from ACLU gopher, 5/31/94
American Civil Liberties Union Briefer
Dorothy Jamison was fired from the job she had held for ten years as
a supervisor in a Philadelphia nursing home after she called her
employer two hours late to say that she could not come to work
because her brother, with whom she lived, had just died. Other
employees have been fired so the employer could avoid paying
contractually earned commissions; for protesting the concentration of
carcinogenic saccharin in children's aspirin; for refusing to vote as
their employer wished, and for a host of other unjust reasons.
Most Americans believe that they can be fired only for a legitimate
reason. Unfortunately, this is not the case. Under an archaic 19th
century doctrine called "employment at will," employers have the
right to fire their employees at will at any time, for any reason or
for no reason at all. While courts have recently created some narrow
exceptions to this unfair doctrine, it is basically still operative.
Employers have not been reluctant to exercise their unqualified right
to fire employees. Therefore, employees who are not covered by
collective bargaining agreements or other employment contracts are
never secure in their jobs and can be dismissed without prior
warning, no matter how satisfactory their job performance might be.
The American Civil Liberties Union believes that working people
should be protected against arbitrary firings, and that they should
only be fired for just cause.
*** How widespread is the problem of unjust firings? The U.S. Bureau
of Labor Statistics has estimated that, of the approximately 80
million Americans employed in the private sector of the nation's
economy, 60 million are employed "at will." Two million at-will
employees are fired every year, and it is estimated that about ten
percent of those -- at least 150,000 workers -- are fired for no
*** Why is this a civil liberties issue? Free expression, equal
protection, and due process are rights guaranteed to all Americans by
the First and Fourteenth Amendments to the United States
Constitution. Although the Constitution restrains governmental
employers from violating those rights, it does not restrain private
employers. Yet the impact on the lives of workers and their families
of such unfair practices as arbitrary firings is just as devastating
when the employer is private, even though the private employer's
actions do not violate the Constitution.
The ACLU opposes any corporate practice that arbitrarily deprives
workers of their basic rights.
*** What can be done to stop unjust firings?
The ACLU has proposed state and federal legislation that would
prohibit employers from terminating an employee without just cause,
which means: Dismissal would only be justified if the employee's
conduct impaired his or her job performance in a significant way; the
employee's offense violated a rule known to the employee, and the
offense was serious enought to warrant termination. Employers would
still be free to fire incompetent workers, to abolish obsolete
positions or to dismiss workers because of business downturns.
Fired employees who felt wronged would be able to challenge their
employer's action before a panel of impartial arbitrators, who would
have the authority to require an employee's reinstatement with back
pay if they found a firing to be unjust. Employees would also have
the option of choosing court litigation.
*** Is arbitration better than litigation?
Definitely. On average, litigation is a years-long, extremely costly
process -- it can cost as much as $250,000. Arbitration is a faster
and cheaper alternative by far, with arbitrators taking, on average,
only six months or less to render a decision, at a cost of
approximately $2,500. Members of the American Arbitration
Association and other similar organizations form a national corps of
neutral labor arbitrators. They have extensive expertise in
conducting fair hearings and process thousands of cases each year.
*** Does union membership protect workers from unjust firings?
Yes. Collective bargaining agreements between labor unions and
employers provide that union employees can be fired only for just
cause, and only after a hearing by a neutral arbitrator. However,
less than 20 percent of American workers belong to unions today. The
ACLU statute would extend to non-union employees the same protection
afforded union employees by the arbitration clauses in collective
*** Aren't there already federal laws that protect the rights of
Yes, a number of federal and state laws protect *some* rights of
*some* American workers. Title VII of the Civil Rights Act of 1964
prohibits employment discrimination based on race, color, sex,
religion or national origin. The Federal Age Discrimination in
Employment Act protects employees against discrimination based on
age, the Americans With Disabilities Act protects disabled persons
against discrimination and the National Labor Relations Act protects
workers' rights to join together and protest working conditions, or
to form labor unions.
*** Would compliance with an unjust discharge law be too burdensome
for employers, and if so wouldn't the profits and competitiveness of
American companies be adversely affected?
Some members of the business community fear that enactment of an
unjust discharge law would disrupt business operations. Legions of
employees, they say, would challenge their dismissals, resulting in
reduced productivity, competitiveness and profits. Some employers,
however, including some of the nation's most successful corporations,
have voluntarily adopted just cause standards with no adverse effects
to their businesses. These employers believe that treating employees
with respect boosts morale and productivity and, thus, enhances
profits. And virtually all of the world's industrialized nations --
including Germany and Japan, our staunchest competitors -- have laws
that require private employer to adhere to just cause standards in
dismissing employees. Clearly, the interests of both labor and
management are best served by fair employment practices.
*** Doesn't unemployment insurance adequately compensate workers who
lose their jobs?
No, unemployment compensation falls far short of meeting the needs of
workers who lose their jobs. For example, unemployment benefits have
a ceiling that varies from state to state; the payments amount to
significantly less than the lost wages, and the payments are of
limited duration. Although many people find new employment before
their unemployment compensation ends, their loss of seniority and the
benefits that accompany long-term employment is unrecoverable.
Moreover, unemployment compensation does not address the issue of
fairness with respect to arbitrary firings.
*** Wouldn't an unjust discharge law create a statutory right to a
No. The ACLU model statute does not require private industry -- or
the government -- to create jobs. It does not require employers to
hire unqualified persons, to keep incompetents on their payroll or to
maintain obsolete positions in order to save jobs. The purpose of
the ACLU statute is simply to establish a just cause standard for job
firings and to recognize, where collective bargaining agreements are
absent, dismissed employees' right to due process. Passage of this
legislation would have no impact at all on the business operations of
employers whose workplace practices are already fair and just.
*** Would this statute prohibit employers from laying off workers
or closing plants for economic reasons?
No. The ACLU statute specifically excludes economic terminations
from the definition of discharge.
*** In the past, unfairly treated workers have sued their employers,
claiming personal injury or breach of contract. Why aren't these
traditional avenues of relief enough?
Ideally, private sector workers who believe they have been discharged
unjustly should have access to, and be able to afford, a jury trial
and the full range of remedies provided by law. These would include,
where appropriate, compensatory and punitive damages. The reality,
however, is that at present more than 95 percent of such employees
*get no relief at all*. If enacted, the ACLU statute would ensure
that fired private sector workers have the right appeal the loss of
their jobs to a neutral arbitrator and, if they win, to receive an
award of back pay, reinstatement and restoration of benefits. This
is not a perfect solution, but it would be far better than what we
Produced by The Natl Task Force on Civil Liberties in the Workplace
American Civil Liberties Union Department of Public Education
132 West 43rd Street New York, NY 10036
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