1. 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.

2. 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
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3. 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

4. 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
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5. 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
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6. 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

7. 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
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8. 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
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9. 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
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10. 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

11. 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
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12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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
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23. Employment Discrimination Concepts: Disparate Treatment
Disparate treatment: Treating similarly situated employee differently because of prohibited Title VII factors.
Page 62

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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
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30. Exhibit 2.9 - Employment Discrimination Remedies
Page 74-75

31. 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
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32. 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
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33. Legal Resources Law libraries The Internet Law reporters Law journals
Legal treaties
Books and other legal resources
The Internet
Page 76-77

34. 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
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35. 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
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