Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict
Suk, Julie C., Stanford Law Review
INTRODUCTION I. TITLE VII AND EMPLOYMENT AT WILL: AN UNEASY COEXISTENCE A. Title VII's Goal: Equal Employment Opportunity B. Employment at Will and Its Limits C. Employment at Will and Title VII Litigation II. THE FRENCH ALTERNATIVE: REPUBLICANISM AND UNIVERSALISM IN EMPLOYMENT DISCRIMINATION LAW A. The Labor Code's Discrimination Provision B. Employee Protection and Republican Citizenship III. RACE RIOTS AND MINORITY UNEMPLOYMENT A. Race Riots B. Unemployment C. How Job Security Protections Have Exacerbated Racial Inequality in France 1. Merit-based failures to hire 2. Racially biased failures to hire IV. THE REJECTED SOLUTIONS A. The Law on the Equality of Opportunities B. Student Strikes and Employment at Will C. The Anonymous CV and Incentives to Promote Minority Hiring V. THE POLITICAL ECONOMY OF EMPLOYMENT DISCRIMINATION A. French Lessons: Comparative Method B. The Persistence of Hiring Discrimination C. Firing Discretion and the Migration of Discriminatory Tendencies VI. RETHINKING EQUAL EMPLOYMENT OPPORTUNITY LAW A. The Management of Racial Bias B. The Limits of Universalistic Solutions to Racial Inequality CONCLUSION
Is employment at will bad for racial minorities? Ever since Title VII of the Civil Rights Act of 1964 (1) was proposed, the tension between employment discrimination law and employment at will has been noticed. (2) Recent empirical work shows that employment discrimination plaintiffs lose a lot, (3) and one widely shared explanation is that their cases are extremely difficult to win because of the enduring rule of at-will employment. (4) Many scholars have argued or assumed that racial minorities would fare better under a for-cause employment regime, one that protects the legal right of all employees to job security. (5)
This Article challenges the notion that for-cause employment would enhance equal employment opportunity for racial minorities. It explains how a regime of general protections for all employees' job security, like those prevalent in many European countries, can, over time, severely undermine racial equality in access to employment.
France's recent problems are instructive. French employment law made U.S. headlines in March 2006, (6) as over a million people across the country staged massive demonstrations against a law (7) that would have introduced a small dose of at-will employment into the French workplace. Departing from the Labor Code's general protection of employee job security, the March 2006 law permitted employers to hire persons under the age of twenty-six for a period of two years, during which the employee could be terminated for any reason. The contrat premiere embauche (CPE), or "first employment contract" provision, as it was known, was ultimately rescinded by the government in response to three weeks of nationwide strikes and unrest. (8)
An important fact that was largely ignored by American press accounts is that the proposal to allow at-will employment in limited circumstances was part of the law on "equality of opportunities," (9) adopted in direct response to the violent race riots throughout France in the fall of 2005. (10) These riots also flooded U.S. newspaper headlines, (11) as the French government declared a state of emergency in response to levels of unrest not seen since the student protests of May 1968. (12) Seeking to alleviate the mass unemployment of North African youths, the at-will employment provision of the Equality of Opportunities law was intended to enhance the employment prospects of disadvantaged minorities.
The French experience provides a counterweight to American understandings of the relationship between employment discrimination and employment at will, which are predominantly shaped by litigation experience. In France, the strengthening of job security protections in the Labor Code over the last thirty years has coincided with reforms to strengthen employment discrimination law. …