Written by Mason Pesek and Corinne Huntley in Crain's Cleveland Business on 08/27/2020.
On June 15, the U.S. Supreme Court issued its landmark decision in Bostock v. Clayton County, which expanded Title VII workplace protections to LGTBQ+ workers. The decision is rightfully heralded as a victory for workers, as employers can no longer openly discriminate against LGBTQ+ workers. However, there is nothing stopping an employer from firing that very same worker for not being a "culture fit," or for another vague reason. The "at-will" employment standard — which is the norm for workers in nonunion workplaces — permits employers to fire employees for any reason (with a few specific legal exceptions). Until at-will employment ends as the standard in Ohio and across our nation, the protections fought for by the plaintiffs in Clayton County, and the movement behind them, cannot be fully realized.
The at-will employment standard became the legal norm during what was known as the Supreme Court's Lochner era at the turn of the 20th century. At the time, the Supreme Court considered the freedom to contract almost sacrosanct, and attempts to create humane, legally enforceable working standards, such as regulating child labor or establishing a minimum wage, were struck down as impeding on individuals' freedom to contract. Most of the decisions and arguments of the Lochner era have become artifacts of the past, but the at-will standard for employment agreement remains the national standard.
Several judicial and statutory exceptions to at-will employment have developed over the last 60 years, such as anti-discrimination, workplace safety, and whistleblowing protections, but these exceptions are narrow and are applied inconsistently. Further, employees bear the burden of proving their termination was due to their assertion of a protected right. These sparse protections make the United States an outlier among its peer countries, like Germany and the United Kingdom, which have rejected the at-will employment standard and have adopted much more robust employee protections.
The at-will standard presents risks to both employees and employers. Employees experience a serious power imbalance in the workplace. The specter of a sudden firing for "good cause, bad cause, or no cause" haunts employees, as they must weigh the risks of speaking up about an abusive supervisor, an unsafe workplace, or prejudicial treatment or policies at work with the possibility of abrupt termination. An employee can file a complaint with the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, or the National Labor Relations Board, but it can take months (or even years) before the claim is resolved. Further, if the employee's claim is successful, the remedies are often not much more than a slap on the wrist for the employer.
The at-will doctrine can also be dangerous for employers. At-will employment increases the risk that former employees will accuse an employer of wrongful termination. At-will employment discourages employees from raising legitimate concerns about a manager or supervisor, for fear that raising an issue will result in the employee's termination. Employers may also face liability exposure from bad managers who make termination decisions based on nothing more than their personal feelings about an employee.
By contrast, the central concept of a "just cause" employment standard is that an employer must be able to show that a termination was justified. Just cause reasons for termination may include excessive unexcused absenteeism, repeated violation of company policy, or abusive behavior toward other employees. For example, an employer would have just cause to fire an employee with an established track record of disciplinary infractions, but that employer could no longer justify the termination of an employee who filed a complaint against a supervisor for unwanted sexual advances or who exercised their legal right to organize a union by saying that the employee was not the "right fit" for the position. A just cause standard will also help employers head off potentially frivolous claims by former employees by establishing that an employee was terminated for good cause. Simply put, a just cause standard creates safer and more democratic workplaces for employees while still giving employers the power to terminate employees based on reasonable guidelines and standards.
It is long past time that the United States joins its peers and adopts a national standard of just cause employment. The rights and concerns of workers deserve just as much care and consideration as their employers, as our standard for employment agreements should reflect. The plaintiffs in Clayton County won a massive victory for workers, but we must continue the fight for more just workplaces.
Click here to read the full article in Crain's Cleveland Business.