Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict

摘要

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at odds. This article challenges this piece of conventional wisdom by showing how job security protections can also exacerbate racial inequality in employment. It examines recent race riots and student protests against proposed labor law changes in France to unearth the tension between combating racial discrimination in hiring and protecting all employees’ job security. Scholars and advocates of employment discrimination law should be aware of the ways in which both employment at will and job security protections can function in different contexts to exacerbate racial inequalities in employment. Such awareness should encourage the development of a broader perspective on equal employment opportunity that moves beyond the limited set of problems that are identified by the litigation of employment discrimination cases.