The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments?

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University of Chicago Legal Forum, 2009

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Noah Zatz
minimum wage; civil rights; employment discrimination law; poverty; social welfare policy; Earned Income Tax Credit (EITC)
paper description
This Essay offers a new argument for the minimum wage as a contribution to a symposium on “Civil Rights Law and the Low-Wage Worker.” The minimum wage debate has been excessively focused on disputes over its efficacy as antipoverty policy, often by comparison to tax-and-transfer programs like the Earned Income Tax Credit. Because it regulates wage rates, not income, the minimum wage is best defended by specifying the wrong in paying low wages even to individuals who are not poor. Employment discrimination law provides a ready analogy because even high-income workers receive protection, including when this imposes costs on employers. Indeed, like the minimum wage, such protections face criticism for using employment law rather than tax-and-transfer programs to achieve distributive results. I suggest that this kinship runs deep. The minimum wage arguably protects an individual against (some of) the unfair workplace consequences of an earnings capacity suppressed by morally arbitrary factors. Race, sex, and disability are examples of such factors, but not the only ones, and evidentiary constraints limit the law’s ability to identify discrimination on even those specific bases. The minimum wage may provide a kind of civil rights safety net, catching cases that fall through the often large gaps between more targeted protections.