Anti-Discrimination Laws No Substitute for Unions
When I detailed new NLRB rulings that allow employers to fire workers for "fraternizing" with other employees, SamChevre in comments argued that such rules are used by companies "to protect themselves from sexual harassment claims. In other words, it's a collision of two progressive causes." With a recent California Supreme Court declaring that employers sleeping with employees is sexual harassment against other employees passed over for promotion, the case seems sound that banning dating under anti-discrimination laws is a good employer-protection measure.
Which is why such laws are a poor substitute for strong union protection in the workplace.
To be honest, while the California case is cutting edge litigation, workers in unions have been negotiating to eliminate such sexual favoritism for decades. In a post a few years ago, I wrote about the experience of cocktail waitresses in Las Vegas, who back in the 1970s suffered from just such favoritism, yet organized to demand that "stations" in a casino be allocated based on seniority, not on manager whims.
Instead of restricting employee freedom, the union solution was to restrict arbitrary management power to engage in favoritism.
Because litigation is so costly, such workplace-specific solutions are not encouraged in a purely litigation-based system, since there is no real negotiation between employers and employees. Instead, you end up just with measures to protect the employer, often at the expense of other employee benefits or rights.
This is the point of having a union, since all these costs and benefits are on the table during contract negotiations, so there can be a real discussion about those tradeoffs. And workers can demand that employers, not just employees, absorb some of the costs of improving workplace conditions, such as ending sexual harassment.
So instead of banning dating, you end up with banning management favoritism, which is the real root of the problem. And you then don't have a conflict between the progressive goals of employee camraderie and of ending sexual harassment.
Nathan, I don't want to accuse you of overreaching where you may not be, but for purposes of advancing the debate, are you suggesting that collective bargaining ends workplace harassment? If so, the courts are full of evidence to debunk that claim.
Workplace harassment is not about favoritism, not initially, anyway. It is about power, usually rooted in the harasser's insecurity in the presence of another gender, race, religion, or disability. Collective bargaining may draw substantive lines of conduct, create proecedural rules for resolving conflict, and seek to fairly allocate the costs of both. I am less sanguine about a labor agreement's immediate impact on individual sexism and racism (though collectivism can have significant benefits over time in these areas by promoting democratic ideals among workers).
Certainly, management favoritism may play a role in individual cases in protecting a favored harasser, or retaliating against a complainant. But I wonder how you think collective bargaining would resolve or prevent these issues, particularly if the protected harasser is a manager.
Further, a significant amount of harassment is not caused by supervisors, but rather by co-workers. Collective bargaining does little to prevent this. Indeed, if co-worker harassment is seen by the local as "within the family," the presence of the union may actually interfere with management's ability to alleviate co-worker harassment by blocking reassignments, transfers, and other necessary changes in working conditions.
Finally, intertwining the civil rights of a harassment victim with the necessarily majoritarian political process of collective bargaining leads to interesting results. In the right environment at the right time, union-management bargaining can effectuate a result that satisfies the complainant and punishes the harasser. But if the union decides there are larger issues on the table, it can elect not to process an individual's grievance in the name of a greater good. Such is the stuff of duty of fair representation claims against the union. A union that makes such decisions reasonably can avoid liability, but the "reasonableness" of the decision implicates majoritarian reasoning, as opposed to the enforcement of an individual's rights.
To be clear, I am not suggesting that unions cause or promote harassment. A good union local can and should hold management accountable, as well as educate its membership about the causes and costs of harassment.
But good management can and should do that, too.
August 4, 2005 6:53 AM | Reply | Permalink
Don't think that I'm arguing that anti-discrimination law is unneeded. Heck, it was needed if nothing else to end racist practices by a good size number of unions themselves.
And having the law as an alternative to collective bargaining is no doubt important in making sure that all negotiations SOLVE THE PROBLEM. The question is whether the solution is negotiated for the benefit of the rest of the workers or just for the benefit of the management.
And the raw reality is that the costs of litigation means that most workers never get the benefit of the laws. I recently had to review the recent history of discrimination claims in the 140,000-worker restaurant industry in New York City. I found it almost impossible to find a record of any litigation. No doubt some were settled out of court, but the basic answer from talking to people in government offices is that almost none of these cases get filed, despite rampant discrimination, including sexual harassment, in the restaurant industry.
Without a simple grievance procedure in a union context that protects you from retaliation for filing the claim, most workers don't have the confidence to even stand up for their rights.
So the answer for employers is do a few face-saving measures, document that they made "efforts" to stop discrimination in any form, but not really solve the problem.
Going back to my story of the cocktail waitresses in Vegas. It's not like the union was especially supportive of them when they started organizing, but the one thing the union gave them was confidence that no one could easily fire them for speaking out. And just the protection of free speech in the workplace from a union contract is half the battle against a lot of discrimination.
August 4, 2005 7:19 AM | Reply | Permalink
I would also argue that it's this kind of organizing by workers, congregations, students, and community organizations which made anti-discrimination legislation possible in the first place, and that without the organizing there to goive it teeth, the legislation borders on the useless.
(All of which is one of the many reasons I find the recent NLRB ruling allowing employers to ban worker "fraternization" during non-work hours so deeply troubling, since it seems aimed at making this kind of activity impossible, at removing not only the power to effect change, but also the right to assemble and handing over an unvbeleivable amount of power to managers in determining how workers make use of their time.)
August 4, 2005 9:25 AM | Reply | Permalink