29. Coercion in At-Will Termination of Employment and Sexual Harassment

Abstract

In contrast to Europe, the United States has failed to recognize a unified cause of action for workplace harassment. Sexual harassment recognized under Title VII is the exception. With the exception of sexual harassment, the at-will doctrine has traditionally insulated employers from legal claims arising from harassing or coercive tactics, unrelated to employee productivity or legitimate business interests. The author proposes that the likelihood of adoption of specific legal reform is inversely related to that reform’s ability to mutate to other progressive reforms. This paper argues that the toxicity of sexual harassment combined with the distinctive salience of its elements has prevented this statutory-based protection from evolving into more general forms of legal redress for workplace bullying. Without union protection, most employees lack any legal remedy for intimidating, hostile, or offensive action by an employer that singles them out for harm. The prerogative contract makes personal harassment especially coercive because employees understand that management can fire for a bad reason or no reason at all. Historically, however, coercion has failed to gain traction as a coherent theory in American employment law. For further reform to occur, a coherent theory of workplace coercion must be adopted. Sexual harassment deals with the distinction between coercive acts aimed at increasing productivity and those aimed at harassing employees for reasons unrelated to legitimate managerial concerns by adopting “unwelcomeness” as the litmus test. An alternative legal strategy would limit managerial power to its proper sphere by requiring firms to articulate reasonable motivational schemas. By placing the burden of legitimation on employers, individual employees would enjoy the security of greater personal autonomy. Because sexual harassment protections evolved from a discriminatory premise rather than a premise of abuse of power, it appears unlikely that Title VII will influence the expansion of state common law to curtail workplace bullying. It is the clear line that has been drawn around harassment that is “sexual” that has limited the spread of legal reform to other types of bullying. Accordingly, state courts have strained existing doctrine to address generalized workplace harassment and coercion. This is not only an indirect and attenuated means of preventing employer harassment; it fails to provide a remedy in a variety of circumstances. This paper calls for a unified theory of unjust workplace bullying, harassment and coercion, and proposes that such reform is consistent with employee expectations that the motivational tactics used in the workplace will be germane to productivity, as well as the dual notions of individual autonomy and privacy.