State lawmakers followed Washington's lead. As a rule, they incorporated the federal statutes into the states' legal codes. With a number of the laws providing for so-called concurrent jurisdiction, plaintiffs have the option of bringing charges in federal or state court, whichever is more advantageous. In practice, most discrimination suits end up in the federal system.
Meanwhile, another major trend was sweeping over state judiciaries. Until the early '80s most states recognized the common-law doctrine known as "employment at will." Once a cornerstone of free-enterprise philosophy, the "at will" principle holds that an employer can fire someone for a good reason, a bad reason, or no reason at all -- so long as the firing isn't discriminatory or doesn't violate a collective-bargaining agreement.
By 1989, however, courts in 45 states had accepted several theories that eroded the "at will" rule, giving rise to claims for wrongful termination. Among them was the "implied contract" exception, under which job rights may be inferred when no explicit contract exists. (Sometimes rights are construed from the language in employee handbooks.) Then there's the broadly defined public-policy exception. Under that one, employers cannot fire a person who, for instance, blows the whistle on some fraudulent or criminal activity involving the employer.
Perhaps the most far-reaching example, though, is the "good faith and fair dealing" exception. It implies that a dismissal must always be for cause.
In 1992 Rand Corp., a research organization based in Santa Monica, Calif., issued a landmark report on the impact of those new doctrines. It found that only five states still maintained a "fire at will" policy unencumbered by the new protections -- Louisiana, Mississippi, Georgia, Florida, and Delaware. All three exceptions had been embraced by courts in eight states -- Alaska, Arizona, California, Connecticut, Idaho, Massachusetts, Montana, and Nevada.
There is no federal wrongful-termination law, so under those doctrines fired employees bring action in state courts, often adding on a discrimination claim. Multiple charges are, in fact, the norm. "It is very infrequent that someone sues just for discrimination anymore," says Miami lawyer du Fresne. "They also sue for battery, for intentional infliction of emotional distress, for negligent hiring, or negligent retention. All of these have unlimited compensatory and punitive damages. And they can be brought against companies and individuals alike, so managers' personal assets are now on the line."
Employers understandably feel besieged. "There are so many laws that they hardly know what to do," says Adrienne Fechter, a Tampa lawyer who once defended management but switched to the plaintiffs' side after the Civil Rights Act of 1991. "They're afraid that almost anything they do could be a violation."
It's not just the crazy quilt of laws that irks employers, it's also their complexity. A single termination now can arguably violate dozens of statutes. They sometimes overlap and even contradict one another.
Observes Miami employment lawyer Michael Casey: "Nowadays it's rare that a fired employee will not have some basis for a claim to get into court. So the message from Congress to employers is, Before you fire minorities, women, or anyone over 40, or before you fail to hire or promote them, you'd better have your ducks lined up in a row 10 miles long. Meaning, Don't do it."
And even what many would consider scrupulous employment practices are no guarantee of protection. Indeed, says Pittsburgh employment lawyer Laura Candris, "there is nothing you can do to insulate yourself from all risk of being sued. Nothing can preclude all possibilities of having a claim brought."
More and more employers are learning that the hard way. The number of discrimination claims has jumped sharply in recent years. According to the U.S. Equal Employment Opportunity Commission (EEOC), some 270,000 allegations were filed last year with it and its 82 state and local counterparts. Complainants numbered just over 150,000 -- some had lodged more than one charge -- up from 125,000 in 1992 and 110,000 in 1990.
Of the roughly 52,400 cases fully investigated by the EEOC in 1992, only 10,500 of them -- 20% -- were determined to have reasonable cause for action. But even when the EEOC renders a no-cause finding, the "wronged" employee may still file a lawsuit.
Leading the list of recent filings were claims based on race and sex discrimination, including sexual harassment. Next came age-related charges. But claims under the ADA are building fast. In 1993, the law's first full year, they nearly hit 25,000. The ADA issue is still new to the courts, but as the case law surrounding it develops, action is likely to heat up quickly.
"You are heavily into sex and age as the issues being litigated in courts right now," says du Fresne. "But two years from now, disability may be hotter than anything else." If so, the ADA could become a highly volatile and vexing problem for companies. Employers are not required to accommodate disabled employees under workers' compensation laws, for example, but they are required to do so under the ADA.
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Lawyers, Juries, and Money
Nothing else has fueled the current onslaught of workplace litigation more than the Civil Rights Act of 1991. There are three big reasons for that: juries, money, and a giant surplus of lawyers.
Before 1991 a plaintiff in an employment-discrimination case appeared before a judge, not a jury. If the plaintiff prevailed in such a "bench ruling," he or she was entitled to equitable relief -- reinstatement with back pay and perhaps front pay, plus attorneys' fees and costs. It was basically a make-whole remedy.
