The Excuse Factory How Employment Law Is Paralyzing the American Workplace

In today’s employment law, it’s truly “sued if you do, sued if you don’t.” Tolerate an employee’s drinking problem, and get sued for negligence when he hurts someone; fire him, and get sued for discriminating against the disabled. Give an honest negative reference and get taken to court for defaming your former employee; write a neutral reference and get sued for failure to warn when he misbehaves at his next job. Ask an employee whether a possible handicap is affecting his performance and risk being sued under the Americans with Disabilities Act; don’t ask and risk being sued anyway.

The excesses and absurdities of the burgeoning field of employment law are the focus of The Excuse Factory: How Employment Law Is Paralyzing the American Workplace, the ground-breaking new book by Walter Olson, Senior Fellow at the Manhattan Institute’s Center for Legal Policy. Olson, author of the widely discussed The Litigation Explosion, shows how our abuse-ridden legal system is turning employees and employers into adversaries, undercutting the quest for competence and productivity in the American economy, and dividing the workforce into contending victim groups.

It seemed so simple: when lawmakers passed such enactments as the Civil Rights Act of 1991 and the Americans with Disabilities Act, they promised to make life on the job fairer and ensure that businesses large and small would accommodate workers’ special needs. Judges helped out by making it easier for workers to sue for big damages. What they may not have realized is that each new legal development put another weapon in the hands of any worker—good, bad or indifferent—willing to step forward in quest of the “victim” label.

The results? Employers are fearful to fire even incompetent and unmotivated workers where there’s a hint of legal action.  Teachers who assault students or can’t spell the words in their lessons, firefighters who lack the strength to lift a hose, pilots who fly passengers while drunk, hold onto their jobs or pocket buyouts in the hundreds of thousands of dollars. References dry up. Companies fearing harassment suits issue “speech codes” that stifle ordinary chit-chat around the water cooler.

And workers themselves are often the biggest losers, as Olson points out. Employers resort to hiring temporary or contract workers, hesitate to take a chance on members of protected groups, and begin holding their remaining workers at arm’s-length. A few litigious workers get jackpots, but most lose out.

The Excuse Factory will challenge all sides to rethink the debate about where the American workplace is headed. Agree or disagree, it’s a book sure to be talked about for years to come.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. Prior to joining Cato, Olson was a senior fellow at the Manhattan Institute, and has been a columnist for Great Britain’s Times Online as well as Reason. His writing appears regularly in such publications as the Wall Street Journal, The New York Times, and the New York Post.

REVIEWS:

We Can't Work It Out Matthew Scully, The American Spectator, 9-97
Sued If You Do, Sued If You Don't Roger Parloff, The American Lawyer, 9-97
Suppose they sue? Amy Saltzman, U.S. News & World Report, 9-22-97
Book Lists Problems With Employment Law Author Criticizes Multiplicity Of Remedies Myron Leonard, Asheville Citizen-Times, 8-16-98
The Limits Of The Law Robert J. Samuelson, Newsweek, 7-21-97
Why You Can't Fire Anybody; The Invisible Foot Of Government David R. Henderson, Fortune, 6-23-97
American workplace is being paralysed by fear of litigation Tunku Varadarajan, The Times, 6-18-97
Author Slams Trend Of Workplace Suits Mark A. Hofmann, Business Insurance, 6-2-97
'The Excuse Factory': the law gone insane? David W. Marston, The Baltimore Sun,  5-25-97
Author Questions Employment Laws Robert Sherefkin, Crain's Detroit Business, 3-16-98