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Employment Law

Employment Law. Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta. Employment Law. Primarily state law varies from state to state A good bit of federal law, too mostly discrimination law. At-Will Employment. Generally, an employee

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Employment Law

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  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

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