News & Commentary

September 19, 2022

Fred Wang

Fred Wang is a student at Harvard Law School.

In today’s News & Commentary, uncertainty builds as rail workers consider the tentative agreement reached last week, Starbucks continues to exclude unionized workers from new employment benefits, and legal philosophy helps us make sense of federal anti-discrimination law.

A potential nationwide rail-worker strike, as Julia recounted, has been averted — for now. Union negotiators and railway employers last Friday reached a last-minute “tentative agreement” in light of worker demands for more humane attendance policies. But the key word to focus on, some have argued, is “tentative.” A “contract rejection is still a very live possibility,” Jonah Furman explains in Labor Notes. For one thing, the actual terms of the agreement, as of Furman’s writing on Friday, had not yet been released to the workers. And it’s unclear whether the concessions won in the tentative agreement — more unpaid sick days and a cap on health care cost increases — will be enough to stave off a strike. When asked to evaluate a prior deal, over 90 percent of rail workers said they’d vote against it and support striking at the end of a cooling-off period; that means it’d take a “40-point swing” to avert a strike.

That strikes many as unlikely, especially given that many workers, Lauren Kaori Gurley reports in the Washington Post, doubt that the deal brokered last week will address “their fundamental concerns about quality of life.” It might come down to whether rail employers will be willing to slacken extreme attendance policies that have forced workers to choose between their personal health and their jobs. The health of our economy may well depend on it.

Starbucks intends on excluding unionized workers from new paid-leave benefits, Jordan Zakarin reports at More Perfect Union. The move is in keeping with the company’s anti-union posture. And it’s not the first time that Starbucks has extend new pay raises and benefits only to non-union stores: the NLRB has already alleged that Starbucks has illegally withheld pay and benefits from unionized workers, in violation of federal labor law. The board argues that Starbucks’s actions unlawfully interfere with workers’ rights to engage in union activity. Starbucks, on the other hand, has maintained that federal labor law precludes it from announcing new wages or benefits at unionized stores “because these might positively or negatively affect partner choices about unions.”

And something for those interested in legal philosophy! A key issue in employment-discrimination law is figuring out what it means to fire someone “because of” a certain protected trait (be it race, sex, etc.). In a recent decision holding that discrimination against gay and transgender employees amounts to discrimination because of sex, the Supreme Court offered one way to think about the question: If John (a man) is fired for being attracted to men, but Jane (a woman) is not, then John was fired because he was a man. Put another way, John was fired “because of” his sex. Simple, right?

Not so fast, critics argue. In that example, we’ve changed two things about the employee: their sex (man → woman) and their sexual orientation (gay → straight). And if we hold sexual orientation constant — so that John (a gay man) is fired for being attracted to men, and Jane (a lesbian woman) is fired for being attracted to women — no sex discrimination, right?

But wait! We’re still changing two things here: the employee’s sex (man → woman) and the sex to which they are attracted (man → woman). If we hold that second variable constant . . . and on, and on, and on.

In a recent law review article, Professor Ben Eidelson offers a path out of this counterfactual mess, with a more coherent and robust account of what “because of” means. The argument, in an all-too-brief nutshell, is that an employer can discriminate “because of” an employee’s race, sex, or age without having in mind that employee’s specific race, sex, or age. For example, if A fires B because B is not white, then it makes sense to say that B was fired “because of” his race, even if A has no idea what B’s particular race is. That’s because A’s decision was made in respect of B’s race — whatever specific race it was. The same goes for an employee who is fired because he is gay. That firing amounts to discrimination “because of” sex not because of the employee’s particular sex (in other words, not because the employee is male), but because of another sex property of his: that he is of the same sex as people to whom he is attracted.

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