America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through state legislative enactment is a conceptually flawed approach. Moreover, this exclusion of federal (and state) antidiscrimination law from the coverage of wrongful discharge law ignores the causal link between antidiscrimination legislation and common law exceptions to the employment at will doctrine. Given the failure of antidiscrimination law to protect against unlawful discharge, Congress should create a consistent national employment discharge policy. This policy would replace the current patchwork of civil rights laws regulating workplace discharge. It would protect all workers from unjust dismissals, including workers currently protected by federal antidiscrimination law. This law should abolish Title VII insofar as it protects individuals from discriminatory discharges other than harassment and retaliation. It should abolish the ADEA protection for individual employees. In their place, the new Act should create protections from arbitrary discharges for all workers, including those who currently are members of one or more protected classes under Title VII and the ADEA.
57 Ohio St. L.J. 1443 (1996).
McGinley, Ann C., "Rethinking Civil Rights and Employment at Will: Toward a Coherent National Discharge Policy" (1996). Scholarly Works. 160.