Reckoning With Labor Law’s Racist Roots
The Washington Supreme Court is currently deliberating a case that could have major economic effects for our most vulnerable workers while beginning to unravel one long-standing piece of our nation’s white supremacist history. The case, Martinez-Cuevas v. Deruyter Brothers Dairy, has gone relatively uncovered by national media but speaks to the national moment that we’re in. A decision is due imminently.
The plaintiffs are farmworkers Jose Martinez-Cuevas and Patricia Aguilar, who filed suit against the dairy industry for overtime wages. Agricultural workers are specifically excluded from overtime eligibility in Washington’s Minimum Wage Act. Plaintiffs argue that this exemption is facially unconstitutional because it is modeled after the Fair Labor Standards Act’s agricultural exclusion, which was motivated by anti-Black racism and a desire to maintain white supremacy. (The plaintiffs are also asserting that the exclusion violates the Washington Constitution’s privilege and immunities clause). If the farmworkers win then every agricultural worker in Washington will be eligible for overtime. In addition, a win would acknowledge and begin to rectify the deep white supremacist roots that have infected our labor laws from their inception and continue to harm people of color today.
Agricultural employees have never been eligible for overtime. When the New Deal Congress passed the 1938 Fair Labor Standards Act which mandated minimum wage and overtime pay, agricultural workers were specifically exempted. (Agricultural workers were also specifically exempted from the National Labor Relations Act). The statutory exclusion of agricultural workers (and domestic workers) from New Deal legislation was well-known to be a race-neutral cover for maintaining the domination of white supremacy in the South and excluding Black workers from labor law’s protection.
In order to pass the New Deal legislative slate, President Roosevelt and his supporters negotiated with Southern Democrats in order to gain the necessary votes. Southern Democrats conditioned their support on the basis that no bill would disrupt the racist plantation system that their economy depended upon. Though there is little direct legislative history of the FLSA, law professor Marc Linder at the University of Iowa and Farmworker Justice outlined the proof of this racist motivation in an amicus brief on behalf of the Martinez-Cuevas plaintiffs. Professor Linder described the structure of agriculture as it existed in the 1930s as a largely Southern industry, dominated by cotton production, that the Southern economic system depended on. Cotton is a very labor-intensive crop to cultivate and as such large plantations were the site of the majority of southern agriculture. In 1930, in the former Confederate states, a majority of agricultural workers (including farmworkers, sharecroppers, and tenant farmers) were Black. This system was, of course, no accident. The system of Black agricultural workers on Southern cotton plantations was established during slavery and endured with only slight changes after the Civil War.
The maintenance of the racist Southern plantation system was the driving force behind the “compromise” struck by President Roosevelt and the Southern Democrats to exclude agricultural laborers from labor protections. In congressional debates this was clearly articulated. Representative Wilcox of Florida extolled, “You cannot put the Negro and the white man on the same basis and get away with it…” and Representative Cox of Georgia agreed, saying that it would be “dangerous beyond conception” to eliminate racial and social distinctions. Bargaining away racial equality, President Roosevelt and his coalition excluded agriculture from the FLSA.
There have been legal challenges to the agricultural exemption in the past but the exclusion has never been attacked squarely as unconstitutional because it was racially motivated. The Martinez-Cuevas case will be the first to squarely present this question before a court. The petitioner’s opening brief states in the first paragraph what this case is about: “the exclusion of farmworkers from fair labor standards in Washington and in our nation is the legacy of racially motivated exclusions of the New Deal era.” Because racial discrimination is the basis of Plaintiff’s equal protection challenge, the Washington Supreme Court must review the exclusion under a strict “impermissible purpose review,” or strict scrutiny, and must invalidate a facially neutral statute if there is proof of racially discriminatory motivation. Professor Linder and Farmworker Justice’s amicus brief was submitted to constitute the proof that there is no reasonable ground, no compelling state interest, on which the court could uphold the exclusion. Though the suit is a challenge to Washington’s Minimum Wage Act (“MWA”), petitioners purport that Washington’s MWA was modeled after the FLSA and adopted the FLSA’s agricultural exemption “apparently without question or debate.” The petitioner’s brief emphasized Justice Gonalez’s opinion in Saintcalle, which recognized that where racial exclusions are written into Washington’s laws without question or debate, the Washington Supreme Court has a special duty to examine their origins. The plaintiffs also argue that because today in Washington almost 100% of the people affected by the agricultural exclusion are Latinx, this constitutes an alternative basis for triggering strict scrutiny, where a facially neutral law has a “dramatic impact” on a racial group.
Defendants, in response, argued that because at the time the FLSA passed most farmworkers nationally were white, the FLSA’s exclusion could not have had an anti-Black or racist motivation. However, a brief inspection reveals the fallacy of this argument. Though farmworkers nationally were majority white in 1938, farmworkers in the South were majority Black, and it was the specific agricultural system of large Southern cotton plantations that the FLSA would primarily cover due to its exemptions for small employers.
The Washington Supreme Court is expected to issue its opinion soon. There are several possible outcomes: the court could rule in favor of the Defendants on all counts, the court could rule in favor of the plaintiffs only on the state-constitution privileges and immunities ground, and/or the court could find for the plaintiffs on the equal protection ground. If the plaintiffs win in any form the decision would improve the economic and material conditions of thousands of workers in Washington– a win by any count. But if the court invalidates the agricultural exclusion on equal protection grounds due to its racist motivation to uphold white supremacy, during the most intense moment of racial reckoning of the past 60 years, it would also be a moral victory and a small step in the right direction. Possibly it could trigger a ripple effect in other states. Our nation’s labor laws have, from their inception, been infected with white supremacy. The agricultural exemption was first created to discriminate against Black workers and today mostly affects Latinx workers. Part of reckoning with the history and lingering effects of the racist roots of our labor laws would look like declaring the agricultural exclusion unconstitutional.