The Perfect Compromise: Bridging the Gap between At-Will Employment and Just Cause

61 Pages Posted: 13 Jun 2008

See all articles by Nicole B. Porter

Nicole B. Porter

University of Toledo College of Law

Abstract

Many scholars have criticized the harshness of the employment at-will presumption, which allows an employer to terminate an employee for good reason, bad reason, or no reason at all. Other scholars defend at-will employment and criticize the just cause standard. This Article does not take sides in this debate; but instead, attempts to bridge the gap between the two by proposing a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would remain free to terminate without having the difficult burden of proving just cause. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions should warrant protection, my goal was two-fold: (1) to make unlawful egregious termination decisions that have previously been unremedied despite the many exceptions to at-will employment and (2) to provide some overlap protection with current employment statutes by using a procedural process that will be more easily accessible by employees. Yet, in the spirit of true compromise, ETEA will provide fewer types of remedies than other employment statutes or common law claims, and will force plaintiffs to choose between suit under this proposed termination statute and other statutory remedies. As with any compromise, lines had to be drawn and line-drawing never satisfies everyone. My goal in this article is to convince the reader to view my line drawing optimistically - as a necessary means of bridging the gap between at-will employment and just cause.

Keywords: employment, at-will, discrimination

Suggested Citation

Porter, Nicole B., The Perfect Compromise: Bridging the Gap between At-Will Employment and Just Cause. Nebraska Law Review, Forthcoming; University of Toledo Legal Studies Research Paper No. 09-06. Available at SSRN: https://ssrn.com/abstract=1144118

Nicole B. Porter (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4785 (Phone)

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