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Posted on October 2nd, 2012, by

Bibliographic information

Suk, J.C. “Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict.”¯ Stanford Law Review. 60:1, 2007, 73-87.

Introduction

The problem of equal employment opportunity is a very serious challenge to the modern business and society, because this problem affects commercial interests of employers, their stereotypes and biases, on the one hand, and human rights of employees, on the other hand.

Today, legislators attempt to minimize the risk of discrimination of employees in the process of recruitment as well as work. In order to prevent discrimination and violation of human rights of employees, legislators attempt to create equal employment opportunity and protect it. In such a way, employees can get equal employment opportunities and can compete with each other relying on their professional skills and abilities as determinant factors defining the choice of employers. At the same time, the introduction of equal employment opportunity principle in the national legislation challenges the at-will employment and for-cause employment. In other words, the introduction of equal employment opportunity principle prevents an employer from the free choice and recruitment of employees at-will.

Traditionally, employers had the right to hire employees at-will but it is obvious that such recruitment apparently raises the risk of discrimination of employees because employers can hire employees on the ground of their biases or stereotypes which may of a discriminatory nature. Nevertheless, the maintenance of at-will and for-cause employment are subjects of debates between different specialists in the USA and the correlation between at-will employment and equal employment opportunity is in the focus of attention of Julia C. Sulk. In her article, “Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict”¯, the author stands on the ground that at-will employment and for-cause employment is unacceptable since they create a direct or indirect threat to equal employment opportunity principle. The risk of discrimination from the part of employers increases dramatically. To support her position, the author refers to the recent experience of France, where at-will and for-cause employment principles were supported by the French authorities, but such initiatives confronted a strong opposition from the part of minority employees because they faced the problem of discrimination and inequality in the process of employment. The author recommends the American legislators and authorities to take this experience into consideration and sustain the equal employment opportunity principle. In such a way, the main goal of the article is to find out effects of the implementation of at-will employment principle and to prove its negative impact on the equal employment opportunity.

Summary

On researching the problem of the impact of at-will employment on the equal employment opportunity, the author argues that at-will employment contradicts to the principle of equal employment opportunity. It is worth mentioning the fact that the author refers to studies conducted by other researchers in the USA. Furthermore, Julie C. Sulk refers to the example of France, which she believes was very important and eloquent in regard to effects of at-will employment on the equal employment opportunity. To put it more precisely, she analyzes the French experience and extrapolates it on the current US practices in the field of employment legislation. The French authorities enhanced at-will employment and introduced changes to the First Employment Contract. The latter used to forbidden employers to fire employees under the age of 26 within two years after their first employment. According to the new law, French employers got an opportunity to fire employees, which was the realization of their at-will employment right. Such a legislative change resulted into numerous manifestations and protests organized and carried out by representatives of ethnic minorities. The reason of such protests was the increased discrimination and poor employment opportunities for representatives of minorities. In such a way, the author concludes that the French experience has perfectly proved the negative impact of the introduction and maintenance of at-will and for-cause employment on the equal employment opportunity. The author argues that the US authorities should be aware of the danger accompanying the protection of at-will employment, which is harmful and destructing in regard to the equal employment opportunity. Hence, at-will employment can revive discriminatory practices in employment.

Results

Basically, the findings of Julie C. Sulk’s study are very important. At the same time, the results of the research should be distinguished on the basis of their relevance to the current employment practices in the USA. The author researched the experience of France and this part of the study relied on the actual facts and effects of at-will employment on the equal employment opportunity. The author found out that this legislative initiative had negative effects on employees’ rights in France. After that, she extrapolates French experience on the USA and concludes that at-will employment will have the similar effect on the position of American employees, especially representatives of minorities. Eventually, the author appeals to maintain the principle of the equal employment opportunity law and avoid enhancement of at-will employment and for-cause employment which allow employers to implement discriminatory practices in employment.

Class readings

In fact, the problem of equal employment opportunity is extremely important in the contemporary business environment. In actuality, the problem of discrimination of employees is not as widely spread as it used to be in the past, but this problem still persists that makes the maintenance of the equal employment principle particularly important. In this respect, it is possible to refer to the positive effect of diverse employment. To put it more precisely, the equal employment opportunity contributes to the formation of a diverse organizational culture through the employment of professionals with a different cultural background.

On the other hand, it is obvious that if discriminatory practices persist in the employment, they are likely to prevent organizations from diverse employment. As a result, companies will be unable to improve their organizational performance, while their employees will be selected not on the ground of their professional skills and abilities but on the ground of employers’ will. Naturally, such a strategy of recruitment and human resource management can lead to the low effectiveness of the organizational performance and deteriorate natural competition within the organization which is particularly effective in a diverse environment. Employees with different background, even employees of different genders, have different strengths and weaknesses and when employees’ diversity is high, the organization can maximize its organizational performance using the diversity and strengths of its employees. In addition, if the equal employment opportunity principle fails and employers discriminate their employees, for instance, firing employees which do not meet employers’ stereotypes or vision of a “good”¯ employee, all the employees within the organization will be uncertain in their future. As a result, the problem of internal conflicts and low effectiveness and productivity may arise.

Contributions and impact

The article “Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict”¯ contributes consistently to the better understanding of dangerous effects of the wider implementation of at-will and for-cause employment principles. In this respect, it should be said that the debate over the equal employment opportunity and at-will employment persists for a long period of time. In such a situation, the article contributes to the understanding of possible effects of the limitation of the equal employment opportunity through the enlargement of at-will employment rights of employers. In this respect, it is particularly important to lay emphasis on the fact that the article is grounded on the empirical study of the French experience, which may be extrapolated on other democratic countries, such as the USA. The French experience is analyzed in details and the author’s conclusion concerning negative effects of at-will employment on the equal employment opportunity is quite convincing. In addition, the author contributes to the current debate in the USA concerning the problem of the correlation between the equal employment opportunity principle, protecting employees, and the at-will employment right of employers. In fact, the author backs up the position of those who support the equal employment opportunity principle since the criticism of at-will employment and prospects of enhancing this right in the USA may be viewed as a warning to the US authority.

Foundation

In fact, the research is based on the study of empirical data, which is backed up by the analysis of legislative norms and acts concerning equal employment opportunity. In addition, the author analyzes in details studies conducted by other researchers, which she critically evaluates. She attempts to implement findings of other researchers to the empirical data she has in relation to the French experience. At the same time, the author researches such fundamental concepts as equal opportunities in employment, at-will and for-cause employment. The author attempts to back up her argument in favor of the equal employment opportunity by factual evidence and theoretical developments.

Synthesis with class material

Basically, Julie C. Sulk discusses the problem which is very important today and many specialists work on it. In this respect, it should be said that her study supports the position of specialists who insist on the positive effect of diversity at the workplace. At the same time, Julie C. Sulk’s finding may be helpful in regard to the development of effective recruitment strategies. In actuality, human resource managers are very concerned with finding effective recruitment strategies. The implementation of equal employment opportunity, promoted by Julie C. Sulk, can contribute to the effective recruitment because it is obvious that employers, implementing this principle, will be bias-free. In other words, they will be primary concerned with professional skills and abilities of employees rather than with their ethnic origin, gender, age, etc. In addition, her study supports the idea of positive effects of recruiting more diverse workforce and, what is more, Julie C. Sulk actually reveals main principles which can maximize the effectiveness of such employment since equal employment opportunity ensures that employees’ qualification will be prior to other preferences of employers. As a result, employers will create diverse organizational culture which can increase the effectiveness of organizational performance.

Analysis

The article is logically structured and the argument of the author is quite convincing At first, the author introduces the problem she is going to discuss and to justify her position she refers to studies conducted by other researchers. After that, she refers to the empirical data she collected in relation to the problem of equal employment opportunity and at-will employment in France. This information lays the foundation to her further analysis of prospects of the wider implementation of at-will employment and restriction of the equal employment opportunity in the USA. In such a way, she combines theoretical and practical analysis and makes her assumptions concerning the debate over the correlation between the equal employment opportunity and at-will employment in the USA.

Critique

In spite of seeming persuasiveness of the article, it is still possible to argue that the authors finding are not absolutely reliable. To put it more precisely, it is possible to agree with the author in her interpretation of the French experience, but, when she extrapolates this experience on the USA she does not take into consideration the local specificities. In France, the role of unions is more significant than in the USA as well as the state regulation of economy, while the discrimination problem may be more serious as in the USA, because ethnic minorities are in a less protected position than they in the USA for they lack decades of struggle for their rights as African Americans and other minorities do in the USA.

Questions

What are effects of the implementation of the equal employment opportunity if an employer is forced to employs professionals which do not meet his or her vision?

What are effects of the equal employment opportunity if it misbalances organizational culture because of cultural differences and possible conflicts between employees?

What practical recommendations could be given to balance the equal employment opportunity and at-will employment?

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