Sources of Employment Law #2
by Ross Runkel at LawMemo
Question: What are the sources of employment law? What are the laws that govern the
employer and employee? The constitution (federal or state)? Statutes (federal or state)?
Administrative regulations (federal or state)? Decisions by administrative agencies
(federal or state)? State common law (that is, judge-made law) such as contract and tort
law?
Answer: Possibly all of the above.
Employment law is complex. Get a lawyer to help you.

American law is complex and often confusing.

Employment law is one of the most complex branches of law.

There is no one place one can look to find all the laws that might be involved in a
specific case.

It is a checker-board of state and federal laws, statutes, administrative rules, and
"case law" or decisions by courts and administrative agencies.

Because employment law is so complex, and usually is different from one state to
the next, I recommend that nobody should try to handle an employment law
situation without an expert lawyer.

If you have a toothache you need a dentist.

If you have an employment law problem you need an employment lawyer.
Some sources of employment law to keep in mind. They might not all apply in an
individual situation, but often more than one of them will apply.

Federal constitution (usually only as to state public sector or federal employees and
employers).

State constitution (usually only as to state and local government employees and
employers).

Federal statutes such as Title VII, Americans with Disabilities Act (ADA), Age
Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA),
and so on.

State statutes that are similar to the federal statutes. These statutes vary from one
state to another. Often state statutes are more favorable to employees than the
federal statutes by applying to a greater number of employers, by provide more
employee rights, and by providing more generous remedies.

Federal administrative regulations or rules adopted by the Equal Employment
Opportunity Commission (EEOC), Department of Labor (DOL), and other agencies.

State administrative regulations or rules adopted by similar state agencies.

Case-by-case decisions by federal and state administrative agencies.

State common law (judge made law), especially dealing with contract law and tort
law.

Federal court decisions.

State court decisions.

Contracts between employers and employees.

Collective bargaining agreements between unions and employers.
Employment at-will #3
by Ross Runkel at LawMemo
What does it mean to say one state is an "at-will" state and another state is not? What is
"at-will employment" anyhow?
The "at-will doctrine" is a rule of contract law (which is state law). The rule is that an
employee can quit at any time and an employer can fire an employee at any time and
for any reason. Because this is a contract rule, the employer and employee are free to
change it by agreement. But if their agreement is silent on the question, then the
employee can be discharged without warning, without a hearing, and without a reason.
When the at-will doctrine is applied by a court, here is what happens as a matter
of contract law:

A job that is described as "permanent" does not mean that it will last forever. It
means only that the job is not temporary or not seasonal.

The employer can discharge the employee at any time and for any reason.

The employer can discharge the employee for a really stupid reason. For example,
simply because the employee asked for a day off.

The employer can discharge the employee without any warning. For example, for
the very first time the employee comes in 5 minutes late.

The employer can discharge the employee without offering the employee any kind
of "hearing" or chance to explain.

The employer is not required to give an employee two-weeks notice, or any
advance notice at all.

The employer is not obligated to tell the employee the reason for the discharge.
Every state has a different approach, so the law will be different from one state to the
next. It's pretty hard to find a state that follows the at-will doctrine without any
exceptions; and it's hard to find a state that doesn't follow the doctrine at all. States tend
to fall somewhere in between.
Because the at-will doctrine provides an employee no job protection at all, it is important
to understand that there are a lot of exceptions. In some states there are so many
"exceptions" that one might conclude that the state is not an "at-will state" at all.
Here are some exceptions:

A contract between the employer and employee that provides greater protections
for the employee.

A collective bargaining agreement between a union and the employer that provides
for discharge only if there is "just cause."

Wrongful discharge in violation of public policy.

Federal statutes that prohibit certain kinds of discrimination, allow for medical
leaves, protect whistleblowers, or provide other protections.

State statutes that are similar to the above federal statutes. (Some state statutes
provide the employee with greater protections than the federal statutes provide.)

An implied promise.

Promissory estoppel.

Employer's handbook, manual, or policies.

Intentional infliction of emotional distress.

Duty of good faith and fair dealing.
Express contracts #5
by Ross Runkel at LawMemo
The simplest and most direct way to overcome the "employment at will" doctrine is to
have an express contract.
The employment at will doctrine says that the employee can quit, and the employer can
fire the employee, at any time and for any reason and without any prior notice.
This employment at will doctrine is a "default" rule of contract law. That means it applies
whenever the employee and employer have not agreed on something else.
Therefore, the solution is simple: Agree on something else.
An express contract can be in writing or it can be oral. (Of course, it is easier to prove
something that is in writing.)
Here are some things an employee might want to have in an express contract:

The employee can be fired or otherwise disciplined only for "just cause" or
"reasonable cause" or some such general language.

A more detailed list of the grounds for discipline or discharge.

Before the employee is discharged or disciplined, the employee has to have an
opportunity to explain or have some kind of hearing.

Discipline will be "progressive." For example, there should be a warning (rather than
immediate discharge) for the first offense.

If the employee is to be laid off, there must be advance notice and severance pay.

And surely you can think of other things.
Here are some things an employer might want to have in an express contract:

An agreement not to compete (non-competition agreement).

An agreement not to use the employer's trade secrets, customer lists, and so on.

An agreement to arbitrate disputes rather than take them to court.

And surely you can think of other things
Employer handbooks #6
by Ross Runkel at LawMemo
Employers often have handbooks or policy manuals that spell out employee behavior
rules, procedures for disciplining or firing employees who violate the rules, and "money
matters" such as wages, holidays, vacations, and so on.
The question is whether such a handbook becomes part of the contract between
the employer and the employee. And there is no easy answer.
Confusion in the courts:
1 - Courts often do not consider a handbook to be part of a contract.
2 - Courts often see a handbook as nothing more than a statement of policy or intention.
3 - On the other hand, some courts in some situations will consider a handbook to be
part of a contract.
4 - There has been a trend in the law for courts to view a handbook as a contract.
For a handbook to be part of contract, usually these things must happen:

The employer makes an "offer." This can be done by the employer distributing the
handbook to employees.

The employee accepts the offer. This can be done by the employee signing an
acknowledgement form, or perhaps simply by continuing to come to work.

There must be "consideration." This means the employee must give or promise to
give something of value. Typically, that is simply continuing to come to work.
Disclaimers:

Over the years, as more and more courts viewed handbooks as contracts, many
employers made changes in how they wrote the handbooks.

The main change has been to include a disclaimer - a provision that says that the
handbook is not intended to be a contract.

Even so, some courts have said these handbooks can be contracts if the disclaimer
was not clear or of it was not conspicuous.
Good faith and fair dealing #7
by Ross Runkel at LawMemo
Two basic principles of contract law seem inconsistent with each other, and cause
courts a problem.
One - Employment at-will: The principle that an employer can fire an employee at any
time and for any reason and without advance warning. Unless the employer and
employee have a different agreement, this usually will be the rule a court will apply.
Two - Covenant of good faith and fair dealing: The principle that every contract
includes an implied duty to act in good faith as to the performance and enforcement of
the contract.
Let's say an employer fires Jane because she is a vegetarian. Other than that, Jane has
been an excellent employee and the employer has no need to reduce the overall
number of employees.
If a court applies the at-will doctrine by itself, then Jane has no contract claim.
If a court applies the covenant of good faith and fair dealing, then Jane has a good
argument that this was not in good faith.
Courts vary from state-to-state on how to deal with this.

Some courts say that the covenant of good faith and fair dealing applies to all
contracts, including at-will contracts.

Some courts say that the covenant of good faith and fair dealing is totally
inconsistent with the idea of at-will employment, so the covenant of good faith and
fair dealing will not be used in these cases.

This is state law, which varies from state-to-state, so the outcome will depend on
which state you're in.
Discharge in violation of public policy #8
by Ross Runkel at LawMemo
One gigantic exception to the at-will employment doctrine is the idea of a discharge that
violates public policy.
The at-will doctrine is a principle of contract law - the law of agreements. The public
policy exception is a principle of tort law - the law of civil wrongs. Therefore, most courts
apply the principle of wrongful discharge in violation of public policy whether the
contract is at-will or some other kind of contract.
Courts recognize four types of public policy situations. Caution: Not every court
recognizes every one of these. These are cases where the employer fires the employee
because the employee:
1 - refused to do something that was unlawful. Examples: (a) Refusing the employer's
demand to commit perjury. (b) Refusing to submit false reports to the government. (c) A
nurse refusing to perform a procedure he or she is not licensed to perform.
2 - performed a duty required by the law. Examples: (a) Serving on a jury, which
required being absent from work. (b) Providing court testimony in response to a
subpoena.
3 - exercised a right that the law gives to employees. Examples: (a) Filing a claim for
worker compensation. (b) Filing a court complaint against the employer.
4 - reported unlawful employer conduct - "whistleblowing." Examples: (a) Reporting to
authorities that the employer's product had been mislabeled. (b) Reporting to the
supervisor's manager that the supervisor skipped mandatory product inspections.
Exception: Many courts will not recognize a tort of wrongful discharge in a specific
situation if the employee has another remedy under a statute.
Example: The employee is fired for filing a worker compensation claim. The worker
compensation statute prohibits firing an employee for filing a claim. Most courts will not
recognize a tort of wrongful discharge here because the employee already has a
remedy under the statute.
Constructive discharge #9
by Ross Runkel at LawMemo
"Constructive discharge" occurs when an employer makes the conditions of work so
intolerable that the employee "quits." For example, the employer might want the
employee to leave, without actually saying "you're fired."

Constructive discharge is not an independent claim all by itself. It is used to
convert what might look like a "quit" by the employee into a discharge by the
employer.

Example: The employer sexually harasses Jane. The harassment is severe enough
or pervasive enough (or both) that it alters Jane's conditions of employment and
violates Title VII. Then Jane "quits" because of the harassment.

Is that a constructive discharge? In order for Jane's "quit" to be a constructive
discharge, the harassment must be so severe or pervasive (or both) that a
reasonable employee in her situation would quit work rather than stay. In other
words, the harassment has to be worse than the minimum required for a Title VII
violation.

Effect: If this was a constructive discharge, then Jane has a claim for discriminatory
discharge in violation of Title VII in addition to her claim for sexual harassment.
Therefore, she will be eligible for greater remedies such as back pay.

If the court decides this was not a constructive discharge, Jane has a remedy
for the harassment but not for being illegally fired.
The constructive discharge idea is not limited to sexual harassment cases. It can be
used in cases involving

harassment because of religion, race, disability, etc.

retaliation.

discharge in violation of public policy.

discharge because the employee engaged in union activity.

and the list goes on.
Suggestion to employees: Talk to a lawyer as soon as you can, and that means
before you quit.
Claims against employees #10
by Ross Runkel at LawMemo
Lawsuits by an employer against an employee or ex-employee typically (but not always)
come up when the employee is in a sales position or is high up in the employer's
organization. However, the same general rules can apply to all employees.
Duty not to compete.
For a current employee, there is a duty not to compete against the employer. The
employee has a duty of loyalty to the employer, is hired to advance the employer's
interests, and should not "moonlight" for a competitor and should not drain away the
employer's business by going into direct competition.
Non-competition agreements.
Many employees sign an agreement ("non-compete," "non-competition," "restrictive
covenant") in which the employee agrees not to compete against the employer after the
employee quits, retires, or is fired. Courts usually will enforce these agreements if they
are properly drafted and comply with certain rules the courts have laid down. I'll discuss
non-competition agreements in more detail next time.
Duty regarding trade secrets and confidential information.
A trade secret is a plan, process, tool, or customer list of some unique nature. It does
not include the ordinary knowledge and skills an employee learns while working for the
employer. I'll discuss trade secrets in more detail later.
Non-competition agreements #11
by Ross Runkel at LawMemo
For a current employee, there is a duty not to compete against the employer. The
employee has a duty of loyalty to the employer, is hired to advance the employer's
interests, and should not "moonlight" for a competitor and should not drain away the
employer's business by going into direct competition.
For a former employee, the starting point is that the law favors free markets and open
competition. Therefore, courts rarely find an "implied" duty or agreement not to
compete. For a former employee, there must be an express agreement that the former
employee will not compete against the former employer.
Assuming a non-compete agreement is enforceable, the former employer usually can
get an injunction against the employee and also recover money damages.
Non-competition agreements are enforceable if, and only if, they comply with certain
guidelines.
First, there must be "consideration" for the employee's promise not to compete. That
means that the employee must have received something in exchange for the promise.
For a newly-hired employee, beginning employment is the consideration. For a current
employee who signs a non-compete agreement, a few courts see continued
employment as good consideration, but most do not. There must be something more
such as an increase in pay, a promotion, or some other benefit to the employee.
Second, the agreement not to compete must protect some legitimate business
interest of the employer. It can't be designed simply to suppress normal competition.
Examples of legitimate business interests:

Trade secrets.

Customer lists.

Other confidential information.

Special or unique relationships with customers or clients.

Goodwill.
Note: If either of the above two items (consideration and legitimate business interest) is
missing, a court will not enforce a non-competition agreement.
Third, the scope of the agreement not to compete must be "reasonable" and not
"overbroad." This involves three concepts.
1. Geography. The geographic limits must be reasonable. If the employer is a laundry
in a small town, restrictions that go beyond that town would be unreasonable
because they do not line up with the employer's legitimate business interest. (As
businesses increasingly operate world-wide, courts have to wrestle with what is a
reasonable geographic scope.)
2. Time. There has to be a time limit, but what is a reasonable time? Perhaps the
amount of time it will take the employer to train a replacement.
3. Activity. Can the employee be prevented from doing any work for a competing
business? Probably not. The new work has to have some relationship to the
employer's legitimate business interest. A former tire salesperson should be allowed
to work as janitor in a competing tire shop, but not as a manager.
If the scope of the agreement is overbroad, what will a court do? Most courts will
(1) cut the scope of the agreement down to what is reasonable and (2) go ahead and
enforce it. However, a few courts will not "fix" the agreement, and will simply not enforce
it.
Trade secrets & confidential information #12
by Ross Runkel at LawMemo
Defining a "trade secret" is difficult, and courts don't always agree on what it means.
The general idea is that we are dealing with something unique and secret that gives
the employer a business advantage over competitors who don't know about it.
Examples: Secret chemical formula, manufacturing process, pattern for a machine,
tool, unique plan, information, customer list.
Excluded from the list is the general knowledge that an employee learns from the
employer, even if the employer spent a lot of money to train the employee.
First, it has to be a secret. If the employer allows knowledge to get out into the public
domain, then it's no longer a trade secret. If an outsider gets knowledge in an innocent
way, he or she can use the information. (Be careful - If there is a patent or copyright, the
employer will still have protection.) In order to be a secret, the employer must take
reasonable steps to keep it a secret.
Second, It has to be something unique, original, or different from the ordinary
information that is generally available to others in the same business.
Employers often enter into express non-disclosure agreements with employees. This
helps define what is and what is not a trade secret, and it is one of the ways the
employer takes steps to maintain secrecy. Courts usually enforce these agreements if
the information is not generally available in the outside world and if the employer has
taken steps to keep it a secret.
Non-employees can also be liable for misappropriating trade secrets. If an employee
quits and goes to work at another business, and that business obtains the trade secret
through that employee with knowledge of where it came from, then that business can be
liable to the original employer.
Whistleblowing #13
by Ross Runkel at LawMemo
A employee-whistleblower is an employee who reports (usually to a government
agency) the illegal activities of the employer or of another employee.
Increasingly, the law protects employee-whistleblowers from retaliation from their
employers.
Definition: The definition of a whistleblower has two important parts:
1 - There has to be a report or a complaint.
The law will give its maximum protection when the report is made to a government
agency (anything from the police to OSHA), especially if the report is made to the
agency that has some jurisdiction over the illegal activity.
What if the report or complaint is "internal," that is, made inside the employer's
organization to the supervisor, manager, president, or board of directors? Sometimes
this is not protected activity, and will depend on exactly which law is involved.
2 - Does there actually have to illegal activity?
What if the whistleblower thought the activity was illegal when actually it was not?
Usually, the law gives the employee protection if she (1) actually believed the activity
was illegal and (2) that belief was reasonable.
What protection does the employee get?
Assuming a whistleblowing law applies, the employer will be barred from retaliating
against the employee because she made the report. That means the employer cannot
punish the employee by discharging her, demoting her, or otherwise substantially
changing her working conditions.
Laws to look for. (1) Many statutes (state and federal) have specific protections for
employees who report illegal activities to specific government agencies. (2) In many
states, whistleblowers are protected by the tort of "wrongful discharge in violation of
public policy." (3) For public sector employees, the first amendment sometimes protects
against retaliation for speaking out on what lawyers call "matters of public concern."
Are there financial rewards for being a whistleblower? Usually no. Usually the
employee gets no more than protection against retaliation.
There is a specialized lawsuit called a qui tam action. If the employer has been
defrauding the federal government, this lawsuit allows the employee to sue in the name
of the government to try to recover the ill-gotten gains. The employee who wins such a
suit is entitled to a percentage of the amount recovered.
Discrimination #14
by Ross Runkel at LawMemo
"Discrimination" is usually considered a nasty word. But what does it really mean? And
when is it illegal?
"Discrimination" used all by itself simply means to treat one thing differently from
another. If I buy an orange instead of an apple, I've discriminated against the apple.
The key to figuring out what discrimination is legal and what is illegal is to ask the
question "Why?" Because of what? What was the employer's motive?
In employment cases, it can be as simple as filling in the blanks in sentences that go
like this:
- The employer refused to hire Jane because __________.
- The employer discharged Jane because __________.
- The employer refused to promote Jane because __________.
- The employer re-assigned Jane because __________.
- The employer did not give Jane a bonus because __________.
- The employer harassed Jane because __________.
The employer's action can be illegal if the "because" is race, color, sex, religion,
disability, age, or some other reason that the law makes illegal.
But if the "because" is that Jane performed poorly or is habitually late, then the action
will be legal.
Motive is everything. The difficulty is that a court or jury has to decide what the
employer's motive was. That can be tricky business.
So I'll be spending several days discussing methods employees use to prove the wrong
motive, and methods used by employers to show they had a proper motive.
Disparate treatment #15
by Ross Runkel at LawMemo
“Disparate treatment” is a basic concept in employment discrimination cases. Lawyers
classify employment discrimination cases as either “disparate treatment” cases or
“disparate impact” cases.
In a disparate treatment case, the employee is claiming that the employer treated her
differently than other employees who were in a similar situation. For example, both Jane
and Paul skip work one day; the employer fires Jane but does not fire Paul. If the
reason is because Jane is female, then this is disparate treatment because of sex
which would violate Title VII. If the real reason is because Jane had a worse
attendance record, then it could be disparate treatment because of differences in
attendance, and therefore lawful.
[In a disparate impact case, the claim is that the employer has a practice that has a
much bigger impact on one group than on another. For example, the employer won’t
hire janitors unless they are high school graduates. This might have a much bigger
impact on blacks as a whole than on whites as a whole. I’ll discuss this theory in detail
in a later lesson.]
In the typical disparate treatment case the central issue will be whether Jane was
treated differently because she was female or because of her attendance record.
The “because” or “why” will be crucial.
Courts have developed some interesting methods for proving (and disproving) why Jane
was fired. I’ll spend a few future lessons on this. Here is what I’ll cover:
Employee’s prima facie case. There is rarely a smoking gun, because employers
usually do not say out loud that they’re firing someone because of sex. Therefore,
courts have created methods for employees to use “circumstantial evidence” to help
prove their case.
Employer’s non-discriminatory reason. Once the employee puts in her circumstantial
evidence, the employer will usually reply by saying that she was fired for a “legitimate
and non-discriminatory reason.”
Pretext. Then the employee can respond to that by proving that the reason offered by
the employer was just a “pretext” or cover-up for an improper reason.
Employee's prima facie case #16
by Ross Runkel at LawMemo
A "prima facie case" is what an employee has to prove in a discrimination case in order
to require an employer to explain itself in court. It's that minimum set of facts that a
plaintiff has to include in a court complaint and be prepared to actually prove.
Because we're talking about minimums, I better make it clear that an employee better
have more than this minimum if she actually expects to win a case.
I'll talk about three basic ways to make out a prima facie case.
First is when the employer has a "facial" policy of unlawful discrimination. For
example, the employer has stated a policy that it will hire only females to be food
servers. This is an extremely rare situation because employers rarely say such things
out loud.
Second is where there is "direct evidence" or what you might call a smoking gun. For
example, the employer says to an applicant "I'm not going to hire you because you're
not white." Again, this is rare, but sometimes it happens. It's amazing how often an
employee can prove that an employer said something like "Let's get rid of all the old
employees" or "We've already hired one Mexican and that's enough."
Third, is "circumstantial evidence." Tons of cases fall into this category, and things
can get a bit complicated.
The US Supreme Court had a famous case in which a man claimed he wasn't hired
because he was black. The Court said this is what he had to show:
1. He was a member of a protected class (in this case, he was black).
2. He applied for the job, and the job was open.
3. He had the minimum qualifications for the job.
4. He was not hired.
5. The job remained open, or a person of another race was hired for it.
That framework became the model for all other circumstantial evidence discrimination
claims: race, sex, religion, national origin, age, disability, whatever.
It also became the framework for cases involving not just failure to hire, but also
discharge, demotion, transfer, suspension, and so on.
Of course, for each specific case the four parts of the proof might need to be adjusted to
fit the different situation. For example, in a discharge case, the employee might have to
prove that she was meeting the employer's reasonable expectations. In a case claiming
discharge because of age, the employee might have to prove that someone significantly
younger was kept on the job.
Notice that the Supreme Court made it pretty easy for a plaintiff to make out a prima
facie case. But that doesn't necessarily mean the employee will win. It really means
only that the employer must now put on some evidence that she was fired (or not
hired, etc.) for a "legitimate non-discriminatory reason." (If the employer simply has
no such evidence, then the employee wins, but that practically never happens.)
Employer's rebuttal #17
by Ross Runkel at LawMemo
Once an employee provides a court with a prima facie case, then the employer is
allowed to rebut that case. Meaning what?
The type of rebuttal will depend on the type of prima facie case the employee used.
If the employee showed that the employer had a "facial" policy of unlawful
discrimination, an effective rebuttal will be limited. Assuming a facial policy of hiring only
women for a particular job, the employer must show that hiring women only is a bona
fide occupational qualification (BFOQ). Essentially, that means that only a woman can
do the job. Examples: wet nurse, attendant in a women's rest room. If the employer
hires only French people to cook in a French restaurant, that's probably a BFOQ, but
hiring only French janitors would not be. The burden of proof will be on the employer to
prove this is a BFOQ.
If the employee uses "direct evidence" or "circumstantial evidence," then the
employer rebuts by "articulating" a "legitimate non-discriminatory reason."
This means the employer tries to show that the reason the individual was not hired (or
was fired, etc.) was something other than the reason that the employee claims. So, if
the employee claims the reason was race, the employer will try to show that the real
reason was poor performance, bad references, tardiness, or whatever - anything other
than race. (At this point the employer needs to produce some evidence, but does not
have to convince the court that it is true.)
The reason doesn't really have to be "legitimate" or "non-discriminatory." If the
employee is claiming the reason was race, then the employer can rebut that by showing
that the reason was age. Even though age is not a legitimate reason, it is a reason other
than race, so that will work.
The effect? If the employer puts on evidence of a legitimate non-discriminatory reason,
all that does is rebut the employee's prima facie case. It doesn't mean that the employer
necessarily wins.
The employee then has an opportunity to prove that the reason asserted by the
employer is really just a "pretext," or a fake or a cover-up for the real reason.
Pretext #18
by Ross Runkel at LawMemo
A typical disparate treatment employment discrimination case will go through two
procedural steps.

Step one - Summary Judgment. After the employee files a complaint and the
employer files an answer and there has been some discovery (such as depositions),
the employer usually files a motion for summary judgment. The judge must decide
whether there is enough evidence to justify sending the case to a jury.

Step two - Trial. At a trial (either by a jury or by the judge without a jury), the judge
or jury will decide who wins.
Here's the thought process for a judge who is deciding a motion for summary judgment:
whether there is sufficient evidence of illegal discrimination to justify a trial.
Let's assume Jane applied for a job and didn't get hired.

Employee's prima facie case: Jane shows that she is female, applied for a job
that was open, has the basic qualifications, was not hired, and a male got the job.
(That's our example. Every case is a little different.)
This prima facie case creates an inference that Jane was not hired because of
sex. The employer better rebut that case.

Employer's rebuttal: The employer produces evidence of a legitimate nondiscriminatory reason for not hiring Jane. (Such as: someone else was more
qualified; Jane has a criminal record.) At the summary judgment stage, the
employer doesn't have to prove this reason is true, but does have to produce some
evidence.
This rebuttal destroys the inference, so we're back to square one. Jane better do
something, and what she better do is show pretext.

Pretext: Jane will provide evidence that the non-discriminatory reason relied on by
the employer is really a pretext for sex discrimination. Jane has to show that there is
at least a factual dispute as to what the real reason was. Usually she needs to have
proof that the employer's reason was manufactured, or the employer shifted from
one reason to another, or something else to indicate that the employer's reason is
false (that is, it's a pretext).
If Jane can provide evidence of pretext, she should be able to move to Step Two the Trial.
At the trial everything comes down to the question of what was the reason Jane was
not hired. If the jury decides the reason was sex, then Jane wins. If the jury decides it
was some other reason, then Jane loses. Note that Jane has to convince the jury that
the reason was sex. It's not enough just to prove that the employer's reason was not
true.
One more twist: Dual motive.
Sometimes there is evidence that the employer had two motives operating at the same
time. One illegal one (sex), and one legal one (Jane has a flat personality). Now the
employer will try to prove that the same decision would have been made even without
the illegal motive. Under Title VII, Jane won't get any money damages, but she can get
declaratory relief and attorney fees. Under some statutes, Jane simply loses.
BFOQ #19
by Ross Runkel at LawMemo
BFOQ stands for Bona Fide Occupational Qualification.
A BFOQ can be a defense for an employer that has engaged in intentional
discrimination. The burden is on the employer to prove a BFOQ, and it is a difficult
burden.
Title VII and the Age Discrimination in Employment Act (ADEA) prohibit discrimination
because of:

Race

Color

Religion

Sex

National origin

Age
The BFOQ defense is available only in cases of discrimination because of:

Religion

Sex

National origin

Age
As Title VII puts it: Discrimination is OK "in those certain instances where religion, sex,
or national origin is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise."
No BFOQ for race or color discrimination.
Examples:

State prison hires only men as guards in a jungle-atmosphere male-only prison.

French restaurant hires only French chefs. (It won't work when hiring janitors
because it's not "reasonably necessary" to the authenticity of the restaurant.)

Airline requires pilots to retire at the age of 60. (Won't work for flight engineers
because the government does not require it and the Airline could individually test
the engineers to see which ones would be a high risk.)
Disparate impact #20
by Ross Runkel at LawMemo
"Disparate impact" is a legal theory for proving unlawful employment discrimination.
However, most actual cases use the "disparate treatment" theory.
Disparate impact is the idea that some employer practices, as matter of statistics, have
a greater impact on one group than on another.
A good example, taken from the first US Supreme Court Title VII case on the topic:
When hiring laborers, the employer required applicants to have a high school diploma.
The diploma requirement screened out vastly more blacks than it did whites. Therefore,
there was a disparate impact based on race, even though there was no intentional
discrimination.
The Supreme Court said that once the employees proved a significant disparate impact,
the burden shifted to the employer to prove that the diploma requirement had "a
manifest relationship to the employment in question."
Federal legislation enacted in 1991 says that if the employees prove that a practice
causes a disparate impact, then the employer must demonstrate that the practice "is job
related for the position in question and consistent with business necessity."
The disparate impact theory can be used whenever there is a large impact based on
race, sex, religion, age, or other unlawful factor.
Disparate impact cases are complex (and expensive) because they require the use of
experts and involve sophisticated statistical methods.
Age cases: In 2005 the US Supreme Court decided that the disparate impact theory
can be used in age discrimination cases. However, these age cases are extremely
difficult for employees to win for two reasons. First is that the 1991 legislation that
makes things easier for plaintiffs does not apply. Second is that the Age Discrimination
in Employment Act (ADEA) specifically permits any "otherwise prohibited" action "where
the differentiation is based on reasonable factors other than age."
In the 2005 case a City gave police officers with less than five years service greater pay
raises than more experienced officers. Obviously this had a negative impact on the 40and-over group. The Court pointed out that the City based its decision on seniority,
which was a "reasonable factor other than age." Therefore, the City won.
Sex discrimination #21
by Ross Runkel at LawMemo
Title VII prohibits discrimination "because of" "sex." Most states have statutes that have
similar language.
What does "sex" mean under Title VII? It means gender, that is male and female. It
has nothing to do with sexuality, sexual practices, sexual orientation, or anything else
other than gender.
So, sex discrimination is treating people in a different manner because of their sex,
meaning gender.
It is unlawful to discriminate against women. It is equally unlawful to discriminate against
men.
Over 30 percent of the charges filed with the EEOC involved claims of sex
discrimination.
The EEOC puts it this way:
It is unlawful to discriminate against any employee or applicant for employment because
of his/her sex in regard to hiring, termination, promotion, compensation, job training, or
any other term, condition, or privilege of employment. Title VII also prohibits
employment decisions based on stereotypes and assumptions about abilities, traits, or
the performance of individuals on the basis of sex. Title VII prohibits both intentional
discrimination and neutral job policies that disproportionately exclude individuals on the
basis of sex and that are not job related.
Examples of sex discrimination:

Employer allows men, but not women, to work overtime.

Employer hires men to do sales work, but will not hire women.

Employer requires women to wear special uniforms, and allows men to wear what
they want.

Employer relies on sexual stereotypes (such as women should not be too macho)
when deciding who should get a promotion.

Employer pays men more than women who are doing the same work.

Employer bases pensions on actuarial tables that themselves are based on gender.
Sexual harassment is a form of sex discrimination.
"Sex plus" is a concept used when an employer couples sex with something else. For
example, the employer hires men with pre-school children but not women with preschool children.
Pregnancy. Title VII says that "sex" includes "pregnancy, childbirth, and related
conditions." Therefore, it is unlawful for an employer to discriminate on the basis of
whether a woman is pregnant, refuse to hire because a woman is pregnant, or
discharging a woman because she got an abortion or refused to get an abortion.
BFOQ. In rare cases, an employer will be allowed to discriminate when sex is a "bona
fide occupational qualification."
Race discrimination #22
by Ross Runkel at LawMemo
Title VII prohibits discrimination "because of" "race." Most states have statutes that
have similar language.
Another federal statute, 42 USC Section 1981, prohibits race discrimination when
making or performing a contract. The relationship between an employer and employee
is a contract, so this federal statute also applies. Section 1981 is especially important
because (1) it has a longer statute of limitations than Title VII, (2) an employee does not
need to first file a charge with the EEOC, (3) the employee might get greater damages,
and (4) Section 1981 applies to even the smallest employers.
What does "race" mean under these statutes? The concept of "race" is not limited to
Afro-Americans and whites. It includes Asians, Native Americans, and so on. There are
cases that say "race" includes being Polish-American, German-American, and so on.
So, race discrimination is treating people in a different manner because of their race.
It is unlawful to discriminate because a person is black. It is equally unlawful to
discriminate because a person is white or any other race.
About 35 percent of the charges filed with the EEOC involve claims of race
discrimination.
The EEOC puts it this way:
It is unlawful to discriminate against any employee or applicant for employment because
of his/her race or color in regard to hiring, termination, promotion, compensation, job
training, or any other term, condition, or privilege of employment. Title VII also prohibits
employment decisions based on stereotypes and assumptions about abilities, traits, or
the performance of individuals of certain racial groups. Title VII prohibits both intentional
discrimination and neutral job policies that disproportionately exclude minorities and that
are not job related.
Examples:

Employer allows whites, but not other races, to work overtime.

Employer assigns black employees to black neighborhoods, and white employees
to white neighborhoods.

Employer relies on racial stereotypes (such as Asians are better at math) when
deciding who should get hired or get a promotion.

Employer pays whites more than blacks who are doing the same work.

Employer bases pensions on actuarial tables that themselves are based on race.
Racial harassment is a form of race discrimination.
BFOQ. An employer cannot defend a case of race discrimination on the ground that it is
a "bona fide occupational qualification."
National origin discrimination #23
by Ross Runkel at LawMemo
Title VII prohibits discrimination "because of" "national origin." Most states have
statutes that have similar language.
What does "national origin" mean under Title VII? It means the country from which a
person came, or from which that person's ancestors came.
"National origin" is often confused with "citizenship," but they are two different
concepts. A person can be a US citizen and have Polish national origin. A person can
be a citizen of Mexico and have Mexican national origin or Cuban national origin. If
someone is labeled a "Mexican" or "Japanese" it is hard to know whether that refers to
the person's citizenship or national origin. Or perhaps both.
"National origin" is sometimes confused with "race." If someone is labeled a
"Mexican" or "Japanese" it is hard to know whether that refers to the person's race or
national origin. Or perhaps both.
So, national origin discrimination is treating people in a different manner because of
where they or their ancestors came from.
About 10 percent of the charges filed with the EEOC involve claims of national origin
discrimination.
The EEOC puts it this way:
National origin discrimination means treating someone less favorably because he or she
comes from a particular place, because of his or her ethnicity or accent, or because it is
believed that he or she has a particular ethnic background. National origin
discrimination also means treating someone less favorably at work because of marriage
or other association with someone of a particular nationality.
National origin harassment is a form of national origin discrimination.
BFOQ. In rare cases an employer can defend a case of national origin discrimination on
the ground that it is a "bona fide occupational qualification."
Religion discrimination #24
by Ross Runkel at LawMemo
Title VII prohibits discrimination "because of" "religion." Title VII also requires
employers to reasonably accommodate an employee's religious practices and
observances. Most states have statutes that have similar language.
What does "religion" mean under Title VII? It includes "all aspects of religious
observances and practices as well as belief." It includes believers, atheists, and
agnostics. It includes those who belong to an organized religion and those who do not.
So, religion discrimination is (1) treating people in a different manner because of their
religious beliefs, or observances, or practices, or (2) refusing to reasonably
accommodate an employee's religious practices or observances.
Examples of religious observances or practices (assuming each of these is something
the individual considers to be a religious duty, even though a formal "church" does not
require it):

Teaching a religious class.

Not working on a holy day.

Going to a religious convention.

Wearing a religious symbol.

Wearing a hat or turban.

Wearing an anti-abortion button.

Wearing a beard.
Religious harassment is a form of religion discrimination.
Reasonable accommodation. Title VII requires employers to reasonably
accommodate an employee's religious observances and practices unless to do so
would be an "undue hardship." For example, this might require an employer to modify
schedules to allow someone a day off for a holy day, or require an employer to allow the
wearing of religious buttons. However, it is often easy for an employer to show that such
an accommodation is not "reasonable" or that it would be an "undue hardship."
Only about 3 percent of the charges filed with the EEOC involve claims of religion
discrimination.
BFOQ. In rare cases an employer can defend a case of religion discrimination on the
ground that it is a "bona fide occupational qualification."
Age discrimination #25
by Ross Runkel at LawMemo
The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination
"because of" "age." Most states have statutes that have similar language.
What does "age" mean under the ADEA? It includes individuals who are 40 years old
or older. There is no upper limit. State statutes sometimes specify different ages, such
as 18.
So, age discrimination is treating people in a different manner because they are 40
years old or older.
Examples:

Mandatory retirement at age 65.

Refusing to hire someone because the person is older.

Reducing the number of employees by selecting only those over 60.

Assigning older employees to one type of job and younger employees to another.

Paying older employees less because they are older.
Age means chronological age, and employers are not prohibited from making
distinctions based on how many years an employee has worked for the company, even
though that may correlate with age.
Age differences. In order to make out a prima facie case of age discrimination there
usually must be proof that there was a "substantially younger" person who got better
treatment. For example, showing that a 60-year-old was fired and a 59-year-old wasn't
would not be enough of an age difference. There is no "bright line" number of years for
measuring what "substantially younger" means.
Favoring older workers. It is not a violation of the ADEA to favor older workers as
against younger workers.
Harassment because of age is a form of age discrimination.
Disparate impact. In 2005 the US Supreme Court decided that the disparate impact
theory can be used in age discrimination cases. However, these age cases are
extremely difficult for employees to win for two reasons. First is that the 1991 legislation
that makes things easier for plaintiffs in Title VII impact cases does not apply. Second is
that the Age Discrimination in Employment Act specifically permits any "otherwise
prohibited" action "where the differentiation is based on reasonable factors other than
age." In the 2005 case a City gave police officers with less than five years service
greater pay raises than more experienced officers. Obviously this had a negative impact
on the 40-and-over group. The Court pointed out that the City based its decision on
seniority, which was a "reasonable factor other than age." Therefore, the City won.
BFOQ. In rare cases an employer can defend a case of age discrimination on the
ground that it is a "bona fide occupational qualification." A special section of the statute
allows age distinctions to be made for the hiring and retirement ages of law enforcement
and firefighter employees.
Waivers of rights. An employee can waive his or her rights or claims under the ADEA
either in the settlement of an ADEA administrative or court claim or in connection with
an exit incentive program. However, the ADEA, as amended by the Older Workers
Benefit Protection Act (OWBPA), sets out minimum standards that must be met in order
for a waiver to be valid. Among other requirements, a valid ADEA waiver must:

be in writing and be understandable;

specifically refer to ADEA rights or claims;

not waive rights or claims that may arise in the future;

be in exchange for valuable consideration;

advise the individual in writing to consult an attorney before signing the waiver; and

provide the individual at least 21 days to consider the agreement and at least seven
days to revoke the agreement after signing it.
Over 22 percent of the charges filed with the EEOC involve claims of age discrimination.
Disability discrimination - #26
by Ross Runkel at LawMemo
The Americans with Disabilities Act (ADA) prohibits an employer from discriminating on
the basis of an individual's disability, and requires an employer to reasonably
accommodate an employee's disability.
The ADA's definition of "disability" is somewhat complex, and it is this definition that
determines whether an individual is protected by the ADA. Most states have statutes
that are similar to the ADA, but many of them define "disability" in a somewhat different
way - often to the advantage of the employee.
The ADA says a person has a disability if that person (1) actually has a disability, or (2)
has a record of having a disability (even if not currently disabled), or (3) is regarded as
having a disability (even if not currently, or ever, disabled).
An individual has a disability if that individual:

has a physical or mental impairment

that substantially limits

a major life activity -- and

the individual can perform the essential job duties with or with an accommodation.
Let's look at each one of these:
Physical or mental impairment. The idea of an "impairment" is that there must be a
medically recognized condition that impairs the individual's ability to function. On the
physical side, these can be diseases (contagious or not), malformations, or absence of
limbs. Excluded are common characteristics such as left-handedness, baldness, and
other things that don't effect the ability to function. On the mental side, it includes
psychological disorders and mental disorders, including learning disabilities, mental
illnesses, and mental retardation. Excluded are things like being overly aggressive or
argumentative, or having poor judgment.
Some things are specifically excluded by the ADA, such as homosexuality,
pedophilia, kleptomania, and others.
Major life activity. Some things are clearly "major life activities," such as walking,
breathing, hearing, caring for one's self, seeing, speaking, reproducing, eating. Others
clearly are not major life activities, such as playing the piano, lifting heavy boxes.
Although work is a "major life activity," it is not enough to show that the individual is
unable to perform a specific job. The courts require that the individual be precluded from
working in a wide range of job or classifications of jobs in the geographical area, based
on that person's skills, knowledge, and abilities. Expert testimony often is required in
order to prove this.
Substantially limits. The impairment must substantially limit one of the major life
activities. Courts do not simply look at the impairment and call it a disability. For
example, it is not enough that the individual has cancer, is diabetic, or has a mental
disorder. The court will look at the individual's unique situation to see whether there
is a substantial limitation of a major life activity. The limitation must be frequent and
must be either permanent or long-term. Thus, a person who has a broken bone or major
illness that totally incapacitates her for a short period is not disabled under the ADA.
Corrective measures. Some conditions can be corrected by taking medication or
using appliances such as spectacles. The US Supreme Court has held that courts are
required to decide whether a person is disabled based on their situation when they are
using their medication or appliance. For example, a person had very bad vision (20/400)
but could have good vision (20/20) by wearing glasses. The court will hold that this
person's vision, as corrected, does not substantially limit that person's abilities, so the
person does not have a disability and is not protected by the ADA. Many diseases can
be controlled by medication, and some conditions such as deafness can be helped by
certain appliances such as hearing aids, so individuals in those situations are not
disabled under the ADA.
Able to perform essential functions with or without accommodation. Even if a person
is disabled, she still must be qualified for the job in question. This means she must be
able to perform the essential functions of the particular job. However, the ability to
perform is measured on the assumption that the employer has reasonably
accommodated the employee. For example, the employer might need to eliminate some
of the "non-essential" functions or duties of the job.
Harassment because a person has a disability is a form of disability discrimination.
Over 19 percent of the charges filed with the EEOC involve claims of disability
discrimination.
Reasonable accommodation of disability - #27
by Ross Runkel at LawMemo
Let's assume an individual has a disability. That means she (1) has a physical or mental
impairment that (2) substantially limits a (3) major life activity. (Note that she can either
(a) actually have a disability, or (b) have a record of being disabled, or (c) be regarded
as being disabled.)
The individual also must be "qualified" for the job in question, which means she is
able to perform essential functions with or without a reasonable accommodation.
And an employer has an affirmative obligation to provide a reasonable
accommodation unless that would be an undue hardship for the employer.
The burden will be on the employee (or applicant) to show that a reasonable
accommodation exists, and then the burden will shift to the employer to show that the
accommodation would impose an undue hardship.
Identifying a reasonable accommodation requires a particularized inquiry into the
exact nature of the individual's disability and the details of the job in question. One must
not generalize because not every hearing impaired person is the same, individuals who
use wheel chairs are not all the same, and so on. The focus has to be on the individual,
and not on disabled people generally or on hearing impaired people generally.
One way to accommodate is to break the job down into essential and non-essential
functions. The ADA says a person has to be able to do the essential functions, so an
employer is not going to be required to change those functions or do away with them.
However, and employer may be required to change or eliminate non-essential functions.
First look to see whether the individual can perform the essential functions without any
other accommodation. If so, she is qualified. If not, then look to see whether she could
perform the essential functions with an accommodation, and whether that
accommodation is a reasonable one. (If there is more than one accommodation that is
reasonable, the employee does not have a legal right to pick the best one.)
Undue hardship. If the employer proves that an accommodation (even a reasonable
one) would impose an undue hardship, then the employer does not have to make that
accommodation. Factors to consider include the cost of the accommodation, financial
resources of the employer and of the facility, the impact on the employer's operations,
and the impact on other employees.
Interactive process. According to the EEOC, the employee and employer should
engage in an interactive process. The employee should first request an accommodation
and supply whatever personal information is needed. The employee should also
suggest any accommodation she knows about. Then the employer should respond with
suggestions and ideas. Failure of the employer to do so can create a presumption that
the accommodations suggested by the employee were reasonable. Likewise, if the
employee does not cooperate in this process there can be a presumption of
unreasonableness.
Direct threat to health or safety. An individual is not qualified if she creates a direct
threat to the health or safety of others or to herself.
Harassment #28
by Ross Runkel at LawMemo
There is so much talk today about harassment in the workplace that some people have
the idea that there is some federal law that forbids harassment. Actually, there is not a
federal law that directly protects an employee against harassment.
Federal law forbids an employer to engage in certain harassment that takes place
because of the employee's sex, race, religion, disability, or other protected status. Take
sexual harassment as an example. Probably the best way to look at it is that sexual
harassment is one form of sex discrimination.
I will be discussing sexual harassment here, as the law has developed under Title
VII. However, the same general principles will apply to racial harassment, national
origin harassment, religious harassment, disability harassment, and age harassment.
Also, state laws often have similar protections against harassment.
Basic definition. Sexual harassment exists when, because of an individual's sex, the
employer causes the workplace to have intimidation, ridicule, and insult that is so
severe or pervasive that it alters the conditions of an individual's employment. The
original source of the harassment can be management, a supervisor, co-workers, or
customers.
Traditionally, lawyers have divided harassment into two categories: (1) quid-pro-quo
and (2) hostile environment.
Quid-pro-quo harassment. If the employer denies the employee a "tangible job
benefit" (such as a promotion, pay raise, getting fired, not being hired) because of sex,
then that's a violation. For example, Jane gets fired because she refused to have a
sexual relationship with her supervisor. In these cases the employer is liable even if the
employer had a policy against sex harassment and even if upper management did not
know about it.
Hostile environment harassment is more complex. The hostile working conditions
must be both objectively and subjectively offensive, and must be so pervasive or severe
that they alter the employee's working conditions.

Objectively offensive. The question is whether a reasonable person would find the
conduct offensive. It's not flirting or lack of sensitivity. It can be physical touching,
offensive words, or other conduct.

Subjectively offensive. The conduct has to be personally offensive to the
individual. Lawyers sometimes say that the conduct must be "unwelcome."

Pervasive or severe. The conduct must be severe enough, or pervasive enough
(or both) so it alters the employee's working conditions. Courts will look at the whole
situation over a length of time. They will look at whether physical contact was
involved, the nature of the insults or other words, how often the conduct was
repeated, and the entire circumstances. The more severe the conduct is, the less
pervasive it needs to be.

Because of sex. In every case, there must be proof that the offensive environment
or tangible employment action was "because of sex." The proof is fairly easy when
a supervisor acts because of sexual desire, but such proof is not necessary. It is
enough that one sex is being treated differently than the other. It is not necessary
that the perpetrator and the victim be of the opposite sex, so long as "because of
sex" proved.
Assuming sexual harassment can be proved, is the employer liable? Under Title
VII no statutory liability attaches to individuals such as supervisors or managers. So the
question is whether the employer (the corporation or partnership) is liable. If it was quidpro-quo (involving a tangible employment action), then the employer will be liable even
if it was only a supervisor that took the action. However, things are much more
complicated when dealing with hostile environment cases. That will be the subject of the
next lesson.
Employer liability for harassment #29
by Ross Runkel at LawMemo
Let's assume we've already established that an employee was sexually harassed (or
racially harassed, etc.). That was Lesson #28.
The next step is to find out whether the employer is going to be liable for that
harassment under Title VII. Remember that individuals (even supervisors and
managers) are not personally liable under Title VII. Only "employers" are. So that's
why we must ask whether the employer (the corporation, company, partnership, or
whatever) is liable. (As an aside, remember that individuals sometimes can be liable
under state law.)
Look at two things: (1) What kind of harassment (either quid-pro-quo or hostile
environment. (2) Who is the harasser (manager, supervisor, co-worker, customer).
Quid-pro-quo harassment. If the employer denies the employee a "tangible job
benefit" (such as a promotion, pay raise, getting fired, not being hired) because of sex,
then that's called quid-pro-quo harassment. The employer will be liable even if the
employer has a policy against harassment and management was not aware of what
was happening.
Hostile environment harassment.
Hostile environment harassment done by senior officers of the company, the
employer is usually liable even if there was a policy prohibiting harassment.
Hostile environment harassment done by a supervisor, the employer will be liable
unless the employer can prove an affirmative defense by proving both of the following:
Reasonable care to prevent harassment. The employer has to use reasonable care
both (a) to prevent and (b) to promptly correct by having a non-harassment policy. The
policy should be widely disseminated, brought to the attention of employees, include a
complaint process that includes a method for bypassing the offending supervisor, and
management should monitor supervisors' behavior.
-- and -Failure to take advantage of anti-harassment policy. The employer can prove that
the employee failed to take advantage of the employer's anti-harassment policy. For
example, the employee knew about the policy but did not notify her supervisor or
manager that she was being harassed.
Hostile environment harassment done by a co-worker or a customer, the liability of
the employer is proved in a different way. The employee must show that the employer
knew the harassment was happening (or reasonably should have known) and then
failed to take prompt and effective steps to make it stop.
Retaliation #30
by Ross Runkel at LawMemo
Several federal statutes (such as Title VII, the Age Discrimination in Employment Act
(ADEA), and Americans with Disabilities Act (ADA)) prohibit an employer from
retaliating against an employee (1) because of her "participation" in an official
proceeding or (2) because she "opposed" any practice that the statute makes unlawful.
Other federal and state statutes have similar provisions.
Protected employee activity. There are two kinds of employee activity that are
protected: (1) participation and (2) opposition.
Participation. "Participation" includes filing a charge with EEOC or with a relevant state
agency, testifying, providing documents, giving a deposition, or otherwise being actually
involved in an EEOC or court case. Any testimony that an employee gives is absolutely
protected, even if it turns out to be false.
Opposition. "Opposition" includes making internal complaints, writing to a newspaper,
complaining to a labor union, or even organizing a boycott. "Opposition" does not have
absolute protection. The opposition must be "reasonable," so some activity will not
be protected. Examples: interfering with the work of co-workers, blocking access to
buildings, saying bad things about the employer's products or services, taking or
copying the employer's confidential information or documents. One important thing that
is not protected is making false statements.
Opposing "unlawful" practices. The statute says the employee must be opposing a
practice that is "unlawful." Sometimes the employee believes the practice is unlawful,
but it really is not. (Example: sexual harassment might not be severe or pervasive
enough to be illegal.) Even so, the opposition will be protected if (1) the employee
actually believes in good faith that the practice is unlawful and (2) a reasonable person
would believe the practice is unlawful.
There are many examples of cases in which an employee complained about alleged
discrimination that turned out not to exist, but then the employer retaliated against the
employee for making the complaint. The employee can win on a retaliation claim even
though she loses on the underlying discrimination claim.
"Because of." The employee must prove that the employer discriminated against the
employee because of her opposition. This requires that the employee prove cause-andeffect. That is, the employee must prove that it was the opposition that caused the
employer's reaction.
What is "retaliation"? Many types of "adverse actions" by an employer can be
retaliation. According to a June 2006 US Supreme Court decision, it is not limited to onthe-job events such as demotions. It can include off-work events such as filing false
criminal charges.
Most important is that it includes employer actions that "would have been materially
adverse to a reasonable employee or job applicant." This excludes minor
annoyances, but can include changes in job responsibilities that do not involve a loss of
pay. The court will look at the employer's actions from "the perspective of a reasonable
person in the plaintiff's position."
Remedies for Discrimination #31
by Ross Runkel at LawMemo
The remedies that are available in an employment discrimination case will depend on
(1) the facts of the case and (2) the statute involved.
Make whole relief. In general, the idea will be to provide "make whole" relief, which
essentially means to put the plaintiff back into the situation she would have been in if
the discrimination had not occurred.
Reinstatement and hiring. If the plaintiff was discharged unlawfully, the court should
order her to be reinstated, with no loss of seniority. If the employer unlawfully refused to
hire her, the court should order that she be hired, and credited with the seniority she
would have earned if she had been hired earlier. If there truly is no vacancy, then the
court will order "front pay" instead of reinstatement or hiring. The amount of front pay
will be based on an estimate of how much she would have earned in the future.
Back pay. The court will order payment of back pay from the date of discrimination to
the date of the court judgment. In order to make the plaintiff whole, this will include
wages, probable overtime payments, sick leave, vacation, pension benefits, health
insurance, and anything else that has a monetary value. The court will then reduce that
amount by the amount that the plaintiff earned (or with reasonable effort should have
earned) during the same period of time.
Compensatory damages are available in cases arising under Title VII (discrimination
because of race, sex, national origin, religion) and the Americans with Disabilities Act
(ADA), but not the Age Discrimination in Employment Act (ADEA). This will include
things that are somewhat imprecise and don't always have a clear monetary value such
as humiliation, emotional distress, inconvenience, loss of reputation.
Punitive damages are available in cases arising under Title VII (discrimination because
of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but
not the Age Discrimination in Employment Act (ADEA). These damages are designed to
punish past wrongdoing and deter future wrongdoing, and the plaintiff must prove that
the employer acted with "malice" or in reckless disregard for federally protected legal
rights. There are lots of detailed rules about exactly how and when an employer can be
required to pay punitive damages, as well as rules as to how much these damages can
be.
Caps on damages. Most federal statutes have caps (upper limits) on how many dollars
can be recovered for compensatory damages and punitive damages. These caps range
from $50,000 to $300,000 (based on the compensatory and punitive damages
combined), depending on how many employees an employer has. Two forms of
damages are excluded from the caps: back pay and front pay.
Liquidated damages. Three statutes allow a court, in specific circumstances, to award
liquidated damages equal to the amount of back pay: Equal Pay Act, Age Discrimination
in Employment Act (ADEA), Family and Medical Leave Act (FMLA).
Attorney fees. A prevailing plaintiff can recover attorney fees under Title VII, the Age
Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act
(ADA). In addition, prevailing parties recover "costs" which include filing fees,
transcripts, and other items.
Sexual orientation Discrimination #32
by Ross Runkel at LawMemo
"Sexual orientation" refers to one's status as a heterosexual, homosexual, or bisexual.
Title VII does not prohibit discrimination because of an individual's sexual
orientation. Although Title VII prohibits discrimination because of sex, the word sex is
interpreted as meaning gender (that is, being male or being female), and has nothing
to do with sexuality or sexual conduct. This same idea is extended to discrimination
because an individual is a transsexual or transvestite.
Sexual harassment can violate Title VII. Although most sexual harassment involves a
male and a female, same-sex harassment is also illegal if it takes place because of sex
(meaning gender). It should not matter that the victim (or the perpetrator) is
heterosexual or homosexual, so long as the harassment is because of the victim's sex.
Title VII has been interpreted as barring employers from relying on "sexual
stereotypes" such as a woman being too macho or too aggressive, when men are
allowed to be that way.
Also, homosexuals, heterosexuals, and bisexuals alike enjoy the same protections
against discrimination because of their sex, race, religion, national origin, disability, age,
and so on.
The Americans with Disabilities Act (ADA), which protects against discrimination
because an individual's disability, specifically excludes protection from discrimination on
the basis of being a homosexual, bisexual, transvestite, transsexual, or having a gender
identity disorder or sexual behavior disorder.
State laws: Although federal law provides no protection against discrimination because
of sexual orientation, the laws of some states and some local governments do provide
such protection. Some of these laws are similar to Title VII and prohibit employers from
discriminating because of sexual orientation. Some of these laws require employers to
provide employees' domestic partners with the same benefits (such as health
insurance) that are provided for spouses. Some do both.
Transsexual discrimination #33
by Ross Runkel at LawMemo
The law on discrimination against transsexuals is changing.
A transsexual is a person whose gender identity does not match the sex that was
assigned at birth. Some transsexuals get medical treatment (surgery or hormones or
both) in order to bring their body into alignment with their gender identity.
Title VII:
Title VII forbids discrimination "because of sex," and one legal question is whether this
forbids discrimination because a person is a transsexual.
The bulk of the courts to address this issue hold that Title VII does not forbid
discrimination because of transsexuality because that's not discrimination "because of
sex."
A recently-developed theory discussed in some cases is that transsexuals are victims
of "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228
(1989). The difficulty with this theory is that a person who came into life identified as
female and is now male often acts in a typical male fashion, so there really is no "sexual
stereotyping" involved.
A third theory is that transsexuals simply are being discriminated against "because of
sex." This theory is new, not well developed, and has not been used by many courts.
One example is Schroer v. Billington (D DC 03/31/2006).
I've suggested a fourth theory: I reason by analogy to religion discrimination. If an
individual changes from being a Mormon to being a Baptist, and that's the reason the
person gets fired (or not hired), then I think that would be a clear-cut case of
discrimination "because of religion." If someone changes from being a man to being a
woman, and that's the reason the person gets fired (or not hired), then that should
constitute discrimination "because of sex." I don't know of any courts that have adopted
this idea, and I can't figure out why.
The Americans with Disabilities Act (ADA):
The ADA, which protects against discrimination because an individual's disability,
specifically excludes protection from discrimination on the basis of being a transsexual,
or having a gender identity disorder or sexual behavior disorder.
State laws:
The laws of some states and some local governments do provide protection against
transsexual discrimination.