The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called "woke capitalism" signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers' values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while simultaneously providing better service for customers who share the workers' values and are attracted to the brand- all of which translate into larger profits. When workers undertake employment at these firms, they assume that the firm's social justice commitments are both authentic and enforceable and that they will dedicate their labor toward producing goods and services that are consistent with their values. Indeed, the Wall Street Journal and the Harvard Business Review recently characterized the effort by corporations to re- frame their corporate commitments to purposes beyond profit- maximization as forging a "new social contract" with employees, offering workers a sense of higher purpose at work and an opportunity to make a positive difference in the world in exchange for deeper engagement and, in some cases, lower compensation. Unfortunately, many representations of corporate commitment to political and social agendas are anemic at best, and inauthentic at worst. When workers learn that the firm's commitment to its version of woke capitalism is weak or nonexistent and that they have invested their single greatest resource-their labor-towards the unrealized goal, they have protested around topics spanning social justice, environmental, and political arenas. Because most nonunion workers are employed at will, and because labor and employment law have long bowed to firms' managerial prerogative to control and to alter the entrepreneurial direction of the firm as necessary in order to thrive in a competitive market, workers who lack explicit contractual protection can be disciplined or fired for engaging in such protests. This Article outlines a proposal for interpretation of the National Labor Relations Act that would protect workers against retaliation where employers deliberately utilize social justice commitments in mission statements, CSR codes, and brand marketing campaigns as a carrot to attract and retain workers, effectively converting those commitments into a form of fringe benefit or a working condition that relates to workers' material self-interest. At stake is a clash between workers' statutory rights under the labor laws to speak collectively at work, and firms' First Amendment rights to control the public presentation of their brand, even when doing so is duplicitous. As economic and political power becomes increasingly concentrated in the hands of private parties, including large firms, collective workplace protest seeking to hold firms to their marketing messages and mission statements offers the greatest possibility for worker influence and voice. Protecting workers' voices also serves the public interest: firms should not be permitted to use the First Amendment as a sword to leverage social justice movements to increase corporate profit while simultaneously blocking real change. Unfortunately, many representations of corporate commitment to political and social agendas are anemic at best, and inauthentic at worst. When workers learn that the firm's commitment to its version of woke capitalism is weak or nonexistent and that they have invested their single greatest resource-their labor-towards the unrealized goal, they have protested around topics spanning social justice, environmental, and political arenas. Because most nonunion workers are employed at will, and because labor and employment law have long bowed to firms' managerial prerogative to control and to alter the entrepreneurial direction of the firm as necessary in order to thrive in a competitive market, workers who lack explicit contractual protection can be disciplined or fired for engaging in such protests. This Article outlines a proposal for interpretation of the National Labor Relations Act that would protect workers against retaliation where employers deliberately utilize social justice commitments in mission statements, CSR codes, and brand marketing campaigns as a carrot to attract and retain workers, effectively converting those commitments into a form of fringe benefit or a working condition that relates to workers' material self-interest. At stake is a clash between workers' statutory rights under the labor laws to speak collectively at work, and firms' First Amendment rights to control the public presentation of their brand, even when doing so is duplicitous. As economic and political power becomes increasingly concentrated in the hands of private parties, including large firms, collective workplace protest seeking to hold firms to their marketing messages and mission statements offers the greatest possibility for worker influence and voice. Protecting workers' voices also serves the public interest: firms should not be permitted to use the First Amendment as a sword to leverage social justice movements to increase corporate profit while simultaneously blocking real change.

Labor unions play a vital role in ensuring an equitable distribution of wealth by increasing the share of corporate profits that go to workers. The decline in union membership and influence in the United States thus correlates with rising income inequality. American unions have struggled to reconcile an agenda of economic justice for the working class with a more pragmatic orientation that emphasizes gains for groups of workers on a contract-by-contract basis. The dominance of the latter approach, compounded by legislative and judicial hostility to group action by workers, has resulted in the public perception of unions as self-interested special interest groups. Yet embedded within historical and modern American unionism is a powerful ideological impulse toward social and economic reform. That impulse is constrained, however, by an anachronistic labor law. A new legal regime that provides breathing space for evolving change agents is essential to restore labor’s countervailing power.

In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics, and law. The media focus continued in 2018 as reactions proliferated, ranging from walkouts at Google by workers protesting the company's handling of sexual-misconduct allegations against its male executives, to new initiatives by government agencies and private firms designed to reduce the incidence of sexual harassment and to promptly remediate it when it occurs. Although sexual harassment had been headline news before-most notably, during the 1991 Anita Hill-Clarence Thomas debacle-never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal, and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. Nevertheless, the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media's systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex.One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word "solidarity" in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. Although union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor's passive stance can be laid at labor's doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and National Labor Relations Act protection for worker concerted action for mutual aid has been cabined by courts and the National Labor Relations Board to the point that labor's tradition of solidarity is barely recognizable.

In the waning months of 2017, Americans endured an almost daily barrage of news reports describing sexual harassment by powerful men in entertainment, media, politics and law. While sexual harassment had been headline news before — most notably, during the 1991 Anita Hill-Clarence Thomas debacle — never had so many victims joined hands and come forward demanding change. The media spotlight presented a tremendous opportunity to reframe sexual harassment from an individual, personal and idiosyncratic instance of sexual desire to a common abuse of gender and economic power affecting millions of working women and men on a daily basis. Feminist legal scholars have known for years that expectations about appropriate gender roles create an environment where sexual harassment functions to protect male privilege. But the message that sexual harassment is a systemic feature of workplace gender inequality never reached the general public. Instead, the mainstream media’s systematic focus on sexual harassment as a twisted manifestation of male sexual desire grabbed headlines and implied that when the harasser is discharged, the story ends. But sexual harassment is about much more than men behaving badly. It is a structural problem linked to unequal pay and occupational segregation by sex. One might think that labor unions would come forward as advocates for such a large segment of workers suffering economic disadvantage in the workplace. Yet despite the frequent use of the word “solidarity” in media reports about #MeToo, organized labor was conspicuously absent from the dialogue. While union leaders made public statements denouncing sexual harassment and promised to redouble union efforts to eradicate it, most disclaimed legal responsibility for preventing and addressing sexual harassment in the workplace. Not all the blame for labor’s passive stance can be laid at labor’s doorstep, however. Unions are hamstrung by a legal structure that creates a fundamental role conflict where they represent a workforce that includes both potential harassers and victims, and NLRA protection for worker concerted action for mutual aid has been cabined by courts and the Board to the point that labor’s tradition of solidarity is barely recognizable. What, then, are the prospects for engaging unions in combating workplace sexual harassment? And how could a more proactive role for labor be realized within the existing legal structure? The answer is both deceptively simple and complex: unions must take sexual harassment seriously. This means not only cleaning labor’s own house, but dedicating resources to efforts in partnership with feminist, civil rights and “alt-labor” groups in a coordinated campaign to challenge sexual harassment at the worksite and sectoral levels, modeled on the Fight for $15. A new, more collaborative understanding of solidarity will be essential. Unions should dedicate legal expertise to translating solidarity into labor law, pressing for an understanding of concerted activity for mutual aid that includes eradicating sexual harassment for the benefit of all workers. Finally, if ensuring redress for victims of sexual harassment were at the front of union consciousness, unions could invoke that goal as a lever to challenge employer rules that tend to silence efforts to raise rights-consciousness among victims or undermine claims assertion, such as rules prohibiting discussion of workplace investigations and arbitration clauses banning class claims. Ultimately, challenging sexual harassment could re-brand labor unions and offer an opportunity for partnerships with their social justice allies that would capture hearts and minds.

Antagonism toward union organizing and activism may be assuming increasingly creative forms, but it is not new. Labor unions have long been synonymous in the public, political and judicial mind with greed, self-interest, corruption, and anarchy. Labor protests – particularly picketing, boycotts, and strikes – have consistently triggered hostile responses from employers, the judiciary, and legislatures. Seen as threatening to the political and economic order, appeals by unions to workers’ class sympathies receive less protection from the First Amendment than appeals by other social movements.

For labor, 2018 was a year of highs and lows. A wave of teachers’ strikes in states traditionally hostile to public sector labor unionism and collective bargaining garnered widespread popular support. The passions animated by the strikes were credited with inspiring a range of progressive political shifts, including the rollback of right to work laws in Missouri and new challengers running on education platforms aimed at increasing investment in public education. Less than three months later, the Supreme Court issued its decision in Janus v. AFSCME, Council 31 invalidating agency fees that public sector unions relied on to cover costs related to collective bargaining, contract administration and grievance adjustment. Janus was a major blow to union coffers, to the Democratic Party as a recipient of labor union funds, and to other progressive causes historically supported by labor. These developments should prompt us to rethink what labor solidarity really means. American labor law encourages unions to identify as service organizations dedicated primarily to promoting workers’ economic interests. Under the agency fee doctrine approved by the Court in Abood v. Detroit Board of Education, for example, it was constitutionally permissible for unions to negotiate agency fee arrangements by which non-union members within the bargaining unit could be required to pay a service charge to the union to subsidize the cost of collective bargaining and contract administration, as long as chargeable fees were limited to expenditures “for the purposes of collective bargaining, contract administration, and grievance adjustment.” Straining to salvage union funding, the unions argued in Janus that compelled subsidization via agency fees did not implicate workers’ First Amendment interests because the union’s speech at the bargaining table and in contract administration contexts dealt only with “prosaic” “‘bread-and-butter’ employment issues” rather than with significant matters of public concern. Thus, the unions’ arguments in Janus embraced a vision of solidarity in which unions function as economic agents engaged in transactional relationships with workers over a narrow range of economic subjects, rather than political entities advancing issues of common concern to workers and the public, such as the trend of state disinvestment in public schools and its impact on democratic participation. At a legal level, the arguments raised in Janus are not surprising. But turning the future of public sector unionism into a battle over money was short-sighted. Subsequent proposals to bring back agency fee arrangements in another form make worker engagement largely irrelevant to union survival, undermine incentives for internal union democracy and a participative culture, and eschew the kind of grassroots solidarity that has historically been the source of workers’ power. Labor’s greatest successes in 2018 demonstrate the power that can arise from grassroots mobilization of workers and citizens alike in a movement that transcends workplace boundaries and politicizes workers’ struggles. In some ways, the Janus Court got things right: public sector unions are political entities, they do (and should) engage in advocacy for reform that transcends bread-and-butter employment issues, and funding should come from workers and others who support those agendas. It is time to divorce the need for funding from the meaning of solidarity and to relinquish the vision of unions as service organizations that has indirectly cabined labor’s mission, undermined incentives to do vigorous internal organizing and to work toward members’ full engagement, and contributed to an outsized reliance on law -- particularly the exclusivity doctrine and the principle of majority rule -- as the source of worker power. Unions should not allow solidarity to be defined by money. Especially in a time when labor unions are under siege, unions must stand for more, not less. They should embrace their political identities rather than seeking to avoid or deny them. Ultimately, law reform will follow the moral legitimation of labor’s demands, not precede it.

Organized labor's judicial, political, and public image is often associated with violence and anarchy. This image has reinforced significant legal constraints on public protests, boycotts, and picketing orchestrated by labor organizations. Although violent uprisings that challenged the political and economic order were common in the early days of American labor unionism, the assumptions underlying past judicial rhetoric and labor law doctrine have largely outlived their original context. Historical antecedents applied to modern protests characterized by civil disobedience and nontraditional methods of group mobilization like Fast Food Forward, OUR Walmart, and the Occupy Movement yield troubling and inconsistent results.Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment's right of assembly, and how the history of assembly can inform contemporary protections for labor unionism. We seek to draw the lessons of assembly squarely into contemporary labor law to re-assemble labor law around the theory and doctrine of assembly that formed its early core. We begin in Parts II and III by situating the historical relationship between labor and assembly. Part IV develops three theoretical insights reinforced by the connections between assembly and labor, and obscured by the contemporary focus on the rights of speech and expressive association. First, collective activity represents more than simply an aggregation of individual voices. Second, groups are not one-dimensional but have many functions, purposes, and messages, which are developed and negotiated through collective expression and existence. Third, expression depends on the context in which it unfolds, and current doctrine too easily obscures that context, with significant ramifications for both public perception and group efficacy. Part V applies these theoretical in-sights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism, labor law, and their connections to the rest of First Amendment jurisprudence.

In this Article, we ask what vehicles for worker advocacy and representation at a collective level are most likely to support a healthy democracy and a more just distribution of wealth, and (notwithstanding the NLRA) what legal architecture will nurture them. Our answer to the first question is “many mechanisms.” The best hope for a revived labor movement appears to lie with new actors such as workers’ centers, community and occupational groups, and identity caucuses that can work in partnerships with established unions; class action plaintiffs’ firms dedicated to enforcing workplace rights; and government agencies and attorneys general. The experience of these groups with law thus far is instructive because it signals hostility to group rights and collective action in the workplace context beyond labor law. Accordingly, reforming labor law will not be sufficient. A bolder approach is necessary. On the second question, then, we contend that more robust constitutional protection for group action in its many forms is essential to create breathing space for worker mobilization. That protection can and should be founded upon the First Amendment freedom of assembly. Relying on a vigorous body of First Amendment scholarship that emphasizes the role that assembly rights have played in our constitutional tradition, we offer a preliminary sketch of how reframing labor rights as assembly rights might expand legal protections for labor unions and other worker advocacy efforts, and shore up democracy in the process. Our argument proceeds in four parts. Part I treads ground familiar to labor scholars, describing the role that judicial hostility to group action has played in cabining group rights in the labor law context. Part II describes the new vehicles for collective worker activism that have developed to fill the gaps left by the decline of conventional unions, and assesses the law’s response to their strategies. We explain how law has been hostile to collective action by workers even where unions and labor law are not involved. This hostility is manifested most starkly in a recent series of decisions from the Supreme Court narrowing the availability of class claims by workers in workplace-based litigation and arbitration. Because class claims may play a critical role in the formation of group identity, these developments stifle nascent forms of worker activism. Part III contends that a new legal frame is essential to support group rights, and looks to a revitalized First Amendment right of assembly. Part III also discusses the implications of this reframing, explaining why the new frame is vital to a healthy democracy. Part IV outlines how such a frame might alter the existing labor law regime. Reframing labor rights as assembly rights would offer modern unions and other worker advocacy groups a new rhetorical tool in the struggle to win hearts and minds. Constitutional rights are accessible to the public and to workers in a way that statutory mandates are not. Thus, they are more likely to be effective in the crusade to rebrand labor unionism. Unions, worker centers, and other advocacy groups should consider appealing to the public to support the constitutional right to assembly in the context of rallies, pickets, boycotts, demonstrations, and social media appeals designed to advance workers’ rights. They might reform their marketing strategies, including websites, publicity, handbills, and other mediums to foreground assembly rights. Further, the constitutional stature of the assembly right could ground serious challenges in court to portions of the labor law that hamstring both unions and new forms of worker advocacy groups, particularly restrictions on picketing, secondary boycotts, the strike weapon, and group litigation conducted as part of an organizing drive. It might also, however, ground challenges to parts of the statute that labor holds dear, including exclusive representation and the ban on company unions.

Chapter 1 Christina D. Romer Response by Marion G. Crain Response by Steven M. Fazzari Response by William R. Emmons Response by Michael Sherraden Chapter 2 Barry Z. Cynamon and Steven M. Fazzari Chapter 3 Melissa B. Jacoby and Mirya R. Holman Chapter 4 Timothy D. McBride Chapter 5 Sharon K. Long, Karen Stockley, Heather Dahlen, and Ariel Fogel Chapter 6 Marion G. Crain and Ken Matheny Chapter 7 Susan J. Lambert Chapter 8 Mark R. Rank and Thomas A. Hirschl Chapter 9 Joe Soss and Lawrence R. Jacobs Chapter 10 Gillian Lester Chapter 11 Jared Bernstein Chapter 12 Michael Lind

American law conceptualizes work as an exercise of free will, as a choice rather than as a right. Work law is dominated by a freedom of contract analysis in which occupations, jobs, union representation, working conditions, and exit are seen as freely chosen. New Deal-era regulatory regimes are undermined by the pervasive influence of the work-as-free-will framework. Vast spheres of worker activity that benefit employers yet occur within the coercive context of an employment regime in which jobs are a choice and a privilege rather than a right are left unregulated. Worker agency is reduced as workers conform their aspirations, expectations and demands for workplace justice to the confines of the job as defined by the employer. Few question the prevailing meaning of work as freedom because it is consonant with our cultural commitment to the American Dream—but we should.

Human life is structured by a variety of relationships, interactions, exchanges, and organizations-some are complicated, some are simple; some are longstanding, while others are brief; and some are memorialized through formal legal agreement or state-conferred status, while others remain the product of convenience, habit, or social convention. Yet one overriding characteristic by which the state, social communities, and individuals categorize human relationships and interactions is by distinguishing between those arising out of emotion-including love, passion, or altruism and those arising from economic expediency or profit-seeking. In other words, was the act, relationship, or exchange in question made for love (broadly construed) or for money? Researchers know that this "love or money" dichotomy is in many ways artificial. In the real world, people interact for a variety of complex, intermingled, and often contradictory reasons. Many people are passionate about their work and love their jobs, yet nearly all

Participants in this symposium honoring the seventy-fifth anniversary of the National Labor Relations Act offered insightful tributes to the historic achievements of labor unions and collective bargaining under the Wagner Act and devastating critiques of the law’s evolution under Taft-Hartley and Landrum-Griffin. The critiques run to the very core of the statute - including its limited coverage, anachronistic adversarial premise, the stark choice it offers workers between a union as exclusive representative and no voice in the workplace at all, a deeply flawed election model which when combined with toothless remedies and procedural delays allows employers to mount aggressive anti-union campaigns that destroy union momentum, the limited nature of the duty to bargain, and the hobbling of labor’s strike and boycott weapons which makes first contracts exceedingly difficult for those unions that do triumph over the employer’s antiunion campaign. Although these problems suggest obvious possibilities for legislative reform, Congressional gridlock and the sharply polarized nature of labor politics prevents them from gaining traction. The Board’s efforts to take the lead through rulemaking and more aggressive enforcement of the Act have also met with powerful resistance in Congress. The more fundamental question is whether the NLRA is worth saving at all. This essay seeks to spark debate about that question. On the one hand, repeal of the labor laws would undermine the primary support in the law for collective action by workers, and because of its linkage with other social justice movements, could also threaten the individual rights regime that these movements have secured. On the other hand, repeal of the labor laws could re-energize labor unionism. It seems far from coincidental that the most vibrant and successful organizing and worker activism efforts are occurring outside the NLRA framework, including neutrality and card-check campaigns, the political movement behind public sector organizing and bargaining rights, successes in immigrant organizing and home care work, collective and class action litigation pursued by plaintiffs’ attorneys under state and federal wage and hour law and antidiscrimination legislation, local activism by labor-community alliances that has produced living wage laws and community benefits agreements, and the persistent efforts by the Committee on Freedom of Association to enforce the ILO conventions on global labor rights. In considering these issues, this essay proposes ways that labor might reinvent itself to become the sort of movement that will inspire and motivate rather than alienate and anger. First, unions should ally themselves with other social movements that are telling the most powerful stories of exploitation - race and sex discrimination, sexual orientation discrimination, human trafficking, abuses of low wage workers and immigrants. Second, labor should emphasize the voice function of unionism more. What self-respecting individual wouldn’t want to be at the table when decisions about her economic future and day-to-day work life are being made? Finally, unions must reconceive themselves as communal organizations that are part of the glue that binds society together. In the end, the weaknesses of labor unionism and labor law are also its strength: union organizing is a direct challenge to corporate power, an opportunity to tell the truth in workers’ voices about the economic realities of our time, and a strategy for wealth redistribution. Unless we wish to be only romantics, placing our heads in the noose and lamenting the decline and demise of the elegant system of labor law, we (intellectuals, union activists, lawyers, and workers) must do the hard work of explaining why unions and labor law are vital to economic prosperity, what the alternative could look like, and why everyone should care.

Employment has shifted from a relatively stable and secure relation in which shareholders bore the risks associated with the market and firms buffered the risks vis-a-vis workers to a dynamic relation characterized by employment insecurity and individual responsibility. Modern businesses face new management challenges stemming from decreased employee loyalty and difficulties in supervising and controlling the workforce. Firms have responded by implementing internal branding programs that parallel consumer marketing programs but target workers rather than consumers. The goal of such programs is to re-align employees' self-interest with that of the firm, persuading employees to internalize the firm's brand so that they "live the brand" and react instinctively "on-brand." Identity-based brand management, the most aggressive and potentially effective of the internal branding programs, aims to induce employees to view their employment as a personal relationship akin to a family tie, imbuing the economic transaction with emotional significance. In this psychological framework, workers' decisions to invest in the firm-by staying and rejecting other labor market alternatives, and by purchasing company stock in their individual retirement plans-signify emotional attachment and faith. Understanding how identity-based brand-management programs work sheds light on why employees consistently ignore conventional advice against over-investment in company stock in their individual retirement accounts, with potentially disastrous effects should the firm fail. The recent wave of "stock drop" litigation triggered by the recession reveals an even more disturbing trend: as the recession deepened, employees invested more, not less, in their firms.Despite its willingness to regulate consumer advertising and dissemination of information to shareholders, the law has steadfastly refused to regulate internal branding or the investment choices that it influences. The traditional justification for the law's refusal to intervene to protect employees from losses stemming from over-investment in their firms has been that employees unilaterally choose to make these investments: they choose employment at a particular firm, they choose to remain at the firm, and they choose to invest in company stock. Drawing on research by management theorists, economists, and sociologists concerning the potential for manipulation of employees' psychological framework through identity-based brand management, I argue that the law's matrix of unilateral choice to invest at a particular moment in time is only half the story. Though employees are not mindless victims or dupes, their vulnerability to brand-management programs that influence their frame of reference over time fundamentally alters the lens through which they view investment choices: branded employees demonstrate their loyalty by buying into the firm's brand. I contend that the absence of regulation is unsustainable, and sketch the contours of possible legal responses.

I. INTRODUCTION II. BRANDING, MARKETING, AND APPEARANCE STANDARDS IN SERVICE BUSINESSES A. Branded Service B. Mechanisms of Control 1. Production Line Routinization 2. Standardization by Transformation 3. Effects of Routinization on Customers and Culture C. The Walt Disney Model of Branded Service 1. Hiring and Training for Branded Service 2. Branded Workers: Appearance Codes III. BRANDING: SANCTIONED BY LAW A. Trade Dress: Protecting an Employer's Property-Like Interest in Its Brand B. Appearance Regulation in the Workplace 1. Cases in the Union Context 2. Constitutional Challenges to Appearance Codes 3. Privacy-Based or Wrongful-Discharge Claims at Common Law 4. Statutory Sex Discrimination Claims 5. A Case Study of Corporate Branding Accomplished Through Appearance Codes and the Law' s Response IV. THE JESPERSEN LITIGATION: AN INDIVIDUAL WORKER RESISTS CORPORATE BRANDING A. The Facts B. The State Lawsuit: Common Law Claims C. The Title VII Lawsuit: Discrimination Claims 1. The Complaint 2. The District Court Decision 3. The Ninth Circuit Panel Decision 4. The Ninth Circuit En Banc Decision V. BRANDING, SEX STEREOTYPING, AND EMPLOYMENT DISCRIMINATION LAW IN JESPERSEN A. Creating and Defending the Brand 1. If one employee failed to comply, the brand standard failed. 2. The Cult of Personal Loyalty 3. Bill Feminization of Casinos 4. The Rise of the Bureaucratic Ethic and Corporate Loyalty 5. Technology and Marketing 6. Refining the Brand Through Expertise: The Image Consultant B. Commodification: Sexualizing Female Bartenders 1. Wearing Makeup: Branding Darlene Jespersen 2. Selling Sexuality: The Business of Casino Gaming 3. Sexualized Branding: The Harrah's Look 4. Property Rights in Work Law, Redux VI. THE FEMINIZATION OF BARTENDERS: FROM BARMAIDS TO BARTENDERS TO BAR BABES VII. (RE)FRAMING JESPERSEN'S CLAIM: RESISTING BRANDING A. Finding Allies in Community Organizations: The Alliance for Workers' Rights B. Modes of Resistance at Law: Individual Lawsuits 1. The Administrative Process 2. The Plaintiffs' Bar: The Solo Attorney Takes on 3. Lambda Legal Defense and Education Fund: The Discrimination Claim 4. Individual Rights Versus Collective Rights: What Difference Does Framing Make? C. Recasting the Claim as a Collective Rights Claim: The Role of Unions 1. HERE and Nevada's Culinary Union Locals 2. Successful Union Strategies in Other Branding Cases VIII. CONCLUSION I. INTRODUCTION In the hypercompetitive American economy, marketing and advertising are critically important for businesses that seek to edge out the competition, attract new customers, and build customer loyalty. One online casino has found a way to cut through the clutter of advertising messages in a uniquely attention-getting way: branding the faces and bodies of human beings with its corporate logo. In June 2005, GoldenPalace.com paid Kari Smith $15,000 to have GOLDEN PALACE.COM tattooed permanently on her forehead. Smith auctioned her forehead as marketing space via eBay, apparently in an effort to raise funds to pay for private school for her son. (1) The resulting notoriety and news coverage was extremely beneficial to GoldenPalace. …

Books Nickel and Dimed: On (Not) Getting By in America by Barbara Ehrenreich (published by Holt Paperbacks) Barbara Ehernreich leaves behind everything she knows as a successful writer and heads out to live the lives of the working poor in America. She finds work as a cleaner or waitress trying to live off meager wages and tips. What she finds is that not only can one not survive in these jobs, one begins to disappear; one becomes invisible. This is a great narrative on one person’s journey into the invisible class in America: the working poor.