Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination

Noah D Zatz

in Philosophical Foundations of Labour Law

Published in print December 2018 | ISBN: 9780198825272
Published online February 2019 | e-ISBN: 9780191863998 | DOI:

Series: Philosophical Foundations of Law

Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination

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Labour law doctrine has fully incorporated discrimination, but labour law theory has not. Market ordering is labour law’s villain, but employment discrimination theory often casts market ordering as a victim needing rescue from employers’ irrational judgements or non-economic motivations. This chapter traces the tension by examining the place of bilateral employee–employer relationships in both domains, including alternatives that adopt divergent structural perspectives on, for instance, capitalism and white supremacy. An example of bridging the divide by decentring the market is offered. This occurs through a unified account of direct and indirect discrimination grounded in liberal egalitarian thought. Although addressed to the distribution of economic opportunity generally, the particulars of this account require interventions in discrete employee–employer relationships. Also considered is how the argument’s form—in which idealised market ordering is fundamental neither to the problem nor the solution—might extend to labour law’s concerns with workplace subordination, not only distribution.

Keywords: labour law; direct discrimination; indirect discrimination; labour markets; non-market work; race; distributive justice; racial capitalism

Chapter.  11098 words. 

Subjects: Employment and Labour Law

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