The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act

Abstract

During the New Deal era, the exclusion of agricultural and domestic employees was well-understood as a race-neutral proxy for excluding blacks from statutory benefits and protections made available to most whites. Remarkably, one of these New Deal era exclusions remains on the books. Despite its racist origins, Section 152(3) of the National Labor Relations Act (NLRA) still excludes agricultural and domestic workers, completely unaltered after 75 years.This article demonstrates why the NLRA’s agricultural and domestic worker exclusion should be considered a racially discriminatory statute motivated by racial animus. Although most historians have concluded correctly that the exclusion was a concession to southern racism, legal scholars have thus far not reached this conclusion. It is crucial that this law be identified correctly as racist and unjust to provide a rationale for its abolition and to remedy, finally, the ongoing injury it continues to cause to millions of agricultural and domestic workers. A review of the social and political context of the New Deal and the deployment of the same exclusion in related statutes, such as the Social Security Act and the Fair Labor Standards Act, shows how and why the NLRA’s exclusion should be deemed racially discriminatory.Having established that the statute is racially discriminatory, this article makes the case for why Section 152(3) should be considered unconstitutional or repealed. While historical evidence permits us to strip away the law’s race-neutral aura, this article demonstrates how current constitutional standards make the invalidation of such a law difficult. The requirement of proof of discriminatory intent makes it difficult to prove that a racially discriminatory law violates the Equal Protection Clause. While this difficulty is not insurmountable, it raises the troubling possibility that a manifestly racist law might not be found unconstitutional. To ensure that such racism is not perpetuated, the article also explores a strategy favoring legislative repeal of the law.