1. Employment Law Jordan (Jody) Blanke, Esq.
Ernest. L. Baskin, Jr. Distinguished
Professor of Computer Information Systems and Law
SSBE, Mercer University

2. Employment Law Primarily state law A good bit of federal law, too
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)

7. Employment Discrimination
Immigration Reform and Control Act of 1986 (IRCA)
Americans with Disabilities Act of 1990 (ADA)
Americans with Disabilities Amendments Act of 2008 (ADAAA)
Genetic Information Nondiscrimination Act of 2008 (GINA)

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

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

10. 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

11. 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.

12. Filing Claims under Title VII
Employee files a claim with the EEOC
EEOC notifies the employer
Title VII includes anti-retaliatory 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

13. Theoretical Bases for Title VII Lawsuits
Disparate Treatment
Disparate Impact

14. 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.

15. Disparate Treatment Employer’s Defense: Employee’s Counter:
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.
Established the framework for employment discrimination cases

16. 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

17. 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

18. 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

19. 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

20. Meritor Savings Bank v. Vinson (1986)
Supreme Court upheld sexual harassment claim despite absence of concrete economic effect on employment or loss of tangible job benefits
Employee had given in to supervisor’s sexual advances and had a sexual relationship for several years. Supervisor fondled her in front of other employees, followed her into the women’s restroom and forcibly raped her on several occasions. Activities ceased after employee had a steady boyfriend.
Court held that in light of the “record as a whole” and the “totality of the circumstances,” there was an actionable “hostile environment” sexual harassment claim.

21. 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 committed 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.

22. 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.

23. 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.

24. 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.”

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

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. 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.

28. 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.

29. 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

30. 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

31. 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 applies to all private employers with 15 or more employees.
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.”

32. 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

33. 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

34. Employer Defenses Undue Hardship Business Necessity
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.

35. Employment Arbitration Agreements
Arbitration agreements have become very common.
Can preclude claims of discrimination by the employee against the employer, but the EEOC can still sue the company on employee’s behalf.
Cannot preclude class actions or joining together with others to pursue employment-related claims in court or arbitration.

36. Covenants Not to Compete
Non-employment related
related to sale of business
e.g., Joe the Baker
Employment-related

37. Brenda Wood
Brenda Wood agreed not to work as an on-air news anchor in the Atlanta/Athens television market for 6 months.

38. Covenants Not to Compete
Scope
agreement must specify what activity is to be limited
Geography
be careful of terms like Atlanta
Duration
e.g., 6 months, 1 year, 2 years

39. Laws Vary From State to State
California will not enforce such an agreement as an illegal restraint of trade
Georgia used to be very strict about enforcement of these covenants
would not “blue pencil” such an agreement

40. Election Day 2010 Georgia Constitutional Amendment 68% said “Yes”
“Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?”
68% said “Yes”

41. O.C.G.A. § 13-8-50 et seq. Courts may now “blue pencil” the agreement
Two years is presumed reasonable
Need not specify a geographic restriction
Law targets “key employees”
executive employees
employees in possession of important confidential information, or
employees with specialized skills, knowledge, or customer contacts or information

42. Privacy in the Workplace
“Reasonable expectation of privacy”
“Your home is your castle”
Your workplace – not so much
Expectation of privacy -> approaching zero