Unhappy Evolution

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Craig Waters's article, "The New Malpractice," (June) is the latest in a series suggesting that courts are lending a sympathetic ear to the increasing number of employees who are suing their employers for everything from age bias to bad faith. The happy evolution of court decisions favoring employee rights, specifically the right of free speech, is evident in several cases, including Palmeteer v. International Harvester (1981).

There is a competing series, however, suggesting an unhappy evolution. Many rights of employees of smaller companies remain unprotected by statute and, for the most part, by contract. The Equal Employment Opportunity Act (1972), the Age Discrimination in Employment Act (1967), and the Equal Pay Act (1963) contain exclusions for small businesses. That courts are still lending an unsympathetic ear to employee discrimination claims against smaller companies is seen clearly in a number of other court decisions including Hassell v. Harmon Foods (1971, DC, Tenn.), Armbruster v. Quinn (1980, DC, Mich.), and Fiske v. Gold Kist (1981, DC, Ala.).

Tort and contract law are avenues for redress. Extending agency law from principal to agent may be applicable to the small business situation (micropoly) if mutual fiduciary duties between employer and employee can be established. These measures, however, are experimental. The time, expense, and emotion they require are prohibitive for the millions of U.S. workers burdened by the discriminatory protection paradox in the federal "equal employment" legislation.