William Kritsonis, School Law, Ch 5 Employment Law

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Employment Law

• William Allan Kritsonis, PhD

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When you see a court de- cision 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.
D. 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. Refusing to violate a law
(text examples committing perjury, indece
nt exposure) b. Exercising a legal right (text
example filing workmens comp claim),
responding to OSHA, EEOC, etc. c. Performing a
legal duty (jury duty, report to police,
etc.) 2. Whistleblowing is a special
category a. Reporting illegal or irregular
activities of fellow employees or the company
to authorities b. Is in the best interest of
the public, but usually not the
employer c. Probably not realistic for the
employee to keep working with the employer
he/she reported to authorities
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E. Tort Law Application in Employment
Setting 1. Tort law applies equally in
employment setting, with exceptions a. Employe
e cannot sue employer for on-the-job
injuries (Workers Comp) b. Employee
might sue fellow worker, but only if unrelated
to work activities (also Workers Comp) or
intentional tort 2. Employees can sue
employers for false or misleading
statements made concerning job performance
(usually in response to inquiry from new
prospective employer) a. Employer must be
careful to only provide facts that have
been/can be documented (not vague
accusations) b. Most employers provide very
limited information c. But ex-employers may
be liable for not providing relevant negative
information (see Cal. case re teacher)
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3. Employee Privacy a. Becoming a
significant issue, especially with regard
to employer use of computer
surveillance. b. 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)
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III. DISCRIMINATION IN EMPLOYMENT (Civil Rights
Act, Title VII) p. 697 A. Title VII is one
part of Civil Rights Act of 1964 1. All titles
of Civil Rights Act prohibit discrimination, but
apply in different settings (e.g. housing,
public accommodation, lending) 2. Types of
discrimination and methods of proof are
essentially the same 3. Title VII also
applies to unions 4. Title VII does not apply
to employers with very few employees (under
20?) but parallel state law applies to
all B. 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
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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 intro-duced,
that party will win.
C. Disparate Impact 1. Employee (or applicant
or group) produces evidence that
specific policy or requirement has a
signi- ficantly greater impact on members
of protected group(s) prima facie
case 2. Employer can produce
evidence a. To refute statistical evidence
presented by plaintiff b. That
policy/requirement is directly related to the
job 3. Employee has the burden of proving
actual discrimination a. Proof of intent to
discriminate is not required, but can be used
to rebut employers evidence b. Proof that
job-related requirements could be better (or
equally) met by means without discriminatory
impact
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D. 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 2. Employer produces evidence that
there was a valid, job-related reason for the
treatment, e.g. a. Work performance
(documented) b. Union contract, seniority
system c. Objective qualifications 3. Plaint
iff can the produce evidence that
the employers evidence is really a
pretext (phony reason) to cover
actual discriminatory intent a. Multiple
similar acts prior to specific act
charged b. No other use of reason in similar
situations c. Rules that may have existed but
with being enforced d. Prior actions
inconsistent with reason
NOTE Employers evidence can be in- formation
gained after the treatment for which the
employee sued.
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D. Discrimination based on religion gets
somewhat different treatment 1. Negative
employment action must relate to job
requirements (if not, only pretext) 2. Emp
loyer must make a reasonable accommodation in
light of the requirements of employees
religion a. Religion must be one that is
generally recognized as such b. Problem must
result from a recognized requirement of
that religion (not merely employees personal
thing) 3. Employer NOT required to take
action that would produce an undue hardship
on employer, e.g. a. Excusing particular
employee from shift rotation that applies to
all in his/her job category b. Making
extensive re-arrangements of other persons
work c. Violating safety regulations d. Viol
ating provisions of applicable union contracts
NOTE that these rules are very similar to the
rules applied in disability discrimination cases.
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E. Affirmative Action p. 701
1. Initial interpretation of Act assumed
that the act benefited only groups that had
been previously subject to discrimination,
e.g. Benefited Not Benefited Non-cauc
asian Caucasian Non-U.S. native U.S.
native Female Male Non-Christian Chr
istian 2. Affirmative action programs
devised to allow particular benefits or
considerations to help overcome effects of past
discrimination a. Some set particular
quotas for increasing proportion of
benefited group b. Special
considerations (e.g. lower requirements) for
persons from benefited groups c. Set
aside programs for which only benefited groups
qualified
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3. More-recent interpretation of Act looks at
specific language of Act that prohibits
discrimination based on stated category (race,
religion, national origin, etc.) a. Makes
affirmative action programs more difficult
because they necessarily discriminate based
on a stated category b. 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
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F. 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. Act specifically states
that race can never be a BFOQ b. 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 )
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2. Business Necessity relates more to
particular requirements of business, rather
than the specific job/task a. Related to
objective requirements for performing
the particular job b. Can, indirectly,
include customer preference c. Examples
(1) Persons to model cosmetics (e.g. Fashion
Fair can refuse to hire models with light
skin color) (2) Womens clothing stores can
refuse to hire male security persons to
monitor dressing room areas d. Interesting
questions (1) Can a gentlemens club
refuse to hire male dancers? (Guys can
dance) (2) Can a radical-right Nazi
bookstore refuse to hire an African-American
clerk?
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Sexual harassment cases demonstrate how no one
can predict how legislation might be actually
used. See also RICO.
G. Sexual Harassment p. 702 1. The
logic a. Civil Rights Act prohibits discr
imination on the basis of sex with respect to
terms and conditions of employment b. If
a female employees possibility for advancement
depends on conditions not applied to males,
the Act is violated (Quid Pro Quo
discrimination) c. If the conditions in which
a female person works are substan- tially
more stressful than male employees doing the same
job, the act is violated (hostile work
environment) 2. 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) 3. Has created
some of the more difficult problems under the
Act (Probably inevitable Venus vs. Mars
and all that
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H. Some Procedural / Remedy Things 1. MUST
first file complaint with EEOC within 180 days of
most- recent act of discrimination 2. EEOC
can choose to pursue the complaint a. Usually
makes some attempt at resolution b. EEOC does
not file very many cases, more often
disparate impact cases 3. If EEOC does
not decide within 6 months, or declines to act,
person may bring action in state or federal
court 4. Possible remedies a. Hiring b
. Back pay c. Promotion d. Reasonable
attorneys fees e. Retroactive
seniority f. Punitive damages (maximum
300,000)
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IV. Age Discrimination (1967) p. 704
A. Protected Class Employees and Applicants
40 or older 1. Age of person (40) cannot be
used as a reason to not hire, to fire,
etc. 2. 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 B. 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 2. 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
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V. AMERICANS WITH DISABILITIES ACT (ADA)
p. 705 A. Most recent discrimination
legislation (1990) 1. Intended to prevent
disabled persons from being discriminated aga
inst because of preconceptions about what they
can do 2. Requires that persons be considered
for employment, and treated while employees,
based on objective abilities B. 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. Dyslex
ia, AIDS, etc. 2. NOT sexual disorders,
homosexuality, compulsive gambling, practicing
alcoholics or addicts
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C. Employers are required to make reasonable
accommodations for disabled persons so they
are not hindered by non-work problems 1. Accomm
odations need not impose undue hardship on
employer a. What constitutes reasonable
accommodation and undue hardship are not
defined b. Cost is a factor, but not
necessarily determinative c. Physical
installations (elevators, ramps, special desks,
etc.) are usually not considered undue
hardship d. Completely revamping the
building, office, etc. may be 2. 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 b. The
cost is measured against an unquantifiable value
of allowing a person to be productive