Benjamin Levin

Criminal Labor Law

This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this respect, “criminal labor law” should pose concerns, not only for scholars concerned about workplace democracy, but also those focused on overcriminalization and the increasing scope of criminal law.Prior empirical work has identified an obesity penalty in the labor market. Obese workers are less likely to be employed than non-obese workers, and even if obese workers find employment, they earn less than non-obese workers. In 2008, Congress amended the Americans with Disabilities Act (“ADA”) by broadening the scope of medical conditions it covers. Since then, legal actors have used these amendments to seek remedies against employers that take adverse employment actions against obese workers because of their weight. They argue that obesity is now a disability under the ADA, and firing workers because of their weight constitutes disability discrimination. This Article questions the recent focus on treating obesity as a disability and presents original data analysis demonstrating that employers prefer not to make obese women the public face of their companies. In fact, a substantial portion of the obesity penalty for women results from employers keeping obese women (but not obese men) out of public-interaction jobs. In contrast, the data indicate that very little of the obesity penalty results from productivity concerns or from concerns about obesity substantially limiting a major life activity. As a result, the obesity penalty is more appropriately viewed as a form of sex discrimination, instead of a form of disability discrimination. Title VII has the potential to help far more obese women in the labor market than the ADA.