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Employment Law
William Allan Kritsonis, PhD


“Public Policy” Exceptions to “AT WILL” Employment Contract ╠ p. 684 et seq. ╣ 1. Many court decisions have held that it would be a “violation of public policy” to allow an employer to fire an employee for: a. b. c. 2.

When you see a court decision made on a “public policy” basis, that usually means the court does not have a clear legal rule to base its decision on, but is doing what is “right” in the circumstances. Usually very vague.

Refusing to violate a law (text examples: committing perjury, indecent exposure) Exercising a legal right (text example: filing workmen’s comp claim), responding to OSHA, EEOC, etc. Performing a legal duty (jury duty, report to police, etc.)

“Whistleblowing” is a special category a. b. c. Reporting illegal or irregular activities of fellow employees or the company to authorities Is in the best interest of the public, but usually not the employer Probably not realistic for the employee to keep working with the employer he/she reported to authorities


Tort Law – Application in Employment Setting 1. Tort law applies equally in employment setting, with exceptions a. b. 2. Employee cannot sue employer for on-the-job injuries (Workers’ Comp) Employee might sue fellow worker, but only if unrelated to work activities (also Workers’ Comp) or intentional tort

Employees can sue employers for false or misleading statements made concerning job performance (usually in response to inquiry from new prospective employer) a. b. c. Employer must be careful to only provide facts that have been/can be documented (not vague accusations) Most employers provide very limited information But ex-employers may be liable for not providing relevant negative information (see Cal. case re teacher)


Employee Privacy a. b. Becoming a significant issue, especially with regard to employer use of “computer surveillance. Employer-provided email system (or Internet access) (1) Employer historically has been able to monitor work activity (A) Should that apply to personal activity while “on break” at her desk? (B) Is it reasonable to expect/allow the higher degree of scrutiny made available by computers? (2) How can the employer tell when employee is not “on the clock”? c. What off-the-job or other information should be available? (1) Drug testing (which can detect off-the-job use) (2) Evidence relating to physical condition (A) Which may affect ability to do the job (B) Which may affect health or disability insurance cost (See Gattaca)


DISCRIMINATION IN EMPLOYMENT (Civil Rights Act, Title VII) ╠ p. 697 ╣ A. Title VII is one part of Civil Rights Act of 1964 1. 2. 3. 4. B. All titles of Civil Rights Act prohibit discrimination, but apply in different settings (e.g. housing, public accommodation, lending) Types of discrimination and methods of proof are essentially the same Title VII also applies to unions Title VII does not apply to employers with very few employees (under 20?) but parallel state law applies to all

Major Categories (for proof purposes) 1. Disparate Treatment [ “dis - PEAR – at “]

Individual employee receiving differing treatment due to his/her membership in “protected class” 2. Disparate Impact Outwardly neutral requirement/rule has a significantly greater impact on persons in “protected class”


Disparate Impact 1. Employee (or applicant or group) produces evidence that specific policy or requirement has a significantly greater impact on members of protected group(s) = prima facie case Employer can produce evidence a. b. 3.

“Prima facie” translates as “at first face”. To say that a party has proven a prima facie case means that if no other evidence is introduced, that party will win.


To refute statistical evidence presented by plaintiff That policy/requirement is directly related to the job

Employee has the burden of proving actual discrimination a. b. Proof of intent to discriminate is not required, but can be used to rebut employer’s evidence Proof that job-related requirements could be better (or equally) met by means without discriminatory impact


Disparate Treatment 1. Plaintiff (employee, applicant, prior employee) produces evidence that allows conclusion that he/she received negative treatment due to his/her membership in protected class = prima facie case Employer produces evidence that there was a valid, job-related reason for the treatment, e.g. a. b. c. 3. Work performance (documented) Union contract, seniority system Objective qualifications
NOTE: Employer’s evidence can be information gained after the treatment for which the employee sued.


Plaintiff can the produce evidence that the employer’s “evidence” is really a “pretext” (phony reason) to cover actual discriminatory intent a. b. c. d.

Multiple similar acts prior to specific act charged No other use of “reason” in similar situations Rules that may have existed but with being enforced Prior actions inconsistent with “reason”


Discrimination based on religion gets somewhat different treatment 1. 2. Negative employment action must relate to job requirements (if not, only “pretext”) Employer must make a “reasonable accommodation” in light of the requirements of employee’s religion a. b. 3. “Religion” must be one that is generally recognized as such Problem must result from a recognized requirement of that religion (not merely employee’s personal “thing”)

Employer NOT required to take action that would produce an “undue hardship” on employer, e.g. a. b. c. d. Excusing particular employee from shift rotation that applies to all in his/her job category Making extensive re-arrangements of other persons’ work Violating safety regulations Violating provisions of applicable union contracts
NOTE that these rules are very similar to the rules applied in disability discrimination cases.


Affirmative Action 1.

╠ p. 701 ╣

Initial interpretation of Act assumed that the act benefited only groups that had been previously subject to discrimination, e.g.: Benefited Non-caucasian Non-U.S. native Female Non-Christian Not Benefited Caucasian U.S. native Male Christian


“Affirmative action” programs devised to allow particular benefits or considerations to help overcome effects of past discrimination a. b. c. Some set particular “quotas” for increasing proportion of “benefited” group Special considerations (e.g. lower requirements) for persons from benefited groups “Set aside” programs for which only benefited groups qualified


More-recent interpretation of Act looks at specific language of Act that prohibits discrimination based on stated category (race, religion, national origin, etc.) a. b. Makes affirmative action programs more difficult because they necessarily discriminate based on a stated category Affirmative action programs still possible if the program sponsor can show that it is intended to, and will, counter the effects of prior discrimination by the program sponsor


Bona Fide Occupational Qualification (BFOQ) and “Business Necessity” ╠ p. 700 ╣ 1. The Act expressly provides for a defense to discrimination cases if making the distinction is an objective requirement for the job a. b. Act specifically states that “race” can never be a BFOQ Some legitimate BFOQ situations: (1) Hiring a minister or priest for a religious organization (2) Clothing and cosmetics models (male / female) (3) Restroom attendants c. “Customer preference” per se generally not accepted (e.g. airline cabin attendants [ were called “stewardesses ] )


“Business Necessity” relates more to particular requirements of business, rather than the specific job/task a. b. c. Related to objective requirements for performing the particular job Can, indirectly, include customer preference Examples: (1) Persons to model cosmetics (e.g. “Fashion Fair” can refuse to hire models with light skin color) (2) Women’s clothing stores can refuse to hire male security persons to monitor dressing room areas d. Interesting questions: (1) Can a “gentlemen’s club” refuse to hire male dancers? (Guys can dance) (2) Can a radical-right “Nazi” bookstore refuse to hire an African-American clerk?


Sexual Harassment 1. The logic: a.

╠ p. 702 ╣

Civil Rights Act prohibits discrimination on the basis of “sex” with respect to “terms and conditions” of employment

Sexual harassment cases demonstrate how no one can predict how legislation might be actually used. See also RICO.


If a female employee’s possibility for advancement depends on conditions not applied to males, the Act is violated (“Quid Pro Quo” discrimination) If the conditions in which a female person works are substantially more stressful than male employees doing the same job, the act is violated (“hostile work environment”)



The term “sex” was added to the Act at the last minute in an attempt to defeat it --- under the conditions, not likely to work (No one seriously considered the ramifications of the addition) Has created some of the more difficult problems under the Act (Probably inevitable – “Venus” vs. “Mars” and all that



Some Procedural / Remedy Things 1. 2. MUST first file complaint with EEOC within 180 days of mostrecent act of discrimination EEOC can choose to pursue the complaint a. b. 3. 4. Usually makes some attempt at resolution EEOC does not file very many cases, more often “disparate impact” cases

If EEOC does not decide within 6 months, or declines to act, person may bring action in state or federal court Possible remedies: a. b. c. d. e. f. Hiring Back pay Promotion “Reasonable” attorney’s fees Retroactive seniority Punitive damages (maximum $300,000)

IV. Age Discrimination (1967) A.

╠ p. 704 ╣

Protected Class = Employees and Applicants 40 or older 1. 2. Age of person (40+) cannot be used as a reason to not hire, to fire, etc. Basically same type of proof as in Title VII a. Person must first file complaint with EEOC b. Can sue if EEOC does not take case


Discrimination must be clearly based on age 1. Recent cases have held that dismissing higher paid workers is an economic decision and the fact that it has a greater impact on 40-and-over group does not violate the act COMMENT: Those decisions could mostly eliminate the act as protection for current employees. The “logic” does not apply when 40+ person is competing for entry level, entry wage position




╠ p. 705 ╣

Most recent “discrimination” legislation (1990) 1. 2. Intended to prevent “disabled” persons from being discriminated against because of preconceptions about what they can do Requires that persons be considered for employment, and treated while employees, based on objective abilities


“Disabled persons” include 1. Persons who have, or are perceived as having, a condition which “a physical or mental impairment that substantially inhibits a major life activity” a. Lack of one or more senses (blind, deaf) b. Inability to use some parts of body (e.g. legs, arms, etc.) c. Mental illness d. “Recovered” (recovering) alcoholic or drug addict e. Dyslexia, AIDS, etc. NOT: sexual disorders, homosexuality, compulsive gambling, practicing alcoholics or addicts



Employers are required to make “reasonable accommodations” for disabled persons so they are not hindered by non-work problems 1. Accommodations need not impose “undue hardship” on employer a. b. c. d. 2. What constitutes “reasonable accommodation” and “undue hardship” are not defined Cost is a factor, but not necessarily determinative Physical installations (elevators, ramps, special desks, etc.) are usually not considered undue hardship Completely revamping the building, office, etc. may be

The idea is that some changes in traditional arrangements are less important that allowing the disabled person to work a. Things that are not important to doing the work can be adjusted so the disabled person is not prevented from doing what he or she is able to do The cost is measured against an unquantifiable value of allowing a person to be productive


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