Introduction: Civil Rights in the Workplace of the 1990s

Throughout history courts and legislatures alternatively have enlarged and diminished civil rights protections. Today, employment discrimination claims are the most commonly litigated civil rights cases. A succession of cases decided by a new conservative majority of Justices during the 1988 Supreme Court Term has altered radically the delicate balance of civil rights in the workplace. The then prevailing economic, political, and legal environment seemed to be impervious to any advances in employment discrimination protections. Since that Term, courts and legislatures at the state and federal levels have promulgated a confusing combination of advances and re- treats in employment discrimination law. This uncertain climate poses substantial risks to workplace rights and yet, at the same time, holds great potential for improvement of civil rights in the workplace. The developments of the 1990s will play a pivotal role in determining the future of workplace rights. This Special Project addresses four evolving areas of employment discrimination law. The Special Project begins by examining the most controversial issues raised by the vetoed Civil Rights Act of 1990. Congress had introduced the Act in an attempt to restore both Title VIPs and section 19811 protections that the Supreme Court had limited during its 1988 Term. The Project suggests compromises that both Congress and the President should make in the continuing quest for acceptable civil rights legislation. The Project then considers both the recent trend toward a more conservative federal judiciary and the changes in state employment discrimination law in light of Yellow Freight System, Inc. v. Donnelly, a case holding that state and federal courts share concurrent jurisdiction over Title VII claims. The Project explores a restructuring of the parity debate in an attempt to develop an analytical framework for forum selection in a concurrent system of employment discrimination litigation. The Yellow Freight decision illustrates the expanding role that state law can play in employment discrimination litigation. Recognizing this expansion, the Special Project next discusses the common-law doctrine of employment at will and the exceptions developed by state courts and legislatures to provide employees with greater protection from arbitrary discharge. Based on economic and moral considerations, the Project advocates a reversal of the presumption of employment at will in favor of a rebuttable presumption that employers can fire their employees only for just cause