56 Pages Posted: 30 Jan 2013 Last revised: 25 Sep 2013
Date Written: January 2013
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is justified as preventing employers from contributing to or entrenching social status hierarchies — and that it is justifiable even if it imposes meaningful costs on employers.
The paper argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates the point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment-at-will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Keywords: Employment Law, Employment Discrimination, Workplace Privacy, Employee Speech
JEL Classification: K31
Suggested Citation: Suggested Citation
Bagenstos, Samuel R., Employment Law and Social Equality (January 2013). Michigan Law Review, Vol. 112, No. 2, 2013; U of Michigan Public Law Research Paper No. 306; U of Michigan Law & Econ Research Paper No. 13-002. Available at SSRN: https://ssrn.com/abstract=2208883 or http://dx.doi.org/10.2139/ssrn.2208883