Discrimination at will: job security protections and equal employment opportunity in conflict.

• Author: Suk, Julie C.

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 INTRODUCTION

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. Yet, the racial gap in employment has only expanded during this period. The historical and current sociological data support the conclusion that the Labor Code's employee job security protections have contributed significantly to employers' propensity to engage in both rational and irrational discrimination against racial minorities in hiring. The recent controversies in France, from race riots to student strikes, should inform American approaches to reforming employment law to eradicate racial inequality in employment.

Part I articulates the predominant view amongst American scholars that at-will employment is at odds with the goals of employment discrimination law. It begins by establishing that equal employment opportunity has long been understood to be the primary goal of Title VII.

Part II contrasts the goals justifying U.S. employment discrimination law with those underlying French employment discrimination law. In France, the Labor Code's prohibition of discrimination in employment is not about group-based disadvantage: it is part of a general protection of employees' rights against arbitrary treatment by the employer. This very bundle of employee rights encompasses the right to job security.

Part III establishes that the widespread race riots throughout France were a reaction, in large part, to the problem of the mass unemployment of French people of North African origin residing in the suburbs of major cities. It then argues that French employee job security protections have, over the last thirty years, exacerbated racial disadvantage in access to employment.

Part IV explains why at-will employment was proposed in France in order to alleviate racial inequality and promote equal opportunity. It also explains the logic of the massive social movement that resisted and ultimately killed the at-will provision.

Parts V and VI draw insights from the French experience that illuminate a rethinking of American law's pursuit of equal employment opportunity. The central lesson is that limiting employer discretion in termination can exacerbate discriminatory tendencies in hiring. As a result, no reforms should be undertaken without considering their broader potential effects on the political economy of employment and their consequences for racial minorities' access to jobs. Such considerations may require broader, long-term approaches to equal employment opportunity that move beyond the narrow lens of civil litigation.

1. TITLE VII AND EMPLOYMENT AT WILL: AN UNEASY COEXISTENCE

   1. Title VII's Goal: Equal Employment Opportunity

      The goal of employment discrimination law in the United States is equal employment opportunity, defined in light of the historical circumstances that gave rise to Title VII. (13) So understood, equal employment opportunity means eradicating the disadvantages of excluded and subordinated groups in acquiring and retaining jobs. (14) More specifically, the primary goal of Title VII, the first employment discrimination statute, was to eradicate race-based disadvantages, particularly the severe disadvantages faced by African Americans. (15) As Alfred Blumrosen observed in 1968, the crucial social fact giving rise to Title VII was the disproportionately high unemployment rate among blacks. (16)

      Title VII also prohibited discrimination on the basis of sex, national origin, and religion, (17) expressing the message that employment disadvantage on the basis of membership in these groups was also unacceptable. But it is clear that the main impetus for passing Title VII was a growing civil rights movement whose primary goal was to undo racial segregation and its disadvantaging effects on African Americans in education and employment. (18) Indeed, the Civil Rights Act of 1964, of which Title VII was part, was a comprehensive federal statute attempting to eradicate various aspects of racial segregation and black disadvantage in voting, employment, education, and public accommodations. (19)

      So, naturally, the eradication of race-based disadvantage has been articulated, both by scholars (20) and by the Supreme Court, (21) as the main goal of employment discrimination law. Although employment discrimination law has been extended to other groups, the history of group-based disadvantage has always been an important background for the interpretation of the antidiscrimination norm. Although the statute protects employees as individuals, it does so only insofar as the individual has been treated badly as a member of a group, and does not protect the individual from all forms of arbitrary and unjustified treatment by the employer. These features of U.S. employment discrimination law, as we shall see, make it distinctive. (22)

   2. Employment at Will and Its Limits

      The rule of employment at will allows either the employer or the employee to terminate the employment relationship at any time for good reason, bad reason, or no reason. As is well known, the legal right to fire for bad reasons is not absolute; (23) both legislatures and courts have rendered some reasons for termination illegitimate.

      Title VII is perhaps the most salient example. Title VII prohibits the employer from terminating an employment relationship based on the employee's race, color, sex, religion, or national origin. (24) Other antidiscrimination laws, state and federal, also protect against discrimination on the basis of disability, (25) age, (26) or sexual orientation. (27) The antidiscrimination exceptions to employment at will embody a policy against employment decisions based on traits that have been, but should not be, a basis for group disadvantage. (28)

      The National Labor Relations Act prohibits employers from taking adverse actions against employees due to their union membership or activities. (29) State whistleblower statutes protect employees' rights to speak out with regard to the employer's illegal activities. (30) And many state courts have invalidated or provided remedies for wrongful termination when the termination is against public policy, such...