Firing Thoreau: Conscience and At-Will Employment

Firing Thoreau: Conscience and At-Will Employment provides the most thorough and timely treatment to date of the employment issues that are raised by the new blitz of "conscience clause" laws now sweeping the country. These laws confer broad protection to employees, particularly those in the health care sector, who refuse to perform job tasks based on their own personal consciences. Historically, conscience provisions have been largely limited to abortion or other similarly controversial practices; however, the current trend expands far beyond these narrow areas. In fact, statutes have now been adopted in three states (Illinois, Mississippi, and Washington) and introduced in at least ten others that offer absolute protection for refusing to provide any health care service whatsoever for almost any reason at all. Similar laws for pharmacists have been passed or introduced in at least five more states. Described by one expert in a July 16, 2006, Washington Post cover story as "the San Andreas Fault of our culture", these provisions have profound implications, and not only for the workplace but also for law and culture generally. In addressing the conscience clause controversy, Firing Thoreau focuses on the potential conflicts in both law and culture between the personal consciences of employees and the generally operative presumption in the private workplace of an employer's at-will authority (i.e., the freedom to make relevant employment decisions on any basis, absent an express law or contract to the contrary). In so doing, the article explores the origins and purposes of the at-will presumption as well as relevant exceptions thereto, the role of conscience in law and culture (both generally and at work - including the provision of the most current summary of conscience laws and bills to date), and the respective interests of employers, employees, and the public that are implicated by the at-will presumption-conscience dichotomy. The article then closes with a proposed framework for the proper balancing of these interests and values, both in the workplace and in society at large. In the end, Firing Thoreau posits that, despite the laudable purposes of conscience clause limits on workplace rules and their arguable merit in the constitutional (i.e., state action) realm, their imposition in the private workplace is ultimately unwise, particularly given the lack of agreement in defining "conscience" in modern culture and the important countervailing policies that otherwise support the at-will presumption. The laws at issue do not concern prejudice based on one's status (e.g., race, gender), nor are they limited to reasonable accommodation of religious practice. Rather, they are blanket legal mandates on a ground that is inherently subjective and open to shifting at any time. Conscience is an important principle in our common life, and yet the conflicts it yields are not always amenable to a legal solution, particularly in the private workplace. Indeed, as it is argued in the article, when addressing conscience in such an environment, the relevant interests of employers, workers, and the public are ultimately served better by the marketplace of ideas (and work) than by the law.