ENDURING EXCLUSION.

• Author: Steele, Daiquiri J.

TABLE OF CONTENTS INTRODUCTION I. HISTORICAL EXCLUSIONS TO "UNIVERSAL" LEGISLATION A. The Legal and Political Landscape of the New Deal B. The FLSA's New Deal Predecessor Statutes C. The FLSA's Exclusion of Agricultural and Domestic Workers D. Inclusion Through Amendment (as Usual) E. Modern Exclusion II. DISPARITIES IN VIOLATION AND RETALIATION A. Violation Disparities B. Retaliation Disparities C. Disparate Coverage III. ANTIRETALIATION REFORM: AN INTEGRAL PART OF THE CIVIL RIGHTS AGENDA A. Litigation and Administrative Enforcement B. Education C. Legislative Advocacy 1. Inclusion of Interference Clauses 2. Exclusion of Statutory Employment Rights from Mandatory Arbitration Agreements 3. Reporting by Employers and Federal Agencies CONCLUSION INTRODUCTION

Civil rights lawyers have effectively used employment discrimination legislation to advocate for those experiencing discrimination. Statutes like Title VII of the Civil Rights Act of 1964, (1) Section 1981 of the Civil Rights Act of 1866, (2) and Section 1983 of the Civil Rights Act of 1871 (3) have been treasured tools in the civil rights arsenal for combating discrimination. While these statutes are not without their faults, they have been the traditional statutes invoked in civil rights lawsuits seeking to redress discrimination in employment.

Minimum labor standards statutes have been less utilized by civil rights lawyers as a means of redressing the subordination and exploitation of traditionally marginalized groups. (4) These statutes set minimum criteria by which covered employers must abide regarding pay and working conditions. Although these statutes are facially neutral, employers violate these statutes in ways that harm members of traditionally marginalized groups.

The Fair Labor Standards Act of 1938 (FLSA) (5) establishes a federal minimum wage and maximum hours, among other provided protections. (6) Nevertheless, wage theft abounds, with disparities driven by race, ethnicity, and gender. Occupational segregation contributes to this disparity, as workers in low-wage jobs experience a disproportionate level of wage theft. (7) Although Black and Latinx workers jointly comprise nearly one-third of American laborers, (8) they are overrepresented among low-wage workers, comprising 40 percent of these workers. (9) Moreover, low-wage workers are disproportionately female, with women comprising 54 percent of the low-wage workforce. (10)

The Occupational Safety and Health Act of 1970 (OSH Act) (11) provides safety standards and establishes a general duty for employers to maintain a work environment free from recognized hazards that may cause physical injury or death. (12) Despite the universalist nature of the OSH Act, racial and ethnic minorities and women are more likely to suffer occupational injuries. Black and Latinx workers are also more likely to die on the job than other workers. (13) In 2019, there were 5,333 workplace trauma deaths, representing a 2 percent increase from the previous year. (14) Additionally, there has been a 10.3 percent increase in overall deaths from 2015 to 2019. (15) However, there are glaring disparities in the increase in deaths among different racial and ethnic groups. The rate of workplace trauma deaths increased 20 percent for Hispanic or Latinx workers, 28 percent for Black workers, 56 percent for Native Hawaiian workers, 59 percent for Asian American workers, and 1.7 percent for White workers. (16)

While neither the FLSA nor OSH Act are considered antidiscrimination statutes, they play a pivotal role in in the economic well-being of workers. Disparities regarding compliance with and enforcement of these laws' protections inevitably lead to disproportionate benefits to workers. Inequitable application of these laws converts a facially universal law into a mechanism for discrimination. To truly bring about economic justice, both employment discrimination and minimum labor standards laws must be enforced in tandem, and racial and gender disparities regarding which employees experience violations of these laws must be eliminated.

A medley of statutes seeks to protect workplace rights, and these statutes, though divergent in many ways, share one common element--a prohibition against retaliation. Once regarded as bulwarks aimed at fortifying rights created by statutes, statutory antiretaliation provisions were broadly interpreted by the courts in an effort to maximize protections. However, courts' interpretations of these provisions have made it more difficult for retaliation victims to bring and prove retaliation claims.

In August 2020, twenty-one U.S. senators sent a letter to the U.S. Department of Labor (DOL) expressing concern about a recent research study that highlighted racial and ethnic disparities in how workers experienced employer retaliation. (17) The study, conducted by the National Employment Law Project (NELP), found that Black and Latinx employees are more likely to experience retaliation for reporting occupational safety and health concerns related to the pandemic than White workers. (18) The letter stressed the importance of holding employers accountable for retaliation and aptly noted that without safeguards against retaliatory behavior, "employers will be free to silence and punish Black and Latin[x] workers." (19)

The senators' concern about employers eroding workplace rights through retaliation is well-founded. Actual retaliation and the fear of retaliation are primary reasons for the underenforcement of workplace laws, regardless of whether these laws pertain to antidiscrimination or labor standards. (20) The typical rationales for employer retaliation include punishing employees for asserting rights or reporting misconduct, discrediting these employees, and deterring other employees from attempting to bring about compliance with these laws. (21) One would expect an employer to utilize these rationales equally against all similarly situated employees. However, racial and gender disparities concerning which employees are punished, discredited, and used as examples to deter others, (22) indicate that racial and gender bias are additional drivers for retaliation.

As a result, this Article illustrates the deceptive "universality" of labor standards statutes. It describes the disparities female workers and workers of color suffer in pursuing claims under these statutes and under their corresponding prohibition on retaliation. Because enforcement of this regime implicates core questions of discrimination and access to justice, this Article argues that securing compliance with minimum labor standards legislation and antiretaliation reform should form an integral part of the civil rights agenda.

Part I examines the inability of people of color and women to benefit from economic legislation from a historical lens. It explains how these groups were carved out of labor protections through legislative maneuvering and illustrates how coverage exemptions and unequal enforcement diluted the universality of these laws.

Part II examines contemporary racial, ethnic, and gender disparities in both the violation of minimum labor standards laws and employer retaliation for having engaged in protected activity under these laws. It explores how systemic racism and sexism have made workers of color, female workers, and those at the intersection particularly vulnerable economically, and how this vulnerability may lead to these workers' acceptance of substandard working conditions and a heightened fear of employer retribution for asserting labor rights. It discusses the rationales for employer retaliation and how disparities with respect to which employees are retaliated against alter the conversation about these motivations.

The salience of antiretaliation reform to the civil rights agenda is discussed in Part III. This Part describes the centrality of antiretaliation laws to the civil rights project generally and discusses the strengthening and subsequent weakening of antiretaliation protections through judicial interpretation. It describes the need for interventions to assure robust antiretaliation protections and the urgency of pursuing these protections through litigation, education, and legislative advocacy.

1. HISTORICAL EXCLUSIONS TO "UNIVERSAL" LEGISLATION

   This Part traces the historical exclusion of workers of color and female workers through the twentieth century. It explains the discriminatory origins of coverage exemptions in certain workplace statutes and examines the lingering effects of these exclusions.

   Though minimum labor standards legislation is considered universal legislation, that has not always been the case. Indeed, laws that appear universal on their face can exclude disproportionate numbers of members of protected classes through devices like coverage exemptions and inequitable enforcement. Such was the case with numerous statutes passed during the New Deal. President Franklin Roosevelt's New Deal produced legislation aimed at providing economic security for Americans. However, racial minorities and women were systemically excluded from benefiting from this legislation through exemptions by industry and sector. Specifically, the lack of a discrimination proscription in the legislation and limited statutory coverage prevented minority groups from benefiting. Particularly with respect to the FLSA, the exemptions of agricultural and domestic workers from minimum wage and overtime pay protections had a devastating impact on the economic conditions of racial and ethnic minority workers.

   A comprehensive understanding of the FLSA's agricultural and domestic exemption and its effect on racial minorities and women requires examination of both the political and legal landscape of the New Deal era, as well as the FLSA's New Deal predecessor statutes, including the National Industrial Recovery Act of 1933 (NIRA), (23) the Agricultural Adjustment Act of 1933 (AAA), (24) the Social Security Act...