18 Page Sociology Paper Topic: Gender Discrimination Against Women In The Workplace

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reminds him of the dead toad and floating garlic in a mayonnaise jar he had seen once as a child. Luismi thinks it proves the Witch is putting hexes on him and Norma to split them up and kill the baby she’s carrying— a baby that will give him the cover he needs for the pursuit of his more authentic desires. the truth is less sensational, and quietly sadder. the men never consider that the Witch might have given Norma the tools to end her pregnancy, and that in a system made for them and not for her, the teenager must deal with and recover from the abortion on her own. the men don’t get it, and they never have. they can kill with impunity all the same.

Victoria Baena is a PhD candidate in com- parative literature at Yale.

Litigation for the People Samuel Bagenstos

Union by Law: Filipino American Labor Activists, Rights Radicalism, and Racial Capitalism by Michael W. McCann and George I. Lovell University of Chicago Press, 2020, 504 pp.

Can anti-discrimination litigation be a tool for social change? For many years, a con- tingent on the academic left contended that the answer is no. the Critical Legal Studies movement (CLS) of the 1970s and ’80s argued that using litigation to enforce rights privileged lawyers, fed an alienat- ing and individualized discourse, and ulti- mately had a depoliticizing effect. CLS adherents believed that anti-discrimina- tion laws often legitimated, rather than challenged, the fundamental inequalities of society.

Although CLS is no longer a presence in law schools, its ideas live on. Its critique of rights litigation has been bolstered by the opposition to identity politics from some on the left. In the words of Nancy Fraser, today’s neoliberals “[talk] the talk of diversity, multiculturalism, and women’s rights, even while preparing to walk the walk of Goldman Sachs.” A commitment

to anti-discrimination “charge[s] neoliberal economic activity with a frisson of excite- ment,” she writes, and allows it to take on the mantle of “the forward-thinking and the liberatory, the cosmopolitan and the morally advanced.”

A remarkable new book by Michael McCann and George Lovell offers a dif- ferent view. In Union by Law: Filipino Amer- ican Labor Activists, Rights Radicalism, and Racial Capitalism, McCann and Lovell, pro- fessors of political science at the University of Washington, trace the history of Fili- pino workers in the United States through the last decade of the twentieth century, starting from the U.S. occupation of the Philippines following the Spanish-Amer- ican War. this review will not spend much time on McCann and Lovell’s engaging treatment of U.S. imperialism before and after the Second World War. Rather, it will focus on the implications of their argument for how anti-discrimination law can be a useful political tool and not simply written off as elitist, alienating, and supportive of the status quo.

When CLS adherents formulated the rights critique, they had history on their side. Dur- ing the early part of the twentieth century, courts deployed rights to property and contract as weapons to stymie minimum wage, child labor, workers’ compensa- tion, and other laws that sought to reform the labor market. Even the liberal Warren Court, which dramatically expanded the scope of the First Amendment to cover mainstream civil rights groups such as the NAACP, provided little meaningful pro- tection to the speech of radicals such as members of the Communist Party. When the Burger Court began to deploy the First Amendment to protect commercial speech and, especially, political spending by the rich, the critique appeared to have increasing bite.

Even anti-discrimination law, which had seemed the shining example of suc- cessful rights litigation, turned out to be double-edged. As the legal scholar Der- rick Bell saw it, anti-discrimination law had “lowered racial barriers for some talented and skilled blacks” and thus encouraged

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the belief that “racism is dead.” Law pro- fessor Alan Freeman contended that legal rules took a narrow “perpetrator perspec- tive” in seeking to identify discrimination. By focusing on discrete, identifiable acts of wrongdoing undertaken by specific, blameworthy individuals, the law failed to provide a meaningful response to struc- tural or institutional discrimination that cannot be attributed to the fault of a par- ticular racist or sexist.

these arguments generalized into a harsh indictment. Anti-discrimination law highlights a particular criterion of jus- tice: that of meritocracy. It focuses on a particular understanding of meritocracy: one rooted in economic rationality. And it draws attention to a particular set of threats to meritocracy: the discrete, indi- vidual acts of particular defendants. It thus sends the message that if we can just get rid of discrimination, we will have solved the fundamental problem.

Legal theorists such as Patricia Wil- liams, Mari Matsuda, and Kimberlé Cren- shaw have observed that the rights critique failed to account for the ways in which civil rights law and litigation offer racial minority groups an organizing and rallying point for challenging the status quo. their argument was powerful, and the rights cri- tique had largely dropped out of the legal academic discourse by the late 1990s.

Events, however, were moving in the direction of the critics. the rhetoric and apparatus of inclusion along racial, gender, and other identity lines was expanding in governments and workplaces across the nation. By the 2010s, the ideal of diversity— or at least the view that businesses should visibly pledge allegiance to that ideal—had become deeply entrenched across cor- porate America. Economic inequality was exploding, but businesses used the lan- guage of diversity to legitimate their own accumulation of money and power.

Meanwhile, the courts increasingly enforced constitutional rights to thwart democratically adopted efforts at progres- sive change. During the Obama era alone, the Supreme Court hobbled the Affordable Care Act’s expansion of Medicaid, invali- dated a key part of the Voting Rights Act, and declared limits on corporate electoral

spending to be unconstitutional. In this context, the rights critics of the 1970s and ’80s appear as dishonored prophets. It is hardly a surprise that many on the left have warmed to the critique of legal rights in recent years.

that is what makes Union by Law such a timely book. McCann and Lovell fully appreciate the limits of legal rights, and of anti-discrimination law in particular. they note that “the civil rights and due process revolutions” exemplified by the Warren Court and the Civil Rights Act “provided few ideological or institutional resources for leveraging redistribution of economic, social, and political power denied for cen- turies to racialized, gendered, poor, and other exploited persons.” Notwithstanding those legal developments, they acknowl- edge, “extreme socioeconomic inequality and material marginalization persisted and even worsened in various ways.” And the apparent successes of the civil rights era “reinforced innocence among domi- nant groups about the continuing role of law in coercively sustaining systematic race, class, gender, sexual and religious hierarchies.”

“Subaltern groups,” according to McCann and Lovell, “concurrently suffer from both a deficit of resources to access liberal legal rights and an excess of vio- lent, illiberal law regulating their lives.” the violent, illiberal law governing the workers who are the subjects of Union by Law includes not only the repressive practices of employers, backed by the American legal principle of employment at will, but also the harshness of the U.S. immigration system, which treated “imported, com- modified laborers” as effectively dispos- able. And it includes official repression perpetrated by the United States and the Philippines during the Ferdinand Marcos era, bolstered by the geopolitics of the Cold War.

Yet the authors are not prepared to give up on legal rights mobilization. In their view, “law still provides one of the most important institutionalized sites . . . for subaltern group resistance to . . . hege- monic policies, practices, and relationships in both state and society.” they note that “legions of leftist activists in and beyond

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Union flyer featuring Ernie Mangaoang (University of Washington)

the United States have embraced the lib- eral principle of egalitarian citizenship to challenge the proprietarian, profit-based principles of capitalism.”

Legal contests, they conclude, “often generate ‘forums of protest’ that can keep alive alternative ideas and ideals, inspire and hotwire mobilization for new forms

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of advocacy, keep pressure on dominant groups to reassess their interests in con- ceding changes that benefit marginal- ized people, and thus sometimes alter at least slightly the balance of power among social groups.” that may not be much, but it is something to celebrate in the ongoing battle for social change.

In their century-spanning discussion, McCann and Lovell highlight Filipino- American workers’ “persistent, creative struggles to challenge many forms of institutionalized hierarchy and to advance institutional change in more egalitarian, democratic, and even socialist directions.” Although the workers lost in Wards Cove, the 1989 Supreme Court case that is the focus of the book—as they lost at many points on the road to that decision—they also won significant and persistent victo- ries along the way. A review of these suc- cesses and failures shows the uses and limits of rights and anti-discrimination. It also offers lessons for future organizing.

Filipino laborers began to migrate to the West Coast of the United States to work in agricultural jobs during the period of formal colonial rule following the Span- ish–American War. McCann and Lovell’s history reveals that many of these work- ers brought with them a belief in Amer- ican ideals of equality and freedom. As with many other oppressed groups in the United States, the gap between those ide- als and practical realities inspired a rights consciousness. By the 1920s, grassroots organizations were stoking that rights con- sciousness and reinforcing a sense of com- munity among Filipino migrants.

From the beginning, these workers and their advocates used law as a crucial tool to organize and to achieve concrete gains. Early cases involved efforts to obtain citi- zenship for Filipinos who had been hon- orably discharged from the U.S. military, which had some success in federal dis- trict courts before being codified in a 1918 statute. Less successful were challenges to the application of state laws that barred noncitizen Asian migrants from leasing land, until the Second World War altered the political landscape.

In the 1930s, Filipino communities in California and Washington state deployed the law in very different ways to attack bans on interracial marriage. In California, where clerks repeatedly denied mar- riage licenses to Filipinos who sought to marry whites or Mexican Americans, these individuals took the clerks to court and argued that the legislature did not intend to include Filipinos among the groups who were barred from marrying members of different races. their claims met with only occasional success. In Washington, by contrast, Filipinos worked with “a broad- based, multiracial, labor-based coalition” to head off the adoption of any ban on interracial marriage. this victory helped to draw more Filipinos—and other people of color—to Seattle, thus reinforcing efforts to build community organizations. And it directly supported “class-based struggles for fundamental change in capitalist eco- nomic as well as racial relations.”

By that decade, Filipinos, many of whom were recruited from Seattle, were heavily concentrated in seasonal jobs in the Alaskan salmon canneries. the work was dangerous, the terms of employment were exploitive, and the workplace was highly segregated along racial lines. Fili- pinos worked in the worst and riskiest jobs, were packed into the worst and least sani- tary housing in the remote facilities, and received the worst and most inadequate food. With the assistance of New Deal leg- islation (the National Industrial Recovery Act and then the National Labor Rela- tions Act), these workers formed a union, which came to be “involved in nearly every struggle over civil rights by Filipinos in the Pacific Northwest during the 1930s and years beyond.” through the union, they fought for both racial and class justice.

throughout the Second World War and the early part of the Cold War, the union faced severe state repression. Laws adopted during the McCarthy era authorized the denaturalization of leftist labor leaders and supported “highly dis- cretionary, even arbitrary state violence against alleged political dissidents and their organizations.” Yet, as McCann and Lovell note, “the growing harshness of US state repression, through both law and

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lawlessness, only solidified and intensi- fied Filipino activist appeals to basic con- stitutional rights and liberties,” with even “self-identified socialists and communists” embracing “the ideals and legal construc- tions of the ‘revolutionary fathers.’”

the cannery workers and their union frequently went to court during this period, but their invocations of legal rights tended to be largely defensive. A particularly striking example came in their response to the years-long effort by the Immigration and Naturalization Service (INS) to deport “subversive” members of the union. Begin- ning in 1949, John Boyd, the director of the Seattle immigration district, ordered the arrest of the union’s business agent, Ernie Mangaoang, on at least four occa- sions, and several of those times singled him out for deportation for having been a past member of the Communist Party. But union lawyers took the INS to court, and the Ninth Circuit Court of Appeals repeat- edly overturned the deportation orders. Before the court issued a ruling in 1955 that finally ended Boyd’s campaign, the INS had interrogated 2,000 Filipino can- nery workers, jailed over a hundred of them, and sought to deport over a dozen. In the end, although they suffered severely during the process, no leftist Filipino can- nery workers were deported. the use of law thus headed off an existential threat to militant unionism, even as it could not stop the “chilling effect on political speech, organization, and advocacy of novel rights claims and visions.”

Politically conservative forces took over the union in the 1960s (no doubt aided by the effects of the government’s anti-leftist campaigns). By the 1970s, however, a new generation of Filipino Americans began to assert themselves. they had been raised as American citizens and gone to work, as their parents had, in seasonal cannery jobs, often during college breaks from campuses where the activism of the 1960s had taken hold. they found that conditions remained oppressive, unsafe, and racially segregated. Workers of Asian descent con- tinued to work in the harshest jobs, live in substandard quarters, and be blocked, informally if not by explicit rule, from advancement into better positions.

these new activists framed a multifac- eted legal and organizing strategy to chal- lenge those work conditions. the workers teamed up with tyree Scott, an African- American activist who had undertaken numerous direct-action protests chal- lenging racial discrimination in Seattle and was beginning to organize workers nation- wide, and Michael Fox, a white attorney in Seattle who had represented the United Farm Workers, among others, and had set up an innovative organization known as the Northwest Labor and Employment Law Office (LELO). LELO sought to ensure that “movement goals would be guiding the lawyers rather than the other way around.” Working with LELO, the young Filipino- American activists formed a new nonprofit group, the Alaska Cannery Workers Asso- ciation (ACWA), which was independent from the cannery workers’ union but had membership that overlapped with it.

the mission of the ACWA was to sue the canneries under title VII of the Civil Rights Act for racial discrimination. Mem- bers carefully investigated the conditions at the facilities (including by going under- cover as University of Washington business students to gain access), identified a set of plaintiffs that spanned the generations of Filipino Americans in Seattle to facilitate organizing within the community, and filed complaints with the Equal Employment Opportunity Commission and the courts. they brought three major title VII cases in the mid-1970s: one against the New Eng- lish Fish Company, which resulted in a $6 million damages award; one against the NEFCO–Fidalgo cannery, which resulted in a settlement that gave substantial com- pensation to the plaintiffs and made signif- icant changes at the plant; and one against the Wards Cove Packing Company, which failed in the Supreme Court fifteen years later.

the ACWA activists used their law- suits as an organizing tool. they brought their cases as class actions, which meant that the suits, if successful, would not just benefit the individual plaintiffs but all of the workers who had experienced dis- crimination. the class-action device thus facilitated organizing among the can- nery workers. the lawsuit also served as

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a rallying point for the activists’ effort to seek democracy within the union. they obtained a major victory in 1980, when a reform slate swept the election for union officers.

these activists also developed con- nections with opponents of Ferdinand Marcos in the Philippines and organized within their international union to chal- lenge his repressive regime. these alli- ances led to tragic violence in 1981, when two key reform leaders in the cannery workers’ union were shot dead in Seattle. the ACWA activists responded by carrying out a multipronged strategy—including a civil suit against Marcos himself—to hold the regime accountable for its apparent connection with the killings. Marcos was held liable for $15 million in damages, and the trial served as “an essential vehicle for uncovering numerous unsavory aspects of Marcos’s operations in the United States and clandestine U.S. support for its repres- sive client state,” McCann and Lovell write.

the book culminates with the Wards Cove case. Wards Cove was the most promi- nent of a series of anti–civil rights opin- ions issued by the Supreme Court in its 1988–89 term under the leadership of Wil- liam Rehnquist, whom Ronald Reagan had named chief justice in 1986. Although Congress overturned Wards Cove in part of the Civil Rights Act of 1991, the deci- sion marked the end of the era in which disempowered groups looked to the courts to overturn practices of systemic discrimination.

the litigation challenging discrimi- nation in the Alaska canneries ended in a historic loss for the Filipino-American workers. By the time the Supreme Court ruled, the number of cannery jobs had also dropped dramatically, thanks to over- fishing in the waters around Alaska, com- petition from producers in other countries, and changes in consumer tastes.

But the question remains: did the workers who brought lawsuits like Wards Cove do worse by using litigation—and by framing their claims in terms of discrimi- nation—than they would have had they used other political tools? the simple fact

is that the workers were up against forces much larger and more powerful than they were: those of class, race, and ecological destruction. the likelihood of prevailing against these forces through any path was not high.

But McCann and Lovell show that, far from depoliticizing them, the litigation helped to advance organization among the Filipino-American workers and to build connections between them and other workers, labor organizers, and political activists, both in Seattle and in the anti- Marcos movement in the Philippines. the anti-discrimination litigation facilitated organizing that led to the displacement of conservative union leadership by a reform slate that campaigned on challenging cap- italist repression at home and abroad.

Nor did the civil rights lawsuits rest on arid talk of diversity or meritocracy. On the contrary, they were explicitly framed as challenges to oppression that was both race- and class-based. No doubt this framing resulted in significant part from the fact that the litigation remained driven by the community instead of by its attor- neys. that was due in part to the vision of Scott and Fox, who worked to invert the lawyer-dominated paradigm of much public-interest law practice. It was also due to the rights consciousness of the Fil- ipino-American workers themselves, who internalized the radical implications of the long-expressed American ideal of equality.

Although the eventual outcome in Wards Cove was a disappointment, the law provided significant benefits to the community along the way. the financial awards in the other two discrimination cases against the canneries helped many of the workers and their families to live more comfortable lives. the anti-discrimi- nation law thwarted the attempted depor- tations of radical union leaders during the Red Scare. In 1981, when the union leaders were murdered, civil litigation gave activ- ists both the tools to connect those mur- ders to the Marcos regime and a forum to widely publicize their links to U.S. govern- ment activities.

the law was no savior for the Filipino- American workers in Seattle and Alaska. But it did provide a tool that could be used

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opportunistically to secure concrete gains, organize along race and class lines, and help to advance political goals. Rather than simply writing off anti-discrimination law as inherently neoliberal, we should recog- nize the important though limited role it can play as one of many tools to achieve more radical ends.

Samuel Bagenstos is a civil rights lawyer and the Frank G. Millard Professor of Law at the University of Michigan Law School.

Before Operation Dixie Joe William trotter Jr.

The Southern Key: Class, Race, and Radical- ism in the 1930s and 1940s by Michael Goldfield Oxford University Press, 2020, 432 pp.

Amid the continuing devastation of the COVID-19 pandemic, massive street pro- tests against police brutality, and rising demands to end systemic racism in U.S. society and politics, a new book by the political scientist Michael Goldfield pro- vides a glimmer of hope based upon his detailed analysis of labor struggles in the South during the Great Depression through the postwar years. According to Goldfield, the fate of the Southern labor movement holds “the golden key” not only for under- standing how the nation took a sharp right turn during the latter part of the century, but also for transforming the economy and politics of the United States today.

Most studies of the 1930s and 1940s stress the failure of the Southern labor movement in the face of persistent racism, corporate resistance, and repressive police power. While acknowledging its shortcom- ings, Goldfield forcefully argues that they were by no means inevitable. In his view, this period represented a unique opportu- nity to transform not only the region’s labor and race relations but also political and social relations in the nation as a whole. In careful detail, The Southern Key docu- ments interracial organizing across four

major industries—textiles, wood, coal, and steel—and multiple cities and towns in the South, including Birmingham, Alabama; Paint Creek and Cabin Creek, West Vir- ginia; Bogalusa, Louisiana; Elizabethton, tennessee; and Marion, North Carolina.

Drawing from an exceedingly rich body of secondary studies on the region’s labor history, Goldfield reinforces his argument by calling attention to similar movements in a variety of other industries and cities across the South. Militant labor struggles emerged among packinghouse workers in Fort Worth, texas; food and textile workers in Winston-Salem, North Carolina; farm equipment workers in Louisville, Ken- tucky; and oil workers in Port Arthur, texas, among others. Unionized texas oil workers, for example, in addition to negotiating a contract with management, also initiated a drive to register black voters and cam- paigned against the discriminatory poll tax.

Employing an explicitly materialist conceptual framework, Goldfield places the economy, capital, and labor conflict— as influenced by race and gender rela- tions—at the center of his analysis. He concedes that certain cultural factors had the capacity to “take on a life of their own and even cause changes in the economy,” but he firmly rejects emphases on religion, paternalism, or any form of “culturalism as a primary mode of analysis.” Goldfield specifically outlines the local, national, and international structures of each industry, including an assessment of capital invest- ments, labor recruitment, skill require- ments, technology, production, and market demands. In a close study of the textile sector, to give one example, he offers an extended discussion of the interrelated development of the textile industries in the United States, Britain, India, Russia, and South Korea. Access to textile-producing technology and relatively “low capital and labor requirements” facilitated the move- ment of the sector into a variety of coun- tries, which in turn had a major impact on local labor struggles and the modes of organizing that they adopted.

Goldfield documents widespread differences as well as similarities from industry to industry and from place to place. the coal and steel industries

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