A Shameful Business: The Case for Human Rights in the American Workplace
By James A. Gross
Cornell University Press, 2010

Reviewed by Ellen Dannin

These days, much of politics and values in the United States gets filtered through the views of the right-to-life movement. But when it comes to the right to have a decent life, too many of our leaders are deaf and blind to taking action on the desperate conditions of so many in this country. Among those pressing for change, Cornell University’s James A. Gross has been a strong and consistent voice for the “ought to be” of work.

Starting roughly a decade ago, Gross began exhorting us to bring worker rights under the umbrella of human rights. His newest book, A Shameful Business: The Case for Human Rights in the American Workplace, is the fruit of this vision. There is no question which side he is on. The author’s voice is passionately present in every line of every page. The book covers issues of race and human rights, the ascension of market economic values over worker rights, the clash of property and labor rights, and safety and health issues in the workplace. This book is a no-holds-barred indictment of economic laissez-faire theory, its underpinnings, and its effects. The title of Gross’s concluding chapter (“Crimes against Humanity: Concluding Thoughts about Choosing Human Rights”) best captures his position.

Gross covers intellectual and legal developments that most of us have forgotten or never learned. For example, in his chapter on the triumph of the market economy, Gross describes how law and power evolved during the nineteenth and twentieth centuries to support the structure of employment in the U.S. That evolution, under the influence of capitalism, created a system in which the master-and-servant doctrine enforced inequality, while claiming that employers and employees had reciprocal rights and obligations. Here, and throughout the book, Gross shows how law has been used to enforce the subordination of workers. Partnership law gives employers the power to become a collective entity, and corporation law gives employers eternal life, simply by filing legal documents. While employees can also become a collective entity, that process is far riskier and more difficult than simply filing legal documents, and its existence is under constant assault.

Gross puts this into an historical perspective, noting that entrepreneurs, characterized later by muckrakers as robber barons, needed to reconcile the values they preached of the free individual competing in the atomistic free market with the reality of concentrated corporate economic and political power” (p. 68). He describes this condition as Darwinian power that has used Christian principles to justify itself, as in Andrew Carnegie’s 1889 “The Gospel of Wealth.” “That was accomplished by combining Darwinian survival of the fittest theories and Christian principles into a justification of wealth and power. Darwin and Jesus were woven together and, in turn, interpreted through a combination of laws: the Scientific Law of Competition and the divinely ordained Law of the accumulation of Wealth” (p. 68). Gross questions why employers are allowed to have inherent rights, while workers have none. Thus, although we talk about bargaining agreements, the result, he says, can never be a bargain between equals.

Gross reminds us that the National Labor Relations Act (NLRA)—which was enacted to promote employees’ collective strength and achieve equality of bargaining power—was perceived as a serious threat to management. However, conservative judges tried to strangle the new legislation at its birth by developing doctrines that undercut its clear language through decisions that permitted captive-audience speeches, limited the right to bargain, and limited remedies in cases such as Darlington, which allowed employers to close part of their businesses to retaliate against employees for choosing union representation—and yet suffer no meaningful sanction.

Gross traces the effects of court decisions that reversed National Labor Relations Board (NLRB) decisions that had enforced rights protected by the NLRA. These chapters provide details of legal developments that may have slipped from most of our memories if, indeed, we ever learned them. Gross ends his case analysis in the 1980s and thus leaves the George W. Bush-era NLRB free from scrutiny. The book would have benefited from revealing the pernicious role courts have played in weakening remedies.

Many people are unaware that conservative Supreme Court justices pushed to weaken NLRA remedies as soon as the ink was dry on the new law. As a result, many now believe, incorrectly, that Congress approved an NLRA with only limited and weak remedies.

Gross’s book has many strengths, but teachers using it will need to update and supplement his discussion. For example Gross includes workplace safety—or actually the lack thereof—in his book, an issue that often is not given as much attention as it deserves in books on labor rights. Gross criticizes the Occupational Safety and Health Administration’s (OSHA) failure to promulgate more regulations. There is no question that the Occupational Safety and Health Act needs to have more effective enforcement, but it is important to understand why this is not the case. OSHA all but gave up on issuing new health and safety standards after it became clear that court-created barriers made it nearly impossible to uphold them. OSHA’s prospects for issuing new standards were further dimmed when, in 1996, Congress enacted the Small Business Regulatory Enforcement Fairness Act, which gave Congress and the president the power to review and reject OSHA standards. Its first target was OSHA’s proposed ergonomics standards. Rather than take the risky route of promulgating OSHA standards, Congress eventually enacted the Needlestick Safety and Prevention Act in 2000, but only as a result of years of lobbying by health care workers and especially nurses. Another important ally on this issue was the Center for Disease Control, which found that six hundred thousand to eight hundred thousand needlestick injuries involving contaminated needles occurred each year. In addition, seventeen states had already passed needlestick laws. There are undoubtedly problems in promulgating OSHA standards, but OSHA is as much a victim as it is a source of the problem.

Gross criticizes OSHA for relying on fines instead of criminally prosecuting employers for serious injuries. However, this is a story that involves more than mere neglect or failure of will on the part of OSHA, although that has certainly been the case under some administrations. The Occupational Safety and Health Act authorizes criminal penalties that have rarely been used. The PBS Frontline investigation in A Dangerous Business (see www.pbs.org/wgbh/pages/frontline/shows/workplace) does a good job of exposing the human toll caused by an under-resourced, timid OSHA when faced with a malign employer operating in a very dangerous industry.

However, that is not the whole story. Assessing OSHA’s performance requires understanding the effects of the structure Congress created to encourage states to assume full responsibility for workplace safety and health. Roughly half the states took on that responsibility, and some have been creative in using their criminal codes to prosecute employers for deaths and serious injuries, with varying degrees of success. The September 1991 Hamlet, North Carolina fire—which killed twenty-five Imperial Food Products workers—is an example of what can happen when states take over workplace safety and health oversight, but then fail to meet their obligations. According to a United States Fire Administration report, “During the eleven-year operation of the plant, no inspection was conducted by [the] North Carolina Occupational Safety and Health Administration.” Unfortunately, the book does not discuss the states’ role in promoting workplace health and safety and the wisdom of devolving workplace health and safety responsibilities to the states.

Those assigning the book to their students might want to supplement it with materials on mining. The Mine Safety and Health Administration (MSHA) once had a good record for making a very dangerous industry much safer, but not in recent years. Materials on that devolution would amplify the story of workplace health and safety in recent years.

Gross draws on his deep experience as an arbitrator to show how arbitration has increasingly failed to keep workers safe. He criticizes it as a corrupt system in which arbitrators are beholden to employers and unions for their next case. He points out that the “term parties, moreover, referred only to the employer and the union that negotiated the contract, who agreed to submit an issue to arbitration, and selected and paid the arbitrator” (p. 140). As a result, arbitrators were not concerned with workers’ rights and placed management rights over employee rights. As Gross observes, “This approach, therefore, considered only collective interests and rights but not the rights of workers as individuals.” For example, the standard for deciding whether employees could refuse work that was too dangerous has devolved from requiring an employee to show a reasonable belief that the work is dangerous to requiring the employee to prove—by objective evidence—that the work is dangerous, a standard of proof that is almost impossible for an employee to meet. More problematic has been the development of an employer defense that, by accepting work, employees assume the risk of injury. Gross points out the control that employers—not employees—have over workplace conditions and advocates aligning worker safety and health standards with human rights standards that would make employers responsible for protecting worker safety and health. Gross develops his themes using philosophy and economic theory. Readers and teachers might also want to examine recent behavioural economic experiments and socio-economic research, much of which tells a different story than does neo-classical economic theory. While teachers who assign the book will want to consider providing additional materials to update it, and some may be concerned about its strong partisan tone, A Shameful Business offers valuable new insights into the state of American workplaces and how we tolerate business practices that will certainly injure workers.