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2009

Human in Labor and Relations: International and Domestic Perspectives

James A. Gross (Ed.) Cornell University

Lance Compa (Ed.) Cornell University

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Abstract [Excerpt] This volume is intended to collect the best current scholarship in the new and growing field of labor rights and human rights. We hope it will serve as a resource for researchers and practitioners as well as for teachers and in university-level labor and human rights courses.

The animating idea for the volume is the proposition that workers' rights are human rights. But we recognize that this must be more than a slogan. Promoting labor rights as human rights requires drawing on theoretical in labor studies and in human rights scholarship and developing closely reasoned arguments based on what is happening in the real world. Citing labor clauses in the Universal Declaration of Human Rights is one thing; relating them to the real world where workers seek to exercise their rights is something else. The contributors to this volume provide a firm theoretical foundation grounded in the reality of labor activism and advocacy in a market-driven global economy.

Keywords human rights, labor rights, labor movement, union, organization, public policy

Comments The abstract, table of contents, and first twenty-five pages are published with permission from the Cornell University Press. For ordering information, please visit the Cornell University Press.

This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/books/52 LABOR AND EMPLOYMENT

RELATIONS ASSOCIATION SERIES

ilr Human Rights LIBRARY in Labor and Employment Relations: International and Domestic Perspectives

Martin P. Catherwood Library School of Industrial and Labor Relations

EDITED BY

James A. Gross and Lance Compa CONTENT Human Rights in Labor and Employment Relations: International and Domestic Perspec­ tives. Copyright © 2009 by the Labor and Employment Relations Association. Printed in the United States of America. All Rights Reserved. No part of the book may be used with­ out written permission, except in the case of brief quotations embodied in critical articles Chapter 1—Introduction and reviews. Tames A. Gross and Lance Compa First Edition Chapter 2—Takin' It to the Man: Human R ISBN 978-0-913447-98-7 American Workplace

Price: $24.95 James A. Gross Chapter 3 A New Frontier for Industrial! Workplace Health and Safety a JeffHilgert

LABOR AND EMPLOYMENT RELATIONS ASSOCIATION SERIES Chapter 4—Child Labor in Human Rights Proceedings of the Annual Meeting (published electronically beginning in 2009) and Policy Perspective Annual Research Volume LERA 2006 Membership Directory (published every four years) Bums H. Weston LERA Newsletter (published quarterly) Perspectives on Work (published twice a year in June and December) Chapter 5—Workers' Freedom of Associat Tonia Novitz

Information regarding membership, subscriptions, meetings, publications, and general Chapter 6—Prosecute, Prevent, Protect: N affairs of the LERA can be found at the Association website at www.lera.illinois.edu. Labor, and Human Rights . . . Members can make changes to their member records, including contact information, affili­ Rebecca Smith ations and preferences, by accessing the online directory at the website or by contacting the LERA national office. Chapter 7—Human Rights and Sustainabi Cover photo: Children making firecrackers. Sivakasi, Tamil Nadu, India. Photographer. A Corporate Perspective D.Brown. ©ILO Edward E. Potter and Marika McCau

Chapter 8—Employment LABOR AND EMPLOYMENT RELATIONS ASSOCIATION Maria L. Ontiveros University of Illinois at Urbana-Champaign School of Labor and Employment Relations Chapter 9—The Human Rights of Worke 121 Labor and Building 504 East Armory Ave. Susanne M. Bruyere and Barbara Mu Champaign, IL 61820 Telephone: 217/333-0072 Fax: 217/265-5130 Internet: www.lera.iUinois.edu E-mail: [email protected] About the Contributors CONTENTS itions: Internationa] and Domestic Perspec- iployment Relations Association. Printed in ved. No part of the hook may he used with- rief quotations embodied in critical articles Chapter 1—Introduction 1 James A. Gross and Lance Compa ition Chapter 2—Takin' It to the Man: Human Rights at the 13447-98- American Workplace 13 14.95 James A. Gross

Chapter 3—A New Frontier for Industrial Relations: Workplace Health and Safety as a Human Right 43 Jeff Hilgert ASSOCIATION SERIES Chapter 4—Child Labor in Human Rights Law hed electronically beginning in 2009) and Policy Perspective 73 Burns H. Weston bed every four years) Chapter 5—Workers' 123 ar in June and December) Tonia Novitz

ions, meetings, publications, and general Chapter 6—Prosecute, Prevent, Protect: Migrant Labor, Forced ociation website at www.lera.illinois.edu. Labor, and Human Rights 155 •cords, including contact information, affili- • directory' at the website or by contacting Rebecca Smith Chapter 7—Human Rights and : vakasi, Tamil Nadu, India. Photographer: A Corporate Perspective 181 Edward E. Potter and Marika McCauley Sine

Chapter 8—Employment Discrimination 195 ELATIONS ASSOCIATION Maria L. Ontiveros Jrbana-Champaign ployment Relations Relations Building Chapter 9—The Human Rights of Workers with Disabilities 213 ory Ave. Susanne M. Bruyere and Barbara Murray L 61820 Fax: 217/265-5130 E-mail: [email protected] About the Contributors 235 CHAPTER 1 Introduction

JAMES A. GROSS LANCE COMPA Cornell University

This volume is intended to collect the best current scholarship in the new and growing field of labor rights and human rights. We hope it will serve as a resource for researchers and practitioners as well as for teachers and students in university-level labor and human rights courses. The animating idea for the volume is the proposition that workers' rights are human rights. But we recognize that this must be more than a slogan. Promoting labor rights as human rights requires drawing on theoretical work in labor studies and in human rights scholarship and developing closely reasoned arguments based on what is happening in the real world. Citing labor clauses in the Universal Declaration of Human Rights is one thing; relating them to the real world where workers seek to exercise their rights is something else. The contributors to this volume provide a firm theoretical foundation grounded in the reality of labor activism and advocacy in a market-driven global economy.

Separate Tracks For most of the half-century after the Second World War, labor rights and labor standards were strictly a matter of national law and practice. Small groups of specialists in each country knew of the International Labour Organization and the dozens of "conventions" adopted since the ILOs founding in 1919. ILO conventions are meant to fashion common international labor standards around the world. ILO norms are nonbind- ing unless and until they are ratified and incorporated into national law, but they set out a marker of international consensus on workers' rights. In many countries, however—and especially in the United States—ILO standards traditionally have had little weight or relevance. In similar fashion, labor advocates have rarely, if ever, looked to international human rights norms in their promotion of workers' rights. The "international bill of rights," consisting of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and

1 2 HUMAN RIGHTS INTRODUCTION

Political Rights (ICCPR), and the International Covenant on Economic, In one notable case filed under NAFT/ Social and (ICESCR), contains many labor-related and allied labor an clauses. They cover freedom of association, organizing, and bargaining; Mexico challenged the widespread practi prohibitions on forced labor and child labor; nondiscrimination and U.S.-based multinational firms in the ma health and safety in the workplace; decent wages and benefits; and other U.S.-Mexico border. Nothing in the NAFT labor subjects. But trade unionists and their allies did not make the con­ trinational commission to order and enforce nection between international labor standards and their struggles in verdict in the court of public opinion, gem national settings. Human rights were disconnected from labor concerns the joint advocacy campaign by America] and labor discourse. alliances, put a stop to the practice in mai During this same period, from the end of World War II to the 1990s, U.S. companies. the human rights community hardly ever took workers' rights into its Another signal of a labor-human rigl field of vision and activism. Human rights activists focused—with good other initiatives by Human Rights Watch reason—on outrages like , , arbitrary arrest and impris­ HRW produced book-length reports on vi( onment, and death squad killings, often perpetrated by U.S.-supported the United States as well as in other countri military dictatorships. Human rights supporters saw labor rights and household domestic workers, child labor labor standards lying more in the economic arena, not that of human industry abuses, Walmarts interference witl rights. The long list of labor-related clauses in basic human rights instru­ ation, and workers victimized across the ments just did not translate into action by human rights promoters. when they tried to exercise organizing am HRW labor rights reports addressed chiL Two Paths Converge workers in Guatemala, freedom of associ; labor in Burma, migrant construction w In the 1990s the separate paths of labor rights and human rights in Indonesia and advocacy began to converge. Each group came to see that its traditional boundaries were too narrow in a new context of political, social, and eco­ Other human rights groups have simil nomic upheaval captured by the term "." Trade unions look­ Amnesty International USA created a busint ing to national labor law systems for organizing and bargaining gains with extensive focus on workers' rights. Its ] found themselves undercut by a race-to-the-bottom global economy. based Amnesty International, created a v Human rights advocates saw that their traditional agenda did not ade­ engaged an experienced British trade unioi quately address the consequences of economic globalization and the national broadened its development agend suffering it unleashed on victims of the "destruction" side of s standards, and its America group c: creative destruction. Of course, globalization had winners as it rolled on, gram to take up these causes inside the Ui but millions of "losers" faced human rights abuses: child workers, traf­ launched a "national workers' rights campai ficked workers, discriminated-against workers, workers forced into labor agricultural sector. In 2004, the group pul at the point of a gun, workers fired, jailed, and killed for trying to form Like Machines in the Fields: Workers \\ unions, and many more. Agriculture (Oxfam America 2004). One sign of a new connection between labor rights and human rights Labor's Turn to Human Rights appeared with the introduction of labor clauses in trade agreements like the North American Free Trade Agreement (NAFTA) labor side accord On the labor side, the AFL-CIO hi and other U.S. pacts with trading partners. Although lacking strong "Voice@Work" project designed to help U enforcement mechanisms, these clauses and their reliance on ILO and human right to form unions to improv international human rights standards created opportunities for labor and stresses international human rights in wo human rights advocates to work together filing complaints and backing around the country. In 2005, for exampl< them up with new forms of cross-border solidarity. more than 100 demonstrations in cities tl 2 HUMAN RIGHTS INTRODUCTION 3

Political Rights (ICCPR), and the International Covenant on Economic, In one notable case filed under NAFTA's labor agreement in 1997, Social and Cultural Rights (ICESCR), contains many labor-related Human Rights Watch and allied labor and women's rights groups in clauses. They cover freedom of association, organizing, and bargaining; Mexico challenged the widespread practice of pregnancy testing by prohibitions on forced labor and child labor; nondiscrimination and U.S.-based multinational firms in the maquiladora region along the health and safety in the workplace; decent wages and benefits; and other U.S.-Mexico border. Nothing in the NAFTA agreement empowered its labor subjects. But trade unionists and their allies did not make the con­ trinational commission to order and enforce a halt to the practice, but a nection between international labor standards and their struggles in verdict in the court of public opinion, generated by the complaint and national settings. Human rights were disconnected from labor concerns the joint advocacy campaign by American and Mexican labor-NGO and labor discourse. alliances, put a stop to the practice in many of the factories supplying During this same period, from the end of World War II to the 1990s, U.S. companies. the human rights community hardly ever took workers' rights into its Another signal of a labor-human rights convergence came with field of vision and activism. Human rights activists focused—with good other initiatives by Human Rights Watch (HRW). Beginning in 2000, reason—on outrages like genocide, torture, arbitrary arrest and impris­ HRW produced book-length reports on violations of workers' rights in onment, and death squad killings, often perpetrated by U.S.-supported the United States as well as in other countries. The U.S. reports covered military dictatorships. Human rights supporters saw labor rights and household domestic workers, child labor in agriculture, meatpacking labor standards lying more in the economic arena, not that of human industry abuses, Walmart s interference with workers' freedom of associ­ rights. The long list of labor-related clauses in basic human rights instru­ ation, and workers victimized across the country in many industries ments just did not translate into action by human rights promoters. when they tried to exercise organizing and bargaining rights. Abroad, HRW labor rights reports addressed child labor in Ecuador, women Two Paths Converge workers in Guatemala, freedom of association in El Salvador, forced In the 1990s the separate paths of labor rights and human rights labor in Burma, migrant construction workers in the Middle East, advocacy began to converge. Each group came to see that its traditional migrant domestic workers in Indonesia and Malaysia, and more. boundaries were too narrow in a new context of political, social, and eco­ Other human rights groups have similarly taken up labor's cause. nomic upheaval captured by the term "globalization." Trade unions look­ Amnesty International USA created a business and human rights division ing to national labor law systems for organizing and bargaining gains with extensive focus on workers' rights. Its parent organization, London- found themselves undercut by a race-to-the-bottom global economy. based Amnesty International, created a workers' rights program and Human rights advocates saw that their traditional agenda did not ade­ engaged an experienced British trade unionist to direct it. Oxfam Inter­ quately address the consequences of economic globalization and the national broadened its development agenda to include labor rights and suffering it unleashed on victims of the "destruction" side of capitalism's standards, and its Oxfam America group created a workers' rights pro­ creative destruction. Of course, globalization had winners as it rolled on, gram to take up these causes inside the United States. In 2003, Oxfam but millions of "losers" faced human rights abuses: child workers, traf­ launched a "national workers' rights campaign" on conditions in the U.S. ficked workers, discriminated-against workers, workers forced into labor agricultural sector. In 2004, the group published a major report titled at the point of a gun, workers fired, jailed, and killed for trying to form Like Machines in the Fields: Workers Without Rights in American unions, and many more. Agriculture (Oxfam America 2004). One sign of a new connection between labor rights and human rights Labor's Turn to Human Rights appeared with the introduction of labor clauses in trade agreements like the North American Free Trade Agreement (NAFTA) labor side accord On the labor side, the AFL-CIO has launched a broad-based and other U.S. pacts with trading partners. Although lacking strong "Voice@Work" project designed to help U.S. workers regain the basic enforcement mechanisms, these clauses and their reliance on ILO and human right to form unions to improve their lives. Voice@Work international human rights standards created opportunities for labor and stresses international human rights in workers' organizing campaigns human rights advocates to work together filing complaints and backing around the country. In 2005, for example, the labor federation held them up with new forms of cross-border solidarity. more than 100 demonstrations in cities throughout the United States 4 HUMAN RIGHTS INTRODUCTlOr and enlisted signatures from 11 Nobel Peace Prize winners, including A new movement that began at the Dalai Lama, Lech Walesa, Jimmy Carter, and Archbishop factories has adopted a human rights and k Desmond Tutu, supporting workers' human rights in full-page adver­ lems of workers in their own campuses ar tisements in national newspapers. human rights as a central theme. Students at In 2004, trade unions and allied labor support groups created a new hunger strikes, and occupations of admii nongovernmental organization (NGO) called American Rights at Work union organizing and "living wage" and ot (ARAW). ARAW launched an ambitious program to make human rights collar workers, clerical and technical emplo- the centerpiece of a new civil society movement for U.S. workers' organ­ university . izing and bargaining rights. ARAW's 20-member board of directors These initiatives suggest that the huma includes prominent civil rights leaders, former elected officials, environ­ ties no longer run on separate tracks. The mentalists, religious leaders, business leaders, writers, scholars, an actor, mission with enhanced traction to advance N and one labor leader (AFL-CIO president John Sweeney). The conver­ gence of these movements is aptly illustrated in the figure of the group's Using International Mechanisms international advisor, Mary Robinson, who is the former The U.S. labor movement's new intei High Commissioner for Human Rights. rights law is reflected in its increasing use < Many organizations are also turning to international human rights national human rights mechanisms. In 200! arguments in defense of immigrant workers in the United States. For plaint with the ILO Committee on Free example, the National Employment Law Project (NELP) includes an challenging the Supreme Court's Hoffman immigrant worker project under its rubric "workers' rights are human the Supreme Court had held, in a 5-4 dec rights—advancing the human rights of immigrant workers in the United worker, because of his immigration status, States." NELP has been a leader in filing complaints to the Inter-American for lost wages after he was illegally fired fo Commission and Inter-American Court of Human Rights on rights viola­ justice majority said that enforcing immig tions among immigrant workers in the United States. over enforcing labor law. Working with Mexican colleagues, NELP sought an Inter-American The union federations' ILO complaint Court Advisory Opinion on U.S. treatment of immigrant workers. The back-pay remedy for undocumented worke petition was prompted by the Supreme Court's 2002 Hojfman Plastic ers' right to organize, contrary to the requ decision stripping undocumented workers illegally fired for union organ­ provide adequate protection against acts of izing from access to back-pay remedies (Hojfman 2002). The Inter- The AFL-CIO's complaint was succesj American Court issued the opinion that undocumented workers are CFA announced that the Hoffman doctrin entitled to the same labor rights, including wages owed, protection from obligations to protect workers' organizing discrimination, protection for health and safety on the job, and back pay, eluded that remedial measures left to th as are citizens and those working lawfully in a country. Board (NLRB) in cases of illegal dismissa Reaching out to the religious community, Interfaith Worker Justice are inadequate to ensure effective protecti (IWJ) is a national coalition of leaders of all faiths supporting workers' discrimination. The CFA recommended c rights under religious principles. IWJ places divinity students, rabbinical U.S. law into conformity with freedom of as students, seminarians, novices, and others studying for careers in reli­ aim of ensuring effective protection for all gious service in union-organizing internships. Through a national net­ union discrimination in the wake of the Hoj work of local religious coalitions, IWJ also sponsors projects for immigrant workers, poultry workers, home-care workers, and other low- wage employees. IWJ gives special help when religious-based employ­ ers, such as hospitals and schools, violate workers' organizing and bargaining rights. 4 HUMAN RIGHTS INTRODUCTION 5 and enlisted signatures from 11 Nobel Peace Prize winners, including the Dalai Lama, Lech Walesa, Jimmy Carter, and Archbishop A new student movement that began against in overseas Desmond Tutu, supporting workers' human rights in full-page adver­ factories has adopted a human rights and labor rights approach to prob­ tisements in national newspapers. lems of workers in their own campuses and communities, often citing In 2004, trade unions and allied labor support groups created a new human rights as a central theme. Students at many universities held rallies, nongovernmental organization (NGO) called American Rights at Work hunger strikes, and occupations of administration offices to support (ARAW). ARAW launched an ambitious program to make human rights union organizing and "living wage" and other campaigns among blue- the centerpiece of a new civil society movement for U.S. workers' organ­ collar workers, clerical and technical employees, and other sectors of the izing and bargaining rights. ARAW's 20-member board of directors university workforce. includes prominent civil rights leaders, former elected officials, environ­ These initiatives suggest that the human rights and labor communi­ mentalists, religious leaders, business leaders, writers, scholars, an actor, ties no longer run on separate tracks. They have joined in a common and one labor leader (AFL-CIO president John Sweeney). The conver­ mission with enhanced traction to advance workers' rights. gence of these movements is aptly illustrated in the figure of the group's international advisor, Mary Robinson, who is the former United Nations Using International Mechanisms High Commissioner for Human Rights. I The U.S. labor movement's new interest in international human Many organizations are also turning to international human rights rights law is reflected in its increasing use of ILO complaints and inter­ arguments in defense of immigrant workers in the United States. For national human rights mechanisms. In 2002, the AFL-CIO filed a com­ example, the National Employment Law Project (NELP) includes an plaint with the ILO Committee on Freedom of Association (CFA) immigrant worker project under its rubric "workers' rights are human challenging the Supreme Court's Hoffman Plastic decision. In Hoffman, rights—advancing the human rights of immigrant workers in the United the Supreme Court had held, in a 5-4 decision, that an undocumented States." NELP has been a leader in filing complaints to the Inter-American worker, because of his immigration status, was not entitled to back pay Commission and Inter-American Court of Human Rights on rights viola­ for lost wages after he was illegally fired for union organizing. The five- tions among immigrant workers in the United States. justice majority said that enforcing immigration law takes precedence Working with Mexican colleagues, NELP sought an Inter-American over enforcing labor law. Court Advisory Opinion on U.S. treatment of immigrant workers. The The union federations' ILO complaint argued that eliminating the petition was prompted by the Supreme Court's 2002 Hoffman Plastic back-pay remedy for undocumented workers annuls protection of work­ decision stripping undocumented workers illegally fired for union organ­ ers' right to organize, contrary to the requirement in Convention 87 to izing from access to back-pay remedies (Hoffman 2002). The Inter- provide adequate protection against acts of anti-union discrimination. American Court issued the opinion that undocumented workers are The AFL-CIOs complaint was successful: in November 2003, the entitled to the same labor rights, including wages owed, protection from CFA announced that the Hoffman doctrine violates international legal discrimination, protection for health and safety on the job, and back pay, obligations to protect workers' organizing rights. The committee con­ as are citizens and those working lawfully in a country. cluded that remedial measures left to the National Labor Relations Reaching out to the religious community, Interfaith Worker Justice Board (NLRB) in cases of illegal dismissals of undocumented workers (IWJ) is a national coalition of leaders of all faiths supporting workers' are inadequate to ensure effective protection against acts of anti-union rights under religious principles. IWJ places divinity students, rabbinical discrimination. The CFA recommended congressional action to bring students, seminarians, novices, and others studying for careers in reli­ U.S. law into conformity with freedom of association principles, with the gious service in union-organizing internships. Through a national net- j aim of ensuring effective protection for all workers against acts of anti­ work of local religious coalitions, IWJ also sponsors projects for union discrimination in the wake of the Hoffman decision. immigrant workers, poultry workers, home-care workers, and other low- f wage employees. IWJ gives special help when religious-based employ- [ Supervisory Exclusion ers, such as hospitals and schools, violate workers' organizing and In October 2006, the AFL-CIO filed another CFA complaint, this bargaining rights. j time against the NLRB s decision in the so-called Oakwood Trilogy (Croft Metal, Inc. 2006; Golden Crest Healthcare Center 2006; Oakwood 6 HUMAN RIGHTS INTROD

Healthcare, Inc. 2006). In Oakwood, the NLRB announced an expanded who are high-level policymakers, n interpretation of the definition of "supervisor" under the National Labor excluded from the right to bargain." Relations Act. Under the new ruling, employers can classify as "supervi­ In April 2007, the CFA ruled in sors" employees with incidental oversight over co-workers even when government to promote the estab such oversight is far short of genuine managerial or supervisory authority. framework in the public sector in N< In its complaint to the ILO, the AFL-CIO relied on the ILO conven­ lation into conformity with the free tions, arguing that the NLRB's decision contravened No. 87s affirmation national Labour Organization 2007) that "workers and employers, without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing Employers Engaging the Huma without previous authorization." The AFL-CIO further argued that the The employer community recoi NLRB's Oakwood Trilogy strips employees in the new "supervisor" status menace) of the labor rights as hui of protection of rights in violation of Convention Right-to-Work Committee (NRTWt No. 98. to advance U.S. labors cause: in F In its March 2008 decision, the CFA found that the criteria for briefing paper titled Organized L supervisory status laid out in the Oakwood Trilogy give rise to an overly Transforming Workplace Rights int( wide definition of supervisory staff that would go beyond freedom of The paper noted that a association principles, and it urged the U.S. government to take all nec­ labor rights ought to be considerec essary steps to ensure that exclusions are limited to workers genuinely policy, but as international human representing the interests of employers. international bodies. It went on to themselves to be influenced by the TSA Airport Screeners concluded that the United States sh In November 2006, the CFA issued a decision in a complaint filed by membership because of the unions' the AFL-CIO and the American Federation of Government Employees In March 2009, the U.S. Chamb (AFGE) against the Bush administrations denial of collective bargaining for International Business issued pt rights to Transportation Security Administration (TSA) airport screeners reject the proposed Employee Fre< (International Labour Organization 2006). The administration argued Conventions 87 and 98. This signa that events of September 11, 2001, and concomitant security concerns position that these ILO standards c made it necessary to strip TSA employees of trade union rights accorded that the United States cannot ratify to other federal employees. Again, the CFA found the United States failing to meet freedom of Some Critical Voices association standards. The CFA said that persons who are clearly not We are mindful of the fact that making national policy that may affect security, but only exercising spe­ and trade unions have expressed ski cific tasks within clearly defined parameters, should be able to exercise as human rights as a strategy for a organizing and bargaining rights. that a focus on "rights" plays into assert, for example, the right to rel North Carolina Public Employees right to secret ballot elections, or < In 2006, the United Electrical, Radio and Machine Workers of ness. Instead of arguing that labor r America (UE) filed a complaint with the CFA. The complaint charged critics call for a focus on labor solidf that North Carolina's ban on public worker bargaining, and the failure These are healthy cautions frc of the United States to take steps to protect workers' bargaining rights, defenders of trade unions and w< violated ILO's principles that "all workers, without distinction should needed debate about the role and e enjoy organizing and bargaining rights, and that only public employees and human rights arguments in su 6 HUMAN RIGHTS INTRODUCTION 7

Healthcare, Inc. 2006). In Oakwood, the NLRB announced an expanded who are high-level policymakers, not rank-and-file workers, should be interpretation of the definition of "supervisor" under the National Labor excluded from the right to bargain." Relations Act. Under the new ruling, employers can classify as "supervi­ In April 2007, the CFA ruled in the unions favor and urged the U.S. sors" employees with incidental oversight over co-workers even when government to promote the establishment of a collective bargaining such oversight is far short of genuine managerial or supervisory authority. framework in the public sector in North Carolina to bring the state legis­ In its complaint to the ILO, the AFL-CIO relied on the ILO conven­ lation into conformity with the freedom of association principles (Inter­ tions, arguing that the NLRB s decision contravened No. 87s affirmation national Labour Organization 2007). that "workers and employers, without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing Employers Engaging the Human Rights Argument without previous authorization." The AFL-CIO further argued that the NLRB s Oakwood Trilogy strips employees in the new "supervisor" status The employer community recognizes the force (and, for some, the of protection of collective bargaining rights in violation of Convention menace) of the labor rights as human rights argument. The National No. 98. Right-to-Work Committee (NRTWC) sees the potential for ILO rulings to advance U.S. labors cause: in February 2008, the NRTWC issued a In its March 2008 decision, the CFA found that the criteria for briefing paper titled Organized Labor's International Law Project? supervisory status laid out in the Oakwood Trilogy give rise to an overly Transforming Workplace Rights into Human Rights (Muggeridge 2008). wide definition of supervisory staff that would go beyond freedom of The paper noted that trade union advocates have effectively argued that association principles, and it urged the U.S. government to take all nec­ labor rights ought to be considered not as mere elements of economic essary steps to ensure that exclusions are limited to workers genuinely policy, but as international human rights proclaimed and monitored by representing the interests of employers. international bodies. It went on to warn that domestic courts may allow TSA Airport Screeners themselves to be influenced by the rulings of international tribunals and concluded that the United States should consider withdrawing from ILO In November 2006, the CFA issued a decision in a complaint filed by membership because of the unions' use of ILO complaints. the AFL-CIO and the American Federation of Government Employees In March 2009, the U.S. Chamber of Commerce and die U.S. Council (AFGE) against the Bush administrations denial of collective bargaining for International Business issued public statements that Congress should rights to Transportation Security Administration (TSA) airport screeners reject the proposed Employee Free Choice Act because it violates ILO (International Labour Organization 2006). The administration argued Conventions 87 and 98. This signaled a reversal of their long-standing that events of September 11, 2001, and concomitant security concerns position that these ILO standards do not apply to the United States and made it necessary to strip TSA employees of trade union rights accorded to other federal employees. that the United States cannot ratify them. Again, the CFA found the United States failing to meet freedom of Some Critical Voices association standards. The CFA said that persons who are clearly not We are mindful of the fact that some analysts sympathetic to workers making national policy that may affect security, but only exercising spe­ and trade unions have expressed skepticism about promoting labor rights cific tasks within clearly defined parameters, should be able to exercise as human rights as a strategy for advancing labors cause. Some suggest organizing and bargaining rights. that a focus on "rights" plays into the hands of anti-labor forces who North Carolina Public Employees assert, for example, the right to refrain from union membership, or the right to secret ballot elections, or employers' right to manage the busi­ In 2006, the United Electrical, Radio and Machine Workers of ness. Instead of arguing that labor rights are human rights, these friendly America (UE) filed a complaint with the CFA. The complaint charged critics call for a focus on labor solidarity and . that North Carolina's ban on public worker bargaining, and the failure These are healthy cautions from serious, committed scholars and of the United States to take steps to protect workers' bargaining rights, defenders of trade unions and workers' rights. They contribute to a violated ILO's principles that "all workers, without distinction should needed debate about the role and effectiveness of human rights activism enjoy organizing and bargaining rights, and that only public employees and human rights arguments in support of workers' rights. But they do HUMAN RIGHTS INTRODUCE not convince the editors of this volume that a human rights argument concern. His chapter aims to establish should be jettisoned. The fact that anti-labor forces appropriate "rights relations scholarship and to build a hu talk" does not mean we should leave the field. This is contested terrain, policy. He uses workers' health and s and we should not yield it to anti-labor forces. We should not have to between institutional labor economics E choose between human rights and solidarity as the touchstone of effec­ the human rights worldview offers a fur tive advocacy on behalf of workers. We can call for both, insisting that than institutional economics particular! they go hand in hand. the role of government and the anal Workers are empowered in campaigns when they are themselves understanding human rights in a socia convinced—and are convincing the public—that they are vindicating the human rights worldview poses a r their fundamental human rights, not just seeking a wage increase or orthodoxy of neoclassical economics ti more job benefits. The larger society is more responsive to the notion of economic philosophy, including the insl trade union organizing as an exercise of human rights rather than eco­ He also finds that the history of how ir nomic strength. The human rights argument pries open more space for worker health and safety disqualifies in workers' organizing and bargaining by framing them as a human rights claiming the banner of universal hum; mission, not just as a test of economic power between institutional ther illustrates, according to Hilgert, th adversaries. analysis in industrial relations scholarsf The fact that international human rights arguments strain for a place up with the reality of the suffering of rr in American political discourse is not a reason to shy away from their Burns Weston sees child labor as : use. It's a reason to bring human rights into the discourse to connect but as a human rights problem that i with a natural sense of "rights" that all people have. In this spirit, we and multisectoral. His chapter is pren conceived and bring to press this volume. tions: that child labor is exploitive, ha The authors of the essays here constitute a diverse and accomplished children's best interest and constitutes group of human rights activists, practitioners, and scholars, all of whom child labor begs to be abolished; that c have published extensively. James Gross sets the tone for the volume by plex ways demanding multidimensioi emphasizing that the growing movement for promoting and protecting that no form or level of social organiza human rights at workplaces here and around the world posits a new set of and that change requires an ongoing values and approaches that challenge every orthodoxy in the employment human rights law and policy, which relations field, every practice and rule rooted in that orthodoxy, and even influence their own lives. Conseque the underlying premises and intellectual foundations of contemporary based approach that responds to si labor and employment systems. More specifically, his chapter discusses claimed absence of a theory of humai how the human rights movement challenges and is challenged by tradi­ bolts strategy that includes legal and " tional conceptions of the sources of worker and employer rights, the philos­ labor. Weston contends that "reorient ophy and practice of the unregulated market, the long-standing opposition rial, is not sufficient to bring about to the idea of economic rights, the wide-ranging consequences of cultural practical measures he proposes. and moral relativism, and doctrines of national sovereignty—and even the Tonia Novitz addresses workers' f still dominant industrial pluralism theory attributed to "Wisconsin School" the conflict between collective action pioneer John R. Commons. Finally, Gross describes the gap between U.S. on two issues: whether the freedom c labor laws and international human rights law and standards and explores the positive entidement to associate wi the implications of these human rights challenges for labor and employ­ tlement to refuse to do so and whetl ment research. beyond the ability of an individual to Jeff Hilgert challenges industrial relations and labor economics to out state interference to the ability to articulate a framework of workers' health and safety as a human rights lective action with state support and GHTS INTRODUCTION 9 ie that a human rights argument concern. His chapter aims to establish a new foundation for industrial :i-labor forces appropriate "rights relations scholarship and to build a human rights foundation for labor ie field. This is contested terrain, policy. He uses workers' health and safety to illustrate the contrasts 3r forces. We should not have to between institutional labor economics and human rights and shows that darity as the touchstone of effec- the human rights worldview offers a fundamentally different perspective 'e can call for both, insisting that than institutional economics particularly in regard to policy evaluation, the role of government and the analysis of government policy, and aigns when they are themselves understanding human rights in a social context. Hilgert concludes that lublic—that they are vindicating the human rights worldview poses a more significant challenge to the just seeking a wage increase or orthodoxy of neoclassical economics than does any other market-based ; more responsive to the notion of economic philosophy, including the institutional labor economics school. of human rights rather than eco- He also finds that the history of how institutional economics has viewed ument pries open more space for worker health and safety disqualifies institutional labor economists from framing them as a human rights claiming the banner of universal human rights advocacy. That fact fur­ nic power between institutional ther illustrates, according to Hilgert, the need for a distinct human rights analysis in industrial relations scholarship that, in his words, would catch ights arguments strain for a place up with the reality of the suffering of many millions of workers. a reason to shy away from their Burns Weston sees child labor as not only a human rights problem its into the discourse to connect but as a human rights problem that is multidisciplinary, multifaceted, ill people have. In this spirit, we and multisectoral. His chapter is premised on five interrelated proposi­ ie. tions: that child labor is exploitive, hazardous, or otherwise contrary to statute a diverse and accomplished children's best interest and constitutes a "blight on human civility"; that tioners, and scholars, all of whom child labor begs to be abolished; that child labor manifests itself in com­ ss sets the tone for the volume by plex ways demanding multidimensional approaches to its eradication; ent for promoting and protecting that no form or level of social organization can claim "business as usual"; ound the world posits a new set of and that change requires an ongoing commitment to the application of human rights law and policy, which includes the right of children to very orthodoxy in the employment influence their own lives. Consequently, Weston advocates a rights- rooted in that orthodoxy, and even based approach that responds to skeptics' arguments, contests the :ual foundations of contemporary claimed absence of a theory of human rights, and sets forth a nuts-and- specifically, his chapter discusses bolts strategy that includes legal and "extra-legal" means to abolish child lenges and is challenged by tradi- labor. Weston contends that "reorienting one's worldview," while essen­ ker and employer rights, the philos- tial, is not sufficient to bring about broad-based change without the larket, the long-standing opposition practical measures he proposes. e-ranging consequences of cultural Tonia Novitz addresses workers' freedom of association, particularly lational sovereignty—and even the the conflict between collective action and individual choice. She focuses ry attributed to "Wisconsin School" on two issues: whether the freedom of association encompasses not only DSS describes the gap between U.S. the positive entitlement to associate with others but also the negative enti­ hts law and standards and explores tlement to refuse to do so and whether freedom of association extends ; challenges for labor and employ- beyond the ability of an individual to form and join an organization with­ relations and labor economics to out state interference to the ability to have an organization engage in col­ :alth and safety as a human rights lective action with state support and protection. Novitz discusses these 10 HUMAN RIGHTS INTRODUCTION issues in the context of international law (including U.N. covenants, ILO understood as a violation of human rights anc conventions, and the decisions of the ILO s Committee on Freedom of principles regarding employment discriminate Association) and the legal systems of Canada, the United Kingdom, and of those principles. Ontiveros also discusses sp the United States. She finds that the laws of those countries do not comply discrimination and affirmative action; discrim wholly with ILO standards and that in the U.S. and Canada, this noncom­ der, and sexuality; religious discrimination; ar pliance has prevented ratification of key instruments relative to the free­ national origin, citizenship, and migrant stati dom of association. Her essay has important implications for determining with a comparative and critical evaluation of the most effective ways to gain protection for participation by workers' nation law under human rights principles. T organizations in collective bargaining. standard of judgment, Ontiveros finds that U.: Rebecca Smiths chapter emphasizes the urgent and compelling need ing full protection of the human rights of Ame to protect the rights of migrant workers and forced laborers, so many of Susanne Bruyere and Barbara Murray exj whom are the victims of wage exploitation, discrimination, and retalia­ when considering workers with disabilities fro tion. She points out that models exist—in , in judicial decisions, in tation to the long-overlooked rights of those \ the approaches of some governments, and in migrant communities them­ workplace and in the world economy. It is a selves—that policy makers in the U.S. and around the world could find medical or welfare approach to a social right useful in dealing with these human rights violations. Smith describes a They emphasize that although the rights of w protection scheme that would redress the imbalance between migrant ignored even in the International Bill of Rig workers (documented and undocumented) and nationals of a country, tion of Human Rights, the International Co\ including labor rights differences, and recommends aggressive measures Rights, and the International Covenant on E< to identify and protect victims of trafficking. Her conclusions are based Rights), change has come with the adoption on a thorough analysis of the decisions of the Inter-American Court of the Rights of Persons with Disabilities (CR Human Rights, the ILO Committee on Freedom of Association, the human rights development, the authors revi European Court of Human Rights, and various national courts. disability laws in the U.S. and the European Edward Potter and Marika McCauley Sine reject the traditional need for change in overarching philosophy business view that upholding internationally recognized human rights ment is a key aspect of disability rights policy based on documents and treaties is not part of business activity. They tion to a discussion of specific changes that i maintain that business cannot thrive adhering to that position in a global provide a valuable discussion of the implica economy. According to Potter and McCauley Sine, business cannot and employment relations professionals and ignore its unique role concerning human rights despite the fact that pri­ mary accountability remains with government to protect its citizens and References to enforce the law. The authors provide a historical perspective on the Croft Metal Inc., 348 NLRB No. 38 (2006). evolution of how human rights began to find its way into business Golden Crest Healthcare Center, 348 NLRB No. 3< through self-regulation in the form of codes of conduct that reflect ILO Hoffman Plastic Compounds, Inc. v. National Lab standards. Despite this progress, the authors lament, there is no clear (2002). path or pragmatic set of standards articulating the human rights obliga­ International Labour Organization. 2006. Comir tions of employers. They also note that human rights topics are still Case No. 2292, Report No. 343. Complaint ag; International Labour Organization. 2007. Comn absent from most boardrooms. Case No. 2460, Report No. 344. Complaint ag Although most discussions of employment discrimination law and pol­ Muggeridge, Matthew C. 2008. "Organized La icy treat the issue as one of civil rights or work law, Maria Ontiveros takes Transforming Workplace Rights into Human 1 a different approach, using a human rights perspective to assess the ruary), pp. 98-108. Oakwood Healthcare, Inc., 348 NLRB No. 37 (20C strengths and weaknesses of discrimination law and policy. Her chapter Oxfam America. 2004. Like Machines in the F begins with the reasons why employment discrimination is correctly American Agriculture. March. INTRODUCTION 11

* U.N. covenants, ILO understood as a violation of human rights and then discusses the ILO's mittee on Freedom of principles regarding employment discrimination and its implementation United Kingdom, and of those principles. Ontiveros also discusses specific topics, namely, racial ountries do not comply discrimination and affirmative action; discrimination based on sex, gen­ I Canada, this noncom- der, and sexuality; religious discrimination; and discrimination based on its relative to the free- national origin, citizenship, and migrant status. Her chapter concludes jations for determining with a comparative and critical evaluation of U.S. employment discrimi­ rticipation by workers' nation law under human rights principles. Using human rights as the standard of judgment, Ontiveros finds that U.S. law "falls short of provid­ it and compelling need ing full protection of the human rights of American workers." ;d laborers, so many of Susanne Bruyere and Barbara Murray explain the transition in focus imination, and retalia- when considering workers with disabilities from impairment and rehabili­ in judicial decisions, in tation to the long-overlooked rights of those workers to participate at the ant communities them- workplace and in the world economy. It is a shift from a predominantly d the world could find medical or welfare approach to a social rights-based model of disability. ons. Smith describes a They emphasize that although the rights of workers with disabilities were ance between migrant ignored even in the International Bill of Rights (the Universal Declara­ nationals of a country, tion of Human Rights, the International Covenant on Civil and Political ds aggressive measures Rights, and the International Covenant on Economic, Social and Cultural • conclusions are based Rights), change has come with the adoption of the U.N. Convention on iter-American Court of the Rights of Persons with Disabilities (CRPD). In light of this recent 3m of Association, the human rights development, the authors review and discuss the status of tional courts. disability laws in the U.S. and the . They underscore the • reject the traditional need for change in overarching philosophy to understand that employ­ cognized human rights ment is a key aspect of disability rights policy and empowerment. In addi­ business activity. They tion to a discussion of specific changes that need to be made, the authors that position in a global provide a valuable discussion of the implications of their work for labor Sine, business cannot and employment relations professionals and for further research. lespite the fact that pri- protect its citizens and References ical perspective on the Croft Metal, Inc., 348 NLRB No. 38 (2006). its way into business Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). onduct that reflect ILO Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 ment, there is no clear (2002). le human rights obliga- International Labour Organization. 2006. Committee on Freedom of Association Q rights topics are still Case No. 2292, Report No. 343. Complaint against the United States. International Labour Organization. 2007. Committee on Freedom of Association Case No. 2460, Report No. 344. Complaint against the United States. crimination law and pol- Muggeridge, Matthew C. 2008. "Organized Labor's International Law Project? v, Maria Ontiveros takes Transforming Workplace Rights into Human Rights." Engage, Vol. 9, no. 1 (Feb­ •rspective to assess the ruary), pp. 98-108. and policy. Her chapter Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006). Oxfam America. 2004. Like Machines in the Fields: Workers Without Rights in crimination is correctly American Agriculture. March. CHAPTER 2 Takin' It to the Man: Human Rights at the American Workplace

JAMES A. GROSS Cornell University

A New Perspective Until recently, the international human rights movement and organi­ zations, human rights scholars, and even labor organizations and advo­ cates have given little attention to workers' rights as human rights. As I have written elsewhere: Historically human rights organizations have concentrated on the most egregious kinds of human rights abuses such as tor­ ture, death squads, and detention without trial. This lack of attention has contributed to workers being seen as expendable in worldwide economic development and their needs and con­ cerns not being represented at conferences on the world econ­ omy dominated by bankers, finance ministers, and multinational corporations. As one United Nations document put it, "Despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social, and cultural rights" (Gross 2003:3).

This is particularly true in the United States, where labor and employment law practitioners and jurists rarely even refer to human rights instruments and standards, let alone utilize them. Those instru­ ments and standards exist on nearly all aspects of work, including nondiscrimination; freedom of association; collective bargaining; safety and health; wages, hours, and working conditions; migrant labor; forced labor; child labor; employment security; social security; and training and technical assistance. The current growing concern for the promotion and protection of human rights in labor and employment systems in the United States and around the world promises a new vision, exciting in its potential for

13 HWK

HUMAN RIGHTS AT THE AMERIC 14 HUMAN RIGHTS challenging not only every orthodoxy in the labor-employment rela­ The UDHR was the first statement oi tions field and every practice and rule rooted in that orthodoxy but assembly of the human community. The au even the underlying premises and intellectual foundations of contem­ sidered themselves to be representatives ( porary systems. This does not mean that the traditional concerns of representatives of the 56 member nations oi labor-employment systems would become unimportant, but that those 1948. The changes in the tentative titles concerns—collective bargaining, conflict resolution, personnel poli­ "United Nations Declaration of Human f cies, labor market institutions and their operation, and government Declaration of Human Rights" to the "Unh regulation—would be redefined by reconsidering those old labor prob­ Rights" reflect the international shift of att lems from a new human rights perspective. their delegations to all men, women, and c every culture around the world. In the doc That new perspective, moreover, would constitute a standard of for example, the U.N. General Assembly pr judgment and a set of values different from and, in many crucial ways, contrary to the commonly accepted standards and values that give domi­ [a]s a common standard of achieveme: nance to efficiency, competitiveness, profitability, stability, economic nations, to the end that every indivic development, management rights, rights, and cost-benefit society, keeping this Declaration co analysis. Conformity to the human rights standard would require funda­ strive by teaching and education to pi mental changes in labor employment systems far different than the rights and freedoms and by progressivi changes proposed and anticipated on the basis of long-dominant stan­ international, to secure their universe dards and values (Kochan 1998). tion and observance, both among the Subjecting every rule and premise to a human rights test will also States themselves and among the pec demonstrate, more clearly than before, the central roles and influence of their jurisdiction (Morsink 1999:330). values and moral choices and conceptions of rights and justice in the determination of the worth of human life, workers' rights to participate in There had been enormous pressure on the decisions that affect their lives at the workplaces and beyond, the conference of the United Nations in 1945 t sources of worker and employer rights, and the basis for distributing work­ of rights in the UN Charter. Under the aul place benefits and burdens. These are deliberate and conscious choices by bly, the Economic and Social Council e: legislators, government agencies, judges, labor arbitrators, negotiators of Human Rights and directed the commissio collective bargaining contracts, human resources departments, employers of rights. Two years later, the Third Ge (unionized or not), and other decision makers in these labor-employment UDHR. In that entire period, through f systems—they are not choices dictated by some unalterable economic deletions, additions, and votes, the drafter laws. Labor-employment systems are not deterministic. a formal definition of what a human right i: There was philosophical consensus, he The Universal Declaration of Human Rights inherent in people. The UDHR states in i The Universal Declaration of Human Rights, or UDHR (Universal of the inherent and of the equal Declaration of Human Rights 1948), although not a binding , members of the human is the fount has been the foundation of much of the post-World War II codifica­ peace in the world." It asserts in Article tion of human rights in covenants, conventions, protocols, and born free and equal in dignity and right, regional treaties. The UDHR is considered the "moral anchor" of the rights are literally the rights one has sin worldwide human rights movement and currently "there is not a sin­ being. The drafters of the UDHR intende gle nation, culture, or people that is not in one way or another highest order that all human beings had ai enmeshed in human rights regimes" (Morsink 1999:x). The language out permission or assent and that were be; of the declaration was intended to proclaim, not merely to recom­ group, government or otherwise to grant < mend or suggest. concept poses a direct challenge to existi HUMAN RIGHTS AT THE AMERICAN WORKPLACE 15

The UDHR was the first statement of moral values issued by an ? labor-employment rela­ assembly of the human community. The authors of the declaration con­ ted in that orthodoxy but sidered themselves to be representatives of all humankind more than al foundations of contem- representatives of the 56 member nations of the United Nations (UN) in le traditional concerns of 1948. The changes in the tentative titles of the document from the nimportant, but that those "United Nations Declaration of Human Rights" to the "International i-'solution, personnel poli- >eration, and government Declaration of Human Rights" to the "Universal Declaration of Human ?ring those old labor prob- Rights" reflect the international shift of attention away from states and their delegations to all men, women, and children in all walks of life in every culture around the world. In the document's operative paragraph, 1 constitute a standard of for example, the U.N. General Assembly proclaimed that the UDHR and, in many crucial ways, and values that give domi- [a]s a common standard of achievement for all peoples and all ability, stability, economic nations, to the end that every individual and every organ of / rights, and cost-benefit society, keeping this Declaration constantly in mind, shall dard would require funda- strive by teaching and education to promote respect for these ms far different than the rights and freedoms and by progressive measures, national and sis of long-dominant stan- international, to secure their universal and effective recogni­ tion and observance, both among the peoples of the Member luman rights test will also States themselves and among the peoples of territories under ntral roles and influence of their jurisdiction (Morsink 1999:330). f rights and justice in the There had been enormous pressure on the delegates to the founding kers' rights to participate in conference of the United Nations in 1945 to include an international bill Drkplaces and beyond, the of rights in the UN Charter. Under the authority of the General Assem­ basis for distributing work- bly, the Economic and Social Council established a Commission on te and conscious choices by Human Rights and directed the commission to write an international bill r arbitrators, negotiators of of rights. Two years later, the Third General Assembly adopted the :es departments, employers UDHR. In that entire period, through proposals, revisions, debates, in these labor-employment deletions, additions, and votes, the drafters never attempted to agree to 3me unalterable economic a formal definition of what a human right is. "ministic. There was philosophical consensus, however, that human rights are ihts inherent in people. The UDHR states in its preamble that "recognition of the inherent dignity and of the equal and inalienable rights of all *hts, or UDHR (Universal members of the human family is the foundation of freedom, justice and ugh not a binding treaty, peace in the world." It asserts in Article 1 that "all human beings are st-World War II codifica- born free and equal in dignity and rights" (emphasis added). Human 'entions, protocols, and rights are literally the rights one has simply because one is a human the "moral anchor" of the being. The drafters of the UDHR intended to assert moral rights of the rently "there is not a sin- highest order that all human beings had and were entitled to enjoy with­ t in one way or another out permission or assent and that were beyond the power of any person, nk 1999:x). The language group, government or otherwise to grant or deny (Donnelly 1996). This m, not merely to recom- concept poses a direct challenge to existing institutions, practices, and 16 HUMAN RIGHTS HUMAN RIGHTS AT THE AMER] values generally and to labor-employment systems, in particular—as life. That it was my duty to contribui will be discussed. of me. ... I came to say that I do not to one minute of my life. Nor to any i Economic Rights any achievement of mine. No matter matter how large their number or hov Although the UDHR offers no specific definition of the individual here to say that I am a man who c and collective rights of human beings, it posits a set of values, a new (Rand 1961:100). ethic of human rights, in sharp contradiction to the values that power­ fully influence the United States' labor-employment system. The This self-interest-focused value schen UDHR sought to transform the moral awareness of all peoples by posit­ even the harsh economic and social cons( ing the dignity and worth of all persons and their inherent and inalien­ inevitable results of impersonal forces b< able entitlement not only to civil and political rights (Articles 1-21) but market is impersonal, moreover, it can bt also to economic and social rights (Articles 22-28). At its core, the absurd, the argument goes, to demand jus UDHR rejects the purest expression of evil in the modern world: "the there is no answer to the question of wh ability to erase the humanity of other beings and to turn them into things happen to people, they are misforb usable and dispensable things" (Delbanco 1995:192). tinguished economist put it, "'social jus At one point in Arthur Miller's play Death of a Salesman, Willie superstition" (Hayek 1976:66). Loman, the salesman about to be fired after 34 years with the firm, cries The economic and social philosophy c out, partly in anger and partly in desperation, "You can't eat the orange elaborate and interconnected set of value and throw the peel away—a man is not a piece of fruit" (Miller 1976:82). nomic freedom of the entrepreneur; dem Loman had no claims against his employer based on legal rights, or con­ that gives maximum protection to proper tractual rights, or court precedent, or constitutional rights. He asserted a growth; individualism means the right to moral right, however, based on the value of human life. He claimed it desires and to compete with others; and was unjust for others to be indifferent to his suffering and to treat him as promotes and does little to interfere Vv if he were expendable and counted for nothing unless he had something fittest win out. None of the drafters of to sell. But the dominant free market value scheme considers workers to unregulated market system would pron be commodities to be priced in the market no differently than any Their core concept that every life is sacrt resource for production. that one is worth only what one has to se Classical economics' basic assumption defines human behavior as sell, one is nothing (Goulet 2005). The < rational only when a person acts to maximize his or her own satisfaction. the document not only civil rights, such Each human being is an amoral, hedonistic, pleasure-maximizing acquis­ from discrimination, equality before the itive animal—or, as preferred by the philosophy of economics, "homo economic and social rights, including t economicus." The each-versus-all individualism that drives the free mar­ , protection against unemp ket approach to life induces people to be preoccupied with their own form trade unions, the right to rest and k private self-interests. This one-for-one-and-none-for-all value scheme is living "adequate for the health and well-1 articulated by novelist Ayn Rand in The Fountainhead, a hymn to indi­ ily, including food, clothing, housing and vidualism, in which her heroes struggle against any restraint on their an education "directed to the full develc own self-interest. Architect Howard Roark, Rand's protagonist, explains ity." Some refer to these as "positive rigr. to a court that he dynamited housing that he had designed for the poor ernment to provide and promote them— because, as its creator, he owed it to no one: {civil and political rights) do not require £ The case for including economic rig It is believed that the poverty of the future tenants gave them a to the UN Charter (Charter of the Unit right to my work. That their need constituted a claim on my among other things, that "we the peop HUMAN RIGHTS AT THE AMERICAN WORKPLACE 17 terns, in particular—as life. That it was my duty to contribute to anything demanded of me. ... I came to say that I do not recognize anyone's right to one minute of my life. Nor to any part of my energy. Nor to any achievement of mine. No matter who makes the claim, no matter how large their number or how great their need. I came inition of the individual here to say that I am a man who does not exist for others s a set of values, a new (Rand 1961:100). ) the values that power- ployment system. The This self-interest-focused value scheme also leads people to accept s of all peoples by posit- even the harsh economic and social consequences of the market as the 2ir inherent and inalien- inevitable results of impersonal forces beyond anyone's control. If the ights (Articles 1-21) but market is impersonal, moreover, it can be neither just nor unjust. It is 12-28). At its core, the absurd, the argument goes, to demand justice of such a process because the modern world: "the there is no answer to the question of who has been unjust. When bad ; and to turn them into things happen to people, they are misfortunes not injustices. As one dis­ 192). tinguished economist put it, "'' is simply quasi-religious superstition" (Hayek 1976:66). h of a Salesman, Willie years with the firm, cries The economic and social philosophy of laissez faire is, therefore, an You can't eat the orange elaborate and interconnected set of values in which freedom is the eco­ Df fruit" (Miller 1976:82). nomic freedom of the entrepreneur; democracy is a government system :d on legal rights, or con- that gives maximum protection to property rights; progress is economic :>nal rights. He asserted a growth; individualism means the right to use one's property as he or she jman life. He claimed it desires and to compete with others; and society is a market society that fering and to treat him as promotes and does little to interfere with competition in which the unless he had something fittest win out. None of the drafters of the UDHR believed that the 3me considers workers to unregulated market system would promote or protect human rights. no differently than any Their core concept that every life is sacred is incompatible with notions that one is worth only what one has to sell or that, if one has nothing to sell, one is nothing (Goulet 2005). The drafters, therefore, included in ines human behavior as the document not only civil rights, such as the right to , freedom is or her own satisfaction, from discrimination, , and due process, but also asure-maximizing acquis- economic and social rights, including the , the ihy of economics, "homo right to work, protection against unemployment, just pay, the right to that drives the free mar- form trade unions, the right to rest and leisure, the right to a standard of occupied with their own living "adequate for the health and well-being of himself and of his fam­ le-for-all value scheme is ily, including food, clothing, housing and medical care," and the right to ainhead, SL hymn to indi- an education "directed to the full development of the human personal­ lst any restraint on their ity. ' Some refer to these as "positive rights" because they require a gov­ ind's protagonist, explains ernment to provide and promote them—as if so-called "negative rights" lad designed for the poor (civil and political rights) do not require government action. The case for including economic rights was rooted in the preamble : tenants gave them a to the UN Charter (Charter of the United Nations 1945), which states, tuted a claim on my among other things, that "we the peoples of the United Nations" are 18 HUMAN RIGHTS HUMAN RIGHTS AT THE AMERI determined "to promote social progress and better standards of life in The drafters also believed in the funda larger freedom," and in Article 55 of the charter, which commits the rights set forth in the UDHR. Each article UN to promoting "higher standards of living, full employment, and of the others in the sense that all were ir conditions of economic and social progress and development." Until had no sense of any ranking of rights in ter the UDHR, the conception of human rights in the Western tradition were no second-class citizens or second-cl had been limited to those individual rights that need to be protected laration had an organic unity. against abuse by the state, particularly the freedom from being coerced The drafters, under the direction of into doing things. The corresponding duty of the state and other indi­ Rights established by the UN's Economic viduals, therefore, is simply a duty of self-restraint. From that perspec­ out to create an international bill of rights tive the essential rights of humanity were "negative." There was a tus of a convention or covenant. When historically important affinity between this 18th-century negative rights adopted the declaration, it called for the c< theory and the emergent free market laissez faire economics of the the commission had been unable to finis! time that led to the doctrine advocating the minimalist state. This tra­ to have two covenants instead of one, a dition helps explain why civil and political rights have dominated Covenant on Civil and Political Rights (K human rights discussions. on Civil and Political Rights 1966) and t The United States' position on the idea of economic human rights has Economic, Social and Cultural Rights (IC fluctuated from the time of Franklin Roosevelt's Economic Bill of Rights on Economic, Social and Cultural Rights in 1944 to the Reagan administration's rejection of claimed economic ture. The U.S. signed and ratified the ICC rights as rights of any sort. When the UDHR drafters included in the pre­ tions that the U.S. domestic law has n( amble that not only and belief but also freedom from compliance with this covenant s obligation fear and want had been proclaimed as people's highest aspiration, they ICESCR. Ironically, however, the preamb were paying tribute to Roosevelt and his ideals (Morsink 1999). Roosevelt preamble of the ICESCR, states unequiv had asserted that true freedom could not exist without economic security the Universal Declaration of Human Rig and independence. He went on to specify in his Economic Bill of Rights enjoying civil and political freedom and fi what he affirmed had become self-evident truths: the right to a useful only be achieved if conditions are createi and remunerative job, the right "to earn enough to provide adequate food his civil and political rights as well as hi: and clothing and recreation," the right of every farmer and his family to a rights." decent living, the right of every businessman to trade free from unfair Article 22 of the ICCPR also recogr competition, the right "of every family to a decent home," the right "to the right to freedom of association with adequate medical care, and the opportunity to achieve and enjoy good form and join trade unions for the prot( health," the right "to adequate protection from the economic fears of old following the UDHR, the ICESCR re< age, sickness, accident and unemployment," and the right to a "good edu­ rights: to work (Article 6); to fair wages,; cation." (See Congressional Record 1944, pp. 55-57.) Those rights ful working conditions, and rest and lei became essential parts of the UDHR. unions for the promotion and protection The drafters, as well as Roosevelt, recognized that as economic and to strike (Article 8); to social securil development had generated and been generated by powerful private assistance to the family and protection < economic organizations that it was not only the state that had the power social exploitation (Article 10); to adequ to violate people's rights. As stated in Articles 22 and 26, these economic, and to be free from hunger (Article 11) social, and cultural rights are considered indispensable for the free and dard of physical and mental health (Artie full development of the human personality mainly because a unity of full development of the human personali civil, political, and economic, social, and cultural rights is necessary for a Although the impact of employer d< fully human life. more direct than the impact of most poli HUMAN RIGHTS AT THE AMERICAN WORKPLACE 19

better standards of life in The drafters also believed in the fundamental unity of all the human harter, which commits the rights set forth in the UDHR. Each article was to be interpreted in light ng, full employment, and of the others in the sense that all were implicated in each other. Thev ; and development." Until had no sense of any ranking of rights in terms of their importance. There ;s in the Western tradition were no second-class citizens or second-class rights, but rather the dec­ that need to be protected laration had an organic unity. eedom from being coerced The drafters, under the direction of the Commission on Human jf the state and other indi- Rights established by the UN's Economic and Social Council, had set straint. From that perspec- out to create an international bill of rights that would have the treaty sta­ ? "negative." There was a tus of a convention or covenant. When the Third General Assembly 8th-centurv negative rights adopted the declaration, it called for the completion of the covenant that sez fa ire economics of the the commission had been unable to finish. It was subsequently decided i minimalist state. This tra- to have two covenants instead of one, and in 1966 the International ,-al rights have dominated Covenant on Civil and Political Rights (ICCPR; International Covenant on Civil and Political Rights 1966) and the International Covenant on F economic human rights has Economic, Social and Cultural Rights (ICESCR; International Covenant elt's Economic Bill of Rights on Economic, Social and Cultural Rights 1966) were opened for signa­ action of claimed economic ture. The U.S. signed and ratified the ICCPR, but with so many reserva­ drafters included in the pre- tions that the U.S. domestic law has never been changed to ensure oelief but also freedom from compliance with this covenant's obligations. The U.S. has not ratified the pie's highest aspiration, they ICESCR. Ironically, however, the preamble of the ICCPR, as well as the Js (Morsink 1999). Roosevelt preamble of the ICESCR, states unequivocally that "in accordance with st without economic security the Universal Declaration of Human Rights, the ideal of human beings i his Economic Bill of Rights enjoying civil and political freedom and freedom from fear and want can truths: the right to a useful only be achieved if conditions are created whereby everyone may enjoy ugh to provide adequate food his civil and political rights as well as his economic, social and cultural sry farmer and his family to a rights." an to trade free from unfair Article 22 of the ICCPR also recognizes that "everyone shall have decent home," the right "to the right to freedom of association with others, including the right to y to achieve and enjoy good form and join trade unions for the protection of his interests." Closely om the economic fears of old following the UDHR, the ICESCR recognizes, among others, these and the right to a "good edu- rights: to work (Article 6); to fair wages, a decent living, safe and health­ 1, pp. 55-57.) Those rights ful working conditions, and rest and leisure (Article 7); to form trade unions for the promotion and protection of economic and social interests ^cognized that as economic and to strike (Article 8); to social security (Article 9); to protection and nerated by powerful private assistance to the family and protection of children from economic and • the state that had the power social exploitation (Article 10); to adequate food, clothing, and housing js 22 and 26, these economic, and to be free from hunger (Article 11); to the highest attainable stan­ idispensable for the free and dard of physical and mental health (Article 12); and to education for the ty mainly because a unity of full development of the human personality (Article 13). iltural rights is necessary for a Although the impact of employer decisions on human life is much more direct than the impact of most political decisions, there has been a 20 HUMAN RIGHTS HUMAN RIGHTS AT THE AMERI

preoccupation, even among human rights organizations and advocates, in a democratic society." The UDHR was a with issues of state power and political democracy—while most people isolated and separate persons but to indi\ are subjected to economic forces and economic power over which they the human family. The full development oi have little or no control. In addition, skepticism and in some quarters a theme of the UDHR can occur only in outright rejection persist in regard to whether there are economic and community of persons interacting with eac social human rights and whether corporations have any obligations to ized by cooperation and co-responsibility 1 respect human rights. nity and equality of its members (Baum 19 Inspired by the atrocities of World Wai Individual and Collective Rights to the vulnerable and exploited with the Ironically, whereas some see workers' human rights, particularly eco­ rights that were intended to eliminate or i nomic rights, threatening, if not destroying, the free enterprise system, leaves people at the mercy of others who others see the same rights as masking a selfish egoism (Henkin et al. It expressed a unity of rights to a unit) 1999). Because of the traditional human rights focus on the rights of the intended to leave people alone and iso individual and an alleged emphasis on rights and not responsibilities, become another manifesto justifying tr some fear the possibility of human rights devolving "into something vision and values expressed in the UDHI approximating libertarian individualism" or "atomistic individuals func­ ues of the dominant free market doctri tioning according to the dictates of the market" with "little organiza­ human rights vision will require a revolut tional payoff for U.S. labor or even a subversion of union solidarity and that later. collective action (Lichtenstein 2003:70-72). Human rights are not left-wing or right-wing devices designed to Cultural Relativism: "Asian Values" advance some organizational or political interest. If human rights have The idea of human rights forces not only a pragmatic justification, their defenders will abandon them when­ what it means to be fully human and ever they are no longer useful or when some other approach is more use­ another in a society but also challenges th ful (Tushnet 1984). One should never underestimate, moreover, the ability ernments and private employers and in: of some people to twist even the most noble principle into a defense of the for human rights has been a struggle agaii most ignoble action—for example, using the concept of the natural rights authority and privilege, it has inspired of man and Christian religious doctrines to justify . ridicule) throughout history (Lauren 200. Workers' human rights, however, are inextricably connected to work­ many forms (some already discussed), b ers' coming together to exercise their right of freedom of association of national sovereignty, cultural relativis through organizational and collective bargaining. Only then can they ethnocentrism, or "moral imperialism." 1 exercise control over their workplace lives. Too many workers stand versy raises many of those challenges. before their employers not as adult persons with rights but as powerless In 1993, a group of Asian nations, in children or servants totally dependent on the will and interests of their Bangkok Declaration, challenged the ' employers (Gross 1998). The drafters of the UDHR recognized this, asserted a form of cultural relativism in asserting in Article 23(4) that "everyone has the right to form and join be considered in the context of nation trade unions for the protection of his interests." and different cultural and religious ba< Contrary to the claim that human rights are all about individual cate phraseology was the assertion tr rights and not about duties, the drafters of the UDHR understood that "Western values" different from "Asian > the exercise of rights requires a responsibility to others and to the larger One key difference, this argument society. Article 29 of the UDHR affirms that everyone has duties to the community in Asian culture is incompat community and the obligation to respect the rights of others and to meet vidual on which the Western notion of the "just requirements of morality, public order, and the general welfare vidualistic value that is allegedly destn. wmemi

TS HUMAN RIGHTS AT THE AMERICAN WORKPLACE 21 s organizations and advocates, in a democratic society." The UDHR was addressed not to individuals as emocracy—while most people isolated and separate persons but to individual persons as members of jnomic power over which they the human family. The full development of the human personality that is spticism and in some quarters a theme of the UDHR can occur only in collaboration with others in a lether there are economic and community of persons interacting with each other in a society character­ ations have any obligations to ized by cooperation and co-responsibility that respects the personal dig­ nity and equality of its members (Baum 1996). Inspired by the atrocities of World War II, the UDHR was addressed to the vulnerable and exploited with the purpose of affirming human human rights, particularly eco- rights that were intended to eliminate or minimize the vulnerability that ng, the free enterprise system, leaves people at the mercy of others who have the power to hurt them. i selfish egoism (Henkin et al. It expressed a unity of rights to a unity of humankind. It was never rights focus on the rights of the intended to leave people alone and isolated or for the document to rights and not responsibilities, become another manifesto justifying the pursuit of selfishness. The tits devolving "into something vision and values expressed in the UDHR clash with the vision and val­ or "atomistic individuals func- ues of the dominant free market doctrines. The realization of a new market" with "little organiza- human rights vision will require a revolution of values—but more about bversion of union solidarity and that later. 2). Cultural Relativism: "Asian Values" ight-wing devices designed to interest. If human rights have The idea of human rights forces not only critical reexamination of iders will abandon them when- v/hat it means to be fully human and how individuals relate to one me other approach is more use- another in a society but also challenges the purposes and authority of gov­ erestimate, moreover, the ability ernments and private employers and institutions. Because the struggle argaining. Only then can they ethnocentrism, or "moral imperialism." The recent "Asian values" contro­ lives. Too many workers stand versy raises many of those challenges. Dns with rights but as powerless In 1993, a group of Asian nations, in what has become known as the n the will and interests of their Bangkok Declaration, challenged the very basis of the UDHR. They of the UDHR recognized this, asserted a form of cultural relativism in arguing that human rights must : has the right to form and join be considered in the context of national and regional "particularities" crests." and different cultural and religious backgrounds. Underlying the deli­ rights are all about individual cate phraseology was the assertion that human rights are rooted in of the UDHR understood that "Western values" different from "Asian values." bility to others and to the larger One key difference, this argument goes, is that the importance of that everyone has duties to the community in Asian culture is incompatible with the primacy of the indi­ the rights of others and to meet vidual on which the Western notion of human rights is based—an indi­ c order, and the general welfare vidualistic value that is allegedly destructive of Asian social values. The