최저임금법의 패러다임 탐색: 인권(반차별권)에 근거한 반빈곤프로그램으로서의 최저임금

This article is the UCLA's professor Zatz's essay (“Civil Rights and the Low-Wage Worker: Article: The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments”). The Essay addresses the relationship between the core concepts in that title: “civil rights” and “low wages,” and suggests that the minimum wage aims to remedy an injury to workers' civil rights. Part II outlines an intellectual agenda for defending the minimum wage. The key hurdles are characterizing the harm in terms of wage rates rather than household income and justifying a remedy that focuses on employer wage payments rather than compensatory cash transfers from the state. These challenges parallel those that antidiscrimination law faces when it goes beyond a principle of impartiality into terrain marked as “accommodation” or “redistribution.” Part III considers how an antidiscrimination framework might address the first of these problems either through “disparate impact” analysis of how subminimum wages disproportionately affect groups traditionally protected by civil rights or through broadening those groups to incorporate a concept of discrimination based on economic class. He concludes that these tend to reproduce rather than overcome the standard objections to the minimum wage, and so he turn in Part IV to a different approach. He extends his recent argument that preventing “membership causation” (harm traceable to membership in a protected class) provides a theoretical synthesis of “disparate treatment” and “accommodation” theories in antidiscrimination law. The basic idea here is that sufficiently low wages indicate that the worker's earnings have been suppressed by morally arbitrary factors (including but not limited to race and sex), even if those factors cannot be identified with precision in the individual case. Requiring an employer to pay supra-market wages is like making an employer provide an accommodation that allows an employee to work as productively as if she had no (morally arbitrary) impairment. Part V concludes with some preliminary thoughts on the second hurdle, making the employer responsible for redressing low wages.