Introduction 108 I. American Workers and Racial Caste 112 A. Exclusion 112 B. Segregation and Desegregation 114 II. The Ku Klux Klan Act: Origin, Dormancy, and Rebirth 119 A. Reconstruction: Expansion of Civil Rights 120 B. Rise of Jim Crow, Fall of the Ku Klux Klan Act 123 III. Segregation and the Ku Klux Klan Act 129 A. Resurgence of White Supremacy 130 B. White Supremacy in the Workplace 134 C. Segregation and the Ku Klux Klan Act 137 1. The Legislative History of the Ku Klux Klan Act: Segregating Labor 138 2. A Typology of Cases Involving Racial Conspiracies in the Workplace 141 Conclusion 155 INTRODUCTION
As hate incidents increase in the workplace, individuals and employers face legal action--but not hate groups who incite and orchestrate attacks against minorities. Extreme attacks by white supremacists recreate conditions of racial segregation at work and in specific labor markets. When Congress passed the Ku Klux Klan Act in 1871, (2) they aimed to uproot white supremacist intimidation that forced blacks to work in a racial caste. Today, a growing number of extreme incidents show the U.S. is returning to work segregation. This study suggests a new way to apply the Ku Klux Klan Act to work-related racial conspiracies.
American workers have a dark history of insecurity over their livelihood. In the aftermath of the Civil War and decades later, some claimed racial superiority over freed slaves; (3) reviled Chinese coolies for their customs and hard work; (4) demonized Japanese who were imported for their labor; (5) subjected Mexicans to peonage; (6) slandered Jews; (7) and shunned Catholics. Their hatred of otherness fueled the politics behind the Chinese Exclusion Act, (8) Japanese exclusion provisions of the Immigration Act of 1924, (9) and National Origins Formula. (10) For nearly a century, many workers warped the beneficent purposes of their labor unions, (11) turning fraternal work organizations into monopolies for whites. By institutionalizing racial segregation, they limited labor market competition to their advantage. (12)
Courts curbed racial segregation in unions in the 1940s. (13) Since then, most unions have accepted racial equality. However, organized labor's connection to American workers has withered with declines in union membership. (14) More voiceless and adrift than any time since the National Labor Relations Act was passed in 1935, some workers have returned to their nativist roots. Racial demagogues have inflamed their grievances against immigrants, blacks, and other non-whites. (15)
This study is set to a deeper magnification--not the worker who proudly wears the red Trump baseball cap, not the worker whose bumper sticker proclaims "Make America Great Again," not the worker who attacks political correctness, nor the worker who favors broad immigration bans. Instead, I explore four types of racial conspiracies that are connected to a workplace. In each scenario, I examine where the conspiracy was formed, and where it was carried out, to see how white supremacists use the workplace to re-segregate America.
Type 1 is a racial conspiracy formed and acted on in a workplace. In a steel mill, an employee who was also a Ku Klux Klan leader showed a member-induction video to co-workers in a breakroom. (16) For years, the mill was permeated with racist symbols, insults, and starkly unequal treatment of whites and blacks. (17) The employer was sued for race discrimination. (18) But the white employees who conspired to drive minority co-workers from the workplace were not held accountable. My study shows how Section 1985(3) (19)--a surviving remnant of the Ku Klux Klan Act--would hold the Klan and its agents in this mill responsible.
Type 2 is a racial conspiracy formed outside but implemented in the workplace. A real estate agent was subjected to an intense barrage of deeply insulting and vaguely threatening messages that targeted her because she is Jewish. (20) A writer for the Alt-Right's tabloid, Daily Stormer, organized this online attack. (21) In effect, this online attack was a conspiracy among anti-Semitic followers to contact the real estate agent at work, drive off her business, and hold an armed march outside her office. She has filed a lawsuit against the Daily Stormer's writer alleging a violation of Montana's anti-intimidation law. (22) A Section 1985(3) action would pursue online conspirators, as well as Daily Stormer's sponsors, webmaster, and agents.
Type 3 involves a non-employee victim of a racial conspiracy that formed in a workplace. Several McDonald's employees planned during their late shift to bring a mentally disabled Navajo customer home after work. (23) At the apartment, they branded his forearm with a hot wire shaped as a swastika and shaved this symbol in his hair. (24) The attackers made several videos of this incident on their cellphones, (25) suggesting the possibility that they posted the incident to an encouraging online hate group. Police recovered Nazi paraphernalia at the scene. (26) The workers were convicted of a federal hate crime. (27) The victim and the Navajo nation, however, have had no recourse. By suing these employees under Section 1985(3), the victim and Navajos would have some possibility of exploring whether the perpetrators were aided by a hate group. This lawsuit would also determine whether the hate crime caused nearby Navajos to limit their movements by avoiding this restaurant or the town.
Type 4 is a racial conspiracy formed and implemented outside the employment relationship but intended to segregate a local labor market. Two white men, tattooed with Nazi symbols, lured two Mexican day laborers into work at an abandoned building. (28) Just as the laborers began the job, the white supremacists attacked them, inflicting life threatening injuries. (29) The conspiracy had a work connection; but the assailants were not employers, and the victims were not employees. The attack seemed to be intended to drive off immigrant laborers on Long Island. The assailants are serving lengthy prison terms, but the Mexican victims have had no recourse. A Section 1985(3) action would allow them to explore a connection between this racially motivated conspiracy and a hate group.
This study is not about racial harassment in the workplace. Title VII applies to these situations and involves employers. (30) Nor is this a study of criminal laws that are used against egregious offenders. (31) My study targets white supremacists who act in a conspiracy. For now, these groups--whether loosely-knit, or more formally organized--benefit from a gap in enforcement of laws that forbid racial segregation. When white supremacists conspire to deprive minorities of equal rights to earn a living and move freely in a labor market, they should be held accountable.
I propose a new approach: Ku Klux Klan Act lawsuits theorizing that work-related racial conspiracies have the purpose and effect of segregating work. This law targets racially motivated private conspiracies that deprive individuals of equal rights. Since 1883, courts have weakened the law. (32) However, the noticeable rise in white supremacist attacks against minorities in workplaces (33) create new and unexplored opportunities to apply the Ku Klux Klan Act. Section 1985(3) can be used to name a hate group, its leaders, website administrators, and other co-conspirators as defendants. My approach complements the nation's criminal hate crime law, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Among the law's findings, Congress determined that "[m]embers of targeted groups are prevented from... obtaining or sustaining employment...." (34) By proposing a civil law method to hold white supremacists and their groups financially responsible for imposing racial segregation in a workplace or a labor market, this Article advances congressional intent to ensure that labor markets and particular workplaces remain free of hate-driven barriers that affect targeted groups of people.
AMERICAN WORKERS AND RACIAL CASTE
Part I explores the white worker's constant anxieties about immigrants and blacks who were employed in their trades. (35) In Part I.A, I enlarge on the theme of exclusion--anti-immigrant terror and political campaigns against Chinese and Japanese workers. (36) While these efforts were not connected to the Ku Klux Klan, they drew from similar views of racial hierarchy and caste. (37) At the same time, as white workers organized locals and entered into contracts with employers, they segregated their unions and compelled employers to exclude blacks or limit their work opportunities. Part I.B examines this record. (38)
Following the Civil War, the nascent labor movement did not associate with the Ku Klux Klan; nor did the Klan seek out unions. However, Klansmen and sympathizers felt threatened by the abolition of slavery. In their world, slaves remained chattel rather than paid workers. (39) During this time, many labor unionists shared the Klan's belief that races could not mix in social situations, including work. (40) By 1869, the National Labor Union expelled all blacks. (41) As a result, the Colored National Labor Union was founded. (42) In a cruel irony, blacks who joined another union, the Knights of Labor, united with whites to oppose Chinese immigrants. (43)
The importation of Chinese laborers evoked labor protests and calls for legal restrictions. (44) White laborers agitated for an immigration ban. (45) Labor groups led protests against Chinese laborers, (46) and eventually institutionalized exclusion of "Orientals." (47)
The Workingmen's Party of California did much to advance racial caste in the workplace. After gaining control of Los Angeles municipal government, they passed taxes against Chinese businesses and individuals--for example, vegetable peddlers--to drive them out of town. (48) The same labor group, after gaining control of the California constitutional...