ABSTRACT
American work law has been fragmented into distinct areas of 'employment protection law', 'labour law', 'employment discrimination' and the tax-orientated 'employee benefits law'. This chapter argues that while form/substance alignments between rights and regulation are historically contingent, they have in some cases distorted and limited the possibilities of social justice reform. It describes how the framework of minimum standards in employment regulation, focusing in particular on the context of minimum occupational safety requirements, contrasts with the framework of employment anti-discrimination rights-based litigation. The chapter explores ways in which the next generation of anti-discrimination strategies and risk regulation strategies in a new labour market era are finding points of convergence between these categories of policies. It discusses the developments, indicating that increasingly both Occupational Safety and Health Administration and the equal employment opportunity commission are finding the separation between rights and regulation limiting and inadequate and are experimenting with ways to bring the two worlds of regulation and rights together.
