As the Burger Court repeatedly curtails expansionist approaches to interpretation and application of federal employment discrimination statutes, the utilization of state courts as substantive alternatives for vindicating employees’ unjustified discharges represents the new, and perhaps the only, opportunity for creative expansion of discrimination claims. Therefore, expanding state law to address employment discrimination claims is clearly a product of our time, and consistent with the urging of both presidents and justices for a governmental and jurisprudential return to the states for answers to unfulfilled expectations at the federal level.
Accordingly, farsighted or feisty lawyers, previously well-conditioned to thinking of federal law and a federal forum when seeking redress for employment discrimination, have turned to state courts. The handful of remarkable state jurists who have responded by adapting basic common law contract and tort precepts to workplace realities have produced the yeast for a rising mass of state court decisions on employee rights. Whether the result will ultimately be a more edible loaf than is served in federal court remains to be seen. Meanwhile, the developments provide meaningful insights into litigation strategy. This article is intended to provide a focus for such consideration.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.