Chapter 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives Understand how to read and digest legal cases and citations Explain and distinguish the concepts of stare decisis and precedent Evaluate whether an employee is an at-will employee Page 41

Learning Objectives Determine if an at-will employee has sufficient basis for wrongful discharge Recite and explain at least three exceptions to employment-at-will. Distinguish between disparate impact and disparate treatment discrimination claims Page 41

Learning Objectives Provide several bases for employer defenses to employment discrimination claims Determine if there is sufficient basis for a retaliation claim by an employee Identify sources for further legal information and resources Page 41

Stare Decisis and Precedent A system of using legal precedent Federal court system U.S. Court decisions applicable in all jurisdictions Circuit court decisions applicable only in that particular circuit District court decisions applicable only in that particular district Page 43-44

Stare Decisis and Precedent State court system Trial court  intermediate court of appeals  state supreme court State supreme court decisions can be appealed to the U.S. Supreme Court U.S. Supreme Court decisions are final Page 43-44

Understanding the Case Information Key Terms Meaning Plaintiff One who brings a civil action in court Defendant One against whom a case is brought Appellant One who brings an appeal Appellee One against whom an appeal is brought Petitioner One who appeals a case to the Supreme Court Respondent One against whom a case is appealed at the Supreme Court Page 44

Understanding the Case Information Key Terms Meaning Case citation The several number and a few letter under the case name Motion to dismiss Request by defendant for court to dismiss plaintiff’s case Motion for summary judgment Defendant’s request for the court to rule on plaintiff’s case based on the documents submitted, alleging there are no tribal issues of fact to be decided Per curium A brief decision made by the court Page 44

Prima Facie Case Cause of action: Right provided by law for a party to sue for remedies when that right is violated Prima facie case: Presenting evidence that fits each requirement of a cause of action Page 46

Employment-at-Will Concepts At-will employment: Employment relationship where there is no contractual obligation to remain in the relationship Exclusions Government employees Employees under a collective bargaining agreement Employees under individual contract with employer Page 47

Employment-at-Will Concepts Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act Americans with Disabilities Act Wrongful termination Employees may seek reinstatement or compensatory and punitive damages for the any losses suffered Page 48

Exceptions to the At-Will Doctrine Bad faith, malicious, or retaliatory termination may serve as a violation of public policy Termination in breach of the implied covenant of good faith and fair dealing Termination in breach of some other implied contract term Termination in violation of the doctrine of promissory estoppel Page 49

Violation of Public Policy Public policy: Legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against the public good Whistle-blowing Federal Whistleblower Statute Whistleblowers Protection Act State protection Page 51-53

Retaliatory Discharge Terminations in response to an employee exercising rights provided by law Constitutional protections An employer is prohibited from terminating a worker or taking other adverse employment action against a worker on the basis of the worker’s engaging in constitutionally protected activities Applies only where the employer is a public entity Page 54-55

Retaliatory Discharge: Prima Facie Case Participation in a protected activity An adverse employment action Causal connection between the protected activity and the adverse action Page 55 Burlington Northern & Santa Fe Railway Co. v. White

Breach of Implied Covenant of Good Faith and Fair Dealing Covenant of good faith and fair dealing: Implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties A breach of implied covenant of good faith looks to the actions between the parties to ascertain whether there were any violations of public policy Page 56-57

Breach of Implied Contract Implied contract: An unexpressed contract that is created by words or conduct of the parties involved Melott v. ACC Operations, Inc. Page 57

Promissory Estoppel: Prima Facie Case The employer made a promise On which the worker reasonably relied To the employee’s detriment Exceptions to at-will doctrine based on promissory estoppel Statutory Exceptions to employment at-will Occupational Safety and Health Act Fair Labor Standards Act Pregnancy Discrimination Act Page 58

Constructive Discharge Constructive discharge: Occurs when the employee is given no reasonable alternative but to end the employment relationship Considered an involuntary act on the part of the employee Paloni v. City of Albuquerque Police Department Nassar v. Univ. of Texas Southwestern Medica Center at Dallas Page 59-60

Other Exceptions to At-Will Doctrine The Worker Adjustment and Retraining Notification Act (WARN) Requires that employers with over 100 employees must give 60 days’ advance notice of a plant closing or mass layoff to affected employees Page 60-61

Other Exceptions to At-Will Doctrine Wrongful Discharge Based on Other Tort Liability Tort of outrageous conduct Tort claim for emotional distress Tort action of defamation Wrongful invasion of privacy Page 60-61

Disparate Treatment Discrimination: Prima Facie Case Employee belongs to a class protected under Title VII Employee applied for and was qualified for a job for which the employer was seeking applicants Employee was rejected and, after the rejection, the position remained open Employer continued to seek applicants with the rejected applicant’s qualifications Page 62-63

Employment Discrimination Concepts: Disparate Treatment Disparate treatment: Treating similarly situated employee differently because of prohibited Title VII factors. Page 62

Employment Discrimination Concepts: Disparate Treatment Employer’s defense Legitimate, Nondiscriminatory Reason Defense Employee’s counter – legitimate, nondiscriminatory reason is a mere pretext for the employer to discriminate. The Bona Fide Occupational Qualification Defense: Permissible discrimination if legally necessary for employer’s particular business Wilson v. Southwest Airlines Company Page 64-66

Employment Discrimination Concepts: Disparate Impact Disparate impact: Deleterious effect of a facially neutral policy on a Title VII group Facially neutral policy: Workplace policy that applies equally to all appropriate employees Griggs v. Duke Power Co. Wards Cove Packing Co. v. Atonio Page 67-68

Employment Discrimination Concepts: Disparate Impact Screening device: Factor used to weed out applicants from the pool of candidates Four-fifths rule: Minority must do at least 80 percent (four-fifths) as well as majority on screening device or presumption of disparate impact arises Device must be shown to be a legitimate business necessity Subjective and objective criteria Page 69-70

Employment Discrimination Concepts: Disparate Impact Pre-employment interviews Employment applications The business necessity defense: Defense to a disparate impact case based on the employer’s need for the policy as a legitimate requirement for the job Page 70-72

Other Defenses to Employment Discrimination Claims The employee’s evidence is not true The employer’s “bottom line” comes out correctly Connecticut v. Teal Page 72-73

Accommodation Religious discrimination under Title VII Americans With Disabilities Act (ADA) Conditions for religious accommodation and accommodation of those with disabilities differ Exhaustion of Administrative Remedies: Going through the EEOC administrative procedure before being permitted to seek judicial review of an agency decision Page 73

Exhibit 2.9 - Employment Discrimination Remedies Page 74-75

Employment Discrimination Remedies Key Terms Meaning Back pay Money awarded for time employee was not working because of illegal discrimination Front pay Equitable remedy of money awarded to claimant when reinstatement is not possible or feasible Retroactive seniority Seniority that dates back to the time the claimant was treated illegally Page 74

Employment Discrimination Remedies Key Terms Meaning Make-whole relief Attempt to put the claimant in position he or she would have been in had there been no discrimination Compensatory damages Money awarded to compensate the injured party for direct losses Punitive damages Money over and above compensatory damages Page 74

Legal Resources Law libraries The Internet Law reporters Law journals Legal treaties Books and other legal resources The Internet Page 76-77

Management Tips Employers are always allowed to hire the best person for a job Policies and procedures must have space for employees to voice their concerns and complaints Firing must not be due to specific reasons prohibited by law Employees reporting wrongdoings must not face retaliation from their employers Page 78

Management Tips Termination decisions should undergo internal review Employees belonging to a protected must be made aware of their rights Employees pursuing legally protected rights must not face retaliation Certain protected categories must be accommodated Page 78