The Rise of Identitarian Legalism and the Workplace as a Site of Resistance to Authoritarianism

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Amanda Shanor

In the early days of the second Trump Administration, attacks on civil rights laws and initiatives with any egalitarian cast reached a fever pitch.  In his second day in office, President Trump signed an executive order condemning the diversity, equity, and inclusion practices of “major corporations, financial institutions, the medical industry, … and institutions of higher education,” among others.  It canceled a host of prior executive orders aimed at preventing discrimination or advancing inclusion, including in governmental hiring and contracting.  It ordered the Attorney General, with the Director of OMB, to identify “key sectors of concern” and identify, in each sector, “up to nine” publicly traded corporations, large non-profit corporations or associations,” foundations, bar and medical associations, and institutions of higher education for investigation.  In the weeks and months since, the Administration has canceled grants and scrubbed governmental websites and buildings of a range of prohibited concepts and terms—from purging mention of the contribution of Navajo code talkers in WWII to the taking down of “respect” from the lobby wall of an intelligence agency to abandoning medical and scientific research investigating group level concerns to “deleting” entire agencies advancing social goods.

These attacks, if now a flood, have been building for several decades. A coalition of business, libertarian, and religious interests have pursued a litigation agenda aimed at destroying labor and civil rights laws either by rendering them unconstitutional or subjecting them to constitutionally protected opt-out.  At core, these cases comprise the conservative legal movement’s increasingly successful multifront war against progressive power building. Vice President JD Vance captured this idea in a 2021 interview:

We should seize the institutions of the left and turn them against the left. We need a de-Baathification program, a dewokeification program. Basically my strategy is to deinstitutionalize the left, reinstitutionalize the right. It’s very hard. It will require men and women of incredible courage. But I don’t see another way out.

The Administration and larger conservative legal movement has largely advanced this agenda by leveraging law and liberal constitutionalism, and its cornerstone rights—the freedom of speech, association, and religion—to undermine democratic participation and power in civic institutions including workplaces and educational institutions.  While cases about public LGBTQ+ access to public accommodations have recently been a central (and sometimes distracting) focus of this push, the big-ticket aim of in this war is a one-two punch of killing first labor law and then antidiscrimination laws at work and in schools.  Most of the current cases involve the conservative Christian legal movement and its leading litigation group, the Alliance Defending Freedom. But while there may currently be few secular businesses interested in constitutional op-outs to public accommodations laws, massive employers like Walmart, faced with a potentially expensive Title VII suit, are likely to feel pressure to utilize and expand on any constitutional doctrines created by faith-based employers.  The result would likely toll the end of antidiscrimination laws at work and a sharply antiegalitarian shift in American society and economy.

I had originally planned to write my short contribution on those trends, including what to make of the fact that the conservative Christian legal movement has increasingly brought association (not only speech or religion) based claims against civil rights laws; how those claims fit into the broader attacks on labor and employment antidiscrimination laws; and how should we theorize rights to association in the contemporary workplaces.

In light of the recent broader attacks on the freedom of expression, the rule of law, and American democracy, however, I want to focus here on the way that workplaces have long been and may in this moment become key sites of resistance to autocracy, how the aforementioned fights over civil rights and participation at work and in universities (largely under Titles VI, VII, and IX of the Civil Rights Act of 1964)  may create exploitable cracks in the coalition advocating illiberalism, and how a key lesson about how to deal with collective action problems learned by the labor movement may offer vital practical insight today. 

I will start with the coalitional fractures that the Trump Administration’s approach to the intersection of civil rights laws and free expression may prompt.  These cracks stem from the recent and fundamental shift in the center of gravity of the conservative legal movement.  The Reagan revolution fostered a muscular libertarian, deregulatory, and often formalist, anti-classificatory view of the First Amendment.  The courts largely took up that constitutional view over several decades and weaponized it against economic regulation in general and labor laws in particular.  As recent attacks on “wokeness” in the private sector and the aforementioned order to investigate and target industry leaders engaged in forbidden DEI crystalize, however, the conservative legal movement is undergoing a transformation from libertarian and business-friendly politics and legal advocacy toward polarized identitarianism.

This shift has created deep contradictions in the civil rights related claims of conservative advocates and potential cracks in their coalition.  At once, one wing of conservatives has successfully pushed the courts to prohibit educational institutions from pursuing race-conscious admissions through the adoption of a Reagan-era-developed anti-classificatory view of equal protection, and, on the other, religious conservatives have pushed for the recognition of a First Amendment right of schools to refuse to enroll students in state-funded preschools because they or their families are LGBT (and of businesses to refuse to serve gay couples in industries such as cakes and websites). Similarly, tensions are mounting between conservative strategies regarding the meaning and enforcement of the anti-harassment provisions of equality laws in higher education, which has clear implications for the same principles in workplaces. The Trump Administration has aggressively moved to strip the federal research funds of universities, including Harvard and Columbia, on the basis that they failed to do enough to combat antisemitism, including harassment of Jewish students, as required by the antidiscrimination mandates of the Civil Rights Act. At the same time, other conservatives have been fighting to establish First Amendment rights against related Civil Rights Act provisions that prohibit harassment on the basis of sex that is so aggressive that it functionally excludes a student from educational opportunities.

We might argue that this is hypocrisy, not a tension; the fundamental point of identitarian and autocratic legalism is to use law to advance the interests of certain people, groups, identities, and ideologies above all others, even if in contradictory ways.  To be sure, while a majority of the Supreme Court appears devoted to a Reagan-era-inspired anti-classificatory approach to race discrimination and speech, it has been far from committed to robust protections against sex discrimination, including with regard to LGBT people. This may align with the goals of the conservative Christian legal movement, which appear to be the end of all sex-role-related civil rights protections, particularly with regard to LGBT people—including in workplaces, public accommodations, and educational institutions.

It is telling, however, that the Administration has sought to weaponize not only equality law against its opponents, but equality rhetoric as well. A central trope of the opening of the second Trump Administration has been the President’s allegations that its opponents are discriminating, violating civil rights laws, and failing to protect women and Jewish people in particular. In work with Serena Mayeri, I explore the ways in which equality law and language are being used to undermine both equality and democracy. But what is important here is that equality and its language continue to hold sufficient resonance with the American public that the President uses those ideas both to begin with and with much success. Certainly, reasonable people can and do differ about how to define and realize shared values of equal opportunity, free speech, and religious exercise. The tensions noted above suggest differences of opinion between important segments of the Trump coalition. To the degree that the courts, strands of the conservative movement, or the broader public observe partisan or inequitable governmental actions that deviate from how they believe constitutional values of equality and freedom should be cashed out—as the courts have concluded in the context of many challenges to the President’s actions in the name of equality—this may fracture the coalition that brought Trump to power.

This moment of crisis should further prompt us to reflect on the reason that workplaces have for so long been the situs of conflict: they are a key site of not only democratic power building but also of resistance to authoritarianism. In a capitalist democracy, the building of collective economic power, solidary and civic participation, and knowledge—which sociologically depend on workplaces and schools—is necessary to ensure against oligarchic consolidation of wealth and power and its apex, kleptocratic authoritarianism. It is for this reason that antidemocratic efforts have placed such a high priority not only on destroying labor organizing but also laws that ensure pluralistic access to economic participation—that is, antidiscrimination laws at work and in consumer life. 

Some have argued that a tension exists between building economic power and forging class identity, on the one hand, and advancing diversity on the other, or at least observed that race, sex, and other identities can be leveraged to divide groups that might otherwise find common economic cause. These tensions ultimately tore apart the New Deal coalition. The New Deal was formed in a tenuous moment in U.S. race relations. Its coalition, and the economic democracy it advanced, depended at once on southern democrats whose power hung on the exclusion of Black Americans and on the movement of African American voters from the party of Lincoln to FDR’s New Dealers in the 1930s. That tension can be seen in the contrast of the CIO’s organizing of a multiracial workers movement in the North while the National Labor Relations Act and Fair Labor Standards Act excluded, at the demand of Southern democrats, both farmworker and domestic workers—that is, the occupations nearly exclusively held by African American workers in the South—from the right to organize and wage and hour protections. As Jefferson Cowie has observed, quoting Ira Katznelson: “The tragedy and the irony of the New Deal was how such an advance in economic democracy required compromise with ‘the most violent and illiberal part of the political system.” The reason why the South fought against the right to organize and wage and hour protections for farmworkers and domestic workers, as well as to preserve racially discriminatory employment practices more broadly, speaks to the recognition that workplaces are critical sites of democratic participation that may create alternate centers of power and solidarity.

Taking a broader historical and geographic view illuminates how workplaces, like universities, have long been sites of resistance to autocracy and oligarchy. As Ada Ferrer captures, Journalist Ruby Hart Philips wrote in her diary on August 3, 1933, that in politics, “small things sometimes grow into big things.”  She was describing how a strike of Havana bus drivers spread to truck drivers, garbage collectors, stores, and even newspapers, paralyzing the city. “Soon the ‘little’ bus drivers’ strike was a general strike, active in every province of the island and nearly every sector of the economy.”  That general strike grew into a force that toppled would-be Cuban dictator Gerardo Machado, who served as the despotic President of Cuba from 1925 to 1933—but after 1928 only by modifying the Cuban constitution to stay in power. The anti-authoritarian Solidarity Movement in Poland in the 1980s similarly spread from a labor strike to a broader political movement that eventually led to the fall of the communist government in Poland. And anticolonial general strikes spurred the fall of many colonial occupations, including in Jamaica, Ghana, Kenya, and Algeria.

While labor’s power in the U.S. is at a deep low, Trump’s unprecedented assault on American democracy and constitutionalism has begun to foster a broad-based movement of workers across the federal government. Trump’s shock to American institutions, and the economic turmoil it appears to be creating, may counterintuitively prompt Americans who have been complacent during the long period of relative stability and prosperity since World War II to take action. 

We need more research into, and dissemination of, strategies and tactics that have been successfully used to defend democracy against would-be autocratic leaders both globally and across time. In this regard, the U.S. labor movement has a key organizing lesson that it can share with other institutions under attack, including universities, law firms, and the business community. Leaders of many powerful institutions have been seemingly paralyzed by the flood-the-zone start of the second Trump Administration.  Many leaders and those counseling them, such as corporate and university general counsel, are taking a heads-down approach, attempting to hide, hoping that they will avoid the Administration’s attacks.  It is as if all potential alternate centers of power believe they are in a forest with a hungry bear and need only outrun the other guy.  But the history of fascism suggests that the Paul Weisses and Columbias may just be the beginning, and that early collective action is necessary to prevent sometimes rapid democratic backsliding from a government of laws into one of men.

Labor has dealt with such complicated collective action problems before. The property service union, SEIU 32BJ, for example, faced a significant prisoners dilemma while trying to organize in New York: if it organized one property services company, that employer would be at a competitive disadvantage to others and might fold, creating a problem of whack-a-mole.  It therefore developed a strategy:  A labor contract would not go into force until a certain percentage of employers in a market signed on.  That approach lessened the risk a given employer would face by agreeing to union demands.  This insight is a critical one for not only labor but major universities, businesses, and law firms to recognize.  Pro-democracy organizers should seek to have major institutions agree to resist authoritarian pressures that threaten First Amendment freedoms, including association, free speech, academic freedom—but jointly, rather than individually. 

If there is a key lesson that workplaces and the crisis of free speech have for our current moment, it is that through collective action can “small things” “grow into big” ones.

Amanda Shanor is Assistant Professor & Wolpow Family Faculty Scholar, the Wharton School of the University of Pennsylvania. You can reach her by e-mail at shanor@law.upenn.edu.