Today’s workers want to work in diverse environments and to express themselves authentically—or, as organizational scholars describe the phenomenon, “to bring their whole selves to work.” The proliferation of diversity and inclusion initiatives demonstrates that companies are taking note. While the business world attempts to move forward, the legal landscape remains stagnant: Title VII of the 1964 Civil Rights Act bestows upon employees the right to be free from employer discrimination based on race, sex, color, national origin, and religion but creates no right to affirmatively express those class memberships—or any other identity—in the way an employee may want.
Outside of the private employment context, however, the law does not so cavalierly treat the individual in her quest to be herself. Most prominently, the Free Speech Clause of the First Amendment to the United States Constitution deems freedom of expression essential to human flourishing and to the American ethos. Although the First Amendment does not protect individuals from regulations imposed on them by non-governmental actors, the values of self-determination and authenticity that animate free speech theory and jurisprudence do not and should not disappear when someone enters the workplace.
Using the First Amendment as a lens through which to understand the law’s commitment to authenticity, this article contends that federal employment law should expand beyond the group-based protections established in Title VII to protect and promote an employee’s authentic self in the workplace. Although this article suggests certain doctrinal changes, its primary purpose is not to offer solutions; it is to acknowledge where we are failing and, more importantly, where we should look for inspiration.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.