The New York Times runs a very….peculiar op-ed today that actually marries labor and employment law.   The authors of the piece argue that the “right to organize” a labor union should become a “protected class” under Title VII.  Here is the crux of their argument: 

Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.

The labor and civil rights movements have shared values (advancing human dignity), shared interests (people of color are disproportionately working-class), shared historic enemies (the Jim Crow South was also a bastion of right-to-work laws) and shared tactics (sit-ins, strikes and other forms of nonviolent protest). King, it should be remembered, was gunned down in Memphis in 1968, where he was supporting striking black sanitation workers who marched carrying posters with the message “I Am a Man.” Conceiving of labor organizing as a civil right, moreover, would recast the complexity of labor law reform in clear moral terms. 

Well, the authors deserve some credit for creativity, if nothing else.   The problems with this proposal however would be numerous.  First, there would be a practical concern — how would this exactly be enforced?  There is already a major concern from the employer community that many EEOC charges are frivilous and waste an enoromous amount of employer resources.   One can almost imagine the charges where somebody once talked about organizing a union and that person is otherwise fired for legitimate reasons (i.e. he/she is a bad employee, doesn’t come to work, commits a crime, etc.) — but now claims that he was terminated for his union organizing.   Sure, the employer might win the EEOC charge, but that doesn’t take into account the very real costs involved in defending against those charges, even the ones that have absolutely no merit.

Practical concern number two — how would the EEOC handle what would almost assuredly be a massive influx of charges?  Those of us who litigate EEOC claims are already used to very long backlogs (through no fault of the agency mind you.  They do the best they can with limited resources).  Would it even be fair to add another “protected class” without giving the EEOC more resources to work with here?

Beyond the practical, this change would almost certainly require a change in labor law preemption.   The NLRA has a powerful preemption provision and just about anything having to do with labor unions ends up on the NLRB’s plate.

And beyond that, I think it’s fair to ask the most obvious question: is the “right to organize” really is on par with the other protected classifications in Title VII?   We have many rights found in various laws, but those contained in Title VII are sacrosanct and deal mostly with characteristics that people cannot change about themselves — their national origin, race, sex, etc.  Is the right to join a labor union really on par with these types of characteristics, especially since union membership is largely voluntary?