The Workplace Democracy Act is a proposed US labor law, that has been sponsored by Bernie Sanders and re-introduced from 1992 to 2018. Among its different forms, it would have removed obstacles to employers making collective agreements, established an impartial National Public Employment Relations Commission to support fair collective bargaining,
required that pensions plans are jointly managed by employee and
employer representatives, changed the definition of an "employee" to
ensure every person who works for other people has labor rights, and
repeal all "right to work" laws.
The latest version of the Act in 2018 gathered endorsements from leading lawmakers in the Democratic Party, including Kirsten Gillibrand and Mark Pocan.
Background
Given the long term decline in collective bargaining and the rise in
inequality, a substantial number of employee representatives, Democratic
politicians, labor unions, academics, judges and lawyers had been
advocating the revision of the National Labor Relations Act of 1935.
On 25 September 1992 Bernie Sanders introduced the Bill to the US House of Representatives with 2 cosponsors. After the Bill failed, Sanders tried again in 1994, with one cosponsor. On a third attempt in 1995 by Sanders, the Bill gathered 19 cosponsors. Still the Bill stalled. It was reintroduced in 1997. On 24 March 1999, it was introduced again and referred to the Subcommittee on Employer-Employee Relations on 30 April 1999. It stalled by 20 December 2000.
In 2015, a new version of the Workplace Democracy Act was introduced by both Bernie Sanders in the Senate and Mark Pocan in the House, receiving multiple sponsors but not passing as the Republican Party held majorities.
In 2018, an extended version of the 2015 Bill was proposed by Bernie Sanders.
Contents
1999 version
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the ‘Workplace Democracy Act of 1999’.
(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. Declaration of purpose and policy.
Sec. 3. Application of Act.
TITLE I--GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY OF THE NATIONAL LABOR RELATIONS BOARD
Sec. 101. Right to first contract.
Sec. 102. Strikes, boycotts, and hot cargo agreements. "Section 8(b)(4) and subsection (e) of the National Labor Relations Act are repealed."
Sec. 103. Treatment of guards.
Sec. 104. Card recognition for collective bargaining units. Amends Section 9 of the NLRA to allow a simple card check for recognizing majority support for a union.
Sec. 105. Enforcement and authority of National Labor Relations Board.
Sec. 106. Repealing prohibition authority.
TITLE II—GENERAL PROVISIONS REGARDING RIGHTS OF EMPLOYEES AND ENFORCEMENT AUTHORITY FOR THE NATIONAL LABOR RELATIONS BOARD
Sec. 201. Definitions.
Sec. 202. National Public Employment Relations Commission.
Sec. 203. Rights of employees and employee organizations.
Sec. 204. Representatives and collective-bargaining units.
Sec. 205. Impasse in collective bargaining over the terms and
conditions of employment and other matters of mutual concern relating
thereto.
Sec. 206. Disputes over the interpretation or application of agreements.
‘(2)(A) The assets of a
single-employer plan shall be held in trust by a joint board of
trustees, which shall consist of 2 or more trustees representing on an
equal basis the interests of the employer or employers maintaining the
plan and the interests of the participants and their beneficiaries.
‘(B)(i) Except as provided in clause (ii), in any case in which the plan
is maintained pursuant to one or more collective bargaining agreements
between one or more employee organizations and one or more employers,
the trustees representing the interests of the participants and their
beneficiaries shall be designated by such employee organizations.
Labor unions in the United States are organizations that represent workers in many industries recognized under US labor law since the 1935 enactment of the National Labor Relations Act. Their activity today centers on collective bargaining
over wages, benefits, and working conditions for their membership, and
on representing their members in disputes with management over
violations of contract provisions. Larger trade unions also typically engage in lobbying activities and electioneering at the state and federal level.
Most unions in the United States are aligned with one of two larger umbrella organizations: the AFL-CIO created in 1955, and the Change to Win Federation
which split from the AFL-CIO in 2005. Both advocate policies and
legislation on behalf of workers in the United States and Canada, and
take an active role in politics. The AFL-CIO is especially concerned
with global trade issues.
The percentage of workers belonging to a union (or total labor union "density") varies by country. In 2019 it was 10.3% in the United States, compared to 20.1% in 1983. There were 14.6 million members in the U.S., down from 17.7 million in 1983. Union membership in the private sector has fallen to 6.2%, one fifth that of public sector workers, at 33.6%.
Over half of all union members in the U.S. lived in just seven states
(California, New York, Illinois, Pennsylvania, New Jersey, Ohio, and
Washington), though these states accounted for only about one-third of
the workforce. From a global perspective, in 2016 the US had the fifth lowest trade union density of the 36 OECD member nations.
In the 21st century, the most prominent unions are among public sector employees such as city employees, government workers, teachers and police. Members of unions are disproportionately older, male, and residents of the Northeast, the Midwest, and California.
Union workers average 10-30% higher pay than non-union in the United
States after controlling for individual, job, and labor market
characteristics.
Although much smaller compared to their peak membership in the
1950s, American unions remain a political factor, both through
mobilization of their own memberships and through coalitions with
like-minded activist organizations around issues such as immigrant
rights, trade policy, health care, and living wage
campaigns. Of special concern are efforts by cities and states to
reduce the pension obligations owed to unionized workers who retire in
the future. Republicans elected with Tea Party support in 2010, most notably former Governor Scott Walker
of Wisconsin, have launched major efforts against public sector unions
due in part to state government pension obligations (even though
Wisconsin's state pension is 100% funded as of 2015) along with the allegation that the unions are too powerful. The academic literature shows substantial evidence that labor unions reduce economic inequality. Research indicates that rising income inequality in the United States is partially attributable to the decline of the labor movement and union membership.
History
Knights of Labor's seal: "An injury to one is a concern to all."
Unions began forming in the mid-19th century in response to the social and economic impact of the Industrial Revolution. National labor unions began to form in the post-Civil War Era. The Knights of Labor
emerged as a major force in the late 1880s, but it collapsed because of
poor organization, lack of effective leadership, disagreement over
goals, and strong opposition from employers and government forces.
The American Federation of Labor, founded in 1886 and led by Samuel Gompers
until his death in 1924, proved much more durable. It arose as a loose
coalition of various local unions. It helped coordinate and support
strikes and eventually became a major player in national politics,
usually on the side of the Democrats.
American labor unions benefited greatly from the New Deal policies of Franklin Delano Roosevelt in the 1930s. The Wagner Act,
in particular, legally protected the right of unions to organize.
Unions from this point developed increasingly closer ties to the
Democratic Party, and are considered a backbone element of the New Deal Coalition.
Post-WWII
Political cartoon showing organized labor marching towards progress, while a shortsighted employer tries to stop labor (1913)
Pro-business conservatives gained control of Congress in 1946, and in 1947 passed the Taft-Hartley Act, drafted by Senator Robert A. Taft. President Truman vetoed it but the Conservative coalition
overrode the veto. The veto override had considerable Democratic
support, including 106 out of 177 Democrats in the House, and 20 out of
42 Democrats in the Senate.
The law, which is still in effect, banned union contributions to
political candidates, restricted the power of unions to call strikes
that "threatened national security," and forced the expulsion of
Communist union leaders (the Supreme Court found the anti-communist
provision to be unconstitutional, and it is no longer in force). The
unions campaigned vigorously for years to repeal the law but failed.
During the late 1950s, the Landrum Griffin Act of 1959 passed in the wake of Congressional investigations of corruption and undemocratic internal politics in the Teamsters and other unions.
In 1955, the two largest labor organizations, the AFL and CIO,
merged, ending a division of over 20 years. AFL President George Meany
became President of the new AFL-CIO, and AFL Secretary-Treasurer William
Schnitzler became AFL-CIO Secretary-Treasurer. The draft constitution
was primarily written by AFL Vice President Matthew Woll and CIO General Counsel Arthur Goldberg,
while the joint policy statements were written by Woll, CIO
Secretary-Treasurer James Carey, CIO vice presidents David McDonald and Joseph Curran, Brotherhood of Railway Clerks President George Harrison, and Illinois AFL-CIO President Reuben Soderstrom.
The percentage of workers belonging to a union (or "density") in
the United States peaked in 1954 at almost 35% (citation needed) and the
total number of union members peaked in 1979 at an estimated 21.0
million. Membership has declined since, with private sector union
membership beginning a steady decline that continues into the 2010s, but
the membership of public sector unions grew steadily.
After 1960 public sector unions grew rapidly and secured good wages
and high pensions for their members. While manufacturing and farming
steadily declined, state- and local-government employment quadrupled
from 4 million workers in 1950 to 12 million in 1976 and 16.6 million in
2009. Adding in the 3.7 million federal civilian employees, in 2010 8.4 million government workers were represented by unions, including 31% of federal workers, 35% of state workers and 46% of local workers.
By the 1970s, a rapidly increasing flow of imports (such as
automobiles, steel and electronics from Germany and Japan, and clothing
and shoes from Asia) undercut American producers.
By the 1980s there was a large-scale shift in employment with fewer
workers in high-wage sectors and more in the low-wage sectors. Many companies closed or moved factories to Southern states (where unions were weak), countered the threat of a strike by threatening to close or move a plant, or moved their factories offshore to low-wage countries. The number of major strikes and lockouts fell by 97% from 381 in 1970 to 187 in 1980 to only 11 in 2010.
On the political front, the shrinking unions lost influence in the
Democratic Party, and pro-Union liberal Republicans faded away.
Union membership among workers in private industry shrank
dramatically, though after 1970 there was growth in employees unions of
federal, state and local governments. The intellectual mood in the 1970s and 1980s favored deregulation and free competition.
Numerous industries were deregulated, including airlines, trucking,
railroads and telephones, over the objections of the unions involved. The climax came when President Ronald Reagan—a former union president—broke the Professional Air Traffic Controllers Organization (PATCO) strike in 1981, dealing a major blow to unions.
Republicans began to push through legislative blueprints to curb
the power of public employee unions as well as eliminate business
regulations.
Labor unions today
Union members rally to reject union busting in New Orleans (2019)
Today most labor unions (or trade unions) in the United States are members of one of two larger umbrella organizations: the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO) or the Change to Win Federation, which split from the AFL-CIO in 2005-2006.
Both organizations advocate policies and legislation favorable to
workers in the United States and Canada, and take an active role in
politics favoring the Democratic party but not exclusively so. The AFL-CIO is especially concerned with global trade and economic issues.
Private sector unions are regulated by the National Labor
Relations Act (NLRA), passed in 1935 and amended since then. The law is
overseen by the National Labor Relations Board (NLRB), an independent federal agency.
Public sector unions are regulated partly by federal and partly by
state laws. In general they have shown robust growth rates, because
wages and working conditions are set through negotiations with elected
local and state officials.
To join a traditional labor union, workers must either be given
voluntary recognition from their employer or have a majority of workers
in a bargaining unit vote for union representation. In either case, the government must then certify the newly formed union. Other forms of unionism include minority unionism, solidarity unionism, and the practices of organizations such as the Industrial Workers of the World, which do not always follow traditional organizational models.
Public sector worker unions are governed by labor laws and labor
boards in each of the 50 states. Northern states typically model their
laws and boards after the NLRA and the NLRB. In other states, public
workers have no right to establish a union as a legal entity. (About 40%
of public employees in the USA do not have the right to organize a
legally established union.)
A review conducted by the federal government on pay scale shows
that employees in a labor union earn up to 33% more income than their
nonunion counterparts, as well as having more job security, and safer
and higher-quality work conditions. The median weekly income for union workers was $973 in 2014, compared with $763 for nonunion workers.
Labor negotiations
Once
the union won the support of a majority of the bargaining unit and is
certified in a workplace, it has the sole authority to negotiate the
conditions of employment. Under the NLRA, employees can also, if there
is no majority support, form a minority union which represents the rights of only those members who choose to join.
Businesses, however, do not have to recognize the minority union as a
collective bargaining agent for its members, and therefore the minority
union's power is limited.
This minority model was once widely used, but was discarded when unions
began to consistently win majority support. Unions are beginning to
revisit the members-only model of unionism, because of new changes to
labor law, which unions view as curbing workers' ability to organize.
The employer and the union write the terms and conditions of
employment in a legally binding contract. When disputes arise over the
contract, most contracts call for the parties to resolve their
differences through a grievance process to see if the dispute can be
mutually resolved. If the union and the employer still cannot settle the
matter, either party can choose to send the dispute to arbitration, where the case is argued before a neutral third party.
Members of labor unions enjoy "Weingarten Rights."
If management questions the union member on a matter that may lead to
discipline or other changes in working conditions, union members can
request representation by a union representative. Weingarten Rights are named for the first Supreme Court decision to recognize those rights.
The NLRA goes farther in protecting the right of workers to
organize unions. It protects the right of workers to engage in any
"concerted activity" for mutual aid or protection. Thus, no union
connection is needed. Concerted activity "in its inception involves only
a speaker and a listener, for such activity is an indispensable
preliminary step to employee self-organization."
Unions are currently advocating new federal legislation, the Employee Free Choice Act (EFCA), that would allow workers to elect union representation by simply signing a support card (card check).
The current process established by federal law requires at least 30% of
employees to sign cards for the union, then wait 45 to 90 days for a
federal official to conduct a secret ballot election in which a simple majority of the employees must vote for the union in order to obligate the employer to bargain.
Unions report that, under the present system, many employers use
the 45- to 90-day period to conduct anti-union campaigns. Some opponents
of this legislation fear that removing secret balloting from the
process will lead to the intimidation and coercion of workers on behalf
of the unions. During the 2008 elections, the Employee Free Choice Act
had widespread support of many legislators in the House and Senate, and
of the President. Since then, support for the "card check" provisions
of the EFCA subsided substantially.
Union membership had been declining in the US since 1954, and since 1967, as union membership rates decreased, middle class incomes shrank correspondingly.
In 2007, the labor department reported the first increase in union
memberships in 25 years and the largest increase since 1979. Most of the
recent gains in union membership have been in the service sector while
the number of unionized employees in the manufacturing sector has
declined. Most of the gains in the service sector have come in West
Coast states like California where union membership is now at 16.7%
compared with a national average of about 12.1%.
Historically, the rapid growth of public employee unions since the
1960s has served to mask an even more dramatic decline in private-sector
union membership.
At the apex of union density in the 1940s, only about 9.8% of
public employees were represented by unions, while 33.9% of private,
non-agricultural workers had such representation. In this decade, those
proportions have essentially reversed, with 36% of public workers being
represented by unions while private sector union density had plummeted
to around 7%. The US Bureau of Labor Statistics most recent survey
indicates that union membership in the US has risen to 12.4% of all
workers, from 12.1% in 2007. For a short period, private sector union
membership rebounded, increasing from 7.5% in 2007 to 7.6% in 2008.
However, that trend has since reversed. In 2013 there were 14.5
million members in the U.S., compared with 17.7 million in 1983. In
2013, the percentage of workers belonging to a union was 11.3%, compared
to 20.1% in 1983. The rate for the private sector was 6.4%, and for the
public sector 35.3%.
In the ten years 2005 through 2014, the National Labor Relations Board
recorded 18,577 labor union representation elections; in 11,086 of
these elections (60 percent), the majority of workers voted for union
representation. Most of the elections (15,517) were triggered by
employee petitions for representation, of which unions won 9,933. Less
common were elections caused by employee petitions for decertification
(2792, of which unions won 1070), and employer-filed petitions for
either representation or decertification (268, of which unions won 85).
In the US, labor education programs such as the Harvard Trade Union Program created in 1942 by Harvard University professor John Thomas Dunlop
sought to educate union members to deal with important contemporary
workplace and labor law issues of the day. The Harvard Trade Union
Program is currently part of a broader initiative at Harvard Law School called the Labor and Worklife Program that deals with a wide variety of labor and employment issues from union pension investment funds to the effects of nanotechnology on labor markets and the workplace.
Labor unions use the term jurisdiction
to refer to their claims to represent workers who perform a certain
type of work and the right of their members to perform such work. For
example, the work of unloading containerized cargo at United States ports, which the International Longshoremen's Association, the International Longshore and Warehouse Union and the International Brotherhood of Teamsters have claimed rightfully should be assigned to workers they represent. A jurisdictional strike
is a concerted refusal to work undertaken by a union to assert its
members' right to such job assignments and to protest the assignment of
disputed work to members of another union or to unorganized workers.
Jurisdictional strikes occur most frequently in the United States in the
construction industry.
Unions also use jurisdiction to refer to the geographical
boundaries of their operations, as in those cases in which a national or
international union allocates the right to represent workers among
different local unions based on the place of those workers' employment,
either along geographical lines or by adopting the boundaries between
political jurisdictions.
Public opinion
Although
not as overwhelmingly supportive as it was from the 1930s through the
early 1960s, a clear majority of the American public approves of labor
unions. The Gallup organization has tracked public opinion of unions
since 1936, when it found that 72 percent approved of unions. The
overwhelming approval declined in the late 1960s, but - except for one
poll in 2009 in which the unions received a favorable rating by only 48
percent of those interviewed, majorities have always supported labor
unions. A Gallup Poll released August 2018 showed 62% of respondents
approving unions, the highest level in over a decade. Disapproval of
unions was expressed by 32%.
On the question of whether or not unions should have more
influence or less influence, Gallup has found the public consistently
split since Gallup first posed the question in 2000, with no majority
favoring either more influence or less influence. In August 2018, 39
percent wanted unions to have more influence, 29 percent less influence,
with 26 percent wanting the influence of labor unions to remain about
the same.
A Pew Research Center poll from 2009-2010 found a drop in labor union support in the midst of The Great Recession sitting at 41% favorable and 40% unfavorable. In 2018, union support rose to 55% favorable with just 33% unfavorable Despite this union membership had continued to fall.
Although most industrialized
countries have seen a drop in unionization rates, the drop in union
density (the unionized proportion of the working population) has been
more significant in the United States than elsewhere.
Global trends
The
US Bureau of Labor Statistics surveyed the histories of union
membership rates in industrialized countries from 1970 to 2003, and
found that of 20 advanced economies which had union density statistics
going back to 1970, 16 of them had experienced drops in union density
from 1970 to 2003. Over the same period during which union density in
the US declined from 23.5 percent to 12.4 percent, some counties saw
even steeper drops. Australian unionization fell from 50.2 percent in
1970 to 22.9 percent in 2003, in New Zealand it dropped from 55.2
percent to 22.1 percent, and in Austria union participation fell from
62.8 percent down to 35.4 percent. All the English-speaking countries
studied saw union membership decline to some degree. In the United
Kingdom, union participation fell from 44.8 percent in 1970 to 29.3
percent in 2003. In Ireland the decline was from 53.7 percent down to
35.3 percent. Canada had one of the smallest declines over the period,
going from 31.6 percent in 1970 to 28.4 percent in 2003. Most of the
countries studied started in 1970 with higher participation rates than
the US, but France, which in 1970 had a union participation rate of 21.7
percent, by 2003 had fallen to 8.3 percent. The remaining four
countries which had gained in union density were Finland, Sweden,
Denmark, and Belgium.
Popularity
Public approval of unions climbed during the 1980s much as it did in other industrialized nations, but declined to below 50% for the first time in 2009 during the Great Recession.
It is not clear if this is a long term trend or a function of a high
unemployment rate which historically correlates with lower public
approval of labor unions.
One explanation for loss of public support is simply the lack of
union power or critical mass. No longer do a sizable percentage of
American workers belong to unions, or have family members who do. Unions
no longer carry the "threat effect": the power of unions to raise wages
of non-union shops by virtue of the threat of unions to organize those
shops.
Polls of public opinion and labor unions
A historical comparison of union membership as a percentage of all workers and union support in the U.S.
A New York Times/CBS Poll found that 60% of Americans opposed restricting collective bargaining
while 33% were for it. The poll also found that 56% of Americans
opposed reducing pay of public employees compared to the 37% who
approved. The details of the poll also stated that 26% of those
surveyed, thought pay and benefits for public employees were too high,
25% thought too low, and 36% thought about right. Mark Tapscott of the Washington Examiner criticized the poll, accusing it of over-sampling union and public employee households.
A Gallup
poll released on March 9, 2011, showed that Americans were more likely
to support limiting the collective bargaining powers of state employee
unions to balance a state's budget (49%) than disapprove of such a
measure (45%), while 6% had no opinion. 66% of Republicans approved of
such a measure as did 51% of independents. Only 31% of Democrats
approved.
A Gallup
poll released on March 11, 2011, showed that nationwide, Americans were
more likely to give unions a negative word or phrase when describing
them (38%) than a positive word or phrase (34%). 17% were neutral and
12% didn't know. Republicans were much more likely to say a negative
term (58%) than Democrats (19%). Democrats were much more likely to say a
positive term (49%) than Republicans (18%).
A nationwide Gallup poll (margin of error ±4%) released on April 1, 2011, showed the following;
When asked if they supported the labor unions or the governors
in state disputes; 48% said they supported the unions, 39% said the
governors, 4% said neither, and 9% had no opinion.
Women supported the governors much less than men. 45% of men said
they supported the governors, while 46% said they supported the unions.
This compares to only 33% of women who said they supported the governors
and 50% who said they supported the unions.
All areas of the US (East, Midwest, South, West) were more likely to
support unions than the governors. The largest gap being in the East
with 35% supporting the governors and 52% supporting the unions, and the
smallest gap being in the West with 41% supporting the governors and
44% the unions.
18- to 34-year-olds were much more likely to support unions than
those over 34 years of age. Only 27% of 18- to 34-year-olds supported
the governors, while 61% supported the unions. Americans ages 35 to 54
slightly supported the unions more than governors, with 40% supporting
the governors and 43% the unions. Americans 55 and older were tied when
asked, with 45% supporting the governors and 45% the unions.
Republicans were much more likely to support the governors when
asked with 65% supporting the governors and 25% the unions. Independents
slightly supported unions more, with 40% supporting the governors and
45% the unions. Democrats were overwhelmingly in support of the unions.
70% of Democrats supported the unions, while only 19% supported the
governors.
Those who said they were following the situation not too closely or
not at all supported the unions over governors, with a 14–point (45% to
31%) margin. Those who said they were following the situation somewhat
closely supported the unions over governors by a 52–41 margin. Those who
said that they were following the situation very closely were only
slightly more likely to support the unions over the governors, with a
49-48 margin.
Unions and workers protesting together for higher wages (2015)
A nationwide Gallup poll released on August 31, 2011, revealed the following:
52% of Americans approved of labor unions, unchanged from 2010.
78% of Democrats approved of labor unions, up from 71% in 2010.
52% of Independents approved of labor unions, up from 49% in 2010.
26% of Republicans approved of labor unions, down from 34% in 2010.
A nationwide Gallup poll released on September 1, 2011, revealed the following:
55% of Americans believed that labor unions will become weaker
in the United States as time goes by, an all-time high. This compared to
22% who said their power would stay the same, and 20% who said they
would get stronger.
The majority of Republicans and Independents believed labor unions
would further weaken by a 58% and 57% percentage margin respectively. A plurality of Democrats believed the same, at 46%.
42% of Americans want labor unions to have less influence, tied for
the all-time high set in 2009. 30% wanted more influence and 25% wanted
the same amount of influence.
The majority of Republicans wanted labor unions to have less influence, at 69%.
A plurality of Independents wanted labor unions to have less influence, at 40%.
A plurality of Democrats wanted labor unions to have more influence, at 45%.
The majority of Americans believed labor unions mostly helped members of unions by a 68 to 28 margin.
A plurality of Americans believed labor unions mostly helped the companies where workers are unionized by a 48-44 margin.
A plurality of Americans believed labor unions mostly helped state and local governments by a 47-45 margin.
A plurality of Americans believed labor unions mostly hurt the US economy in general by a 49-45 margin.
The majority of Americans believed labor unions mostly hurt workers who are not members of unions by a 56-34 margin.
Institutional environments
A
broad range of forces have been identified as potential contributors to
the drop in union density across countries. Sano and Williamson outline
quantitative studies that assess the relevance of these factors across
countries.
The first relevant set of factors relate to the receptiveness of
unions' institutional environments. For example, the presence of a Ghent system
(where unions are responsible for the distribution of unemployment
insurance) and of centralized collective bargaining (organized at a
national or industry level as opposed to local or firm level) have both
been shown to give unions more bargaining power and to correlate
positively to higher rates of union density.
Unions have enjoyed higher rates of success in locations where
they have greater access to the workplace as an organizing space (as
determined both by law and by employer acceptance), and where they
benefit from a corporatist
relationship to the state and are thus allowed to participate more
directly in the official governance structure. Moreover, the
fluctuations of business cycles, particularly the rise and fall of
unemployment rates and inflation, are also closely linked to changes in
union density.
Labor legislation
Workers speak in support of the Workplace Democracy Act which makes it easier to unionize (2018)
Labor lawyer Thomas Geoghegan attributes the drop to the long-term effects of the 1947 Taft-Hartley Act,
which slowed and then halted labor's growth and then, over many
decades, enabled management to roll back labor's previous gains.
First, it ended organizing on the grand, 1930s scale. It
outlawed mass picketing, secondary strikes of neutral employers, sit
downs: in short, everything [Congress of Industrial Organizations
founder John L.] Lewis did in the 1930s.
The second effect of Taft-Hartley was subtler and slower-working. It was
to hold up any new organizing at all, even on a quiet, low-key scale.
For example, Taft-Hartley ended "card checks." … Taft-Hartley required
hearings, campaign periods, secret-ballot elections, and sometimes more
hearings, before a union could be officially recognized.
It also allowed and even encouraged employers to threaten workers who
want to organize. Employers could hold "captive meetings," bring workers
into the office and chew them out for thinking about the Union.
And Taft-Hartley led to the "union-busting" that started in the late
1960s and continues today. It started when a new "profession" of labor
consultants began to convince employers that they could violate the
[pro-labor 1935] Wagner Act, fire workers at will, fire them
deliberately for exercising their legal rights, and nothing would
happen. The Wagner Act had never had any real sanctions.
[…]
So why hadn't employers been violating the Wagner Act all along? Well,
at first, in the 1930s and 1940s, they tried, and they got riots in the
streets: mass picketing, secondary strikes, etc. But after Taft-Hartley,
unions couldn't retaliate like this, or they would end up with penalty
fines and jail sentences.
In general, scholars debate the influence of politics in determining
union strength in the US and other countries. One argument is that
political parties play an expected role in determining union strength,
with left-wing
governments generally promoting greater union density, while others
contest this finding by pointing out important counterexamples and
explaining the reverse causality inherent in this relationship.
Economic globalization
More
recently, as unions have become increasingly concerned with the impacts
of market integration on their well-being, scholars have begun to
assess whether popular concerns about a global "race to the bottom" are
reflected in cross-country comparisons of union strength. These scholars
use foreign direct investment (FDI) and the size of a country's international trade as a percentage of its GDP to assess a country's relative degree of market integration. These researchers typically find that globalization
does affect union density, but is dependent on other factors, such as
unions' access to the workplace and the centralization of bargaining.
Sano and Williamson argue that globalization's impact is conditional upon a country's labor history.
In the United States in particular, which has traditionally had
relatively low levels of union density, globalization did not appear to
significantly affect union density.
Employer strategies
Illegal union firing [needs explanation] increased during the Reagan administration and has continued since.
Studies focusing more narrowly on the U.S. labor movement corroborate
the comparative findings about the importance of structural factors,
but tend to emphasize the effects of changing labor markets due to
globalization to a greater extent. Bronfenbrenner notes that changes in
the economy, such as increased global competition, capital flight,
and the transitions from a manufacturing to a service economy and to a
greater reliance on transitory and contingent workers, accounts for only
a third of the decline in union density.
Bronfenbrenner claims that the federal government in the 1980s
was largely responsible for giving employers the perception that they
could engage in aggressive strategies to repress the formation of
unions. Richard Freeman also points to the role of repressive employer
strategies in reducing unionization, and highlights the way in which a
state ideology of anti-unionism tacitly accepted these strategies
Goldfield writes that the overall effects of globalization on
unionization in the particular case of the United States may be
understated in econometric studies on the subject.
He writes that the threat of production shifts reduces unions'
bargaining power even if it does not eliminate them, and also claims
that most of the effects of globalization on labor's strength are
indirect. They are most present in change towards a neoliberal political context that has promoted the deregulation and privatization of some industries and accepted increased employer flexibility in labor markets.
Union responses to globalization
Studies
done by Kate Bronfenbrenner at Cornell University show the adverse
effects of globalization towards unions due to illegal threats of
firing.
Regardless of the actual impact of market integration on union
density or on workers themselves, organized labor has been engaged in a
variety of strategies to limit the agenda of globalization and to
promote labor regulations in an international context. The most
prominent example of this has been the opposition of labor groups to
free trade initiatives such as the North American Free Trade Agreement
(NAFTA) and the Dominican Republic-Central American Free Trade Agreement
(DR-CAFTA). In both cases, unions expressed strong opposition to the
agreements, but to some extent pushed for the incorporation of basic
labor standards in the agreement if one were to pass.
However, Mayer has written that it was precisely unions'
opposition to NAFTA overall that jeopardized organized labor's ability
to influence the debate on labor standards in a significant way.
During Clinton's presidential campaign, labor unions wanted NAFTA to
include a side deal to provide for a kind of international social
charter, a set of standards that would be enforceable both in domestic
courts and through international institutions. Mickey Kantor,
then U.S. trade representative, had strong ties to organized labor and
believed that he could get unions to come along with the agreement,
particularly if they were given a strong voice in the negotiation
process.
When it became clear that Mexico would not stand for this kind of
an agreement, some critics from the labor movement would not settle for
any viable alternatives. In response, part of the labor movement wanted
to declare their open opposition to the agreement, and to push for
NAFTA's rejection in Congress.
Ultimately, the ambivalence of labor groups led those within the
Administration who supported NAFTA to believe that strengthening NAFTA's
labor side agreement too much would cost more votes among Republicans
than it would garner among Democrats, and would make it harder for the
United States to elicit support from Mexico.
Graubart writes that, despite unions' open disappointment with
the outcome of this labor-side negotiation, labor activists, including
the AFL-CIO have used the side agreement's citizen petition process to
highlight ongoing political campaigns and struggles in their home
countries.
He claims that despite the relative weakness of the legal provisions
themselves, the side-agreement has served a legitimizing functioning,
giving certain social struggles a new kind of standing.
Transnational labor regulation
Unions
have recently been engaged in a developing field of transnational labor
regulation embodied in corporate codes of conduct. However, O'Brien
cautions that unions have been only peripherally involved in this
process, and remain ambivalent about its potential effects.
They worry that these codes could have legitimizing effects on
companies that do not actually live up to good practices, and that
companies could use codes to excuse or distract attention from the
repression of unions.
Braun and Gearhart note that although unions do participate in
the structure of a number of these agreements, their original interest
in codes of conduct differed from the interests of human rights and
other non-governmental activists. Unions believed that codes of conduct
would be important first steps in creating written principles that a
company would be compelled to comply with in later organizing contracts,
but did not foresee the establishment of monitoring systems such as the
Fair Labor Association. These authors point out that are motivated by
power, want to gain insider status politically and are accountable to a
constituency that requires them to provide them with direct benefits.
In contrast, activists from the non-governmental sector are
motivated by ideals, are free of accountability and gain legitimacy from
being political outsiders. Therefore, the interests of unions are not
likely to align well with the interests of those who draft and monitor
corporate codes of conduct.
Arguing against the idea that high union wages necessarily make
manufacturing uncompetitive in a globalized economy is labor lawyer Thomas Geoghegan. Busting
unions, in the U.S. manner, as the prime way of competing
with China and other countries [does not work]. It's no accident that
the social democracies, Sweden, France, and Germany, which kept on
paying high wages, now have more industry than the U.S. or the UK. …
[T]hat's what the U.S. and the UK did: they smashed the unions, in the
belief that they had to compete on cost. The result? They quickly ended
up wrecking their industrial base.
Unions have made some attempts to organize across borders. Eder
observes that transnational organizing is not a new phenomenon but has
been facilitated by technological change.
Nevertheless, he claims that while unions pay lip service to global
solidarity, they still act largely in their national self-interest. He
argues that unions in the global North are becoming increasingly
depoliticized while those in the South grow politically, and that global
differentiation of production processes leads to divergent strategies
and interests in different regions of the world. These structural
differences tend to hinder effective global solidarity. However, in
light of the weakness of international labor, Herod writes that
globalization of production need not be met by a globalization of union
strategies in order to be contained. Herod also points out that local
strategies, such as the United Auto Workers' strike against General
Motors in 1998, can sometimes effectively interrupt global production
processes in ways that they could not before the advent of widespread
market integration. Thus, workers need not be connected organizationally
to others around the world to effectively influence the behavior of a
transnational corporation.
Impact
A 2018 study in the Economic History Review found that the rise of labor unions in the 1930s and 1940s reduced income inequality.
A 2020 study found that congressional representatives were more
responsive to the interests of the poor in districts with higher
unionization rates. Another 2020 study found an association between state level adoption of parental leave legislation and labor union strength.
A 2020 study in the American Journal of Political Science found that when white people obtain union membership, they become less racially resentful.
Equal opportunity is a state of fairness in which individuals are
treated similarly, unhampered by artificial barriers or prejudices or
preferences, except when particular distinctions can be explicitly
justified.
The intent is that the important jobs in an organization should go to
the people who are most qualified – persons most likely to perform ably
in a given task – and not go to persons for reasons deemed arbitrary or
irrelevant, such as circumstances of birth, upbringing, having
well-connected relatives or friends, religion, sex, ethnicity, race, caste, or involuntary personal attributes such as disability, age, gender identity, or sexual orientation.
Chances for advancement should be open to everybody interested, such that they have "an equal chance to compete within the framework of goals and the structure of rules established". The idea is to remove arbitrariness from the selection process and base it on some "pre-agreed basis of fairness, with the assessment process being related to the type of position" and emphasizing procedural and legal means.
Individuals should succeed or fail based on their own efforts and not
extraneous circumstances such as having well-connected parents. It is opposed to nepotism and plays a role in whether a social structure is seen as legitimate. The concept is applicable in areas of public life in which benefits are earned and received such as employment and education, although it can apply to many other areas as well. Equal opportunity is central to the concept of meritocracy.
Differing political viewpoints
Equal
opportunity for all: "We fight God when our Social System dooms the
brilliant clever child of a poor man to the same level as his father", Admiral "Jacky" Fisher, Records (1919)
People with differing political viewpoints often view the concept differently. The meaning of equal opportunity is debated in fields such as political philosophy, sociology and psychology. It is being applied to increasingly wider areas beyond employment, including lending, housing, college admissions, voting rights and elsewhere. In the classical sense, equality of opportunity is closely aligned with the concept of equality before the law and ideas of meritocracy.
Generally, the terms equality of opportunity and equal opportunity
are interchangeable, with occasional slight variations; the former has
more of a sense of being an abstract political concept while "equal
opportunity" is sometimes used as an adjective, usually in the context
of employment regulations, to identify an employer, a hiring approach,
or law. Equal opportunity provisions have been written into regulations
and have been debated in courtrooms. It is sometimes conceived as a legal right against discrimination. It is an ideal which has become increasingly widespread in Western nations during the last several centuries and is intertwined with social mobility, most often with upward mobility and with rags to riches stories:
The
coming President of France is the grandson of a shoemaker. The actual
President is a peasant's son. His predecessor again began life in a
humble way in the shipping business. There is surely equality of
opportunity under the new order in the old nation.
Theory
Outline of the concept
In
a factory setting, equality of opportunity is often seen as a
procedural fairness along the lines of "if you assemble twice as many
lamps, you'll be paid double" and in this sense the concept is in
contrast to the concept of equality of outcome, which might require that all workers be paid similarly regardless of how many lamps they made
According to the Stanford Encyclopedia of Philosophy, the concept assumes that society is stratified with a diverse range of roles, some of which are more desirable than others. The benefit of equality of opportunity is to bring fairness to the selection process for coveted roles in corporations, associations, nonprofits, universities and elsewhere.
According to one view, there is no "formal linking" between equality of
opportunity and political structure, in the sense that there can be
equality of opportunity in democracies, autocracies and in communist nations, although it is primarily associated with a competitive market economy and embedded within the legal frameworks of democratic societies. People with different political perspectives see equality of opportunity differently: liberals
disagree about which conditions are needed to ensure it and many
"old-style" conservatives see inequality and hierarchy in general as
beneficial out of a respect for tradition.
It can apply to a specific hiring decision, or to all hiring decisions
by a specific company, or rules governing hiring decisions for an entire
nation. The scope of equal opportunity has expanded to cover more than
issues regarding the rights of minority groups, but covers practices
regarding "recruitment, hiring, training, layoffs, discharge, recall,
promotions, responsibility, wages, sick leave, vacation, overtime,
insurance, retirement, pensions, and various other benefits".
The concept has been applied to numerous aspects of public life, including accessibility of polling stations, care provided to HIV patients, whether men and women have equal opportunities to travel on a spaceship, bilingual education, skin color of models in Brazil, television time for political candidates, army promotions, admittance to universities and ethnicity in the United States. The term is interrelated with and often contrasted with other conceptions of equality such as equality of outcome and equality of autonomy.
Equal opportunity emphasizes the personal ambition and talent and
abilities of the individual, rather than his or her qualities based on
membership in a group, such as a social class or race or extended
family.
Further, it is seen as unfair if external factors that are viewed as
being beyond the control of a person significantly influence what
happens to him or her. Equal opportunity then emphasizes a fair process whereas in contrast equality of outcome emphasizes a fair outcome. In sociological analysis, equal opportunity is seen as a factor correlating positively with social mobility, in the sense that it can benefit society overall by maximizing well-being.
Different types
There are different concepts lumped under equality of opportunity.
Formal equality of opportunity
is a lack of (unfair) direct discrimination. It requires that
deliberate discrimination be relevant and meritocratic. For instance,
job interviews should only discriminate against applicants for job
incompetence. Universities should not accept a less-capable applicant
instead of a more-capable applicant who can't pay tuition.
Substantive equality of opportunity
is absence of indirect discrimination. It requires that society be fair
and meritocratic. For instance, a person should not be more likely to
die at work because they were born in a country with corrupt labor law
enforcement. No one should have to drop out of school because their
family needs of a full-time carer or wage earner.
Formal equality of opportunity does not imply substantive
equality of opportunity. Firing any employee who gets pregnant is
formally equal, but substantively it hurts women more.
Substantive inequality is often more difficult to address. A
political party that formally allows anyone to join, but meets in a
non-wheelchair-accessible building far from public transit,
substantively discriminates against both young and old members as they
are less likely to be able-bodied car-owners. However, if the party
raises membership dues in order to afford a better building, it
discourages poor members instead. A workplace in which it is difficult
for persons with special needs and disabilities to perform can
considered as a type of substantive inequality, although job
restructuring activities can be done to make it easier for disabled
persons to succeed. Grade-cutoff university admission is formally fair,
but if in practice it overwhelmingly picks women and graduates of
expensive user-fee schools, it is substantively unfair to men and the
poor. The unfairness has already taken place and the university can
choose to try to counterbalance it, but it likely can not
single-handedly make pre-university opportunities equal. Social mobility and the Great Gatsby curve are often used as an indicator of substantive equality of opportunity.
Both equality concepts say that it is unfair and inefficient if
extraneous factors rule people's lives. Both accept as fair inequality
based on relevant, meritocratic factors. They differ in the scope of the
methods used to promote them.
Formal equality of opportunity
Formal equality of opportunity is sometimes referred to as the nondiscrimination principle or described as the absence of direct discrimination, or described in the narrow sense as equality of access. It is characterized by:
Open call. Positions bringing superior advantages should be open to all applicants
and job openings should be publicized in advance giving applicants a
"reasonable opportunity" to apply. Further, all applications should be
accepted.
Fair judging. Applications should be judged on their merits, with procedures designed to identify those best-qualified.
The evaluation of the applicant should be in accord with the duties of
the position and for the job opening of choir director, for example, the
evaluation may judge applicants based on musical knowledge rather than
some arbitrary criterion such as hair color.
An application is chosen. The applicant judged as "most qualified"
is offered the position while others are not. There is agreement that
the result of the process is again unequal, in the sense that one person
has the position while another does not, but that this outcome is
deemed fair on procedural grounds.
The formal approach is seen as a somewhat basic "no frills" or "narrow" approach to equality of opportunity, a minimal standard of sorts, limited to the public sphere as opposed to private areas such as the family, marriage, or religion. What is considered "fair" and "unfair" is spelled out in advance. An expression of this version appeared in The New York Times:
"There should be an equal opportunity for all. Each and every person
should have as great or as small an opportunity as the next one. There
should not be the unfair, unequal, superior opportunity of one
individual over another."
The formal conception focuses on procedural fairness during the competition: are the hurdles the same height? (photo: athletes Ulrike Urbansky and Michelle Carey in Osaka)
This sense was also expressed by economistsMilton and Rose Friedman in their 1980 book Free to Choose.
The Friedmans explained that equality of opportunity was "not to be
interpreted literally" since some children are born blind while others
are born sighted, but that "its real meaning is ... a career open to the
talents".
This means that there should be "no arbitrary obstacles" blocking a
person from realizing their ambitions: "Not birth, nationality, color,
religion, sex, nor any other irrelevant characteristic should determine
the opportunities that are open to a person – only his abilities".
A somewhat different view was expressed by John Roemer, who used the term nondiscrimination principle
to mean that "all individuals who possess the attributes relevant for
the performance of the duties of the position in question be included in
the pool of eligible candidates, and that an individual's possible
occupancy of the position be judged only with respect to those relevant
attributes". Matt Cavanagh
argued that race and sex should not matter when getting a job, but that
the sense of equality of opportunity should not extend much further
than preventing straightforward discrimination.
It is a relatively straightforward task for legislators to ban
blatant efforts to favor one group over another and encourage equality
of opportunity as a result. Japan banned gender-specific job descriptions in advertising as well as sexual discrimination in employment as well as other practices deemed unfair,
although a subsequent report suggested that the law was having minimal
effect in securing Japanese women high positions in management. In the United States, the Equal Employment Opportunity Commission sued a private test preparation firm, Kaplan, for unfairly using credit histories to discriminate against African Americans in terms of hiring decisions.
According to one analysis, it is possible to imagine a democracy which
meets the formal criteria (1 through 3), but which still favors wealthy
candidates who are selected in free and fair elections.
Substantive equality of opportunity
Substantive equality of opportunity
The Great Gatsby Curve
shows that countries with more equality of wealth also have more social
mobility, which indicates that equality of wealth and equality of
opportunity go together:
If
higher inequality makes intergenerational mobility more difficult, it
is likely because opportunities for economic advancement are more
unequally distributed among children.
Substantive equality of opportunity, sometimes called fair equality of opportunity, is a somewhat broader
and more expansive concept than the more limiting formal equality of
opportunity and it deals with what is sometimes described as indirect
discrimination. It goes farther and is more controversial
than the formal variant; and has been thought to be much harder to
achieve, with greater disagreement about how to achieve greater
equality; and has been described as "unstable", particularly if the society in question is unequal to begin with in terms of great disparity of wealth. It has been identified as more of a left-leaning political position, but this is not a hard-and-fast rule. The substantive model is advocated by people who see limitations in the formal model:
Therein
lies the problem with the idea of equal opportunity for all. Some
people are simply better placed to take advantage of opportunity.
There is little income mobility – the notion of America as a land of opportunity is a myth.
— Joseph E. Stiglitz, 2012
In the substantive approach, the starting point before the race
begins is unfair since people have had differing experiences before even
approaching the competition. The substantive approach examines the
applicants themselves before applying for a position and judges whether
they have equal abilities or talents; and if not, then it suggests that
authorities (usually the government) take steps to make applicants more
equal before they get to the point where they compete for a position and
fixing the before-the-starting-point issues has sometimes been
described as working towards "fair access to qualifications". It seeks to remedy inequalities perhaps because of an "unfair disadvantage" based sometimes on "prejudice in the past".
According to John Hills, children of wealthy and well-connected parents
usually have a decisive advantage over other types of children and he
notes that "advantage and disadvantage reinforce themselves over the
life cycle, and often on to the next generation" so that successful
parents pass along their wealth and education to succeeding generations,
making it difficult for others to climb up a social ladder.
However, so-called positive action efforts to bring an underprivileged
person up to speed before a competition begins are limited to the period
of time before the evaluation begins. At that point, the "final
selection for posts must be made according to the principle the best
person for the job", that is, a less qualified applicant should not be
chosen over a more qualified applicant.
There are also nuanced views too: one position suggested that the
unequal results following a competition were unjust if caused by bad
luck, but just if chosen by the individual and that weighing matters
such as personal responsibility was important. This variant of the
substantive model has sometimes been called luck egalitarianism. Regardless of the nuances, the overall idea is still to give children from less fortunate backgrounds more of a chance, or to achieve at the beginning what some theorists call equality of condition. Writer Ha-Joon Chang expressed this view:
We
can accept the outcome of a competitive process as fair only when the
participants have equality in basic capabilities; the fact that no one
is allowed to have a head start does not make the race fair if some
contestants have only one leg.
Issues about equal opportunity have been raised about the skin color of runway models at the São Paulo Fashion Week
and in 2009 quotas requiring that at least 10 percent of models be
"black or indigenous" were imposed as a substantive way to counteract a
"bias towards white models", according to one account
In a sense, substantive equality of opportunity moves the "starting
point" further back in time. Sometimes it entails the use of affirmative action
policies to help all contenders become equal before they get to the
starting point, perhaps with greater training, or sometimes
redistributing resources via restitution or taxation
to make the contenders more equal. It holds that all who have a
"genuine opportunity to become qualified" be given a chance to do so and
it is sometimes based on a recognition that unfairness exists,
hindering social mobility, combined with a sense that the unfairness should not exist or should be lessened in some manner.
One example postulated was that a warrior society could provide special
nutritional supplements to poor children, offer scholarships to
military academies and dispatch "warrior skills coaches" to every
village as a way to make opportunity substantively more fair.
The idea is to give every ambitious and talented youth a chance to
compete for prize positions regardless of their circumstances of birth.
The substantive approach tends to have a broader definition of
extraneous circumstances which should be kept out of a hiring decision.
One editorial writer suggested that among the many types of extraneous
circumstances which should be kept out of hiring decisions was personal
beauty, sometimes termed "lookism":
Lookism
judges individuals by their physical allure rather than abilities or
merit. This naturally works to the advantage of people perceived to rank
higher in the looks department. They get preferential treatment at the
cost of others. Which fair, democratic system can justify this? If
anything, lookism is as insidious as any other form of bias based on
caste, creed, gender and race that society buys into. It goes against
the principle of equality of opportunity.
The substantive position was advocated by Bhikhu Parekh in 2000 in Rethinking Multiculturalism,
in which he wrote that "all citizens should enjoy equal opportunities
to acquire the capacities and skills needed to function in society and
to pursue their self-chosen goals equally effectively" and that
"equalising measures are justified on grounds of justice as well as
social integration and harmony". Parekh argued that equal opportunities included so-called cultural rights which are "ensured by the politics of recognition".
Affirmative action programs usually fall under the substantive category. The idea is to help disadvantaged groups get back to a normal starting position after a long period of discrimination.
The programs involve government action, sometimes with resources being
transferred from an advantaged group to a disadvantaged one and these
programs have been justified on the grounds that imposing quotas counterbalances the past discrimination as well as being a "compelling state interest" in diversity in society. For example, there was a case in São Paulo in Brazil of a quota imposed on the São Paulo Fashion Week
to require that "at least 10 percent of the models to be black or
indigenous" as a coercive measure to counteract a "longstanding bias
towards white models". It does not have to be accomplished via government action: for example, in the 1980s in the United States, President Ronald Reagan dismantled parts of affirmative action, but one report in the Chicago Tribune suggested that companies remained committed to the principle of equal opportunity regardless of government requirements. In another instance, upper-middle-class students taking the Scholastic Aptitude Test in the United States performed better since they had had more "economic and educational resources to prepare for these test than others". The test itself was seen as fair in a formal sense, but the overall result was seen as nevertheless unfair. In India, the Indian Institutes of Technology
found that to achieve substantive equality of opportunity the school
had to reserve 22.5 percent of seats for applicants from "historically
disadvantaged schedule castes and tribes". Elite universities in France began a special "entrance program" to help applicants from "impoverished suburbs".
Equality of fair opportunity
Philosopher John Rawls
offered this variant of substantive equality of opportunity and
explained that it happens when individuals with the same "native talent
and the same ambition" have the same prospects of success in
competitions. Gordon Marshall
offers a similar view with the words "positions are to be open to all
under conditions in which persons of similar abilities have equal access
to office".
An example was given that if two persons X and Y have identical talent,
but X is from a poor family while Y is from a rich one, then equality
of fair opportunity is in effect when both X and Y have the same chance
of winning the job.
It suggests the ideal society is "classless" without a social hierarchy
being passed from generation to generation, although parents can still
pass along advantages to their children by genetics and socialization skills. One view suggests that this approach might advocate "invasive interference in family life". Marshall posed this question:
Does
it demand that, however unequal their abilities, people should be
equally empowered to achieve their goals? This would imply that the
unmusical individual who wants to be a concert pianist should receive
more training than the child prodigy.
Economist Paul Krugman agrees mostly with the Rawlsian approach in that he would like to "create the society each of us would want if we didn’t know in advance who we’d be".
Krugman elaborated: "If you admit that life is unfair, and that there's
only so much you can do about that at the starting line, then you can
try to ameliorate the consequences of that unfairness".
Level playing field
The
match's outcome is deemed legitimate if there is a level playing field
and rules do not favor either player or team arbitrarily (photo: Cesc Fàbregas duels with Anderson in a football match in 2008)
Some theorists have posed a level playing field conception of equality of opportunity,
similar in many respects to the substantive principle (although it has
been used in different contexts to describe formal equality of
opportunity) and it is a core idea regarding the subject of distributive justice espoused by John Roemer and Ronald Dworkin and others. Like the substantive notion, the level playing field conception goes farther than the usual formal approach.
The idea is that initial "unchosen inequalities" – prior circumstances
over which an individual had no control, but which impact his or her
success in a given competition for a particular post – these unchosen
inequalities should be eliminated as much as possible, according to this
conception. According to Roemer, society should "do what it can to
level the playing field so that all those with relevant potential will
eventually be admissible to pools of candidates competing for
positions".
Afterwards, when an individual competes for a specific post, he or she
might make specific choices which cause future inequalities – and these
inequalities are deemed acceptable because of the previous presumption
of fairness.
This system helps undergird the legitimacy of a society's divvying up
of roles as a result in the sense that it makes certain achieved
inequalities "morally acceptable", according to persons who advocate
this approach.
This conception has been contrasted to the substantive version among
some thinkers and it usually has ramifications for how society treats
young persons in such areas as education and socialization and health care, but this conception has been criticized as well. John Rawls postulated the difference principle
which argued that "inequalities are justified only if needed to improve
the lot of the worst off, for example by giving the talented an
incentive to create wealth".
Meritocracy
There is some overlap among these different conceptions with the term meritocracy which describes an administrative system which rewards such factors as individual intelligence, credentials, education, morality, knowledge or other criteria believed to confer merit. Equality of opportunity is often seen as a major aspect of a meritocracy.
One view was that equality of opportunity was more focused on what
happens before the race begins while meritocracy is more focused on
fairness at the competition stage. The term meritocracy
can also be used in a negative sense to refer to a system in which an
elite hold themselves in power by controlling access to merit (via
access to education, experience, or bias in assessment or judgment).
Moral senses
There
is general agreement that equality of opportunity is good for society,
although there are diverse views about how it is good since it is a value judgement. It is generally viewed as a positive political ideal in the abstract sense. In nations where equality of opportunity is absent, it can negatively impact economic growth, according to some views and one report in Al Jazeera suggested that Egypt, Tunisia and other Middle Eastern nations were stagnating economically in part because of a dearth of equal opportunity. The principle of equal opportunity can conflict with notions of meritocracy in circumstances in which individual differences in human abilities are believed to be determined mostly by genetics as in such circumstances there can be conflict about how to achieve fairness in such situations.
Practical considerations
Difficulties with implementation
There
is general agreement that programs to bring about certain types of
equality of opportunity can be difficult and that efforts to cause one
result often have unintended consequences or cause other problems. There
is agreement that the formal approach is easier to implement than the
others, although there are difficulties there too.
A government policy that requires equal treatment can pose
problems for lawmakers. A requirement for government to provide equal
health care services for all citizens can be prohibitively expensive. If
government seeks equality of opportunity for citizens to get health
care by rationing services using a maximization model to try to save
money, new difficulties might emerge. For example, trying to ration
health care by maximizing the "quality-adjusted years of life" might
steer monies away from disabled persons even though they may be more
deserving, according to one analysis.
In another instance, BBC News questioned whether it was wise to ask
female army recruits to undergo the same strenuous tests as their male
counterparts since many women were being injured as a result.
Age discrimination can present vexing challenges for policymakers trying to implement equal opportunity.
According to several studies, attempts to be equally fair to both a
young and an old person are problematic because the older person has
presumably fewer years left to live and it may make more sense for a
society to invest greater resources in a younger person's health.
Treating both persons equally while following the letter of the
equality of opportunity seems unfair from a different perspective.
Efforts to achieve equal opportunity along one dimension can
exacerbate unfairness in other dimensions. For example, take public
bathrooms: if for the sake of fairness the physical area of men's and
women's bathrooms is equal, the overall result may be unfair since men
can use urinals, which require less physical space.
In other words, a more fair arrangement may be to allot more physical
space for women's restrooms. The sociologist Harvey Holotch explained:
"By creating men's and women's rooms of the same size, society
guarantees that individual women will be worse off than individual men."
Another difficulty is that it is hard for a society to bring
substantive equality of opportunity to every type of position or
industry. If a nation focuses efforts on some industries or positions,
then people with other talents may be left out. For example, in an
example in the Stanford Encyclopedia of Philosophy,
a warrior society might provide equal opportunity for all kinds of
people to achieve military success through fair competition, but people
with non-military skills such as farming may be left out.
Lawmakers have run into problems trying to implement equality of opportunity. In 2010 in Britain,
a legal requirement "forcing public bodies to try to reduce
inequalities caused by class disadvantage" was scrapped after much
debate and replaced by a hope that organizations would try to focus more
on "fairness" than "equality" as fairness is generally seen as a much
vaguer concept than equality, but easier for politicians to manage if they are seeking to avoid fractious debate. In New York City, mayor Ed Koch
tried to find ways to maintain the "principle of equal treatment" while
arguing against more substantive and abrupt transfer payments called
minority set-asides.
Equal opportunity issues are discussed at an army roundtable in Alabama
Many countries have specific bodies tasked with looking at equality of
opportunity issues. In the United States, for example, it is the Equal Employment Opportunity Commission; in Britain, there is the Equality of Opportunity Committee as well as the Equality and Human Rights Commission; in Canada, the Royal Commission on the Status of Women has "equal opportunity as its precept"; and in China, the Equal Opportunities Commission handles matters regarding ethnic prejudice.
In addition, there have been political movements pushing for equal
treatment, such as the Women's Equal Opportunity League which in the
early decades of the twentieth century, pushed for fair treatment by
employers in the United States. One of the group's members explained:
I
am not asking for sympathy but for an equal right with men to earn my
own living in the best way open and under the most favorable conditions
that I could choose for myself.
Global initiatives such as the United Nations Sustainable Development Goal 5 and Goal 10
are also aimed at ensuring equal opportunities for women at all levels
of decision making, and reducing inequalities of outcome.
Difficulties with measurement
The consensus view is that trying to measure equality of opportunity is difficult whether examining a single hiring decision or looking at groups over time.
Single instance. It is possible to reexamine the procedures
governing a specific hiring decision, see if they were followed and
re-evaluate the selection by asking questions such as "Was it fair? Were
fair procedures followed? Was the best applicant selected?". This is a
judgment call and it is possible that biases may enter into the minds of
decision-makers. The determination of equality of opportunity in such
an instance is based on mathematical probability:
if equality of opportunity is in effect, then it is seen as fair if
each of two applicants has a 50 per cent chance of winning the job, that
is, they both have equal chances to succeed (assuming of course that
the person making the probability assessment is unaware of all variables
– including valid ones such as talent or skill as well as arbitrary
ones such as race or gender). However, it is hard to measure whether
each applicant had in fact a 50 per cent chance based on the outcome.
Groups. When assessing equal opportunity for a type of job or company or industry or nation, then statistical analysis is often done by looking at patterns and abnormalities, typically comparing subgroups with larger groups on a percentage basis. If equality of opportunity is violated, perhaps by discrimination
which affects a subgroup or population over time, it is possible to
make this determination using statistical analysis, but there are
numerous difficulties involved. Nevertheless, entities such as city governments and universities
have hired full-time professionals with knowledge of statistics to
ensure compliance with equal opportunity regulations. For example, Colorado State University
requires their director of its Office of Equal Opportunity to maintain
extensive statistics on its employees by job category as well as minorities and gender. In Britain, Aberystwyth University
collects information including the "representation of women, men,
members of racial or ethnic minorities and people with disabilities
amongst applicants for posts, candidates interviewed, new appointments,
current staff, promotions and holders of discretionary awards" to comply
with equal opportunity laws.
It is difficult to prove unequal treatment although statistical
analysis can provide indications of problems, but it is subject to
conflicts over interpretation and methodological issues. For example, a
study in 2007 by the University of Washington examined its own treatment of women. Researchers collected statistics about female participation in numerous aspects of university life, including percentages of women with full professorships (23 per cent), enrollment in programs such as nursing (90 per cent) and engineering (18 per cent).
There is wide variation in how these statistics might be interpreted.
For example, the 23 per cent figure for women with full professorships
could be compared to the total population of women (presumably 50 per
cent) perhaps using census data,
or it might be compared to the percentage of women with full
professorships at competing universities. It might be used in an
analysis of how many women applied for the position of full professor
compared to how many women attained this position. Further, the 23 per
cent figure could be used as a benchmark or baseline figure as part of
an ongoing longitudinal analysis to be compared with future surveys to
track progress over time. In addition, the strength of the conclusions is subject to statistical issues such as sample size and bias. For reasons such as these, there is considerable difficulty with most forms of statistical interpretation.
A computerized statistical analysis suggested nepotism and a practice of unequal opportunity within Italy's academic community (photo: University of Bari)
Statistical analysis of equal opportunity has been done using
sophisticated examinations of computer databases. An analysis in 2011 by
University of Chicago researcher Stefano Allesina examined 61,000 names of Italian
professors by looking at the "frequency of last names", doing one
million random drawings and he suggested that Italian academia was
characterized by violations of equal opportunity practices as a result
of these investigations. The last names of Italian professors tended to be similar more often than predicted by random chance.
The study suggested that newspaper accounts showing that "nine
relatives from three generations of a single family (were) on the
economics faculty" at the University of Bari were not aberrations, but indicated a pattern of nepotism throughout Italian academia.
There is support for the view that often equality of opportunity is measured by the criteria of equality of outcome,
although with difficulty. In one example, an analysis of relative
equality of opportunity was done based on outcomes, such as a case to
see whether hiring decisions were fair regarding men versus women—the
analysis was done using statistics based on average salaries for
different groups. In another instance, a cross-sectional statistical analysis was conducted to see whether social class affected participation in the United States Armed Forces during the Vietnam War: a report in Time by the Massachusetts Institute of Technology suggested that soldiers came from a variety of social classes and that the principle of equal opportunity had worked, possibly because soldiers had been chosen by a lottery process for conscription.
In college admissions, equality of outcome can be measured directly by
comparing offers of admission given to different groups of applicants:
for example, there have been reports in newspapers of discrimination against Asian Americans regarding college admissions in the United States
which suggest that Asian American applicants need higher grades and
test scores to win admission to prestigious universities than other
ethnic groups.
Marketplace considerations
Equal opportunity has been described as a fundamental basic notion in business and commerce and described by economistAdam Smith as a basic economic precept.
There has been research suggesting that "competitive markets will tend
to drive out such discrimination" since employers or institutions which
hire based on arbitrary criteria will be weaker as a result and not
perform as well as firms which embrace equality of opportunity.
Firms competing for overseas contracts have sometimes argued in the
press for equal chances during the bidding process, such as when
American oil corporations wanted equal shots at developing oil fields in
Sumatra;
and firms, seeing how fairness is beneficial while competing for
contracts, can apply the lesson to other areas such as internal hiring
and promotion decisions. A report in USA Today
suggested that the goal of equal opportunity was "being achieved
throughout most of the business and government labor markets because
major employers pay based on potential and actual productivity".
Fair opportunity practices include measures taken by an
organization to ensure fairness in the employment process. A basic
definition of equality is the idea of equal treatment and respect. In
job advertisements and descriptions, the fact that the employer is an
equal opportunity employer is sometimes indicated by the abbreviations
EOE or MFDV, which stands for Minority, Female, Disabled, Veteran.
Analyst Ross Douthat in The New York Times suggested that equality of opportunity depends on a rising economy which brings new chances for upward mobility and he suggested that greater equality of opportunity is more easily achieved during "times of plenty". Efforts to achieve equal opportunity can rise and recede, sometimes as a result of economic conditions or political choices.
Empirical evidence from public health research also suggests that
equality of opportunity is linked to better health outcomes in the
United States and Europe.
History
According to professor David Christian of Macquarie University, an underlying Big History
trend has been a shift from seeing people as resources to exploit
towards a perspective of seeing people as individuals to empower.
According to Christian, in many ancient agrarian civilizations, roughly
nine of every ten persons was a peasant exploited by a ruling class. In
the past thousand years, there has been a gradual movement in the
direction of greater respect for equal opportunity as political
structures based on generational hierarchies and feudalism broke down during the late Middle Ages and new structures emerged during the Renaissance. Monarchies were replaced by democracies: kings were replaced by parliaments and congresses. Slavery was also abolished generally. The new entity of the nation state emerged with highly specialized parts, including corporations, laws and new ideas about citizenship as well as values about individual rights found expression in constitutions, laws and statutes.
In the United States, one legal analyst suggested that the real beginning of the modern sense of equal opportunity was in the Fourteenth Amendment which provided "equal protection under the law".
The amendment did not mention equal opportunity directly, but it helped
undergird a series of later rulings which dealt with legal struggles,
particularly by African Americans
and later women, seeking greater political and economic power in the
growing republic. In 1933, a congressional "Unemployment Relief Act"
forbade discrimination "on the basis of race, color, or creed". The Supreme Court's 1954 Brown v. Board of Education decision furthered government initiatives to end discrimination.
In 1961, President John F. Kennedy signed Executive Order 10925 which enabled a presidential committee on equal opportunity, which was soon followed by President Lyndon B. Johnson's Executive Order 11246. The Civil Rights Act of 1964 became the legal underpinning of equal opportunity in employment.
Businesses and other organizations learned to comply with the rulings
by specifying fair hiring and promoting practices and posting these
policy notices on bulletin boards, employee handbooks and manuals as
well as training sessions and films.
Courts dealt with issues about equal opportunity, such as the 1989
Wards Cove decision, the Supreme Court ruled that statistical evidence
by itself was insufficient to prove racial discrimination. The Equal Employment Opportunity Commission
was established, sometimes reviewing charges of discrimination cases
which numbered in the tens of thousands annually during the 1990s. Some law practices specialized in employment law. Conflict between formal and substantive approaches manifested itself in backlashes, sometimes described as reverse discrimination, such as the Bakke case
when a white male applicant to medical school sued on the basis of
being denied admission because of a quota system preferring minority
applicants. In 1990, the Americans with Disabilities Act prohibited discrimination against disabled persons, including cases of equal opportunity. In 2008, the Genetic Information Nondiscrimination Act prevents employers from using genetic information when hiring, firing, or promoting employees.
Measures
Many economists measure the degree of equal opportunity with measures of economic mobility. For instance, Joseph Stiglitz
asserts that with five economic divisions and full equality of
opportunity, "20 percent of those in the bottom fifth would see their
children in the bottom fifth. Denmark almost achieves that – 25 percent
are stuck there. Britain, supposedly notorious for its class divisions,
does only a little worse (30 percent). That means they have a 70 percent
chance of moving up. The chances of moving up in America, though, are
markedly smaller (only 58 percent of children born to the bottom group
make it out), and when they do move up, they tend to move up only a
little". Similar analyses can be performed for each economic division
and overall. They all show how far from the ideal all industrialized
nations are and how correlated measures of equal opportunity are with income inequality and wealth inequality.
Equal opportunity has ramifications beyond income; the American Human
Development Index, rooted in the capabilities approach pioneered by Amartya Sen, is used to measure opportunity across geographies in the U.S. using health, education and standard of living outcomes.
Criticism
There is agreement that the concept of equal opportunity lacks a precise definition. While it generally describes "open and fair competition" with equal chances for achieving sought-after jobs or positions as well as an absence of discrimination, the concept is elusive with a "wide range of meanings". It is hard to measure, and implementation poses problems as well as disagreements about what to do.
There have been various criticisms directed at both the
substantive and formal approach. One account suggests that left-leaning
thinkers who advocate equality of outcome fault even formal equality of
opportunity on the grounds that it "legitimates inequalities of wealth
and income". John W. Gardner
suggested several views: (1) that inequalities will always exist
regardless of trying to erase them; (2) that bringing everyone "fairly
to the starting line" without dealing with the "destructive
competitiveness that follows"; (3) any equalities achieved will entail
future inequalities.
Substantive equality of opportunity has led to concerns that efforts to
improve fairness "ultimately collapses into the different one of
equality of outcome or condition".
Economist Larry Summers
advocated an approach of focusing on equality of opportunity and not
equality of outcomes and that the way to strengthen equal opportunity
was to bolster public education. A contrasting report in The Economist
criticized efforts to contrast equality of opportunity and equality of
outcome as being opposite poles on a hypothetical ethical scale, such
that equality of opportunity should be the "highest ideal" while
equality of outcome was "evil".
Rather, the report argued that any difference between the two types of
equality was illusory and that both terms were highly interconnected.
According to this argument, wealthier people have greater opportunities
– wealth itself can be considered as "distilled opportunity" – and
children of wealthier parents have access to better schools, health
care, nutrition and so forth.
Accordingly, people who endorse equality of opportunity may like the
idea of it in principle, yet at the same time they would be unwilling to
take the extreme steps or "titanic interventions" necessary to achieve
real intergenerational equality. A slightly different view in The Guardian
suggested that equality of opportunity was merely a "buzzword" to
sidestep the thornier political question of income inequality.
There is speculation that since equality of opportunity is only one of
sometimes competing "justice norms", there is a risk that following
equality of opportunity too strictly might cause problems in other
areas.
A hypothetical example was suggested: suppose wealthier people gave
excessive amounts of campaign contributions; suppose further that these
contributions resulted in better regulations; and then laws limiting
such contributions on the basis of equal opportunity for all political
participants may have the unintended long term consequence of making
political decision-making lackluster and possibly hurting the groups
that it was trying to protect. Philosopher John Kekes makes a similar point in his book The Art of Politics
in which he suggests that there is a danger to elevating any one
particular political good – including equality of opportunity – without
balancing competing goods such as justice, property rights and others. Kekes advocated having a balanced perspective, including a continuing dialog between cautionary elements and reform elements. A similar view was expressed by Ronald Dworkin in The Economist:
It
strikes us as wrong – or not obviously right – that some people starve
while others have private jets. We are uncomfortable when university
professors earn less, for example, than junior lawyers. But equality
appears to pull against other important ideals such as liberty and
efficiency.
Economist Paul Krugman
sees equality of opportunity as a "non-Utopian compromise" which works
and is a "pretty decent arrangement" which varies from country to
country. However, there are differing views such as by Matt Cavanagh, who criticised equality of opportunity in his 2002 book Against Equality of Opportunity.
Cavanagh favored a limited approach of opposing specific kinds of
discrimination as steps to help people get greater control over their
lives.
Conservative thinker Dinesh D'Souza
criticized equality of opportunity on the basis that "it is an ideal
that cannot and should not be realized through the actions of the
government" and added that "for the state to enforce equal opportunity
would be to contravene the true meaning of the Declaration and to subvert the principle of a free society". D'Souza described how his parenting undermined equality of opportunity:
I
have a five-year-old daughter. Since she was born ... my wife and I
have gone to great lengths in the Great Yuppie Parenting Race. ... My
wife goes over her workbooks. I am teaching her chess. Why are we doing
these things? We are, of course, trying to develop her abilities so that
she can get the most out of life. The practical effect of our actions,
however, is that we are working to give our daughter an edge – that is, a
better chance to succeed than everybody else's children. Even though we
might be embarrassed to think of it this way, we are doing our utmost
to undermine equal opportunity. So are all the other parents who are
trying to get their children into the best schools ...
Equal
opportunity theorists generally agree that once the race begins, who
wins is a function of talent, hard work and competitive drive (photo:
runner Billy Mills crossing the finish line in the 1964 Olympics)
D'Souza argued that it was wrong for government to try to bring his
daughter down, or to force him to raise up other people's children,
but a counterargument is that there is a benefit to everybody,
including D'Souza's daughter, to have a society with less anxiety about
downward mobility, less class resentment and less possible violence.
An argument similar to D'Souza's was raised in Anarchy, State, and Utopia by Robert Nozick,
who wrote that the only way to achieve equality of opportunity was
"directly worsening the situations of those more favored with
opportunity, or by improving the situation of those less well-favored".
Nozick gave an argument of two suitors competing to marry one "fair
lady": X was plain while Y was better looking and more intelligent. If Y
did not exist, then "fair lady" would have married X, but Y exists and
so she marries Y. Nozick asks: "Does suitor X have a legitimate
complaint against Y on the basis of unfairness since Y did not earn his
good looks or intelligence?".
Nozick suggests that there is no grounds for complaint. Nozick argued
against equality of opportunity on the grounds that it violates the rights of property since the equal opportunity maxim interferes with an owner's right to do what he or she pleases with a property.
Property rights were a major component of the philosophy of John Locke and are sometimes referred to as "Lockean rights".
The sense of the argument is along these lines: equal opportunity rules
regarding, say, a hiring decision within a factory, made to bring about
greater fairness, violate a factory owner's rights to run the factory
as he or she sees best; it has been argued that a factory owner's right
to property encompasses all decision-making within the factory as being
part of those property rights. That some people's "natural assets" were
unearned is irrelevant to the equation according to Nozick and he argued
that people are nevertheless entitled to enjoy these assets and other
things freely given by others.
Friedrich Hayek
felt that luck was too much of a variable in economics, such that one
can not devise a system with any kind of fairness when many market
outcomes are unintended.
By sheer chance or random circumstances, a person may become wealthy
just by being in the right place and time and Hayek argued that it is
impossible to devise a system to make opportunities equal without
knowing how such interactions may play out. Hayek saw not only equality of opportunity, but all of social justice as a "mirage".
Some conceptions of equality of opportunity, particularly the
substantive and level playing field variants, have been criticized on
the basis that they make assumptions to the effect that people have
similar genetic makeups. Other critics have suggested that social justice is more complex than mere equality of opportunity.
Nozick made the point that what happens in society can not always be
reduced to competitions for a coveted position and in 1974 wrote that
"life is not a race in which we all compete for a prize which someone
has established", that there is "no unified race" and there is not some
one person "judging swiftness".
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