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536 Annals Am. Acad. Pol. & Soc. Sci. 8 (1994)

handle is hein.cow/anamacp0536 and id is 1 raw text is: PREFACE The measure of a civilized society is that justice not only color its public facade but permeate its private institutions. Hopes and democratic ideals suggest that the private should self-consciously mirror the public via a kind of sociological osmosis. This faith in the symbiotic nature of the relationship between law and society can be misleading and can conceal a different underlying reality. What value is law that constructs the appearance of a neutral, unbiased order when the underlying reality contains a vibrant animosity reflecting the weak's domination by the powerful? When it is clear that the realities of daily practice are insulated from the values expressed in public policy, it is the responsibility of law and lawmakers to make a differ- ence. That is good government. Without it, not only does a society experience moral ambivalence, but through its hypocrisy, people lose respect for the moral order. They confuse right and wrong, reality and myth, harm and justice. Such is the present crisis facing American employees who are sub- jected to an outdated and outmoded law that allows employers to cast them off like so many used clothes. In the United States, the predominant employment relationship is based on the centuries-old English common law doctrine of employment at will. Unless employees are civil servants, contract employees, or members of a union covered by a collective bargaining agreement, they have no job security. In most states, nonunionized employees, of which there are approximately 70 million, are largely unprotected from arbitrary employer discipline and discharge.' This means that the employer may terminate the employment relationship, whether for good cause, for no cause or even for cause morally wrong, without thereby being guilty of legal wrong.2 Since the 1980s, however, the at-will assumption has become subject to increasing questioning, both in the courts and in the legislatures. First, a growing number of judicial decisions have recognized various public policy exceptions to the at-will rule. As a result of changes in federal laws stemming from the civil rights and women's movements of the 1960s, certain categories of employee were protected from dismissal on grounds such as discrimination, union membership, and whistle-blowing. Consistent with the federal lead, state courts have begun to erode the at-will doctrine, giving numerous judgments in favor of those discharged. Second, courts have, to a lesser extent, recognized that an employer might be harmed as a result of defamation or invasion of privacy issues. 1. Unionized employees account for 15.8 percent of all employees, and public employees account for 19.0 percent, leaving 65.0 percent of employees employed at will. 2. Payne v. Western & A.R.R., 81 1bnn. 507 (1884). 8

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