Just Cause is a Civil Rights Issue
By Jared Odessky
On Monday, the Supreme Court ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees based on their sexual orientation or gender identity. The 6-3 decision is a historic ruling, but a small strike against the near-authoritarian power employers maintain in their workplaces. In every state except Montana, American workers are employed “at-will,” meaning that employers can fire them for almost any reason at all -- good or bad or absurd.
At a time of widespread economic precarity, at-will employment faces a crisis of legitimacy. In new polling from Alexander Hertel-Fernandez, Data for Progress, and the Omidyar Network, a remarkable 68% of respondents disagreed with the statement that “employers should be able to fire workers for any reason.” This data arrives as momentum to replace the at-will rule is growing. In 2017, Moshe Marvit and Shaun Richman made the case for “a legal right to your job” in the op-ed pages of The New York Times. Calls for a national law against termination without “just cause” appeared in Clean Slate for Worker Power and in Senator Bernie Sanders’s 2020 presidential platform. The movement is also playing out on the ground. In 2019, Philadelphia parking lot workers won the right to fight unfair firings through a “just cause” law. Earlier this year, the New York City Council heard testimony on a bill to provide similar protections for fast food employees and might adopt “just cause” for essential workers amidst the decline of unions and the onset of the coronavirus pandemic. As HuffPost’s Dave Jamieson recently explained, “just cause” protections make workers much more likely to sound the alarm about dangerous working conditions.
The idea behind “just cause” is simple. In contrast to the at-will rule, a “just cause” standard means that employers can only fire employees if they have a good reason – say, the employee’s performance is lacking, or the business is struggling. By requiring employers to provide a good reason for firing, it will give workers a basic modicum of job security. It will also have significant knock-on benefits. By eliminating the legal loopholes that plague anti-discrimination law, just cause could prevent employers from using at-will employment as a cover for underlying prejudices. More than fifty years after Title VII was enacted, discrimination still pervades the American workplace; agencies that enforce our anti-discrimination statutes process over 100,000 cases per year. The law is not keeping up. Only 1 percent of plaintiffs in workplace discrimination cases prevail at trial, and many workers’ identities are not protected by law in the first place.
Just cause can help solve both problems. First, it would ease the difficulty of proving a claim of discrimination. Currently, the burden is on a fired worker to show that they were terminated for an impermissible reason like their race or sex. This is true even though the employer has greater access to and control over information about the firing. After the worker makes out a case of discrimination, the employer can then point to another basis for the termination, benefiting from an at-will presumption that permits employers to fire workers for almost any or no reason. In reality, employers can simply invent reasons after the fact. The burden then falls to the worker to show that the reason the employer gave was a lie. Even when the worker is able to, courts can say that the worker’s proof of discrimination was still insufficient. Just cause flips the burden of proof. Rather than make the worker show that their termination was discriminatory, the obligation instead lies with the employer to demonstrate that it was permissible. In other words, just cause sensibly shifts the burden of proof to the party better equipped to provide it.
The principle of just cause would also help fill in the patchwork of federal anti-discrimination protections. Civil rights have developed in piecemeal progression, with years of advocacy and political capital spent to win each new protected category. Before the Supreme Court’s decision in Bostock v. Clayton County, Georgia, for instance, protections for sexual orientation stalled in Congress for nearly fifty years. Just cause could bring the law closer to comprehensive coverage. Under a just cause standard, an employer’s “good reason” for firing usually requires that the worker can’t do the job. Because a worker’s identity has no impact on their job performance, the standard in effect means the worker can’t be fired for that identity. Sexual orientation again provides a useful example. Working under the principle of “just cause” under labor union contracts, arbitrators have consistently found that an employee’s gay identity has no impact on job performance and is not just cause for termination.
This is not to say that just cause is a replacement for winning essential new protected categories, such as weight, housing status, and criminal record history. There is enormous expressive value in writing protections for these characteristics explicitly into statute, and naming categories sends a clear message to affected individuals and communities that the law sees, acknowledges and aims to protect them. Moreover, just cause is not foolproof. To the extent it is limited to firing, for instance, it does not solve for hiring or on-the-job discrimination.
Still, one thing is certain: existing law is no longer sufficient to protect American workers. By allowing employees to assert more effective claims to a broader range of discrimination, just cause would bring civil rights far closer to their initial promise.
Jared Odessky is an incoming Skadden Fellow representing low-wage LGBTQ workers.