As the number of individual rights of access to remedy has increased, the ability of the employer to make rational choices between competing interests has decreased. Very often, protection of one employee's interest requires denigration of another employee's interest. If both employees have the ability to bring legal action, the employer is caught in a "catch-22" where either choice has negative legal consequences. Such situations must be avoided.
For example, employers are finding themselves caught between competing interests in the context of job references. If the employer gives an honest but negative assessment of an employee interviewing with another business, the employer subjects himself to suit by his employee for tortious conduct, such as defamation. If the employer withholds important negative information about his employee from the other business, he subjects himself to suit for injurious consequences incurred by the other business. Both kinds of lawsuits are becoming more common. It is essential that the legal system make a choice between the two competing interests, so that the employer is not caught with almost certain liability. The choice is also necessary to facilitate open and honest communication in the employment setting. If liability dilemmas force employers into complete silence, no one (neither the job-seeking employee nor prospective employers) is benefited.
Within the workplace, the employer may find similar dilemmas. If he has an employee diagnosed as having the psychological potential to cause harm to fellow employees, the employer is faced with a wrongful discharge or other employment claims from the individual in question, if he takes protective action, or a possible intentional tort claim from any other employee hurt due to the first employee's predicted behavior, if he fails to take protective action. No employer should be put in such a predicament.
Even in hiring, employers are facing untenable choices. If a job applicant has a greater likelihood of injury due to some physical characteristic, but is capable of doing the applied-for job, the employer must choose between a potential handicap discrimination claim if he fails to hire the individual, or a greater likelihood of workers' compensation liability if he does hire the individual. The legal system should make a choice and indicate clearly to employers which interest has greater priority.