Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Washington University Law Review

Abstract

In the modern era, corporate marketing and branding processes frequently encompass a public commitment to progressive social causes favored by a firm’s base of both consumers and workers. So-called woke capitalism, or values-based branding, is designed to build a relationship between the firm and its stakeholders that will yield brand loyalty and increased profits. It has proved exceptionally effective with millennial workers, who increasingly seek to express social justice and political values through their brand affiliations. Sometimes woke capitalism involves authentic promises of principled production and service, but not always. Values-based corporate promises that turn out to be inauthentic amount to “woke-washing”: Firms deploy progressive values or social activism language in marketing campaigns to reap reputational benefits, but do not align their practices with their commitments.

We argue that workers who are drawn to a firm by values-based branding are as much consumers of the brand as they are workers. When worker-consumers experience woke-washing and realize that they have been made unwittingly complicit in the firm’s deception, they are understandably distraught and outraged. Not only have they invested labor into a brand fundamentally incompatible with their deeply held values, but their very identities are on the line. While consumers in this situation may bring claims under consumer law, workers who consume the brand have no remedy because consumer law blocks employees qua employees from bringing suit. And when consumer-workers protest, employment law offers little solace: They can be disciplined or discharged at-will without legal protection.

Work law scholars have begun to explore the possibilities of using consumer law to hold employers accountable to workers in the gig economy, where employers often frame workers as something other than employees (for example, independent contractors) in order to avoid the mandates of labor and employment law. Consumer law scholars have articulated theories for holding firms liable to consumers for identity-based harm when they are defrauded by broken promises regarding the goods and the brands that they consume. Both lines of argument, however, leave undisturbed consumer law’s traditional worker/consumer dichotomy. This Article directly contests that dichotomy, arguing that consumer law’s historical resistance to claims by employees is inapposite where firms engage in values-based branding that simultaneously exploits workers’ identities as consumers of the brand and as workers. We argue that consumer law should protect workers’ challenges to their employers’ inauthentic embrace of a social justice mission when the employer has relied upon values-based branding to recruit and retain its workforce. Because brand values have signaling attributes that run to the core of one’s moral identity, they should be treated as a symbolic consumable under consumer law statutes, even absent the purchase of a tangible product or service. While these claims will be difficult to win, this broader framing of consumer law claimants as worker-consumers could create opportunities to forge alliances between labor and consumer advocacy groups. These alliances could both provide leverage in settlement negotiations and extend beyond the courtroom to help galvanize more meaningful and transformative social justice change.

Keywords

Woke-Washing, Social Reform, Worker/Consumer Dichotomy, Value-Based Branding, Corporate Marketing, Consumer Law, Employment Law, Social Justice, Political Values, Brand Loyalty, Millennial Workers

Publication Citation

Peggie R. Smith & Marion Crain, Woke-Washing at Work, 102 Wash. U. L. Rev. 1509 (2025)

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