1. Chapter 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts Copyright 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

2. 2-2 Learning Objectives  Understand the structural setting of employment law: the court systems, the role of stare decisis (precedent) and the processes of the EEOC  Examine the nature and implications of employment-at-will, vs. other employment relationships (e.g., civil service, or per defined contract, collective bargaining agreement)  Understand the exceptions to employment-at-will  Understand concepts of retaliation and wrongful discharge.  Recognize the background of Civil Rights Act, and the common features and distinctions among claims, depending on which protected characteristic(s) form the basis of the claim.  Distinguish between disparate treatment and disparate impact discrimination claims, and know the common employer defenses.

3. 2-3 Stare Decisis and Precedent (A Brief Recap from Ch. 1 w/ Add’l Info)  Stare decisis (the thing decided, i.e. STAND BY PREVIOUS DECISION)  Elements, role of Opinions (majority/concurrence/dissent)  Balances stability/predictability and evolution of law  Liberal v. Conservative as applied to judging  Federal court system  Reverse funnel: trials, appeal 1(right), appeal 2 (cert.)  100 district courts, 13 circuit courts of appeal, 1 Supreme Court  Reasons to grant “cert” (certiorari)  State court system – same template  Trial court  intermediate court of appeals  state supreme court  Interplay between states and feds  Hierarchy: Constitution > statutes > common law  Bill of Rights + 14A  State decisions on state law final, unless US Constitution violated  US Supreme Court decisions are final

4. 2-4 Understanding the Case Parties (Recap from Ch. 1) Key TermsMeaning PlaintiffOne who brings a civil action in court, i.e. The party suing DefendantOne against whom a case is brought, i.e. The party being sued AppellantOne who brings an appeal AppelleeOne against whom an appeal is brought PetitionerOne who appeals a case to the Supreme Court RespondentOne against whom a case is appealed at the Supreme Court

5. 2-5 Understanding the Case: Information Key TermsMeaning Case citationThe book volume, case reporter and page where the court opinion can be found, and decision date. Motion to dismiss Request for court to dismiss plaintiff’s case before trial, based on any of various defects in Complaint Motion for summary judgment Request for the court to rule on plaintiff’s case based on the documents submitted, alleging that facts are not in-dispute, only application of law to them Per curiamA ruling made by an appellate court as a group, rather than individual opinion (usually unanimous)

6. 2-6 Prima Facie Case (“on the face of it”)  Cause of action: Right provided by law for a party to sue for remedies when that right is violated  Prima facie case: Presentation of evidence that fits each element of a cause of action  Demonstrates plaintiff’s claim to a cause of action  Requires defendant to answer and defend claim(s).

7. 2-7 Employment-at-Will Concepts (1)  At-will employment: Employment relationship where there is no contractual obligation to continue for an agreed time.  Agreement renews itself every second, until it doesn’t  Either party may terminate, without liability to the other  Not at employment relationships are considered “Employment At-Will”  Other types of employment relationships include: 1.Government employment, or 2.Employment governed by Contracts that define the terms and duration 1.Collective Bargaining Agreement (group, i.e. labor union) 2.Individual Contract  Key concept and general rule: either Party may terminate the employment relationship, at any time, for a good reason (incompetence, better offer), or no- reason-at-all (including many stupid reasons) – just not a bad reason = one that falls within one of the few exceptions to the doctrine (next).  Most private-sector employment is at-will

8. 2-8 Exceptions to the At-Will Doctrine 1.Violation of employment law statute: e.g., Title VII of CRA, Age Discrimination Act, OHSA, Fair Labor Standards Act, WARN, etc. – will be discussed in other chapters, and Retaliatory Discharge – terminating an employee exercising rights provided by law) 2.Violation of Public Policy (other law, legal right, recognized in SC) 3.Breach of some other Implied Contract Term (e.g., handbook terms that limit employer discretion, recognized in SC) 4.Breach of the implied covenant of good faith and fair dealing (CA and a few other states, not in SC) 5.Other: a)Implied Promise (“Promissory Estoppel”) – Similar to Implied Contract except that the promise, implied or expressed, does not rise to the leave of contract b)Constructive Discharge – Occurs when the EE is given no reasonable alternative but to end the employment relationship; considered an involuntary act on the part of the EE c)Tortious Dismissal and Defamation – A tort is a violation of duty, other than one owed when the parties have a contract (i.e. a civil wrong) IMPORTANT TO CONSIDER: Aside from Violation of Employment Law Statutes, exceptions to Employment At-Will are dealt by individual states’ statutes and common law and not by the federal government (for most part) Not all states recognize these exceptions

9. 2-9 Public Policy Exception  Public policy: Legal concept intended to ensure that no ‘person’ lawfully do that which may injure the public or damage the public good  Green v. Ralee Engineering Co.  EE, an inspector of airplane parts, was terminated after complaining to supervisor about ER manufacturing defective airline parts  ER hired less experienced EE; EE sued for wrongful termination (retaliation and violation of public policy)  Holding: Yes, ER violated public policy; public safety regulations governing commercial airline safety serves as basis for public policy claim  Whistle-blowing (EE reports an ER’s wrong doing to public, press or ER supervisors)  Federal Whistleblower Statute  Whistleblowers Protection Act  State protection (SC included)

10. 2-10 Retaliatory Discharge  Retaliatory Discharge: Terminations in response to an employee exercising rights provided by law  E.g., filing a claim charging discrimination  Limited constitutional protections (recurring theme)  State action – no free speech in the private sector(!)  Smyth v. Pillsbury Co. dealt with email  EE sent emails threatening management  ER assured EE’s emails were confidential and privileged  ER terminated EE  Issue: Did ER violate public policy (right to privacy, unreasonable search and seizure) when they fired EE?  Ruling: No, employment at-will virtually absolute and there must be a “clear mandate of public policy,” constitutional rights do not apply to EE of private ER  A GOVERNMENT ER 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

11. 2-11 Retaliatory Discharge: Prima Facie Case  Burlington Northern & Santa Fe Railway Co. v. White  Case is significant because it expands retaliatory discharge to include not only “ulimate” employment actions such as refusal to hire, discharge, or demotion, but also any action that “dissuades” an EE from making or supporting a charge of discrimination Participation in a protected activity An adverse employment action Causal connection between the protected activity and the adverse action

12. 2-12 Implied Contract Exception  Implied contract: An unexpressed contract term created by words or conduct of the parties  Employee Handbook statements may imply termination only for ‘just cause’  REVIEW EMPLOYMENT HANDBOOKS – THEY NEED TO CLEARLY STATE EMPLOYMENT IS CONSDIERED AT-WILL (see Employment At-Will example disclaimer on page 57)  Other provable conduct that suggests limitation on employer’s at-will discretion.  Melott v. ACC Operations, Inc.  Be Mindful of off-hand statements that can be misconstrued as “contractual” terms or promises

13. 2-13 ‘Implied Covenant of Good Faith and Fair Dealing’ Exception  Implied contractual obligation to act in good faith in the fulfillment of each party’s reasonable contractual expectations  The court examines the parties’ actions to ascertain whether termination demonstrated bad faith (e.g., termination to avoid paying bonus earned, but due if employed at year-end).  Narrowly construed – most risks do not qualify, and only a few states recognize this claim Case: Guz v Bechtel National, Inc.

14. 2-14 Promissory Estoppel Exception: Prima Facie Case  Promissory estoppel proof problems abound – definiteness of the promise is important The employer made a promise On which the worker reasonably relied To the employee’s detriment

15. 2-15 Constructive Discharge  Constructive discharge: Occurs when conditions so intolerable the employee has no reasonable alternative but to end the employment relationship  Employer may be seeking to make worker leave ‘voluntarily’ to avoid wrongful discharge claim  Courts require new burdens to be substantial  Paloni v. City of Albuquerque Police Department (no)  Nassar v. Univ. of Texas Southwestern Medical Center at Dallas (yes)

16. 2-16 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  EE must show: 1.ER made false and defamatory statements about the EE, 2.The statement was communicated to a 3 rd party without the EE’s consent; 3.The communication caused harm to the EE  Wrongful invasion of privacy (i.e. searching an EE’s purse or wallet)

17. 2-17  Concepts common to most discrimination claims: analyses are similar. Protected characteristics also have unique features or issues (covered in specific future chapters)  Generally two types of discrimination claims: 1.Disparate treatment: Treating similarly-situated employee or applicant differently because of a characteristic covered by Title VII.  Intentional Acts or Intentional Discrimination: e.g., “Mexicans need not apply”  How to Prove Disparate Treatment? SC gave us direction in McDonnell Douglas Corp. v. Green ruling Employment Discrimination Concepts: Disparate Treatment (1)

18. 2-18 Employment Discrimination Concepts, Disparate Treatment: 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

19. 2-19 Employment Discrimination Concepts, Disparate Treatment: Defenses  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  Very limited application – and Never in Race cases  Case: Wilson v. Southwest Airlines Company

20. 2-20 Disparate Treatment Overview  How to Prove a Prima Facie case? 1.You belong to a minority (or protected class under Title VII) 2.You’re qualified and applied for the job 3.Despite qualifications, you were rejected 4.Position remained open or was given to someone else equally or less-qualified  Conditions are modified for situation (i.e. hiring, termination, promotion, etc.)  If EE proves Prima Facie case and ER does nothing, EE wins;  If ER articulates a legitimate, non-discriminatory reason, then the ER wins unless the EE proves the alleged reason is a pretext or excuse.  How to prove pretext?  Is the decision reasonable?  Balanced?  Made consistently?  Justification job related?

21. 2-21 Employment Discrimination Concepts, Disparate Impact 2.Disparate impact: Discriminatory effect of a facially neutral policy on a Title VII group  Facially neutral policy: specific workplace policy that applies equally to all employees  Unnecessary practice, perhaps unintentional, that results in workplace discrimination  Key distinction: needn’t prove Intent to discriminate; key consideration is differential effect on protected group  Case: Griggs v. Duke Power Co.: “built-in headwinds;” test results as servants, not masters…codified into law as part of 1991 amendment to Civil Rights Act  2 part question:  Does “test” discriminate?  If so, does test relate to performance? In other words, is the test warranted? ER has to prove job relatedness or business necessity in this discrimination  ER need to have their tests “validated” to prove job relatedness and fairness

22. 2-22 Employment Discrimination Concepts: Disparate Impact  Screening device: Mechanism (normally a test) used to separate applicants from the general 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 (see business necessity defense, next slide)  Subjective or objective criteria may qualify (see Watson v. Fort Worth Bank)  Pre-employment interviews  Employment applications

23. 2-23 ER Defenses to Disparate Impact  The business necessity defense: Defense to a disparate impact case based on the employer’s need for the policy/device as a legitimate requirement for the job  Test validation  The employee’s evidence is not true – Plaintiff burden of proof to establish > 50% probability  (No) The employer’s “bottom line” comes out correctly  Statute aimed at individuals, not groups  ER cannot establish QUOTAS  Case: Connecticut v. Teal

24. 2-24 Other Common Concepts  Reasonable Accommodation: employer duty in Title VII religious discrimination claims, and under Americans With Disabilities Act (ADA)  Upper limit: ‘undue burden’ on employer  Extent of duty varies between religious and disability accommodations  Exhaustion of Administrative Remedies: must complete EEOC administrative process before seeking judicial review of agency decision

25. 2-25 Exhibit 2.9 - Employment Discrimination Remedies

26. 2-26 Employment Discrimination Remedies Key TermsMeaning Back payMoney awarded for time employee was not working because of illegal discrimination Front payEquitable 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

27. 2-27 Employment Discrimination Remedies Key TermsMeaning Make-whole relief Attempt to put the claimant in position he or she would have been in, absent proven discrimination Compensatory damages Money awarded to compensate the injured party for direct losses Punitive damages Money over and above compensatory damages, to punish employer or deter future acts

28. 2-28 Management Tips  Most employment relationships begin and end without legal implications  But when they don’t, it’s expen$ive  Prevention beats cure  Employers are always allowed to hire the best person for a job  Claimants must always be qualified for the job  Employees must not face retaliation from their employers