This article applies recent "vulnerability" scholarship to employment law issues. A vulnerability approach argues that the autonomous liberal legal subject at the heart of much of political and legal thought fails to capture the material, social, and developmental realities of the human condition and thus should be replaced with a "vulnerable subject." Importantly, and in contrast to the autonomous, independent, and self sufficient abstraction of the liberal legal subject, the vulnerable legal subject is theorized as embodied and as embedded in social contexts. The idea of the vulnerable subject has been described as providing a needed intervention into U.S. policy discussions, providing a "heuristic" - a way to shift the focus of inquiry to a more balanced or complete conception of what it means to be human in ways that will raise new questions and reveal new relationships and patterns.' I plan to apply this general theory to the employment context by the creation of the constructs of the "vulnerable employer" and the "vulnerable employee." As a starting point for applying vulnerability theory to the employment relationship, this article examines the effect of employment law on employees' vulnerability and resilience to vulnerability. Importantly, we must recognize that the at-will rule is the manifestation of a policy choice made by the state. This policy choice gives a privilege to American employers that is not shared by employers in most other first-world nations. " That policy choice, like all others, has consequences. It decreases employees' resilience and ability to positively respond in the face of their vulnerability. A vulnerability approach allows us to introduce the idea that the privilege the employer enjoys under the at-will regime might also appropriately be complemented by some reciprocal responsibility for the situation of the employee. To the extent possible, employment policy should attempt to mitigate the consequences of giving employers broad control over the workplace by balancing it with some benefits for employees. At present, employers receive most of the privileges of the at will rule, but do not bear a proportionate share of the consequences. Using vulnerability and resilience as guiding principles, a vulnerability analysis asks whether those burdens and benefits should be more equitably shared. In addition, because the at-will rule is a privilege created by the state, vulnerability theory suggests the state may have some additional obligation to protect employees' resiliency beyond fashioning employment law.
Jonathan Fineman, The Vulnerable Subject at Work: A New Perspective on the Employment at-Will Debate, 43 Sw. L. REV. 275 (2013).