In Work Law’s Domain, Professor Ryan Nelson reveals our general “blindness” about who and how many people are really covered by work law generally and employment discrimination law in particular. (P. 60.) As Professor Nelson notes early in the piece, “this Article begins with a frightening claim: no one actually knows how illegal employment discrimination is in the United States.” (P. 59.) This is a startling claim and one that is fully developed over the course of the piece.
This article is superb because it is one of the few recent pieces of worklaw scholarship which provides a broader review of one of the pressing problems in this area – society and academia’s lack of a complete understanding of how to define the field. Rather than parsing particular parts of statutes or legislation, this Article performs the wonderful job of exploring how all the pieces (sometime fail) to fit together. This matters, Professor Nelson argues, because the “opacity of work law’s domain” makes it more difficult to understand, regulate, legislate, and improve that law. (P. 62.) This inability to fully regulate, legislate, and improve the area of labor and employment law has led to (arguably many artificial) constraints in this field.
Professor Nelson focuses on Title VII of the Civil Rights Act of 1964 – more specifically that it defines “employer” to mean only a person “who has fifteen or more employees for each working day” in at least twenty “calendar weeks” in “the current or preceding calendar year,” 42 U.S.C 2000e(b), and who is not otherwise exempted. He notes the estimates of employment discrimination which rely on this statute as well as “the sub-federal laws that fill Title VII’s gaps or Title VII’s myriad other exemptions.” (Pp. 62, 74.) Professor Nelson synthesizes this data and extrapolates from it to other areas of workplace law. In this way, he reveals how much we do not know the answers to basic questions, such as “’How many workers are protected against employment discrimination?’ ‘How many workers enjoy a right to earn a living wage?’, and ‘How many workers are guaranteed a safe workplace?’” (P. 62.)
Professor Nelson then explains how this lack of understanding causes tremendous problems, more specifically: an inability to effectively legislate or regulate; a difficulty of reporting in this field which can result in misinformation; a question over how to interpret religious objections; and how judges apply “major questions” doctrine to employment regulations. The paper provides a detailed analysis of each area, convincingly demonstrating the nature of the problem that has been created by our simple lack of understanding of the law.
After explaining the nature of the issue, and fully demonstrating how the confusion in this area has resulted in numerous ongoing problems, Professor Nelson goes a step further in discussing the best way to address the issue. He suggests that we reconsider how work law is measured, and explores what units of measurement might be used, discussing possible drawbacks of any particular measure. Professor Nelson carefully explores how – given this new understanding of the problem – the scholarship can more fully fix the problem. He notes the “heavy lift of mitigating these substantial problems via quantification of work law’s domain” that needs to be fully carried out for subsequent scholarship and analysis. (P. 62.) He therefore performs a superb job of setting the stage for future scholarship to address the problem. And hopefully, much of that future scholarship will come from Professor Nelson himself as he continues his research in this area.
While in some ways exploring this topic might seem academic in nature, the impact is far broader and can help guide claimants and practitioners in this area as we all grapple with how to more neatly define the scope of labor and employment law. For example, much of the litigation that the judiciary currently examines in the courts with respect to worklaw often explores basic questions of scope and coverage. Additionally, Professor Nelson’s work will certainly influence my own research on society’s struggles and current challenges surrounding dignity and work, because a basic question underlying those struggles is the scope of worklaw itself. Professor Nelson’s piece serves as an important reminder that there are many areas that worklaw may not currently touch – this does not make the importance of the proper treatment of workers or the obligation to provide dignity in employment any less important for individuals that may not fall outside of worklaw’s coverage. The more clearly we can define this area of the law, the better chance we have of providing protections and dignity to these workers across the country.
In short, Work Law’s Domain is extraordinarily well researched and exceptionally well written. It will serve to establish the new standard for society and the academy’s struggles in defining workplace law. As he appropriately concludes his piece, “[o]vercoming the many and substantial problems inherent in quantifying the breadth of work law would be a Herculean – possibly Sisyphean – task, but it would [be a] worthwhile one. Hopefully, this Article clears the path forward towards the ultimate goal of mapping the reaches of work law’s domain.” (P. 117.)
