V. Restoring the Balance Between Individual and Employer Rights

The illustrative court decisions cited above help show how the legal balance between the individual's ability to sue on the one hand and employer's ability to make basic decisions about how to run his business has tipped too far in the direction of the former. The courts have been too determined to assist the complaining individual and find remedies for his perceived wrongs. They have lost their sense of perspective – the need to look at the consequences of lost employer discretion. The ability of the employer to make the most fundamental decisions about his business, from what products to market, to what persons to hire, to what workers to promote, have become so severely constricted that the market is no longer able to cope with the imbalance. As a consequence, good products are lost from the market, reward of worker performance is less often possible, and efficient management is much more difficult. And when such an imbalance burdens the economy, all of us are hurt, whether we are consumers, employees or business owners.

We must all step back from current litigation assumptions, whether as judges, legislators, attorneys, or publicly active citizens, and ask whether a superior equation between individual and employer rights is not needed. This study has tried to make the point that a "retreat" toward greater employer discretion is necessary in order to permit the free market to function most effectively, for everyone's benefit. Litigation and litigiousness must be reduced and/or rechanneled.

What steps can be taken to achieve a better balance? Simply taking away individual rights to access and compensation is not necessarily the answer. Wholesale reductions in rights do not by themselves produce a better legal environment. It is wiser to look at the margins, where the expansion of individual rights and litigation has gone just that little bit too far or has produced particular unfairness for the employer. It is in the spirit of looking at these margins that the following suggestions of where to begin reform are made.