Abstract
In recent years, employer compliance with antidiscrimination law has emerged as a major justification for limiting the rights of employees to organize and engage in collective action in the workplace. In IBM Corp., a Republican majority of the National Labor Relations Board cited “laws addressing workplace discrimination and sexual harassment” as a primary reason to deny nonunionized employees the right to a coworker representative during investigatory interviews. In General Motors, a Republican Board majority invoked antidiscrimination law in upending four decades of precedent regarding employer discipline of employees engaged in “opprobrious conduct” in the course of protected organizing activity. More recently, legal scholarship has argued that employers must be permitted to use new electronic and artificial intelligence-based (AI) forms of surveillance in order to comply with antidiscrimination law, and that labor law protections should yield accordingly. Areas of potential tension between antidiscrimination and labor law have long existed, and employers have, at times, strategically harnessed antidiscrimination law against labor unions. However, the deployment of employer compliance obligations by employer groups and Republican Board members as a legal and policy basis for eroding labor law protections represents a potentially growing trend that should concern worker and civil rights advocates alike. After identifying this trend, the Article demonstrates that the compliance specter—the notion that more robust labor law protections would require employers to directly violate antidiscrimination law—is either false or vastly exaggerated in each of the above cases. Employers’ use of antidiscrimination law against labor, while unfounded on a doctrinal level, nevertheless adds the appearance of legal necessity to weak interpretations of labor protections, while obscuring employers’ normative preferences for those interpretations; draws on the moral authority of antidiscrimination movements, while failing to advance antidiscrimination aims; and threatens political coalition-building between labor and civil rights groups.
