Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some jurisdictional boundaries. Given its decentralized origins, can individual employment law even have a normative core?
Yes it can, or so argues Professor Samuel Bagenstos. Just as tort theorists have long sought to render the field coherent by mapping principles at work across categories of tort cases, Bagenstos identifies a rough order within this apparent doctrinal mishmash. Individual employment law, he argues, characteristically "seeks to ensure that hierarchies of work do not harden into class-type hierarchies of person" or into more widespread relationships of "domination and subordination." This ideal of "social equality" renders certain doctrines coherent and explains longstanding critiques of other doctrines, and it does so better than theories based on ensuring efficiency or rectifying unequal bargaining power. Bagenstos also roots this argument in first principles of social justice, demonstrating an overlapping consensus among major strands of contemporary political theory to the effect that a just society will eliminate persistent hierarchies of status.
I strongly agree with this argument. I also believe that Bagenstos's article helps answer a vexing question within employment law: When are employer duties justified even if they reduce efficiency and do not target immoral behavior by employers? But I would emphasize different aspects of social equality in certain instances, and I am not optimistic that social egalitarian ideals will strongly influence courts in the run of cases. In this brief Essay, I take up these matters in turn.