Monthly Archives: April 2012

Labor Speech is Corporate Speech

Apr 23, 2012 Matt Bodie

Citizens United remains in the public consciousness long past the normal half-life for a Supreme Court decision.  The notion that “corporations are people” has become a punch line in a variety of contexts—proof of the absurdity of the Court’s opinion.  While the decision itself simply freed corporations from the constraint of political action committees in their election-related spending, it has engendered continued outrage and cynicism at both the political process and corporations themselves.  The fact that the opinion extended these rights to unions, as well, has received much less attention.  Perhaps more importantly, the decision has ramifications for the future of corporate and union political activity that are yet to be fully developed.  Two labor law scholars explore these ramifications in articles seeking to extend the principles of Citizens United to familiar labor law doctrines, with creative and thought-provoking results.

For Charlotte Garden, the Citizens United decision offers the opportunity to extend the argument she began in an early article¹: namely, that union speech deserves greater constitutional protection. In her Citizens, United piece, Garden uses the opinion as a springboard for reconsidering two significant restrictions on union speech: the prohibitions on union secondary activity and the objection rights of employees covered by union security clauses.  She argues that the distinction between “public-issue” picketing and boycotts (by groups such as the Westboro Baptist Church) and “economic” picketing and boycotts (by unions) is vulnerable in light of Citizen United, which held that the corporation’s motive is irrelevant to First Amendment protection.  Because both corporations and unions cannot be stopped from engaging in political speech, Garden suggests that union campaigns may be protected if they take on more public-interested oriented themes.  And she also points out that since Citizens United overrode the concerns of objecting shareholders to corporate political speech, that opinion undercuts the protections for employees who object to paying union dues that fund political speech. Although acknowledging that the analogy is “not an exact one,” Garden argues that protecting union objectors but not shareholder objectors is a tough distinction to maintain, given that in both cases speech rights are pitted against administrative burdens, but with differing results.

Benjamin Sachs explores this shareholder-employee distinction at length in Unions, Corporations, and Political Opt-Out Rights.  For Sachs, the symmetry of Citizens United in terms of union and corporate treasuries is a false one, given the asymmetrical opt-out rights.  Although quitting one’s job may seem a more significant burden than not investing in a stock, Sachs endeavors to show that, in terms of legal principle, the two burdens are more alike than has been appreciated.  Using philosophical notions of coercion, he argues that both the decision not to work and the decision not to invest have coercive features, and that in both cases economic power over certain economic opportunities is deployed to secure support for a political agenda.  He also points out that since states have significant control over the structure of corporate governance, there is no less state action in the corporate context than there is in the union context.  Rather than solving the asymmetry by liberating union treasuries, Sachs instead proposes that shareholder speech rights should be given more protection.  He discusses potential federal- or state-provided mechanisms for shareholders to remove their pro-rata share of assets from the pool of corporate money available for political speech.  He also argues that public employees should have the right to object to mandatory pension investments in funds that include corporate shares and, therefore, fund corporate speech.

Garden and Sachs do a nice job of problematizing the distinctions between corporate and union treasuries when it comes to political speech.  As they point out, economic power is used in both the union and the corporate context to secure support for political agendas.  However, I worry that their argument proves too much.  What do we do about other economic relationships?  The decision to purchase a car provides money for corporate political speech to the carmaker, as does the decision of employees to work for that carmaker.  Should consumers and employees have free speech opt-out rights, too?  It is hard to imagine where one might draw a principled distinction.

In my view, the best approach is to recognize that both unions and corporations engage in political speech to advance their economic interests.  SEIU did not support President Obama as an outside ideological lark; it supported him because it believed he would best promote its economic interests.  And its work paid off; during the time leading up to the passage of health care reform, no one had more access to the Oval Office than SEIU President Andy Stern.²  Because union representation is a heavily regulated industry, unions must give money to political candidates in furtherance of their economic interests.  Businesses understand this.³  Unions understand this as well.  It is the notion that political and representational funds can be segregated that needs to be pitched out the window.

Both Garden and Sachs have nicely used the Court’s analysis in Citizens United to raise questions about the future of corporate and union speech.  Their articles should push the Court to consider the ramifications of its decision beyond the immediate context.

Documenting What Really Goes on in the Workplace

Apr 9, 2012 Kerri Lynn Stone

Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write.  Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011).  The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”

Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.”  Simply put, it is “hostility that is devoid of sexual interest.”  Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination.  So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances.  This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like.  Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense.

The article begins with a thorough and thoughtful recitation of the relevant types of harassing behavior and the relevant legal history of and perspectives on that which is cognizable harassment.  It concludes that while not formally precluded from inclusion in the category of actionable sexual harassment, gender harassment has been “routinely . . . neglected by the law,” with many federal judges averse or even hostile to the idea that “anti-female animus,” unacted upon, was ever intended by lawmakers to run afoul of Title VII. It discusses the failure of researchers and the subjects of their studies alike to recognize gender harassment as sexual harassment or as being as pernicious as sexual harassment.  It explores the ways in which and the reasons why gender harassment is corrosive to so many women’s sense of wellbeing in the workplace, observing that it transmits a message to women “that they are inadequate, out of place, and unable to perform at the level of men.”

With all of this in mind, the researchers developed two hypotheses: 1) that gender harassment, absent unwanted sexual overtures, would be the most commonly experienced type of sex-based harassment experienced by women; and 2) that even when women experienced gender harassment without a trace of sex-based harassment, they would report negative professional and personal results.  Moreover, the researchers carefully selected two traditionally male-dominated workplaces as the backdrop for their studies: the U.S. military and federal legal practice.  Their findings were compelling: the most common type of harassment experienced by women in the military and in federal legal practice was, in fact, gender harassment without sexual coercion or attention.  As the researchers put it, gender harassment “is not about misguided attempts to draw women into sexual relationships; quite the contrary, it rejects women and attempts to drive them out of jobs . . . .”  Further, gender harassment absent sexual behavior was, in fact, shown to have numerous negative outcomes, including, among others, lower levels of performance at work, psychological well-being, and professional and personal satisfaction.

In light of Title VII’s broad remedial goals, the work of those like Leskinen, Cortina, and Kabat is essential to advancing the jurisprudence that will permit the law to comport with the realities of the modern American workplace.  There should be much more work like theirs to support and further thought and scholarship in this field.