More than sixty years after the enactment of Title VII of the Civil Rights Act, access to work and its rewards remains dramatically unequal in the United States. Women make up nearly two-thirds of the workers in the forty lowest-paying jobs in the country. Black-White wage gaps are larger today than they were in the 1970s. And people of color are overrepresented in gig and contingent work, characterized by low pay, few benefits, and ongoing precarity.
There is no shortage of explanations for this persistent failure of law. Some scholars fault the judiciary, arguing that conservative judges have weakened the most important doctrines for addressing discrimination, unduly deferred to the corporate pretense of “symbolic compliance,” and often shown outright hostility to the normative goals of antidiscrimination law. Other scholars argue that the explicit discrimination of the mid-to-late twentieth century has been replaced by implicit bias and structural discrimination, which the law struggles to identify and redress.
Political economy, unfortunately, tends to get shorter shrift in these conversations. In a debate that centers either the psychology of animus or the finer points of judicial doctrine, the evolving structures of economic extraction have been given far too little attention. The organization of work has changed radically since the mid-1960s. And where discrimination predominates and how it operates have changed too. But the way we conceptualize discrimination has not evolved in tandem.
Exclusion and Exploitation
Where, for instance, do we expect to see discrimination? Here, most people instinctively think of better jobs, the jobs from which marginalized workers have historically been excluded. The fact that the majority of leadership at Fortune 500 companies are still White men is treated as the most compelling evidence of how deeply entrenched discrimination remains in our labor market, while the success of DEI measures is evaluated based on the representation of women and people of color in elite management and professional roles. This focus on what happens in elite jobs, while understandable, is a problem. It trains our attention on jobs that are themselves increasingly rare, often problematic in their own right, and largely irrelevant to how the vast majority of marginalized workers in the United States experience work.
As I argue in a new draft article, Discrimination as Exploitation, we need to think more capaciously about what discrimination looks like. By focusing on diversity at the top, rather than conditions at the bottom, discrimination law has failed the workers who need it most. Employment discrimination law today remains rooted in a paradigm I call discrimination as exclusion—employers denying marginalized workers access to better jobs or comparable working conditions. But that paradigm leaves largely unaddressed the corresponding problem, identified by Leticia Saucedo twenty years ago: employers’ structural preference for marginalized workers in bad and worsening jobs. I call this alternative paradigm discrimination as exploitation: employers seeking out workers because of status attributes linked to histories of oppression and ongoing legal subordination, in order to reduce worker pay, degrade working conditions, minimize the chance of unionization or legal complaint, and maximize profits.
To be sure, exclusion and exploitation have always co-existed, together shaping the allocation of work and its rewards along racialized and gendered lines. Historically, though, they tended to be tightly coupled, practiced by the same employer within the same workplace: vertically integrated employers used exclusionary tactics to trap marginalized workers in the company’s worst jobs, while reserving the best jobs for White men. Labor market inequality in the 1960s and 1970s was most pronounced within firms, and so legal attacks on exclusion tended to simultaneously remedy exploitation. In cases like Griggs v. Duke Power Co. and Wards Cove Packing v. Atonio, marginalized workers sued to challenge their employer’s exclusionary hiring and promotion procedures. Through doing so, they sought to liberate themselves and others from exploitation in that employer’s worst jobs.
Today, however, in an era of vertical disintegration and workplace fissuring, inequality is more pronounced between firms than within them. As such, while we rightly lament the judicial evisceration of systemic disparate treatment and disparate impact theories, the legal losses may be less consequential for antidiscrimination efforts than the underlying reorganization of work. Cases like Griggs and Wards Cove are less likely to arise in the first place, because no single employer is likely to offer both such good jobs and such bad jobs. Rather, a lead firm would retain the good jobs, while subcontracting bad jobs to entirely different employers, drawing workers from entirely different labor markets. Exploitation and exclusion have been decoupled. Yet, despite this radical change in political economy, antidiscrimination law continues to focus single-mindedly on exclusion. Doing so necessarily means focusing on the better-paid sectors of the economy, rendering antidiscrimination law increasingly irrelevant to those workers who toil in the ever-broadening secondary labor market.
The Discrimination That Lacks a Name
So, what does discrimination as exploitation look like? And can it fit within our existing legal frameworks? Two recent cases illustrate both the possibilities and the difficulties.
In October 2024, a California jury unanimously found that Cognizant Technology Solutions, a multinational IT and outsourcing company, had engaged in a “pattern or practice” of discrimination favoring workers of South Asian race and Indian national origin, in violation of Title VII and Section 1981. Of Cognizant’s 40,000 U.S. employees, roughly 80% were of South Asian origin, a substantial portion of them H-1B visa holders. Overall, non-South Asian workers were seven times more likely to face involuntary termination. Plaintiffs’ expert put the odds of that outcome absent intentional discrimination at “less than one in a billion.”
Crucially, plaintiffs did not argue that Cognizant executives were motivated by animus against the plaintiffs, a class of 2,300 workers who were largely White American, but also Black, Hispanic, and Asian, and from a variety of other countries. Plaintiffs argued that Cognizant’s motive was profit. Cognizant could underpay H-1B workers relative to their American counterparts. And because H-1B visa status binds workers to their sponsoring employer, Cognizant knew these workers were less free to quit or to challenge long hours and unreasonable expectations. Cognizant’s leading defense arguably conceded that the company sought out workers for their precarity; its expert emphasized how the fierce competition to come to the United States from India yielded higher-performing workers—but this, they said, was not discrimination. In a historic victory, the jury found for plaintiffs and concluded that Cognizant’s behavior was so egregious that punitive damages were appropriate. Still, the case flew largely under the radar.
Over this same period, the Supreme Court heard Ames v. Ohio Department of Youth Services, which presented the question of whether “majority group” plaintiffs should face heightened evidentiary requirements when alleging discrimination in the workplace. Unlike Cognizant, Ames attracted enormous political attention, and its amicus briefs tracked our country’s familiar political divides: conservative organizations insisted that DEI had made discrimination against White and Asian Americans rampant while progressive organizations documented the “virtual absence of widespread discrimination targeting certain majority groups.”
Given the temporal and conceptual overlap between these two cases, one might assume that cross-cutting arguments would have emerged—after all, Cognizant was technically a “reverse” discrimination case. Yet, the Cognizant case file contains no reference to the Ames debate, and not a single brief filed in Ames mentions the remarkable verdict in Cognizant.
Within the discursive context of modern employment discrimination law, however, the mutual invisibility is unsurprising. The factual underpinnings of Cognizant are inconsistent with leading narratives about race and discrimination from both the right and the left. For the left, discrimination is status subordination, and it seems almost impossible that White American engineers might experience subjugation in this country today. For the right, discrimination is invidious classification. And while conservatives believe discrimination against majority groups to be rampant today, they attribute it to the radical “woke” agenda, not to a legal and economic infrastructure that facilitates a race to the bottom.
Cases like Cognizant resist easy analysis in part because they attempt to squeeze the complex harms of discrimination as exploitation into the familiar legal framework. In cases like Cognizant, higher-status workers sue to challenge their displacement by marginalized workers, because exclusion is a more cognizable harm than exploitation. But to be clear: among the groups of workers structurally pitted against each other in these cases, there are no winners. As Maria Ontiveros reflected, the problem in Cognizant was a business model built on exploitation, and the only one who benefitted from this scheme was Cognizant. Absent a new sociolegal category in which to place this kind of conflict, however, more simplistic narratives are likely to prevail.
An LPE Agenda for Antidiscrimination Law
As I argue in my article, the exclusion paradigm is now so embedded in antidiscrimination law that it actively inhibits the legal recognition of discriminatory exploitation. For instance, a prima facie discrimination case requires an “adverse action,” but within a legal regime that has traditionally searched for exclusion, being hired is difficult to characterize as adverse. Additionally, plaintiffs are normally required to identify similarly situated employees in order to show that working conditions are discriminatory, yet when jobs are almost entirely performed by people of one race or one gender, the discrimination itself ensures the lack of a comparator. To make matters more difficult, discrimination law’s zero-sum remedial structure presumes that only the excluded lose, not the exploited. In each of these ways, doctrinal peculiarities that evolved in the context of exclusion claims make it that much harder to take on discriminatory exploitation.
Fortunately, however, treating exploitation as a form of discrimination does not mean discrimination law alone must remedy it. While the article identifies doctrinal openings within discrimination law—ways to challenge biased selection processes, workplace segregation, and the discriminatory degradation of job conditions—it also argues for recognizing the antidiscrimination potential of a broader range of laws. As Llezlie Green has argued, minimum standards laws are anti-discrimination laws. Universal economic protections further racial and gender justice too. Union contracts remain one of the most effective means of reducing racialized and gendered wage gaps, because collective power prevents employers from strategically using status inequalities to degrade jobs. Meanwhile, immigration law is, and always has been, labor policy, and legal rules that weaken protections for immigrant workers actively facilitate discriminatory exploitation.
The political reality is that naming discrimination as exploitation is unlikely to provide new remedies for exploited workers in the short term. But law is a language for ordering human experience and naming its wrongs. Trying to shove the experiences of marginalized workers into one narrow category has become stultifying, and I think counterproductive, both doctrinally and politically. Rendering discrimination as exploitation legible is an essential step toward a coherent political analysis of the bad jobs economy—and toward building the broad and capacious solidarity needed to demand better jobs for all working people.
