Rethinking the Tripartite Division of American Work Law

Abstract

The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At the same time, we are increasingly confronting a functional integration of work law, a development evident in the cross-migration of employment discrimination law and labor law, as the institutions central to each field - discrimination litigation and labor unions respectively - have increasingly assumed functions traditionally played by the other. Functional integration is apparent as well in the increasingly robust role of employment law in both employment discrimination and labor law contexts. Against the backdrop of these developments, our continued embrace of the conventional subject-matter division reflects and reinforces an increasingly false opposition between legal strategies that rely on workplace organizing and collective action (on the one hand) and those that rely on litigation and related institutional practices (on the other). More fundamentally, the conventional division reflects and reinforces an increasingly false opposition between the struggle for workplace democracy and the struggle for racial, gender, and other forms of justice in the workplace and beyond.