Why Joining a Union Should Be a Civil Right

The law, lawyers, and the court.
April 3 2012 4:30 PM

What MLK Would Do

How to make labor organizing a civil right.

Martin Luther King Jr.
Martin Luther King was in Memphis to support a strike by sanitation workers when he was assassinated 44 years ago

Photograph by AFP/Getty Images.

Wednesday marks the 44th anniversary of the murder of Dr. Martin Luther King Jr. in Memphis, Tenn., where he’d gone to support a strike by black sanitation workers. In talking with the strikers, King suggested they were “going beyond purely civil rights questions to questions of human rights” by raising “the economic issue.” People should have the right not only to sit at a lunch counter but also the right to afford a hamburger, he told the audience.

More than four decades later, while progress on King’s vision of racial justice is hardly complete, the United States has become a far more racially inclusive society. By contrast, we’ve lost ground on reaching the goal of economic justice, as inequality has reached record heights.  Along the way, the American labor movement King traveled to Memphis to support has essentially collapsed, representing just 7 percent private sector workers, compared with more than one-third in the 1950s.

Why has the nation advanced on King’s vision of racial equality and moved backward on his goal of economic equality? In part, the different trajectories can be explained by the difference between the laws governing civil rights and labor organizing. Compare the records of the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, and you see that the former has done little to protect workers while the latter has been quite successful in diminishing discrimination.

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The Civil Rights Act imposes powerful penalties on employers who discriminate on the basis of race, sex, national origin, or religion. It was updated in 1991 so that remedies for employees would include not only back pay but compensatory and punitive damages up to $300,000. Civil rights laws also allow plaintiffs to get discovery—to compel witness testimony and ask for documents, and give them access to jury trials. And when plaintiffs win in court, defendants have to pay up to double the hourly rate for their attorneys’ fees.

The NLRA made it illegal to discriminate against employees for trying to organize a union, because lawmakers recognized that firms should not be allowed to use their power to intimidate workers. But the penalties in the law are weak. An employer who violates it must reinstate fired employees and give them with back pay, but that’s it. The NLRA also doesn’t provide for jury trials and affords little opportunity for discovery. In the end, the law gives businesses a strong incentive to ignore it. As labor lawyer Thomas Geoghegan writes: “An employer who didn’t break the law would have to be what economists call an ‘irrational firm.’ ”

It’s time to bolster the NLRA by expanding the Civil Rights Act to add protection for employees seeking to organize a union. Just as it is illegal to fire someone for race or gender or national origin or religion, it should be illegal under this law to fire someone for trying to organize or join a union. Why include protection for labor organizing in a statute that protects people based on  characteristics such as race or national origin? Three reasons:

First, labor organizing is a basic human right, bound up with the critical democratic right to association. In a democracy, people have a right to join together with others to promote their interests and values. The Civil Rights Act applied the 14th Amendment’s guarantee that the government can’t irrationally discriminate to private sector employers. Adding to it a provision for labor organizing would likewise extend the First Amendment right of to employees in the private sector.

Second, organized labor fights for the principle that individuals should be treated with decency, a core value of the civil rights movement. And because African-Americans and Latinos are disproportionately working-class, they have much to gain from a stronger union movement.

Third, stronger unions, by protecting employees against arbitrary dismissals in general, can be a shield against the type of racial and gender discrimination that is forbidden by the Civil Rights Act. Most employees currently work “at-will”: they can be fired for “good cause, bad cause, or no cause.” Unions help protect against unfair firings that may be rooted in bias; they also help address employee grievances in the workplace, including complaints about race and sex discrimination. 

The Civil Rights Act is a national success story. It’s time to broaden its protections to workers who want to join a union.

Moshe Z. Marvit, a labor and employment-discrimination lawyer, is co-author of Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy By Enhancing Worker Voice.