Title: William Kritsonis, School Law, Ch 5 Employment Law
1 Employment Law
William Allan Kritsonis PhD
2 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 3 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) 4 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) 5 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 6 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 7 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. 8 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. 9 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 10 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 11 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 ) 12 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 13 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 14 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 300000) 15 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 16 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 17 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
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