The Vision Project

The Knife’s Edge

Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.


PROFESSOR THOMAS KOHLER

Professor Kohler is the Concurrent Professor of Law and Philosophy at Boston College. An internationally recognized authority on the labor and employment law of the United States and other western nations, he has placed special focus on German law. He has lectured and published widely in the United States, Europe, and Japan.


Kohler.squareWhat has the coronavirus pandemic revealed about the shortcomings of the employment system? Social solidarity, or the lack thereof, is the biggest problem in United States. Solidarity is the modern version of what the ancients thought of as a specifically political form of friendship. In their view, without such friendship, which forms the bonds to one another, and which supplies the basis for community, political life—life together—would be impossible. Solidarity includes a willingness to sacrifice for one another, understanding that we all owe some sort of obligations to each other. This is something that increasingly Americans find hard to understand.

Social solidarity includes everyone—there is nothing exclusivist about it. “Injustice anywhere is a threat to justice everywhere,” Martin Luther King Jr. remonstrated in his Letter from a Birmingham Jail. “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly.” I cannot think of a better expression of the principle of solidarity. “Separation is sin,” Reinhold Niebuhr reminded us. We have come to a critical pass in this country’s history, and I believe that the struggle for authentic solidarity lies at its heart. The Black Lives Matter movement, marchers on the streets, demonstrations around the country, not only in large cities but in smaller ones and even rural towns, are themselves expressions of solidarity and call on us to transcend our irrationally held ideas that some humans are “other.”

We stand on a knife’s edge and we are being pulled in two directions: we can move toward solidarity, which calls for a transformation, or we can resist it and try to stay rooted in patterns and structures that ultimately divide us. We can struggle toward “loving our neighbor as ourselves” (something that we may never fully achieve) and to treat others as we wish to be treated, or we can see life in Hobbesian terms, as “a war of all against all,” seeking only our own or our groups’ advantage. As I see it, the present struggle, one that involves all of us, is at base a struggle for solidarity.

The lack of social solidarity has many consequences that are felt on a daily basis, particularly among the more vulnerable in our society. One example is the very weak protections we supply to people for safety in a workplace. The Occupational Safety and Health Act was passed in 1970, but resources have never really been devoted at a level necessary to provide for worker safety. Notably, throughout the act, provisions are made for its enforcement by unions. Unions were supposed to play a major role in bringing safety issues to the attention of employers and authorities, but the influence of unions has diminished as they’ve been weakened over the years.

The pandemic has also revealed how the workplace has changed significantly over the past decade or so. Many people are now performing what is called precarious work, driving for so-called “ride sharing services,” food or package delivery services, for example. These workers, not infrequently minorities or recent immigrants, are vital to such companies’ business models, but they often are treated as independent contractors, not employees. As such, they work without the guarantee of a steady income, a living wage, critical benefits like health care, or the possibility of union representation. There are no worker safety laws in place for them, and they often put their jobs at risk by raising complaints of any sort.

This is a big question for our society because precarious workers live precarious lives, and again, this may especially affect minority workers, recent immigrants, and younger workers as well. It means that they can’t plan. Marriage rates in the States are the lowest since the federal government started keeping records in 1867. Some sociologists have been describing marriage as a luxury good, available only to those near the top of the economic order. Why aren’t people marrying?

Well, for one thing, they can’t plan. They don’t know what their income stream is going to look like. They don’t know what to expect, day to day. And even though the people who shop for us and bring us the food and the goods we need while we shelter at home during the pandemic are doing vital work, they have no power to bargain for better work conditions. It’s also worth remembering that some of the most dangerous work in our society is done by immigrants—packing houses provide a good, and longstanding, example. Those workers often don’t have the sort of protections that the law should be supplying to them or effective means of enforcing the protections that do exist.

Finally, the fact that the emergency unemployment funds that we are providing is often more generous than regular wages points to the tremendous problem with income distribution in the United States.

How has employment law contributed to these shortcomings? Law, of course, is a reflection of mores. As Tocqueville says, the mores are more important than the law. All of these questions about how people are working, what they’re paid, to whom work is available, and under what sort of conditions end up being moral questions—are questions like, What is a decent life? What do we owe to one another? What are the goals of a good political order? I think we need a new way of thinking about our obligations to one another. Maybe one thing that will come out of this pandemic is a realization of how interdependent we are and that we must take questions of race and inequality with real seriousness.

What has been the impact of these shortcomings on people’s everyday lives? Along with a feeling of powerlessness, there is a feeling of indeterminacy and helplessness, that people don’t really have any effective ability to control the conditions of their own lives. If a democracy is worth anything, it is supposed to be set up to give each individual as much room as possible to determine for themselves how they’re going to live in community with others.

I think of Roosevelt’s four freedoms: freedom of speech, freedom of worship, freedom from want, and freedom from fear. For many people, those freedoms don’t exist.

Of course, every society in the world right now is facing all sorts of difficulties. But societies with a stronger social system have less anxiety, and put the relatively weaker at far less risk, even existential risk.

What would a better life for workers look like? What any decent society owes in part are conditions under which each person can unfold their personalities, to find work and activities that fit what they like to do. Work is for the human, not the human for the work.

Some people can take the time to go to school and not worry about taking on huge debt. Many others can’t. There’s tremendous social loss when people are afraid to go off and educate themselves. There is an incalculable cost when great swaths of our population simply find themselves abandoned or effectively excluded, often from birth. This is an example, an aspect, of what systemic discrimination actually means.

We need people in the trades. We need people in all sorts of work. We tend to look down on people, for example, who maintain sewer and water lines and who perform other unglamorous but absolutely critical work. What can we do to ennoble that work, to give people more responsibility for what they do?

A good employment law system would give people opportunities to manage things as much as possible themselves with a framework that isn’t devoted to short-term maximization of profit. If you have a very short-term society, you’re not going to be very interested in that sort of development. People are looked at simply as work inputs. And as soon as you don’t need them, you discard them. That’s not a good society.

What goals would the employment law regime need to pursue to yield your vision of a better life for workers? For employees to have a voice, to have self-determination in how their work is done, they need an organized structure. Collective bargaining was and actually remains an extremely effective way to do this. One of the important roles that unions played was to represent working people, whether they were union members or not, in Congress and in state legislatures. I would make joining unions easier, although that alone will not resolve the problem of weak unions. We face a larger issue: Americans have lost what Tocqueville called the “habit of association.” The great sociologist, Nathan Glazer, observed that “fraternity and solidarity are not familiar terms” for Americans—that tells us a lot about ourselves, I think, and our present problems.

One would want a state that guarantees enough of a social structure that permits people to have effective freedom as opposed to formal freedoms. We also need a system that supplies basic needs for everybody, like health care, and the ability to go to university or trade school and then find meaningful work.

Some forecasts have been that 40 percent of work will disappear. People need to work. They need to make a contribution. We haven’t figured out yet how to navigate that. In light of the pandemic, and the warnings that unemployment rates are likely to remain high for some period, this becomes a crucial problem. It is one that will fall more heavily on minorities. It also is likely to affect older workers across the board, a majority of whom simply do not have the assets or the desire to be excluded from working.

What opportunities do you see for creating more equitable, fair, caring, and financially viable ways for people to work? The biggest opportunity it seems to me is to reconsider, in a serious way, what our obligations are to others and to ourselves—solidarity. None of us lives outside of a society.

In the middle of a pandemic, we have people risking their health to do our shopping, make deliveries to our homes, and then we don’t protect them with a steady income and health insurance. We can’t have a society that does that. That’s not workable.

The law works as a representation of a social agreement that this is a good way to do things. I don’t think that legal changes are going to be effective unless we have first rethought the basic question, What are our obligations to one another? If all you’ve got is the law and you don’t have mores behind it, the law will not be effective. You can’t force people into these things.

One of the reasons for the populism both of the right and of the left, I think, is that people feel things aren’t fair and they want a quick answer. Well, there aren’t going to be quick answers. But one thing seems clear. People do understand, I think essentially, that they need other people.

Work is changing. We don’t know what it will look like. We need to have opportunities for people to be trained. We have to be sure that people have a sufficient income that they can claim their lives, truly determine them. If people can form families, they are better off economically, physically, and mentally. There’s much less abuse of drugs. It makes sense.

We would have to pay attention to what I might call the social substrate. It’s not just work. It’s not just income. It’s an entire social network. We need to put the human in the center of this.

How can we build an employment system that makes us a stronger and more just nation? A stronger and more just world? It would take a legal system that recognizes that this is important not only for people at the bottom, but for people throughout the economy. We might begin by instituting unfair discharge protections for all employees—we are the only nation, the only advanced economy, without this basic safeguard. Being just to one another would require no less.

One seemingly mundane place to start is with the Golden Rule: to want for each other what I want for myself. The same conditions I want for my children, I have to be willing to ensure that possibility for everybody. For us all to be treated with respect, to be valued for simply for being human, and to have our work seen as a contribution to society.

Everyone should have access to health care, with no one getting inferior treatment. Everyone should stand equal before the law. The ability of large institutions through requiring arbitration to foreclose people from being able to go to any court is pretty shocking.

We need a sense of solidarity, a willingness to sacrifice for one another. People should have the ability to intelligently engage in collective bargaining, an authentic voice in determining workplace conditions. That sense of solidarity should move us to creating a fair, decent, and inclusive society, one that recognizes everyone’s place and dignity within it.

I think these conversations are beginning and academics can help shape them, but, of course, not lead them. That’s going to require all of us working together to do.

Read all faculty Vision Project interviews here.

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