LABOR FEBRUARY 16, 2014
It’s the fiftieth anniversary of the Civil Rights Act and here is what it needs as a birthday present: a big push to strengthen unions—the institutions best positioned to help African American and Latino workers more fully enjoy the American Dream.
The Civil Rights Act of 1964 was a monumental advancement in human freedom that helped forever change American culture. But a half-century after its passage, black median income, wealth and employment remain depressingly low.
One important explanation is that just as outright racial discrimination began to decline, African Americans were disproportionately hurt by a new rising tide of discrimination based on union organizing. As Lyndon Johnson was imploring Congress to outlaw discrimination based on race, color, sex, religion and national origin, the nation was already beginning to experience a dramatic decline in union density, from approximately one third of all private sector workers in 1964 to less than 7% today.
Organized labor’s collapse is usually attributed to technological changes and the rise of globalization, but those explanations are incomplete. Freedom House has found that the United States is an outlier among industrial democracies in failing to protect labor rights. Other advanced nations, also subject to the forces of globalization, have significantly higher unionization rates because their laws and culture honor worker rights.
Those protections used to be embedded in the American social contract. In the 1950s, when labor was strong, there was a cultural norm of not firing people simply for trying to join a union. There was a bipartisan acceptance of labor. Republican President Eisenhower recognized that "Workers have a right to organize into unions and to bargain collectively with their employers. And a strong, free labor movement is an invigorating and necessary part of our industrial society."
However, beginning in the 1960s, employers significantly increased their discrimination, openly flaunting weak laws that protect labor rights. Where anti-union consultants used to be minor players, by 2004 76% of employers hired such consultants prior to a union election, making such anti-union work a $4 billion-a-year industry. Indiana law professor Kenneth Dau-Schmidt has found that between 1955 and 1978, the number of complaints brought before the NLRB increased from approximately 6,000 to 40,000. Similarly, Harvard law professor Paul Weiler found that between 1957 and 1980, the number of employees entitled to reinstatement after being fired for their union activity increased 1,000%. Employers have discovered that the best way to stop a union organizing drive in its tracks is to fire the ringleaders and scare everyone else. Although this is technically illegal under the National Labor Relations Act (NLRA), employers pay the small penalties assessed as a cost of doing business.
Essentially, we’ve seen a major cultural flip: While it used to be unacceptable to fire based on union participation, and acceptable to fire based on race, today, employers are reluctant to openly discriminate based on race, given the social stigma and legal sanctions associated with violating the Civil Rights Act. But firms routinely discriminate against people trying to form a union, and few people outside the labor movement raise concerns when individuals are illegally terminated.
This rise in union discrimination and decline in union membership hurts all workers, but it hurts African American workers disproportionately. At the precise historical moment when blatant racial discrimination began to wane, black workers began to lose what had been for white workers a key ladder enabling social mobility: access to a union job with good wages.
Researchers at the Center for American Progress have found that the decline in the percentage of unionized workers tracks very closely to the decline in the share of the nation’s income that goes to the middle class. Moreover studies have shown that the wage premium accompanying union membership is highest for African Americans, women, and people of color. Because collective bargaining contracts reduce employer discretion, racial and gender discrimination is generally lower in workplaces where employees have union representation.
Indeed, the one realm where African Americans have done particularly well is the public sector, which has seen a dramatic rise in unionization since the 1960s. As importantly, unions provide a strong counterweight in the political process against corporate firms, fighting on behalf of better health care, schools, and minimum wage policies—as well as civil rights legislation—all of which disproportionately benefit African Americans.
What is to be done? To reduce discrimination and to give genuine choice to workers, the Civil Rights Act of 1964 should be updated to outlaw the firing or demotion of employees for union organizing activities. This would help advance the original goal of the Civil Rights Act— reducing racial discrimination and broadening the black middle-class—while also helping workers of all colors. And amending the Civil Rights Act to help protect workers trying to unionize offers two critical advantages over existing labor laws.
First, sanctions under the Civil Rights Act pack more punch than those under the National Labor Relations Act. An employee wrongfully terminated under labor laws gets back pay and reinstatement, while those wrongfully fired under the Civil Rights Act get much more: injunctive, compensatory and punitive damages in federal court. These penalties can have an important deterrent effect on employers.
Indeed, research by Stanford University’s Gavin Wright finds that the Civil Rights Act had a significant beneficial economic effect for African Americans in the region of the United States most blighted by discrimination. In the South, Wright found important gains, especially in the large southern textile industry. From 1930-1964, the percentage of African American males in the South Carolina textile industry hovered around 5%, and the percentage of African American females was virtually zero. However, starting after the passage of the Act, the number grew precipitously, such that by 1981 the textile industry workforce was 19% African American male and 15% African American female. Beyond textiles, the data on Southern cities similarly bears out Wright’s conclusion that the Act led to increased levels of employment and upward mobility for African Americans on a regional basis. For example, in 1960, the percentage of black managerial employees in Charlotte, Atlanta, and Birmingham was 4%, 4.3%, and 7% respectively. By 2000, the figures were 16.2%, 23.9%, and 50.3% respectively.
Second, connecting a worker’s right to organize with the Civil Rights Act could revive the stigma that was once associated with union busting. “One of the great achievements of the Civil Rights Revolution,” Harvard Law professor Randall Kennedy has written, “was its delegitimization of racial prejudice.” Indeed, it did so in a surprisingly rapid pace. As Wright notes: “acquiescence in the Civil Rights revolution has been so complete, at least in public discourse, that it is difficult to find white southerners willing to acknowledge, much less explain and defend their earlier choices.” It is now considered shameful to be found guilty of violating the Civil Rights Act and employers hire human resource managers to avoid the prospect. Including labor protections under a civil rights rubric could help make discrimination against union organizers culturally unacceptable.
Just as labor unions were instrumental in helping gain passage of the 1964 act, civil rights groups should fight on behalf of this broader legislation to reduce discrimination based on union organizing. As Dr. Martin Luther King Jr. told the AFL-CIO in 1961, "the duality of interests of labor and Negroes makes any crisis which lacerates you, a crisis from which we bleed."