EMPLOYMENT LAW

STATE LAW

• Employment-at-will

• “Right-to-work” and other state labor laws

• Contract and tort law

• Workers’ Compensation

• State discrimination laws

EMPLOYMENT AT WILL

The Doctrine of Employment at Will has survived because of:

• The Doctrine of Mutuality of Obligation

• Consideration

Limitations to Employment at Will

• Tort law: Public Policy

• Contract law

• Good Faith and Fair Dealing

The Public Policy Exception falls into 3 Categories

• The refusal to commit an unlawful act.

• The performance of an important public obligation.

• Exercising a right or privilege.

Contract Theories

• Implied contract

• Oral contract

• Promissory estoppel

Duty of Good Faith & Fair Dealing

Examples of “bad” faith

• Depriving employee of an accrued or about to accrue right.

• Employer’s policies require some notice or a procedure.

• Employer’s outrageous conduct.

FEDERAL STATUTES

• The Railway Labor Act of 1926• The National Labor Relations Act of 1935

(NLRA) • The Labor Management Relations Act of

1947 (LMRA)• The Fair Labor Standards Act of 1938 (FLSA)• The Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA)• Title VII of the Civil Rights Act of 1964 as

amended in 1972 and 1991.

FEDERAL STATUTES (Cont’d)

• The Age Discrimination in Employment Act of 1967 as amended (ADEA).

• The Occupational Safety and Health Act of 1970 (OSHA).

• The Employment Retirement Income Security Act of 1974 (ERISA).

• The Worker Adjustment and Retraining Notification Act of 1988 (WARN).

• The Americans with Disabilities Act of 1990 (ADA).• The Family and Medical Leave Act of 1993 (FMLA).• The Uniformed Services Employment and

Reemployment Rights Act of 1994.• GINA (2008)

Discrimination in Employment• Equal Protection Clause of the 14th Amendment• The Equal Pay Act of 1963

– Prohibits sex discrimination in pay

• Title VII, The Civil Rights Act of 1964– Prohibits discrimination on the basis of race, color,

religion, sex, or national origin– Prohibits discrimination by employers, employment

agencies or labor unions– Applies to employers with 15 or more employees

• The Civil Rights Act of 1991

• The Civil Rights Act was subsequently amended several times– 1972 – Equal Opportunity Employment Act

• Expanded coverage to include government employees

• Established Equal Employment Opportunity Commission (EEOC) to enforce the act

– 1978 – Pregnancy Discrimination Act– Civil Rights Act of 1991

• Added jury trials, compensatory and punitive damages

Discrimination in Employment

• The Civil Rights Act of 1991– Recovery of punitive & compensatory damages,

not to exceed $300,000, in cases based on gender, religion, age or disability (already permitted in cases of race or color)

• Age Discrimination in Employment Act– Prohibits employers of 20 or more employees

from refusing to hire, pay less to, discharge, or otherwise discriminate against because of age

– 40 year of age or older

Discrimination in Employment

• Vocational Rehabilitation Act of 1973– Prohibited discrimination against the disabled in

federal grants & programs (Employers receiving federal funds.)

• Americans with Disabilities Act– Protects a qualified individual with a disability

from discrimination on the basis of that disability– Employers must make reasonable

accommodations unless to do so would impose an undue hardship

Equal Employment Opportunity Commission (EEOC) www.eeoc.gov.

• Interprets discrimination laws: issues guidelines and regulations

• Can require the production of evidence & can subpoena witnesses

• Can file suit in federal court

• Title VII Claims

– Nonfederal employees file with EEOC within 180 days of discriminatory event

– The person bringing an action is called a claimant or a charging party

– Filing claims under Title VII– Process for Title VII claim. See Handout.– Intent of Title VII is conciliation

• Title VII Claims

– Nonfederal employees file with EEOC within 180 days of discriminatory event

– The person bringing an action is called a claimant or a charging party

• Remedies– Back pay of up to two years– Front pay for earnings a claimant would have

received if not for the illegal discrimination– Retroactive seniority– Reinstatement– Injunctive relief– Attorney fees– Compensatory and punitive damages

The Structure of Title VII

• Disparate treatment – treating similarly situated employees differently because of prohibited factor– Bona fide occupational qualification (BFOQ)

– intentional discrimination is reasonably necessary to employer’s business

Theoretical Bases for Lawsuits

Disparate Treatment Case (McDonnell Douglas Test)• Prima Facie Case

– Complainant belongs to a protected class– Complainant applied for and was qualified for the job for

which employer was seeking applicants– Complainant was rejected– Position remained open and the employer continued to seek

applicants from persons of complainant’s qualifications

• Burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s rejection

• The employee can show that the reason is merely a pretext

• Disparate impact – the result of policies that appear neutral, but have an adverse impact on a protected group– Many screening devices have disparate

impact– Pre-employment interviews and employment

applications may be basis for claims of disparate impact

– Business necessity is a defense

Disparate Impact (Griggs v. Duke Power Co.)• Prima Facie Case

• Complainant must show that apparently neutral employment requirements have a disproportionate impact on a protected class.

• Burden shifts to defendant to show that the practice is job related. (Or attack the statistics)

• Complainant can show that other tests, practices or requirements that do not have a disparate impact exist.

PROBLEMS

• 1. ABC Co. recently had to lay off 10% of its workforce. The employees chosen to be laid-off were selected on based on their length of service with the company; those with the shortest periods of service with the company were laid off. The most recently hired employees tended to represent the majority of the company’s minority workers. Does this policy violate the Civil Rights Act?

PROBLEMS

• 2. In order to be hired by Ajax Corporation for any position, all prospective employees must pass a written examination prepared by the personnel director. Few minorities pass the exam, and it is alleged that the test is racially biased. Does this policy violate the Civil Rights Act?

PROBLEMS

• 3. Spacy’s Department Store refuses to hire a male to model women’s clothing. Is this an example of sexual discrimination under the Civil Rights Act?

• 4. Center City refused to hire anyone over the age of 29 as a policeman. Does this violate the Civil Rights Act?

• 5. Center City requires all policemen to retire at the age of 60. Does this violate any federal discrimination laws?

PROBLEMS

• 6. Center City requires all female employees to contribute larger amounts to the city’s pension plan, since females tend to live longer. Does this violate the Civil Rights Act?

• 7. Alto Corporation has a disability insurance plan that provides up to 26 weeks of benefits if an employee submits medical evidence that they are unable to work. However, disability benefits for pregnancy are limited to 6 weeks, regardless of whether the mother is medically able to return to work. Does this violate any federal discrimination laws?

PROBLEMS

• 8. An engineering consulting firm employs 250 employees. It employs no minorities, and women are found only in clerical positions. There are no minorities or women in consultant or management positions. The company’s make-up is due to a number of reasons: past discrimination, customer preference for white males, and the fact that few women or minorities apply for consultant or management positions.

PROBLEMS

• 8.– A. Does the fact that customers prefer white

male consultants make race and sex BFOQs.

– B. How can the company eliminate discrimination and have a more balanced work force without creating an illegal affirmative action plan?

PROBLEMS

• 8.– C. Assume the company hires a single female

engineer. Once hired she is subjected to constant harassment by her co-workers. There are frequent jokes and comments of a sexual nature. If she is alone with a male engineer, comments are made. Other engineers frequently sabotage her work. When she complains to her supervisor, his comment is, “Boys will be boys . . And you’re one of the boys now.” If she brings an action, is the company liable?

• Sexual harassment actions can be brought under two theories– Quid pro quo – requests for sexual activity in

exchange for workplace benefits– Hostile environment – creation of an offensive

work environment for one gender but not the other

• Harassers and harassees can be of either gender

Sexual Harassmentin General

Quid Pro Quo Sexual Harassment

• Most obvious type of sexual harassment• Generally easy to recognize (sometimes hard to prove)• Employers should select supervisory employees

carefully• Systems should be in place to check and monitor

environment• Occurs when a supervisor makes acquiescence to

requests for sexual favors a basis for an employment decision.

• The demands may result in punishment or rewards.

• Hostile Environment harassment involves

– an atmosphere or climate that unreasonably interferes with an employee’s ability to work.

• More difficult to identify• General requirements include:

– Harassment unwelcome to harassee– Harassment must be based on gender– Harassment must create abusive working

environment– Harassment must affect term, condition or

privilege of employment– Harassment must be severe and pervasive– Employer had to have knowledge and not taken

prompt or adequate action

Hostile Environment Sexual Harassment

• Unwelcome activity may be direct or indirect• Harassees need to make it clear that

activity is unwelcome• Severe and pervasive requirement requires

harassment be serious enough to unreasonably interfere with employee’s ability to perform

• Perspective used to determine severity– Reasonable person standard

• views activity from perspective of a reasonable person in society at large

• Employer is liable for harassment by a supervisory employee whether or not the employer was aware of the harassment

• Employer is liable for harassment by a non-supervisory employee if the employer knew or should have know and took no remedial action

• Employers can also be liable for harassment by non-employees

Employer Liability for Sexual Harassment

PROBLEMS

• 9. At Alpha Corporation, all secretaries and administrative assistants are paid less than the grass cutters. The secretaries and administrative assistants are nearly all female. None of the grass cutters are. Is there any action the women can bring? Is it likely to be successful?

PROBLEMS

• 10. Alpha Corporation learns that one of its grass cutters has tested HIV positive, and promptly fire him. He has no symptoms of the disease at present. Is there any action he can bring against the employer?

AMERICANS WITH DISABILITIES ACT

• In order to be covered by the employment provisions of the Americans with Disabilities Act, both of the following must be true of the employee:

• The employee has a DISABILITY because one of the following is true:

» S/he has an impairment that SUBSTANTIALLY LIMITS a MAJOR LIFE ACTIVITY,

» S/he has a RECORD of having such an impairment, OR» S/he IS REGARDED by the employer as having an impairment,

AND The employee is a QUALIFIED INDIVIDUAL because the following are true:

» S/he can perform the ESSENTIAL FUNCTIONS of the job either:

» With or without REASONABLE ACCOMMODATIONS that do not impose an UNDUE HARDSHIP.

TERMS

• Disability• Substantially limits• Major life activity• Record or is regarded• Qualified individual• Essential functions• Reasonable accommodations• Undue hardship

The Americans With Disabilities Act (ADA)

Amendments Act of 2008

• Expands the definition of "major life activities" by including two non-exhaustive lists: – the first list includes many activities that the

EEOC has recognized (e.g., walking, caring for ones self, performing normal activities, seeing, hearing, speaking, breathing, learning, working, and reproduction) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);

Major Life Activities

– the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");

The Americans With Disabilities Act (ADA) Amendments Act of 2008

• Mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

The Americans With Disabilities Act (ADA) Amendments Act of 2008

• Changes the definition of "regarded as" – so that it no longer requires a showing that

the employer perceived the individual to be substantially limited in a major life activity, and

– instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor

Genetic Testing• The Genetic Information Nondiscrimination Act of 2008 forbids employers

from using genetic tests or information to screen or discriminate against employees in health insurance and employment.

• Narrow exceptions permit employers to genetically monitor the biological effects of toxic substances in the workplace.

• The Act applies to employees covered by Title VII, and will take effect late in 2009.

• prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future.

• bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions

• The Act contains amendments to the Employee Retirement Income Security Act and the Internal Revenue Code.

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