Firing Thoreau: Conscience and At-Will Employment

Abstract

Firing Thoreau: Conscience and At-Will Employment provides most thorough and timely treatment to date of employment issues that are raised by new blitz of laws now sweeping country. These laws confer broad protection to employees, particularly those in health care sector, who refuse to perform job tasks based on their own personal consciences. Historically, provisions have been largely limited to abortion or other similarly controversial practices; however, current trend expands far beyond these narrow areas. In fact, statutes have now been adopted in three states (Illinois, Mississippi, and Washington) and introduced in at least ten others that offer absolute protection for refusing to provide any health care service whatsoever for almost any reason at all. Similar laws for pharmacists have been passed or introduced in at least five more states. Described by one expert in a July 16, 2006, Washington Post cover story as the San Andreas Fault of our culture, these provisions have profound implications, and not only for workplace but also for law and culture generally. In addressing clause controversy, Firing Thoreau focuses on potential conflicts in both law and culture between personal consciences of employees and generally operative presumption in private workplace of an employer's at-will authority (i.e., freedom to make relevant employment decisions on any basis, absent an express law or contract to contrary). In so doing, article explores origins and purposes of at-will presumption as well as relevant exceptions thereto, role of in law and culture (both generally and at work - including provision of most current summary of laws and bills to date), and respective interests of employers, employees, and public that are implicated by at-will presumption-conscience dichotomy. The article then closes with a proposed framework for proper balancing of these interests and values, both in workplace and in society at large. In end, Firing Thoreau posits that, despite laudable purposes of clause limits on workplace rules and their arguable merit in constitutional (i.e., state action) realm, their imposition in private workplace is ultimately unwise, particularly given lack of agreement in defining conscience in modern culture and important countervailing policies that otherwise support at-will presumption. The laws at issue do not concern prejudice based on one's status (e.g., race, gender), nor are they limited to reasonable accommodation of religious practice. Rather, they are blanket legal mandates on a ground that is inherently subjective and open to shifting at any time. Conscience is an important principle in our common life, and yet conflicts it yields are not always amenable to a legal solution, particularly in private workplace. Indeed, as it is argued in article, when addressing in such an environment, relevant interests of employers, workers, and public are ultimately served better by marketplace of ideas (and work) than by law.