Hi JWPC Blog Readers,
Some of you have met me, some of you haven’t. So… I’m Erika(she), I am one of the associates here at JWPC. My background and passion is in food system change, but this post isn’t about that. This two-part post is about my queerness and its impact on my legal practice.
As numerous human rights, including queer rights, are only codified into American law by a small group of nine justices, I am remembering why I shifted my career to transactional law at all. It’s this: when governments fail, contracts create enforceable rights of parties. In this post, I’ll give some of my reflections on how agreements can support the rights of queerfolk and also acknowledge how contracts are an imperfect tool for power redistribution. I’m going talk specifically about two contexts for transactional documents: employment agreements and formation documents (bylaws and operating agreements).
In the United States, many affirmative rights—healthcare, rest/retirement, parental leave, childcare, etc.—are realized through one’s employer. Also, many discrimination protections apply specifically, and exclusively, to the employment contexts. This makes the employer/employee relationship (1.) carry an outsized (and inappropriate) burden on rights protection while (2.) being the obvious place where businesses can hold themselves accountable to the promises they’ve made. And yet, so many employers, especially in the food and agriculture industries, don’t even have employment agreements.
Essentially, employment contracts, specifically, and all commercial agreements and formation documents, generally, are the most important place for progressive employers to do put principles into practice, certainly more valuable than some Instagram posts about “overthrowing” capitalism.
Here’s the downside about all contracts, which is especially true in the employment context: good contracts require equal bargaining power. A contract negotiation is, more often than not, a chess match in which one party starts without some of the pieces. If, for example, an employee is a white man who comes from generational wealth, maybe he’s only missing a pawn in relation to the employer’s full roster. Depending on how many oppressed groups an employee belongs to, the more pieces that person loses at the outset of the negotiation.
Companies are their own tiny countries—they generate and distribute revenue, there are governance and voting rights, they rule on disputes, they share information (or not), and they all rise and fall. And companies are governed by either a set of bylaws or an operating agreement, depending on entity type.
There are some standard provisions that should be in these organizational documents. But they are also a space for companies to have incredible innovation and an opportunity for these economic organisms to create their own constitutions. For example, instead of some “vanilla language” about mandatory arbitration, founders can create their own dispute resolution processes that create independent judiciaries. Bylaws and operating agreements can codify parental leave or gender transition policies. By putting these commitments into formation documents, companies are legally bound to adhere to them and they can’t back-track on them later—no more empty promises. That inflexibility protects workers, regardless of membership to an oppressed class.
Formation documents have a benefit over employment agreements: the drafter doesn’t know what side they’ll be on if there is ever a future dispute. This incentivizes companies to make these documents as absolutely fair as possible. This is even more true in a cooperative or other structures where each member only has one vote.
I should also name that this is a neoliberal approach to the problems in our current world. But it’s also a way for small businesses to effect change in their tiny corner of Earth.
This post is about my experience and relationship with queerness and, in no event, should be extrapolated as the experience of all queer people. Further, it is the individual reflections of one staff member at JWPC, and its content shall not be imparted on the firm as a whole.