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The Nature of Workplace Rights

15526Katherine Turk, author of Equality on Trial: Gender and Rights in the Modern American Workplace, joins us for a guest post today. The first history to foreground Title VII's sex provision, Equality on Trial examines how the law's ambiguity fostered competing notions of sex equality. Title VII's initial promise inspired a generation of workers and activists to dispatch expansive definitions of sex-based rights, engaging the law to generate a pivotal battle over the terms of democracy and the role of the state in all labor relationships. But conservatives found ways to bend Title VII's possible meanings to their benefit, laying the legal and cultural foundation for the neoliberal work regimes that helped some women to break the glass ceiling as employers lowered the floor for everyone else. Synthesizing the histories of work, social movements, and civil rights in the postwar United States, Equality on Trial recovers the range of protagonists whose struggles forged the contemporary meanings of feminism, fairness, and labor rights.

Workers’ rights got a big boost late last month when the Seventh Circuit Court of Appeals ruled that companies cannot prevent employees from banding together in legal disputes.  Jacob Lewis had accused Epic Systems, a healthcare software firm, of misclassifying him and other technical writers to deny them overtime pay.  Epic Systems rebuffed Lewis’ collective claim, pointing to a new company policy that required him and his fellow writers to pursue their grievances as individuals.  The Court determined that this policy violated the 1935 National Labor Relations Act (NLRA), a law designed to enable workers to identify common interests and act together.  The right to challenge an employer before the law, the Court ruled, is in part a collective right.

Lewis v. Epic Systems Corporation involved a uniquely twenty-first century group of workers.  But fifty years ago, Title VII of the Civil Rights Act of 1964 stirred up a related debate about whether workplace rights belong to groups as well as individuals.  One of the most important labor laws of the past century, Title VII outlaws discrimination on the basis of personal characteristics such as race, religion, and sex. 

Some scholars have framed Title VII as a conservative measure that encouraged workers to replace collective labor rights claims inspired by New Deal-era laws like the NLRA with more individualistic demands.  My book, Equality on Trial: Gender and Rights in the Modern American Workplace, departs from these accounts by examining how Title VII inspired workers to claim expansive sex-based rights.  Bridging race and class divisions, these employees identified common concerns and joined together to confront some of America’s largest corporations. 

Women waged one such battle at the New York Times in the 1970s.  Through a campaign designed to draw strength from its numbers, white-, pink-, and blue-collar workers accused the paper of a range of violations: blocking routes to upward mobility for reporters and editors, forcing classified advertisement saleswomen to endure long and inflexible shifts, and subjecting janitors to harsh working conditions.  In a 1972 presentation to her female coworkers, the New York Times Book Review picture editor Grace Glueck emphasized gender solidarity, “from copy girls and stenographers to those who hold managerial jobs. Because, make no mistake about it, we’re all discriminated against.”

But the “Timeswomen” shifted and delimited their campaign as they sought to build a case they could win.  Their attorneys came to highlight the relative elites among them who required equal treatment as individuals and downplay the more substantive changes their working-class members favored.  Their 1978 settlement granted a modest annuity to each class member and promised to boost women’s access to professional jobs.  The workers’ more focused strategy, which paid off in bringing the Times to the bargaining table, was likely their best way to win any concessions.  But through campaigns like theirs, the consensus definition of state-enforced sex equality shrank as it took shape—individualizing solutions, placing professional women and managers in agreement, and closing off the concerns of minority and pink-collar workers who demanded collective advancement and systemic transformation. 

This narrowing of notions of workplace equality has set working-class and professional women on different, yet equally troubling, trajectories.  The law’s tightening focus on discrimination as a problem endured by individuals has frustrated working-class women’s collective efforts.  For at least the past two decades, for example, women have accused Walmart Corporation of systemic sex discrimination.  Initially, they sought to build a massive class action, alleging that nearly 1.5 million current and former Walmart women had all experienced lower pay, diminished promotion opportunities, and sexist culture.  But the U.S. Supreme Court ruled in 2011 that they could not be treated as a single class.  Justice Antonin Scalia wrote that the discrimination they described was not sufficient “glue holding…together” the “literally millions of employment decisions” the women experienced one by one. Two years later, a smaller group of West Coast Walmart women met a similar fate.  While working-class women have consistently looked to Title VII to deliver collective workplace justice, courts have come to treat sex discrimination as a matter of personal sexist intent, not the output of sexist institutions.

By contrast, the professional women who traveled the roads of advancement paved by Title VII have tended to face sex-specific obstacles alone. Once they arrive in male-dominated spheres of work, women encounter sexist corporate structures that remain unspoken and unaddressed.  Most employers have not adjusted their expectations since the days when a male professional could be counted upon to have a full-time housewife supporting him at home.  Women in these jobs find they must sacrifice or hide the same domestic commitments that make men appear as devoted breadwinners.  A recent outpouring of memoirs and self-help books have broadcasted this stress, describing female professionals as “overwhelmed,” “maxed out,” and “on the brink.”  Yet these dramatically titled texts tend to offer individualistic solutions, admonishing women to “lean in” to corporate jobs and adopt new “confidence” and “self-assurance”—contorting themselves to fit the work instead of demanding transformation of the work itself.  These class-specific workplace feminist politics have sundered the coalition of professional and pink-collar workers that once identified shared problems and solutions.  

For now, the technical writers in Lewis v. Epic Systems have regained their right to join together.  But their victory conflicts with a 2013 opinion issued by the Fifth Circuit Court of Appeals, and the U.S. Supreme Court may soon weigh in to resolve the matter.  The past half-century of efforts to define workplace equality reveal that if rights are to be substantive, workers should imagine them, and courts must affirm them, as collective.  As long as workers are pitted against each other as individuals in the name of equality, meaningful change will remain elusive.