Enforcing Equity

Daiquiri J. Steele | November 12, 2023

Federal administrative agencies that enforce workplace laws have dual responsibilities: (1) to prevent or remedy noncompliance with the underlying workplace law and (2) to prevent or remedy noncompliance with the law’s antiretaliation provisions. Disparities based on race, sex, and their intersection exist with respect to both of these types of employer noncompliance, as female workers and workers of color experience more violations of the substantive provisions and the retaliation provisions of these laws. While effective enforcement is vital to preserving workplace regulation as a whole, there is also an equity component to enforcement. Because workplace law violations disproportionately harm women and people of color, ineffective enforcement by administrative agencies disproportionately harms these groups.

Retaliatory conduct by employers is an impediment to the enforcement of workplace laws that administrative agencies are charged with enforcing. Antiretaliation provisions in workplace statutes are crucial enforcement tools for these agencies, but—where these laws were once broadly construed— their construction is narrowing. Restrictive interpretations of workplace laws can make obtaining redress more difficult for victims of retaliation and can deter other employees from reporting employer misconduct. Moreover, Black workers and female workers experience retaliation in the workplace at a much higher rate than other workers. Consequently, retaliatory conduct by employers is not only an impediment to effective enforcement of workplace laws, but the conduct itself can implicate racial discrimination, exploitation, and subordination.

These agencies find themselves facing a dilemma with respect to the other branches of government. The judiciary is issuing restrictive interpretations of antiretaliation laws and affording no deference to agency interpretation. Congress is slow in legislatively correcting the courts’ limiting interpretations. Because retaliation protections are so vital to the regulatory scheme Congress developed, narrow interpretation by the courts causes underenforcement and stifles the ability of administrative agencies charged with enforcing workplace laws to fulfill their missions.

This Article examines the challenges administrative agencies face in providing robust protections against retaliation, given the current postures of the legislative and judicial branches of government. The Article proposes a shift in administrative agencies’ predominant enforcement model—from an individual-complaint-based model to a compliance-audit-based model—and data collection that will incentivize employers to comply with nonretaliation mandates, leading to stronger antiretaliation safeguards.