's baseline principle--the at-will rule--rely heavily on economic analysis. (14) Indeed, one can find leading scholars offering economic analyses of virtually any employment law problem. (15) Although much scholarship relating to particular employment law issues continues to take the form of traditional doctrinal analysis, it is fair to say that economic efficiency provides the only overarching normative theory of employment law.

The other approach argues...