Wrongful Discharge Protections in an At-Will World
![handle is hein.journals/tlr74 and id is 1675 raw text is: Wrongful Discharge Protections in an At-Will
World
Cynthia L. Estlund*
I. Introduction
The employer's presumptive right to fire employees at will-for good
reason, for bad reason, or for no reason at all-has been drastically cut
back in the last sixty years. In particular, the legal right to fire for bad
reasons has been virtually decimated. The at-will rule now coexists with
numerous important exceptions-statutory and common law, state and
federal-that prohibit the discharge of employees for particular bad rea-
sons. The law thus prohibits employer discrimination based on race, sex,
age, or other characteristics, and prohibits employer retaliation for the
exercise of various legal rights or duties. These laws and doctrines, which
I will call the law of wrongful discharge, support not only the interests of
individual employees but also important public interests, such as racial and
sexual equality and the demands of law enforcement.
These bad reasons doctrines have attracted rather little fire in the
current debate over employment at will. With the notable exception of
Richard Epstein,1 nobody appears anxious to revive the employer's legal
right to fire employees for discriminatory or retaliatory reasons. The
leading defenders of at-will concede this ground to the critics, gladly or
* Leroy G. Denman, Jr. Regents Professor of Real Property Law, The University of Texas
School of Law. I would like to thank all of the participants in the Texas Law Review Symposium on
The Changing Workplace for their helpful comments and suggestions.
1. Professor Epstein has staked out the most extreme position in the at-will debate by calling for
the repeal of both the NLRA's protection of concerted labor activity and union membership, Richard
A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92
YALE L.J. 1357 (1983) [hereinafter Epstein, A Common LawforLabor Relations], and Title VII's pro-
hibition of discrimination, including the core prohibition of racial discrimination, RICHARD A. EPSTEIN,
FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992). Professor
Epstein and those who share his position will not be persuaded by anything that follows. It is worth
noting, however, that even Professor Epstein acknowledges a small place for the public policy excep-
tion to at-will employment when, for example, an employee is fired for refusing to commit a crime
such as perjury. See Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHi. L. REV. 947,
952 & n.11 (1984) [hereinafter Epstein, In Defense of the Contract at Will] (arguing that an employ-
ment contract to commit murder, pollute illegally, or commit pejury should be unenforceable).
1655](ViewImageLocal?handle=hein.journals/tlr74&div=89&collection=&method=preview&ext=.png&size=3)
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Wrongful Discharge Protections in an At-Will World
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