Beyond 'Best Practices': Employment-Discrimination Law in the Neoliberal Era

Abstract

Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of antidiscrimination ideals in the late twentieth century was intertwined with the deregulation of labor and with cutbacks in the welfare state. The Article argues that even “best practices” to prevent employment discrimination are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives. The legal scholarship on employment discrimination and the humanities scholarship on neoliberalism are ordinarily siloed. Placing these two literatures in conversation shows that the ideals underpinning Title VII of the Civil Rights Act of 1964 overlap with the major tenets of neoliberalism. Both affirm individual freedom, efficient markets, and judicially enforced negative rights. The conceptual convergence between Title VII and neoliberalism enabled employers, business trade associations, courts, and even liberal scholars to interpret the statute in ways that expanded managerial freedom and undermined workers’ economic security and control over the terms of their jobs. Drawing on novel historical research, this Article illustrates how this happened. In the early 1970s, employers litigated under Title VII to invalidate state laws regulating the hours and conditions of women’s work. Today, legal scholars commonly extol the end of these labor standards as marking the genesis of a contemporary prohibition on sex-role stereotypes. In actuality, the erosion of state protective labor laws represented the defeat of working-class feminists’ more capacious vision for sex equality. Through the 1970s and 1980s, furthermore, scholars argued that Title VII promoted efficient labor markets. This normative justification, however, had the unintended effect of foreclosing claims under the statute that sought not merely opportunity but also the transformation of labor-market structures. Failure to understand how neoliberalism and Title VII jurisprudence intersected historically leaves us blind to the ways in which employment-discrimination law may legitimate economic inequality. This has important consequences for contemporary legal theory. Dominant antidiscrimination theories--centered on antistereotyping and efficiency--reinforce the existing terms of the employment relationship and do not serve the needs of working-class women and men. This Article reveals the limits of antidiscrimination theory to remediate class-based subordination.

Keywords: legal history; employment discrimination; feminism; civil rights; class; labor