Employment Law - Lecture Notes William Allan Kritsonis, PhD

1. Employment Law
William Allan Kritsonis, PhD

2. 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,
indecent exposure)
b. Exercising a legal right (text example: filing workmen’s
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
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.

3. E. Tort Law – Application in Employment Setting
1. Tort law applies equally in employment setting, with exceptions
a. Employee 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. 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 employer’s evidence
b. Proof that job-related requirements could be better (or
equally) met by means without discriminatory impact
“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.

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. Plaintiff can the produce evidence that the
employer’s “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: Employer’s
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. Employer must make a “reasonable accommodation” in light
of the requirements of employee’s 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 employee’s 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. Violating 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-caucasian Caucasian
Non-U.S. native U.S. native
Female Male
Non-Christian Christian
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) 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?

13. G. Sexual Harassment ╠ p. 702 ╣
1. The logic:
a. Civil Rights Act prohibits
discrimination on the basis of “sex” with respect to “terms
and conditions” of employment
b. If a female employee’s 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
Sexual harassment cases
demonstrate how no one can
predict how legislation might
be actually used. See also
RICO.

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” attorney’s fees
e. Retroactive seniority
f. Punitive damages (maximum $300,000)

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
against 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. Dyslexia, 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. Accommodations 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