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Symposium: Not just a workers’ rights case

Emily Martin is general counsel and vice president for workplace justice at the National Women’s Law Center. She was part of an amicus brief in support of the unions in an earlier public-sector “agency fees” case, Friedrichs v. California Teachers Association.

The challenge to the constitutionality of fair-share fees in the public sector in Janus v. American Federation of State, County, and Municipal Employees, Council 31 seeks to strike at the heart of public-sector unions, weakening their ability to obtain workplace protections for working people. Many have overlooked the fact, however, that Janus is not just a workers’ rights case, but a case that will decide issues critical to workplace equality for women and people of color.

First, public-sector jobs are disproportionately women’s jobs. According to the National Women’s Law Center’s analysis of census data, although men still make up a majority of those represented by unions in the overall economy, women make up a majority – 56 percent – of union-represented public-sector workers, employed as nurses, first responders, teachers, and in many other jobs crucial to the health, safety and prosperity of our communities. Women make up 56 percent of black public-sector workers represented by unions, 62 percent of union-represented Asian public-sector workers, 65 percent of union-represented Native American public-sector workers, and 50 percent of union-represented Hispanic public-sector workers.

Public-sector unions are important engines of equality and economic opportunity for women in particular. The bargaining power, pay standardization and transparency, and antidiscrimination protections that unions provide help correct for the factors that tend to depress women’s pay. Women in the public sector who are represented by unions make 15 percent more — $6,500 more annually — than those who are not represented by unions. That’s a bigger gain than union-represented men working in the public sector receive annually compared to men who are not represented by unions. Among public-sector workers, black women also see a 15 percent increase in wages and Latinas see a seven percent increase in wages when they have union representation.

These women receive not just higher pay, but more equitable pay: The gender wage gap for union-represented women working in the public sector is 20 percent smaller than the gap experienced by their non-union-represented counterparts and by workers overall. Women represented by unions who work full-time, year-round in the public sector typically make 83 percent of what their male counterparts make — a wage gap of 17 cents for every dollar earned by men. In contrast, women in the public sector not represented by unions typically make 79 percent of what their male counterparts make per week, or 21 cents less for every dollar earned by men — a wage gap largely the same as that between all men and women working full-time, year-round. Black women and Latinas working in the public sector also receive more equitable pay when represented by unions. Although black women working in the public sector without union representation experience a 32 percent wage gap compared to what their white, non-Hispanic male counterparts make, that shrinks to 23 percent for union-represented black women in the public sector. For Latinas, the wage gap shrinks from 29 percent to 25 percent.

Collective-bargaining agreements also typically protect union workers from discriminatory adverse actions, including termination, providing important heft and enforcement mechanisms to workplace-equality guarantees, which are particularly significant for women and people of color. Moreover, for workers who face discrimination because of their sexual orientation or gender identity, these collective-bargaining protections may be the sole explicit protection against discrimination. Only 20 states and the District of Columbia expressly prohibit employment discrimination on these grounds, and although more and more courts are recognizing that these forms of discrimination are properly considered types of unlawful sex discrimination, not every federal court of appeals has so held. Unions, however, have frequently bargained to protect LGBT workers. For example, as of 2012, over 1,000 AFSCME union contracts prohibit discrimination based on sexual orientation, and many include gender identity language.

In other words, representation by public-sector unions is valuable to working people, and specifically to working women. Forty years ago, in Abood v. Detroit Board of Education, the Supreme Court recognized that the First Amendment poses no obstacle to creating systems to ensure that public-sector employees receiving this valuable union representation pay “fair share fees” to contribute to the costs of the collective bargaining and implementation of collective-bargaining agreements that result in these tangible benefits. Abood recognized that in order to carry out their legally obligated duty to represent everyone in the bargaining unit (known as the “duty of fair representation”), unions need to function. Fair-share fees allow unions to collect some amount of money from everyone they represent – who all receive equal benefits through the union contract; these funds support the union’s collective bargaining and contract enforcement. As the Supreme Court recognized in Abood and repeatedly thereafter, fair-share provisions for nonmembers are necessary to avoid a free-rider problem, in which workers benefit from the union’s activities and the union’s legal duty to fairly represent all who are in the bargaining unit, but refuse to contribute to the costs of procuring these valuable benefits. Abood also made clear, however, that no nonmember can be required to contribute to any purely political activity undertaken by the union. In striking the balance reached in Abood, the court relied on logic very similar to that set out in Pickering v. Board of Education and its many progeny, holding that in the context of public employment, restraints on employee speech are permissible that would not be permissible as applied to citizens more broadly.

Mark Janus seeks to overturn this long-established rule, arguing that fair-share fees in the public sector amount to forced political speech, under the theory that any sort of bargaining with a public employer is a request for governmental action and public expenditures. This theory asks the Supreme Court to overturn the decades-long precedent that distinguishes between speech by public employees about workplace matters and speech about matters of public concern for purposes of First Amendment analysis.

Such a reversal would have grave real-world impacts. If the Supreme Court finds for the petitioner, public-sector unions across the country would be left legally obligated to serve everyone they represent equally – with no guarantee that those they represent will pay anything at all for the benefits the union has achieved through collective bargaining and contract enforcement. As a result, public-sector unions’ ability to ensure these protections and benefits would be diminished. This would disrupt the lives of nearly eight million individuals represented by public-sector unions across more than 20 states that have adopted collective-bargaining systems that provide for fair-share fees. These workers – the majority of whom are women and people of color – rely on the contracts negotiated by their unions to confer benefits that help support themselves, their families and their communities. Overturning Abood would disrupt the reasonable expectation of millions of public-sector employees that they can obtain the basic economic opportunities provided by union representation.

Indeed, we don’t have to look to hypotheticals for an example of what will happen if public-sector fair-share fees are found to be unconstitutional. In those so-called “right to work” states that have chosen to disallow fair-share fees, wages are on average 3.1 percent lower — for everyone, not just unionized workers — than wages in non-“right-to-work” states, even when controlling for worker characteristics and state labor-market conditions. And women, who gain so much from the worker voice, pay transparency and fair representation provided by unions, are hit the hardest. Wages in these “right-to-work” states were 4.4 percent lower for women who work full time and year round than in non-“right-to-work” states (a greater drop than the 1.7 percent lower wages for men who worked full-time and year-round). Similarly, black workers and Hispanic workers suffered especially large wage impacts, with decreases of 4.8 percent and 4.4 percent, respectively.

In 1961, Martin Luther King Jr., recognized the close relationship between economic rights and civil rights, stating: “In our glorious fight for civil rights, we must guard against being fooled by false slogans, such as ‘right to work.’ It is a law to rob us of our civil rights and job rights. Its purpose is to destroy labor unions and the freedom of collective bargaining by which unions have improved wages and working conditions of everyone… Wherever these laws have been passed, wages are lower, job opportunities are fewer and there are no civil rights.” As King knew, the “right-to-work” movement in fact has historical roots in opposition to integration and fear of whites and blacks joining together on equal footing through union membership.

Janus v. AFSCME is in some ways similar to this term’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, because in both cases petitioners seek to weaponize the First Amendment in order to weaken the infrastructure that has promoted and protected rights to equal treatment and equal participation in the public sphere. The Supreme Court should reject this invitation. In Abood, the court struck a fair balance, consistent with and compelled by its long treatment of the rights of public employees interacting with their employer as meaningfully distinct from the rights of citizens interacting with their government. This balance has ensured the ability of unions to function and, at the same time, maintained the First Amendment rights of nonmembers to refrain from supporting the union’s truly political speech. These functioning public-sector unions have promoted workplace equality and economic security for working women, people of color, LGBT workers and our nation as a whole. The court should not overturn that balance now.

Recommended Citation: Emily Martin, Symposium: Not just a workers’ rights case, SCOTUSblog (Dec. 21, 2017, 10:17 AM),