University of Pennsylvania Journal of Labor and Employment Law
At such a crucial time in our history, major concerns exist regarding the viability of labor unions and the capability of employees to pursue racial justice in the workplace with any success. Continued improvement within both movements may depend upon finding a cohesive intersection between them. With the race and class divide affecting relations between organized labor and black workers (a dilemma which must be explored in more detail), this Article offers the thesis that there remains an area of opportunity for justice where interests of unions and black employees may coalesce: providing legal assistance to unrepresented black employees in pursuing their individual discrimination disputes with their employers.
Individual black employees, whether in unions or not in unions, need legal assistance in navigating the complex requirements to establish an employment discrimination claim under Title VII. As a result, unions can help black employees who are union members and those who are not union members in obtaining legal counsel and providing other assistance needed to pursue their discrimination claims effectively. If a particular union is unable to foster enough support to provide direct legal assistance to individual black employees because of the race divisions within its own ranks, it can allow racial identity coalitions, caucuses and associations within the union to allocate their dues directly for that type of legal assistance. Black union members can receive direct legal assistance from union lawyers, or as part of a general legal assistance plan made available to both black union members and, in general, to black employees who do not work in a union-organized environment. By addressing the legal assistance needs of union workers and the same needs for a significant and growing majority of non-union workers, unions can promote racial justice along a broader spectrum.
Under this thesis, unions and their black members may also obtain a fair balance along the race and class divide. Black union members can capitalize on the value of having their voices heard and their union dues used directly for racial justice through their black identity coalition. They can accomplish this while still working within the general union structure to maintain overall solidarity regarding class and salary issues with their employer.
In exploring this thesis, Part II of this Article reviews the problems for an unrepresented black employee trying to obtain racial justice in and out of the courts. It highlights the significant concern that individuals have in pursuing employment discrimination claims without adequate legal assistance and advice either in the court system or through informal alternatives to court adjudication. Part II also explains how the employees' inability to obtain legal counsel in discrimination claims represents a major opportunity for unions to make a contribution to racial justice by establishing a counterbalance to the employer counsel's repeat player advantage in resolving these disputes.
Then, Part III of this Article examines the urgency of the need for unions to embrace racial justice in some important form as the workplace becomes more diverse. Part III discusses the specifics surrounding the historical discrimination against blacks by unions. It also addresses the current concern that unions are taking up the fight in some instances to challenge affirmative action efforts to remedy discrimination. Despite this history and the current racial justice issues in the workplace that call for labor's action, battles about whether class versus race or vice versa should be the focus of organized labor have created stagnation and more division. Nevertheless, unions must face the racial division and harm that occurs as black union members continue to challenge workplace discrimination on an individual basis with little legal or other support from their unions. Some of these unions even exacerbate this lack of legal help and their racial divisions by using their black members' union dues to take legal action to stop affirmative action efforts intended to combat race discrimination against blacks, which were offered for the benefit of those same black union members. With this backdrop, Part III of the Article asserts that it has become of paramount importance for unions to embrace racial justice as they owe it to their black members who have faced such a long history of exclusion.
Part IV of this Article proposes the matching of a black employee's significant need for legal assistance in pursuing an employment discrimination claim with the ability of unions to fulfill this need. With their collective power, unions and their black members can creatively establish legal service plans for black employees needing legal assistance. By taking on this legal assistance, unions can seek racial justice by relying on union dues and support from black identity caucuses, coalitions, and associations within organized labor. This allows a focus on race to exist under a unifying theme for unions and their black members without distracting the union membership from pursuing its general class improvement goals.
In Part V, this Article concludes that offering mechanisms to find lawyers for black employees in individual employment discrimination disputes fulfills a major need for black employees and unions at such a critical time for both groups. It beseeches unions to find a way to make this happen as it may represent a last chance for them to significantly embrace some form of racial justice before their role in the workplace becomes completely diminished.
University of Pennsylvania Law School
Michael Z. Green,
Finding Lawyers for Employees in Discrimination Disputes as a Critical Prescription for Unions to Embrace Racial Justice,
U. Pa. J. Lab. & Emp. L.
Available at: https://scholarship.law.tamu.edu/facscholar/318