Employment Law

1. Employment Law Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta

2. Employment Law • Primarily state law • varies from state to state • A good bit of federal law, too • mostly discrimination law

3. At-Will Employment • Generally, an employee • can be fired for good reason • “You’ve been stealing from us. You’re fired!” • can be fired for “no” reason • “I don’t like the color of your shoes. You’re fired!” • cannot be fired for bad reason • “You’re black. You’re fired!”

4. At-Will Employment • Wrongful discharge exceptions • vary greatly by state • 1. Public policy exceptions • e.g., whistleblower statutes • recognized by 43 states • 2. Implied contract exceptions • e.g., employee handbooks • recognized by 37 states

5. At-Will Employment • 3. Implied covenant of good faith and fair dealing exceptions • recognized by 11 states • Six states recognize all 3 exceptions • Alaska, California, Idaho, Nevada, Utah, Wyoming • Four states recognize none of the exceptions • Florida, Georgia, Louisiana, Rhode Island

6. Employment Discrimination • Civil Rights Act of 1866 • Title VII of the Civil Rights Act of 1964 • Age Discrimination in Employment Act of 1967 (ADEA) • Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) • Immigration Reform and Control Act of 1986 (IRCA) • Americans with Disabilities Act of 1990 (ADA) • Genetic Information Nondiscrimination Act of 2008 (GINA)

7. Title VII • Prohibits discrimination on the basis of: • Race • Color • Gender • Religion • National origin

8. Title VII • For purposes of making decisions regarding: • Hiring • Firing • Training • Discipline • Compensation • Benefits • Classification • Other terms or conditions of employment

9. Title VII • Applies to all public (federal, state and local) and private employers with 15 or more employees • Covers all levels of employees (managerial and hourly) • Exemption - permits religious institutions and associations to discriminate when performing their activities

10. Hosanna-Tabor Church v. EEOC (2012) • The Supreme Court recognized a “ministerial exception” to employment discrimination laws • A teacher taught mostly secular subjects, but also taught religion classes and attended chapel with class (about 45 minutes per day) • “The Establishment Clause prevents the government from appointing ministers and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” Majority – Roberts. • “The question whether an employee is a minister is itself religious in nature” and should be left to the religious group. Concurrence – Thomas. • It would be a mistake to focus on the term “minister” because many religions do not use it. Rather, the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Concurrence – Alito and Kagan.

11. Filing Claims under Title VII • Employee files a claim with the EEOC • EEOC notifies the employer • Title VII includes antiretaliatory provisions • Mediation • EEOC investigation • No-Reasonable-Cause Finding • EEOC issues employee a right-to-sue letter • Exhaustion of administrative remedies • Reasonable-Cause Finding • Conciliation • Civil suit filed in federal district court

12. Theoretical Bases for Title VII Lawsuits • Disparate Treatment • Disparate Impact

13. Disparate Treatment • Employee’s Prima Facie Case: • Employee is a member of the class of persons protected by Title VII, • Employee applied for and was qualified for a job for which the employer was seeking applicants, • That despite these qualifications, employee was rejected, and • After this rejection, the position remained open and the employer continued to seek applicants with those same qualifications.

14. Disparate Treatment • Employer’s Defense: • Employer can defend by showing that it had a legitimate, nondiscriminatory reason for its decision. • Employee’s Counter: • Employee must prove that the grounds offered by the employer were merely a pretext for its actions and that discrimination was the real reason. • e.g., McDonnell Douglas Corp. v. Green (1973) • Black civil rights activist protested after being laid off and was not rehired when new position became available. Supreme Court remanded case to give Green a chance to prove pretext.

15. Disparate Treatment • Employer may defend by showing that there is a bona fide occupational qualification (BFOQ) • Available only in cases involving gender, religion and national origin (not for race or color). • Some circuits use a two-step test: • Does the particular job require that the employee be of one gender only, and if so • Is that requirement reasonably necessary to the “essence” of the employer’s business? • e.g., flight attendants at Southwest Airline? No • e.g., bunnies at Playboy Clubs? Yes • e.g., servers at Hooters? No

16. Disparate Impact • Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way. • Courts have determined the that the following screening devices have a disparate impact: • Educational requirement – race, e.g., Griggs v. Duke Power (1971) • Credit status – gender, race • Arrest record – race • Unwed pregnancy – gender, race • Height and weight requirements – gender, national origin • Marital status – gender • Conviction of crime unrelated to job performance - race

17. Disparate Impact • The Four-Fifths Rule is a rule of thumb that permits a 20% margin between the outcomes of the majority and the minority under a given screening device • i.e., disparate impact is statistically demonstrated when the rate for a protected group is less than 80% (or four-fifths) of the higher scoring majority group • Employer can rebut the employee’s prima facie case by showing the existence of a business necessity • e.g., requirement of credit history may result in fewer women hired, but handling large sums of money may warrant credit check • Employee would then have to prove that there is a means of addressing the issue that has less of an adverse impact

18. Sexual Harassment • Quid Pro Quo Harassment • Employee is required to engage in sexual activity in exchange for promotions, raises or continued employment • Hostile Environment Harassment • The harassment is unwelcome activity • The harassment is based upon gender • The harassment is sufficiently severe or pervasive to create an abusive working environment • The harassment affects a term or condition of employment • The employer had actual or constructive notice of the hostile environment and took no prompt or adequate remedial action

19. Employer Liability • Employers are vicariously liable under the doctrine of respondeat superior for all torts committed by employees acting within the scope of employment. • Employers may also be liable for torts committee by employees not working within the scope of employment if • the employer intended the conduct, • the employee’s high rank makes him the employer’s alter ego, • the employer was negligent, or • the employee was aided in accomplishing the tort by the existence of the agency relation.

20. Employer Liability • Employers are strictly liable for quid pro quo sexual harassment, i.e., when there are tangible employment actions taken. • Employers are not strictly liable if there is no tangible employment action. • In these hostile environment cases, the employer can use the Faragher/Ellerth defense to show that it had a reasonable antidiscrimination policy in place, but that the harassed employee unreasonably failed to use it.

21. Faragher v. Boca Raton (1998) • Supreme Court found the city (employer) liable for the sexual harassment of its lifeguard supervisors. • Court held that while the city had available to it an affirmative defense to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, it had failed to do so as a matter of law.

22. Burlington Ind. v. Ellerth (1998) • Supreme Court held that employer might be liable for hostile work environment, but should have an opportunity to prove that employee unreasonably failed to take advantage of employer’s complaint procedure. • Employee suffered no tangible employment action (and was even promoted during her employment). • Employee worked for employer for about 15 months, but didn’t report the harassment until a few weeks after leaving. • Her supervisor had made remarks about her breasts, had told her top “loosen up” and warned, “you know, Kim, I could make your life very hard or very easy at Burlington.” • He told her she was not “loose enough” and reached over and rubbed her knee. • He responded to a job-related question from her, “I don’t have time for you right now, Kim – unless you want to tell me what you’re wearing.” A couple of days later, he again responded, “are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier.”

23. Policies • It is important to have a policy • It is important to inform employees about the policy • It is important to enforce the policy

24. Ricci v. Destefano (2009) • The City of New Haven gave firefighter exams in 2003 • Of the 77 candidates for lieutenant, 25 of the 43 white candidates, 6 of the 19 black candidates, and 3 of the 15 Hispanic candidates passed the exam. • Of the 41 candidates for captain, 16 of the 25 white candidates, 3 of the 8 black candidates, and 3 of the 8 Hispanic candidates passed the exam. • Applying the City’s “rule of three,” all of the top 10 candidates for lieutenant were white, and 7 of the top 9 candidates for captain were white, while the other 2 were Hispanic. • The City decided not to certify the exam results.

25. Ricci v. Destefano (2009) • Supreme Court held that New Haven engaged in “express, race-based decisionmaking,” i.e., disparate treatment, by failing to certify the exams. • The Court stated that the City’s action might have been justified if there was a strong basis in evidence of a disparate impact, but that was lacking as there was no dispute that the exams were job-related and consistent with business necessity (nor was there presented a less discriminatory testing alternative). • The Court did not address the Equal Protection claims.

26. Other Harassment • Hostile environment harassment claims under Title VII on the basis of race, color, national origin or religion are also evaluated by looking at the totality of the environment.

27. Age Discrimination • Age Discrimination in Employment Act (ADEA) • applies to all public and private employees with at least 20 employees • covers employees aged 40 and above. • While enforced by the EEOC, it differs from Title VII • More lenient regarding adverse employment decisions – employer can rebut a prima facie case by showing any “reasonable factor other than age.” • An action is not barred if another protected member is treated better, e.g., an action by a 62-year old is not barred because the replacement was a 55-year old • No protection form “reverse discrimination” for those under 40

28. Age Discrimination • Prima facie case: • Employee is in protected class • Employee was terminated or demoted • Employee was performing job well enough to meet employer’s expectations • Others not in the protected class were treated more favorably. • Employer’s Defense – Bona Fide Occupational Qualification (BFOQ) • Age limit is reasonable necessary to essence of employer’s business • All or substantially all of the individuals over that age are unable to adequately perform the job requirements , or • Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age

29. Disability Discrimination • The Americans with Disability Act (ADA) prohibits employers from discriminating against a qualified individual with a disability with regard to application, hiring, advancement, discharge, compensation and training. • The ADA requires employers to make “reasonable accommodations” for requesting employees who have a “physical or mental impairment that substantially limits a major life activity.” • The ADA applies to all private employers with 15 or more employees.

30. Definition of Disability • Very broad definition, but does not include • Morbid obesity (unless the result of a physiological condition) • Lack of an education • Having a prison record • Specifically excluded under ADA: • Homosexuality • Bisexuality • Sexual-behavior disorders • Compulsive gambling • Kleptomania • Pyromania

31. Reasonable Accommodation • The ADA requires employers to make reasonable accommodations as long as doing so does not cause the employer “undue hardship.” This includes: • Making work facilities accessible • Restructuring jobs or modifying work schedules • Reassigning individuals to other jobs • Acquiring or modifying equipment or devices • Modifying examinations, training materials, or policies • Providing qualified readers or interpreters

32. Employer Defenses • Undue Hardship • The ADA defines an undue hardship as an activity requiring significant difficulty or expense in light of a variety of financial, logistical and other factors. • Business Necessity • Tests and standards may be acceptable under the ADA if they are related to the job and consistent with business necessity. • Permissible Exclusion • A disabled person may be excluded from an employment opportunity only if, by reason of the disability, he or she (with or without reasonable accommodation) cannot perform the essential functions of the job or if the individual’s employment poses a significant risk to the health or safety of themselves or others.

33. Equal Protection • Can a state ever pass a law that treats black people differently than white people? Rational Basis Test Intermediate Scrutiny Strict Scrutiny Test

34. Equal Protection • Rational Basis Test • applies if no suspect class or fundamental liberty interest is involved • i.e., a good reason • State v. Ri-Mel (1987) • Minnesota required all for-profit health clubs to post a bond – no such requirement for not-for-profit health clubs

35. Equal Protection • Strict Scrutiny Test • applies if a suspect class or fundamental liberty interest is involved, e.g., race or religion • there must be a “compelling state interest” • i.e., a very, very, very good reason • Affirmative action • Grutter v. Bollinger (2003) – U. Mich. Law School • Gratz v. Bollinger (2003) – undergraduate • Fisher v. University of Texas (2013) (see below)

36. Equal Protection • Intermediate Level Scrutiny • applies to protected class, i.e., not quite a suspect class, e.g., gender or age • classification must be “reasonably related” to legitimate government purpose • i.e., a very, very good reason • Craig v. Boren (1976) • Oklahoma law prohibited the sale of 3.2% beer to males under 21 and females under 18 • .18% of females and 2% of 18-20-year olds were arrested for DUI

37. Fisher v. Univ. of Texas (2013) • 7-1 majority remanded the case for further review under a more demanding standard that will require colleges and universities to demonstrate that “available, workable race-neutral alternatives do not suffice” before taking account of race in admissions decisions.

38. Fisher v. Univ. of Texas (2013) • Justice Kennedy’s majority oopinion: • “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”

39. Fisher v. Univ. of Texas (2013) • Justice Thomas’s concurring opinion: • “Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination.” • “Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination.” • “I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.”

40. Fisher v. Univ. of Texas (2013) • Justice Ginsburg’s dissenting opinion: • “The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to ‘assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.’ As I see it, the Court of Appeals has already completed that inquiry. . . . For the reasons stated, I would affirm the judgment of the Court of Appeals.”

41. Schuette v. Coalition to Defend Affirmative Action (2014) • In a 6-2 decision the Supreme Court upheld Michigan’s constitutional ban (approved by 58% of the voters in 2006) prohibiting discrimination or preferential treatment in public education, government contracting and public employment. Justice Kennedy (joined by Justices Roberts and Alito) wrote “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”

42. Schuette v. Coalition to Defend Affirmative Action (2014) • Justice Breyer (concurring) wrote “I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution.” • Justice Sotomayor (with Justice Ginsburg) dissented, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”