Employment law outline
Employment at will
Clark v. Atlantic stevedoring 1908 – fed court NY
Balla v. gambro 1991 – il supreme court
Bammert v. don’s super valu – p. 11, 2002 Wisconsin state court – p’s cop husband gave p’s boss’s wife a
DUI so p’s boss fired her. Sues for wrongful discharge. p argues for public policy exception to the at will
doctrine – implied good faith. Court says no. P must identify a constitutional, statutory, or administrative
provision that clearly defines public policy under the public policy exception created in brockmeyer.
Who is an employee
Houston v. quincy post – 1989 ill app
Ezzy v. workers comp appeals board – 1983 cal app
Eckis v. sea world
Lemmerman v. A.T. Williams Oil Co. – p. 21, 1986, NC – little shane who hung out at the store while his
mom worked sometimes and did little tasks in exchange for spare dollars the boss had found to be an
employee who could only recover for his injury at the store under workers comp. for TORT PURPOSES he
was an employee but for workers comp he would not be an employee.
The hiring process
Starbucks corp. v. superior court – p. 103, 2008 cal. App. – ps represent a class of 135000 unsuccessful
applicants and allege starbucks has an illegal question on it regarding marijuana convictions. The
application does say that California applicants need not answer the question. None of the class members
had marijuana convictions and the plaintiffs understood that starbucks wasn’t seeking that info from
California residents so starbucks MSJ was granted.
NASA v. Nelson – 2011, scotus, p. 112, alito – fed contract employees at a govt lab subject to background
checks including questions about drug treatment. Court finds it does not violate their const privacy rights.
Lysak v. seiler corp – p. 118, Massachusetts 1993 – jury found for d p appeals. P sued bc she was fired for
being pregnant. D says p voluntarily said she doesn’t plan on having kids and her husband stays home and
cares for them. p says she didn’t discuss any plans about having more kids. D says p came to him and said
she lied and was actually pregnant the whole time. D fired her. P sued for pregnancy discrimination, a
form of sex discrimination. Defendant showed it would have made the same decision (firing someone for
lying) whether they were pregnant or not.
Kadlec medical center v. lakeview anesthesia associates – 2008, 5th circuit, p. 122 – p sues d because d is
the former employer of a current employee of p who was addicted to drugs and negligently performed
medical tasks, nearly killing a patient. D failed to report this to their BOT, the board of medical examiners,
or national practitioner’s data bank, locked away all info about their investigation and discharge of the dr.
p even got referral letters about the bad dr from d. sued for intentional and negligent misrepresentations.
Intentional misrepresentation elements: 1 a misrepresentation of material facts 2. made with intent to
deceive 3 causing justifiable reliance with resultant injury. Negligent misrepresentation elements one
there must be a legal duty on the part of the defendant to supply correct information to there must be a
breach of that duty which can occur by omission as well as by affirmative misrepresentation 3 the breach
must have caused damages to the plaintiff based on the plaintiffs reasonable reliance on the
misrepresentation. Louisiana law states that an affirmative duty is created when a party volunteers
information.
Greenawalt v. Indiana dept. of corrections – 2005, 7th circuit, p. 142 - is subjecting a public employee to a
probing psychological examination a search? No
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Harrison v. benchmark electronics Huntsville, inc. – 2010, 11th circuit p. 149 - plaintiff suffers from epilepsy
and takes barbiturates to control his condition. Plaintiff sued defendant his employer alleging that
defended engaged in an improper medical inquiry and violation of the Americans with Disabilities act.
Plaintiff had been a temporary employee at defending and applied for permanent employment. he
consented to a drug test his boss told him he failed the drug test plaintiff told his boss he had a
prescription. Lots of other details but the point is even though epilepsy is not a disability under the ADA,
because his employer perceived him to be disabled under the act and did not want to hire him because
of that perceived disability he violated the ADA.
Natl treasury employees union v. von raab – p. 160, 1989, scotus, kennedy - The US customs service which
is now ICE have implemented a drug screening program for employees who seek transfer or promotion
to certain positions which means one of the following three criteria at least. 1 direct involvement in drug
law enforcement. 2 A a job requirement to carry firearms. 3 a job requirement to handle classified
material. the drug test does not violate the 4th amendment.
Malorney v. B &L motor freight, inc – ill. App. 1986, p.184 - some guy got a job as a truck driver with
defendant. on the application the guy was asked whether he had any vehicular offenses or criminal
convictions. his answer to the vehicular question was verified but his negative answer so the criminal
conviction question was not verified. If it had been verified defendant would have found that this guy
have been arrested for aggravated sodomy of two teenage hitchhikers while driving a truck for another
employer. after they hired him he picked up hitchhiker plaintiff and while she was asleep in his sleeper
compartment he raped her. plaintiff sued defendant for negligent hiring. In Illinois two duties are imposed
on owners of vehicles who permit or hire other persons to drive on our streets. 1 duty of reasonable care.
2 a duty to deny the entrustment of a vehicle to a driver it knows or by the exercise of reasonable diligence
could have known is incompetent. There is also a well settled cause of action in Illinois against any
employer for negligently hiring a person the employer knew or should have known was unfit for the job.
the issue was whether defendant had a duty under the circumstances to invest the guys non vehicular
criminal record and to verify his negative response regarding criminal offences. there is a duty and the
question on remand is whether that duty was negligently performed.
Employment discrinimation
title seven is on page 192-195.
McDonnell Douglas corp v. green – scotus, 1973, p.199, powell – this is the big daddy. Plaintiff is a longtime
activist in the civil rights movement worked as a mechanic and lab tech for defendant for eight years when
he was laid off in the course of a general reduction in defendant’s workforce but plaintiff alleged that his
discharge and the general hiring practices were racially motivated. plaintiff and other members of his
movement illegally stalled their cars on the main roads leading to defendant's plant in order to block
access to it at the time of the morning shift change. Later the position that plaintiff had held was
advertised and plaintiff applied and was turned down based on his participation in the stall in. plaintiff
filed a formal complaint with the EEOC claiming that defendant refused to rehire him because of his race
and persistent involvement in the civil rights movement in violation of section 703 a one and 704 a of the
Civil Rights Act of 1964. The prima facie case of discrimination under title 7 is established by showing: 1
that plaintiff belongs to a racial minority or protected class as enumerated in title 7. 2 that he applied and
was qualified for a job for which the employer was seeking applicants. 3 that, despite his qualifications,
he was rejected. 4 That, after his rejection, the position remained open and the employer continued to
seek applicants from persons of plaintiff’s qualifications. The burden then shifts to the defendant to show
some legitimate, nondiscriminatory reason for the employees rejection. The burden then shifts back to
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the plaintiff to show that this “legitimate nondiscriminatory reason” was a pretext for discrimination. This
case was remanded so that the plaintiff could have the opportunity to show pretext.
price Waterhouse v. Hopkins – 1989, scotus, brennan, p.204 - plaintiff was an exemplary employee
continually was refused have proposal or re proposal for partnership in the firm so she sued defendants
under title 7 charging that the firm had discriminated against her on the basis of sex. turn the basis of sex
and its decision guarding partnership hunter This is a mixed motive case and the critical inquiry is whether
gender was a factor in the employment decision at the moment the employment decision was made.
However unemployable shall not be liable if it can prove that even if it had not taken gender into account
it would have come to the same decision regarding a particular person. Remember that discrimination is
legal if the employer can show that gender or whatever is a bona fide occupational qualification or BFOQ.
Preston v. Wisconsin health fund – 2005, 7th circuit, p. 217 – p says he was discriminated against by d on
basis of sex when he was replaced by a woman. The woman allegedly was having an affair w the director,
and the court finds that p would have been replaced by this woman if p was a woman as well – it was not
his sex that caused his boss to fire him.
Walmart v. dukes – 2011, scotus, scalia’s dumb ass, p. 226 – p = huge class of women “one of the most
expansive classes ever” (which is how courts have gotten around this BAD CASE). Trying to get certified.
Court says they don’t have enough in common like suffering same injury in same way. Ps alleged there is
a corporate culture which trickles down to every store in the country allowing bias against women.
Walmart the corporation gives discretion to local supervisors over employment matters and the court
says that this policy is the opposite of a uniform employment practice that would provide the commonality
needed for a class action.
Harris v. forklift systems, inc – scotus, o’connor, 1993, p. 236 - Plaintiff was the manager add defendant
company throughout her time employed by defendant plaintiff was insulted by the president of the
company because her done cover plaintiff complaint and the president stopped for about a month and
after another month of harassment plaintiff quit then sued claiming that the president's conduct had
created an abusive work environment for her because of her gender. The issue before the court is whether
conduct to be actionable as abusive work environment hopper assment must seriously affect
psychological well being or lead the plaintiff to suffer injury. The answer is when the workplace is
permeated with discrimina Tori intimidation ridicule an insult that is sufficiently severe or pervasive to
alter the conditions of the victims employment and create an abusive working environment title seven is
violated. This standard takes a middle path between making actionable any conduct that is merely
offensive and requiring the conduct to cause a tangible psychological injury. Conduct that is not severe or
pervasive enough to create an objectively hostile or abusive work environment, environment that a
reasonable person would find hostile or abusive, is beyond title 7's purview title seven comes into play
before the harassing conduct leads to a nervous breakdown. Remand.
Oncale v. sundowner offshore services inc. – 1998, scotus, scalia, p. 241 - The question before the court is
whether workplace harassment can violate title 7's prohibition against discrimination because of sex when
the harasser and be harassed employee are of the same sex. Plaintiff was working on an oil platform in
the Gulf of Mexico he was forcibly subjected to sex related humiliating actions against him by his
coworkers in the presence of the rest of the crew. Plaintiff was also sodomized with a bar of soap and
threatened with rape and his complaints to supervisory personnel produced no remedial action. plaintiff
eventually quit asking that his pink slip reflects that he voluntarily left due to sexual harassment and verbal
abuse. Have the court held that title 7 is applicable to sexual harassment between members of the same
sex.
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Pennsylvania state police v. suders – 2004, p. 245, scotus, Ginsburg – p was harassed by a coworker a lot.
She was the secretary basically in the office. She quit before she ever reported her sexual harassment
claims internally. When a supervisor makes a workplace environment so hostile (through sexual
harassment) that an employee has no choice but to quit, may the employee bring suit even if she did not
use the internal procedures established by the employer to report sexual harassment claims? Yes. an
employee faced with a situation in which a "reasonable person ... would have felt compelled to resign"
could bring suit even if she had not filed a report with the employer before resigning. Her employer,
however, could use her failure to file a report, along with evidence of the safeguards it had in place to
prevent harassment, in its defense. If it could prove that she had not attempted to prevent the
harassment, and that the safeguards in place would have prevented it if she had, the employer would not
be liable.
Ezold v. wolf black – fed court in pa, 1990 –
Rogers v. American airlines – southern district of ny, 1981, p. 255 - plaintiff is a black woman who's seeks
damages and injunctive and declaratory relief against enforcement of a grooming policy of American
Airlines which prohibits employees from wearing braided hairstyles. The court said that the grooming
policy applies equally to members of all races and plaintiff does not allege that an all braided hairstyle is
worn exclusively or predominantly by black people it is also not an immutable characteristic. plaintiff
loses.
Smith v. city of salem, ohio – fed court, 2004, p. 259 - plaintiff is a firefighter. plaintiff is trans. after plaintiff
was diagnosed with gender dysphoria she began presenting more and more as a woman at work and
began receiving comments about her appearance. plaintiff told her boss but she was trans and her boss
met with the law director of the city of Salem to devise a plan to terminate the plaintiff because she is
trans. plaintiffs lawyer contacted defendant to advise that plaintiff had legal representation and would
take action if defendants terminated her. Defendant suspended plaintiff for one shift. The issues before
the court are whether the plaintiff properly alleged a claim of sex stereotyping under price Waterhouse
and whether p suffered an adverse employment action. Yes to both.
Jesperson v. harrah’s operating co. inc. – p. 265, 9th circuit, 2006 - defendant instituted a new dress code
at plaintiff's place of work a bar inside of a casino in Reno NV. Plaintiff took issue with the requirement
that women wear makeup because plaintiff does not wear makeup on or off work. plaintiff alleged but
the policy discriminated against women by subjecting them two terms and conditions of employment to
which men are not similarly subjected and requiring that women conform to sex based stereotypes as a
term and condition of employment. in order to prevail on an unequal burden theory under title 7 the
differentiation between the sexes in a grooming an appearance policy must create a significantly greater
burden of compliance. this is not a significantly greater burden on women because there are facial
appearance requirements for men that are similarly burdensome. as far as sex stereotyping goes this case
is devoid of any basis for permitting the claim to go forward as it is limited to the subjective reaction of a
single employee and there is no evidence of a stereotypical motivation on the part of the employer.
Back v. hastings on Hudson union free school district – 2nd circuit, 2004, p. 275 - plaintiff was employed by
defendant as a school psychologist. Plaintiff alleges that she was fired because the defendants presumed
that she as a young mother would not continue to demonstrate the necessary devotion to her job.
Defendants contend but plaintiff was fired because she lacked organizational and interpersonal skills.
Plaintiff got good reviews as an employee. plaintiff took three months of maternity leave and when she
returned her supervisor asked how she was planning on spacing her offspring, said please do not get
pregnant until I retire, and asked that she wait until her son was in kindergarten to have another child.
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Eventually she was fired. Have the issue before the court is whether she has alleged facts that can support
a finding of gender discrimination under the equal protection clause. This is not a title 7 case. Court rules
that Stereotypical remarks about the incompatibility of motherhood and employment can certainly be
evidence that gender played a part in an employment decision. Stereotyping of women as caregivers can
by itself and without more be evidence of an impermissible, sex-based motive.
Griggs v. duke power co. – 1971, p. 283, scotus, burger - until the enactment of the Civil Rights Act of 1964,
defendants had a practice of restricting black employees to its Labor Department where the highest
paying position paid less than the lowest paying position in the other departments. When the Civil Rights
Act took effect, Duke power added employment test which would allow employees without high school
diplomas to transfer to higher paying department. Black people were almost 10 times as likely than whites
to meet these new employment and transfer requirements. This is a disparate impact case, the first of its
kind. the court reasoned that black people have long received inferior education in segregated schools so
they are disparately impacted by the tests. In order for this kind of test to not be discriminatory, the
employer must show business necessity related to job performance. This test is a violation of title 7 under
a disparate impact theory.
Wilson v. southwest airlines – fed court in n. Texas, 1981, p. 304 - the issue before the court is whether
femininity is a bona fide occupational qualification for the jobs of flight attendant and ticket agent with
Southwest Airlines. This is a class of over 100 men challenging southwest open refusal to hire men as flight
attendants. Southwest Airlines rebranded itself as very sexy and flying you with love and the femininity
factor was part of that rebranding. Court: being a woman is not a necessary qualification to perform the
duties required of flight attendants and ticketing agents and that Southwest’s desire to continue their
successful marketing campaign was not a business necessity that trumped federal law.
Ferrill v. parker group, inc. – 11th circuit, 1999, p. 317 - defendant is a telephone marketing corporation an
most of its business is get out the vote calls for various political candidates. 10% of those calls are race
matched black voters are called by black employees who use a black script and white voters are called by
white employees who use a white script. allegedly this is only used when specifically requested by
customers. employees doing race matched calling were assigned separate calling areas. hello plaintiff was
hired to make race match to get out the vote calls and was laid off during a reduction in force immediately
after the election. Plaintiff sued under 42 USC 1981 alleging race discrimination in her termination and
job assignment. Plaintiff could not sue under title 7 because she was a temp employee and was not
actually employed by the defendant. Because she is suing under 42 USC 1981, she has to show
discriminatory intent. shall issue is whether a defendant who acts with no racial animus but makes job
assignments on the basis of race can be held liable for intentional discrimination under section 1981.
obviously the court says yes.
Yanowitz v. l’oreal USA, inc. – cal, 2006, p. 330 - plaintiff was a regional sales manager employed by
defendant. A male supervisor asked plaintiff to terminate a female sales associate who was not hot
enough and plaintiff refused. Following this she was subjected to heightened scrutiny and increasingly
hostile adverse treatment that undermined her relationship with the employees she supervised and
caused severe emotional distress that led her to leave her position. She sued under a California law which
forbids employers from retaliating against employees who have acted to protect the rights afforded by
the California fair employment and Housing Act. Under this law, a plaintiff must show (1) he or she
engaged in a protected activity, (2) the employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected activity and the employer's action. Once an
employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory
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reason for the adverse employment action. If the employer produces a legitimate reason for the adverse
employment action, the presumption of retaliation drops out of the picture, and the burden shifts back
to the employee to prove intentional retaliation. a trier of fact could find that the supervisor knew that
Yanowitz’ refusal to comply was based on Yanowitz’ belief that the order constituted discrimination on
the basis of sex, even though she did not explicitly say so. The court held that the proper standard for
defining an adverse employment action is whether the action materially affected the terms and conditions
of employment. The continuing violation doctrine is applicable to actions based on retaliation. Because
Yanowitz showed that the incidents of criticism occurred with sufficient frequency to constitute a
continuous and temporally related course of conduct and placed her career in jeopardy, she presented
sufficient prima facie evidence of an adverse employment action, as well as evidence that the employer's
articulated nonretaliatory reasons for its actions were pretextual.
Crawford v. metropolitan govt of Nashville – scotus, souter, 2009, p. 337 - title seven forbids retaliation
by employers against employees who report workplace race or gender discrimination. the question here
is whether this protection extends to an employee who speaks out about discrimination not on her own
initiative but in answering questions during an employers internal investigation. The answer is yes.
Burlington northern & Santa fe railway co. v. white – 2006, breyer, scotus, p. 341 – p hired primarily to
operate forklift. Supervisor and coworkers made comments ab how women shouldn’t work in this
department. She complained and the supervisor was suspended for 10 days and had to attend a sexual
harassment training session. P’s job assignment was changed. She filed a complaint with eeoc claiming
that her reassignment amounted to unlawful gender based discrimination and retaliation for her having
earlier complained about the harassment. Later she filed a second retaliation charge claiming that she
had been placed under surveillance and her daily activities were being monitored. In this case the standard
for retaliation against a sexual harassment complainant was revised to include any adverse employment
decision or treatment that would be likely to dissuade a "reasonable worker" from making or supporting
a charge of discrimination.
Ricci v. destefano - p. 349, kennedy, supreme court, 2009 - Twenty city firefighters at the New Haven Fire
Department,[1] nineteen white and one Hispanic, claimed discrimination under Title VII of the Civil Rights
Act of 1964 after they had passed the test for promotions to management positions and the city declined
to promote them. New Haven officials invalidated the test results because none of the black firefighters
who took it scored high enough to be considered for the positions. City officials said that they feared a
lawsuit over the test's disproportionate exclusion of certain racial groups from promotion under
"disparate impact" head of liability. Before an employer can engage in intentional discrimination for the
asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a
strong basis in evidence to believe that it will be subject to disparate-impact liability if it fails to take the
race-conscious, discriminatory action. Because New Haven failed to demonstrate such strong basis in
evidence, its action in discarding the tests violated Title VII.
Reed v. great lakes cos. – 7th circuit, 2003, p. 363 - plaintiff was employed by Great Lakes in a hotel and
one of his duties was to make sure that there were bibles from the gideons in every room. A few days
before the gideons showed up to deliver the bibles his boss said to him in a joking manner that they were
going to “pray with the gideons.” plaintiff understood that because it was his job to make sure there were
bibles in all of the rooms that he would be accompanying his boss to the meeting. They indeed prayed at
the meeting and plaintiff got up and left because he was offended by the religious character. His boss told
him not to do that again because it embarrassed him and plaintiff replied you cannot compel me to a
religious event and his boss replied you will do what you are told And plaintiff said oh hell no not when it
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comes to my spirituality and his boss fired him. Being deposed plaintiff refused to indicate what if any
religious beliefs or lack thereof he holds. his position was that title 7 forbids an employer to require an
employee to attend a religious meeting. That is incorrect. Title 7 forbids discrimination on the basis of
religion and nobody knows plaintiffs religion. Employers have a duty of accommodation to religious beliefs
so long as the duty does not create an undue burden (more than a de minimus cost) but employees cannot
redefine a purely personal preference or aversion as a religious belief.
Hosanna-tabor evangelical Lutheran church & school v. eeoc – Roberts, scotus, 2012, p. 372 - The
Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers
against their churches claiming termination in violation of employment discrimination laws. The plaintiff
was actually just a teacher at a religious school. The school classified teachers into two different categories
called teachers and lay teachers. Called teachers are regarded as having been called to their vocation by
God through a congregation and in order to be eligible a teacher must satisfy certain academic
requirements including completing a specific program on a Lutheran college. plaintiff started out as a lay
teacher and then became a called teacher. The court found she was a minister for title 7 purposes.
Fragante v. city & county of Honolulu – 9th circuit, 1990, p. 379. Plaintiff applied for a clerking job with the
city and county of Honolulu. He was not selected because of a perceived deficiency in oral communication
skills caused by his heavy Filipino accent. The court affirmed the dismissal of Fragante’s complaint because
defendants' failure to hire him was explained by his deficiencies in the area of oral communication and
was not caused by his national origin. The court found that Fragante’s inability to communicate effectively
was a valid ground for finding him not qualified and that there was no pretext of invidious discrimination.
An adverse employment decision may be predicated upon an individual's accent when, but only when, it
interferes materially with job performance. There is nothing improper about an employer making such an
honest assessment of the oral communications skills of a candidate for a job when such skills are
reasonably related to job performance.
Smith v. city of Jackson – scotus, stevens, 2005, p. 389 - plaintiffs are cops over the age of 40 suing under
the age discrimination in employment act. They allege the department salary plan which gave officers
with five or less years of tenure within the department larger raises than those with more than five years
of tenure violates the ADEA under a disparate impact theory. The issue before the court is whether the
ADEA is actionable under the disparate impact theory. Yes - ADEA authorized recovery in disparate-impact
cases, but that in this case petitioners failed to set forth a valid claim. ADEA was narrower than Title VII
and allowed an otherwise prohibited action where the discrimination was based on reasonable factors
other than age. The employees in this case failed to identify any specific practice within the pay plan that
had an adverse impact on older workers. Further, the city's plan was based on reasonable factors other
than age.
Garcia v. spun steak – 9th circuit, 1993 –
Sutton v. united airlines – scotus, o’connor, 1999, p.397 - plaintiffs are identical twins who are nearsighted.
United Airlines requires its commercial airline pilots to have vision which is at least 20/100 so the twins
were not hired. They sued under the Americans with Disabilities act of 1990 claiming that they were
disabled within the meaning of the ABA either because they suffered from a physical impairment that
substantially limits major life activities or because they were regarded as having such an impairment. The
issues before the court were whether the determination of disability should be made without reference
to corrective measures that mitigate the impairment and weather poor vision is an impairment that
substantially limits the plaintiffs in a major life activity. Determination of disability under the ADA should
be made in reference to an individual's ability to mitigate his or her impairment through corrective
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measures. This reading is in harmony with the statutory language and history of the ADA because (1) the
phrase "substantially limits" requires consideration of present, not future or hypothetical, impairment;
(2) the ADA calls for individualized assessments of impairment; and (3) Congress found that approximately
43 million Americans were disabled, a number that would be far too low if Congress had meant to include
all those with correctable impairments. Also, assuming without deciding that working is a major life
activity for purposes of the ADA, poor vision cannot be regarded as a substantially limiting impairment
because it has only foreclosed the Suttons from pursuing work as "global airline pilots," not from
numerous other positions in the aviation industry.
. – 7th circuit, 2007, p. 407 – eeoc is the plaintiff bc they brought the suit on behalf of the guy but I’m gonna
call the guy plaintiff. Plaintiff is a truck driver who drove 1,000,000 miles for defendant company without
an avoidable accident before he was diagnosed with a syncope disorder causing him too faint suddenly.
Defendant has a policy of not hiring people who have this disorder so they dismissed him. plaintiff got
another job with another trucking company. defendant company previously employed somebody with
this disorder who was involved in a fatal accident. The court held that the defendant company is entitled
to determine how much risk is too great for it to be willing to take. the fact that another employer and
the worker himself are willing to assume a risk does not compel the worker's current employer to do
likewise.
Lyons v. legal aid society – 2nd circuit, 1995, p. 411 - plaintiff was in a terrible car accident hello and she
almost died. She took about four years of disability leave from her employer. plaintiff's condition
continues to severely limit her ability to walk long distance either at one time or during the course of a
day have so she requested defendant to accommodate her disability by paying for a parking space near
her office and the courts in which she would practice. Defendant refused so plaintiff has spent 15 to 26%
of her monthly salary for parking space. Plaintiff also requested seniority increases for the entire 4 1/2
years of her disability leave but defendant offered seniority increases for just one year. The district court,
holding that the federal disability statutes imposed no such duty, dismissed Lyons's federal claims
pursuant to FRCP 12(b)(6) for failure to state a claim on which relief can be granted. On appeal, Lyons
contended that the complaint sufficiently stated claims on which relief can be granted under the federal
statutes and that the reasonableness of the requested accommodation was a fact question that could not
be decided without development of the record and pretrial discovery. Under either the Americans with
Disabilities Act, a plaintiff can state a claim for discrimination based upon her employer's failure to
accommodate her handicap by alleging facts showing that the employer is subject to the statute under
which the claim is brought, that she is an individual with a disability within the meaning of the statute in
question, that, with or without reasonable accommodation, she could perform the essential functions of
the job, and that the employer had notice of the plaintiff's disability and failed to provide such
accommodation.
Kelley v. johnson- scotus, rhenquist, p.602 - A county regulation limiting the length of county policemen's
hair held not to violate any right guaranteed respondent policeman by the Fourteenth Amendment.
Respondent sought the protection of the Fourteenth Amendment, not as an ordinary citizen, but as a law
enforcement employee of the county, a subdivision of the State, and this distinction is one of considerable
significance, since a State has wider latitude and notably different interests in imposing restrictive
regulations on its employees than it does in regulating the citizenry at large. Choice of organization, dress,
and equipment for law enforcement personnel is entitled to the same sort of presumption of legislative
validity as are state choices to promote other aims within the cognizance of the State's police power. Thus,
the question is not whether the State can "establish" a "genuine public need" for the specific regulation,
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but whether respondent can demonstrate that there is no rational connection between the regulation,
based as it is on the county's method of organizing its police force, and the promotion of safety of persons
and property.
Cloutier v. Costco wholesale corp. – 1st circuit, 2004, p. 608 - plaintiff alleges she was discriminated against
on the basis of religion because of the no facial jewelry provision of defendant's dress code and plaintiff
claims to be a member of the Church of body modification. Plaintiff says the only reasonable
accommodation would be exemption from the no facial jewelry policy. An accommodation is an undue
hardship if it would impose more than a de minimus cast on the employer. Costco wants its employees to
look presentable and professional so that they will be appealing to the public. the court holds but
exempting plaintiff from the dress code would impose more than a de minimis burden.
Eeoc v. Abercrombie and fitch stores, inc. – scotus, 2015, scalia - plaintiff applied for a job and was not
hired because she wears a hijab. defendant has a dress code that bars all headwear. Defendant did not
higher plaintiff in order to avoid providing An accommodation for her religious belief. Need more. Started
reading the book version which is from before scotus made this decision.
Privacy
Bodewig v. kmart – Oregon app, 1981, p. 620 - this is a tort action for outrageous conduct. Plaintiff is a
teenager working as a cashier at Kmart when a customer accuses her of stealing a few dollars. The
manager, instead of having the customer look into her purse to see if the dollars are there, searches
plaintiff's jacket and allows the customer to watch plaintiff undress. No dollars found. Customer Have
them be entire time. Plaintiff went back to work the next day and even though she did not steal any money
she was no longer allowed to have her own cash register. She ended up quitting. plaintiff sued Kmart and
the customer both moved for summary judgment both motions were granted plaintiff appealed. The tort
of outrageous conduct requires intent if there is no special relationship. Liability can be imposed on Kmart
because as her employer there was a special relationship, and the customer’s conduct was clearly have
deliberately aimed at causing plaintiff emotional distress. Emotional Distress is another element of the
outrageous tort claim.
Hernandez v. hillsides, inc. – cal, 2009, p. 626 – defendant is a private nonprofit residential facility for
neglected and abused children plaintiffs are the employees who sued claiming that defendants violated
their rights of privacy by installing a hidden camera in their office. the camera had been installed because
a manager found that have a computer in the plaintiffs offices had been used to see porn late at night
after the plaintiffs had left. The issues before the court were weather installing a hidden camera without
the plaintiffs knowledge intruded on plaintiffs privacy and if so whether the intrusion was highly offensive
and sufficiently serious to constitute a privacy violation. The court found that it was a violation of their
privacy but not offensive enough. Any actual surveillance was drastically limited in nature and scope,
exempting plaintiffs from its reach, and defendants were motivated by strong countervailing concerns,
which included providing a wholesome environment for the abused children in their care and avoiding
legal liability.
Bostock v. clayton city, Georgia –
City of Ontario v. quon – scotus, kennedy, 2010, p. 633 - plaintiff is a swat team member and the city got
pagers and plaintiff was using the pager like crazy for personal things. everyone who got a pager was
allotted a certain amount of messages each month and if they went over that amount they could pay for
them but it cost a lot of administrative time to collect bills every month so they looked at what he was
using it for and it was overwhelmingly not work related. The issue before the court is whether a city
employee has a reasonable expectation of privacy in messages transmitted on his city issued pager when
9
the Police Department has no official privacy policy for the pagers. The court held that the City of Ontario
did not violate its employees' Fourth Amendment rights because the city's search of p’s text messages
was reasonable. the Court reasoned that even assuming that p had a reasonable expectation of privacy in
his text messages, the city's search of them was reasonable because it was motivated by a legitimate
work-related purpose and was not excessive in scope.
Freedom of expression
Rankion v. mcpherson – 1987 - plaintiff was fired because Ronald Reagan got shot and she said if they go
for him again I hope they get him. Plaintiff with a clerical employee who did not not serve a "confidential,
policymaking, or public contact" role, diminishing the impact of her speech on the agency's proper
functioning. she thought only the one other person in her office could hear her but another coworker over
heard and reported her. The issue before the court is whether her discharge was an infringement of her
freedom of speech. The court held that plaintiff's statement when considered in context plainly dealt with
a matter of public concern. the court found that there was no evidence that plaintiffs speech interfered
with "the efficient functioning of the office" and that her private comment had not discredited the office.
Garcetti v. Ceballos – scotus, kennedy, 2006, p. 650 – plaintiff hello was an employee of the LA DA office
and found that a sheriff lied in a search warrant affidavit. Plaintiff informed the prosecutors on the case
but they refused to dismiss the case so he told the defense attorney and the defense attorney subpoenaed
him to testify. He was fired from his job. He sued have alleging that the DA retaliated against him for his
cooperation with the defense which he argued was protected by the 1st amendment. The issue before
the court is weather a public employees purely job related speech expressed strictly pursuant to the duties
of employment be protected by the First Amendment simply because it touched on a matter of public
concern. The court held that speech by a public official is only protected if it is engaged in as a private
citizen, not if it is expressed as part of the official's public duties. Ceballos's employers were justified in
taking action against him based on his testimony and cooperation with the defense, therefore, because it
happened as part of his official duties.
curay-cramer v. Ursuline academy– 2006, 3rd circuit, p. 659 – plaintiff was fired after signing her name to
a pro choice advertisement in the newspaper. Plaintiff asserted that her conduct was protected by the
anti retaliation provision of title 7 and that she was fired for conduct less egregious under Catholic
doctrine than conduct of male employees who were treated less harshly. the issue before the court is
whether the plaintiff engaged in protected activity when she signed the pro choice agreement. The court
agreed that basic pro-choice advocacy did not constitute opposition to an illegal employment practice.
The court found Title VII's anti-retaliation provisions only protected employees who participated in Title
VII's statutory processes or who otherwise opposed employment practices made illegal by Title VII. The
court concluded that Curay-Cramer did not engage in protected activity when she signed a pro-choice
advertisement that did not mention employment, employers, pregnancy discrimination, or even gender
discrimination. The court would will not apply Title VII to Curay-Cramer’s claim because Congress had not
demonstrated a clear expression of an affirmative intention that the court do so in situations where it was
impossible to avoid inquiry into a religious employer's religious mission or the plausibility of its religious
justification for an employment decision.
bullying
Madani v. kendall ford – Oregon, 1991, 666 – plaintiff sues for wrongful discharge and intentional infliction
of severe emotional distress. defendant told plaintiff to pull down his pants and expose his butt balls and
dick to defendant and others. when he refused, he was fired. the court said that it was improperly pled
so it dismisses both claims. it seems like the court intentionally misread the complaint.
10
Collective action
NLRB v. Washington alum. Co. – scotus, black, 1962, p. 671 – plaintiffs were working in a factory in
Baltimore it was freezing cold and the furnace stopped working. The employees decided to leave and they
were all fired. The National Labor Relations board have found that it was a protected form of protest
under the National Labor relation act which protects the rights of workers regardless of whether they are
in a union to engage in Group activity to improve their working conditions. on appeal the circuit court
ruled but the walkout was not protected because the employees did not make a specific demand to their
employer. Scotus disagreed. the language defining protected concerted activity "is broad enough to
protect concerted activities whether they take place before, after, or at the same time such a demand is
made." The opinion also ruled that the workers' prior complaints about temperature in the winter
constituted a labor dispute as defined by the National Labor Relations Act
privacy
Rulon miller v. IBM corp – cal app, 1984, p. 675 - Plaintiff with a low level marketing manager for a
defendant and was in a relationship with a person who worked for a competitor so defendant fired her.
She sued for wrongful discharge. The company had a policy that insured employees rights to hold a job
despite off the job behavior. Plaintiff did not even have access to confidential information and could not
have conveyed such to a competitor thus the discharge was made in bad faith. The court even awarded
punitive damages for emotional distress because the conduct of defendant was so outrageous and
extreme. P also had a contractual right to be free from IBM poking into her life. These implied rights flowed
from her employer policy. The court reasoned that an employer cannot dangle a nice policy in front of an
employee and take it back when it is convenient for the employer.
Nelson v. mcclatchy newspapers, inc. -1997, Washington, p. 681 - plaintiff was a reporter but also a
political activist for gay and women rights movements. defendant transferred plaintiff to an editing job
with no reporting duties because her political activities violated the code of ethics and threatened the
newspaper's credibility with its readers. plaintiff sued alleging that this violated her right which arises from
a Washington state law which prevents employers and labor organizations from discriminating against an
employee on the terms or conditions of employment over who they support politically. and get this! The
court actually holds that this Washington law violates the newspaper's right to freedom of the press.
Because newspapers want to appear unbiased. That's so ******* stupid. and **** Microsoft Word for
******* censoring my ******* language.
Chamber v. Omaha girls club – 8th circuit, 1987, p. 689 - plaintiff was fired for being a Teen Mom because
they have a rule model rule. The issue therefore is whether the role model rule is an employment practice
that is consistent with title 7 because it is justifiable as a business is organicity for a bona fide occupational
qualification. the court, because they hate black women, ruled against the plaintiff.
Bard v bath iron works corp – maine, 1991, p. 847 – plaintiff sued for retaliatory discharge and violation
of the whistleblowers protection act, breach of employment contract, wrongful discharge, and breach of
implied covenant of good faith and fair dealing. plaintiff discovered what he believed to be flaws in the
company's quality assurance process and feared that those practices were contrary to provisions in the
contracts with the United states Navy. Plaintiff was discharged for deliberately restricting output in
creating a nuisance. The whistleblower protection act provides but no employer may discharge, threaten
or otherwise discriminate against an employee regarding the employees compensation, terms,
conditions, location or privileges of employment because the employee, acting in good faith, or a person
acting on behalf of the employee, reports orally or in writing to the employer or a public body what the
employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this
11
state a political subdivision of this state or the United states. Plaintiff contended that the clause of the
contract was also a specific federal regulation. He contends alternatively that he need only have a good
faith belief that defendant had violated some rule or law. To establish a prima facie case of reprisal for
whistle blowing requires that the employee show that he engaged in activity protected by the statute, he
was the subject of adverse employment action and there was a causal link between the protected activity
and the adverse employment action.
Goetz v. Windsor central school district – 2nd circuit, 1983, p. 851 - plaintiff was hired as a janitor. After he
had been employed for a year a series of thefts occurred at the offices. Plaintiff was arrested and charged
with third degree burglary. Plaintiff was suspended for his alleged participation. Have the school sent
plaintiff a letter asking for an explanation and he never responded. Plaintiff was fired. plaintiff sued the
school for depriving him of his property and liberty interests without due process of law. Plaintiff need to
have a property interest in order to invoke the 14th amendment protection of due process and property
interests are defined by existing rules or understandings that stem from an independent source such as
state law - have rules or understandings that secure certain benefits and that support claims of
entitlement to those benefits. Have a property interest in employment can be created by local ordinance
or by implied contract. New York State civil service law have provides that after five years of service
unskilled laborers may only be removed for incompetency or misconduct and must be afforded a hearing
before removal. As an unskilled laborer with less than five years of service plaintiff's position was one
terminable at will. As for his liberty interest, Have a liberty interest is implicated and a name clearing
hearing required where an employer creates and disseminates a false and defamatory impression about
an employee in connection with the employees termination. This is a question of fact that cannot be
resolved on a motion for summary judgment which is what this is. Further, the court held plaintiff's failure
to take advantage of the opportunity to provide an explanation for his alleged involvement in this affair
does not constitute a waiver of his right to assert a due process claim.
Marcy v. delta airlines – 9th circuit, 1999, p. 859 – Montana prohibits private employers from firing
employees if the action was without good cause as defined in the statute or if the action was in violation
of public policy or in violation of the express provisions of the employers own written personal property.
the issue before the court is whether that law provides A cause of action to an employee discharged by
her employer for a reason based on mistaken facts but where the employer exercised good faith in
reaching its decision.
Contract stuff
Gordon v. matthew bender & co. – fed court in Illinois, 1983, p. 865 - Joel Gordon (plaintiff) was hired as
a law-book sales representative for Matthew Bender & Company, Inc. (MB Co.) (defendant). Gordon’s
employment agreement did not indicate the duration of the employment period. Although Gordon
initially met or exceeded his sales goals, he later received a letter from MB Co. placing him on probationary
status. This letter informed Gordon that he would be restored to the same status of acceptable sales
performance if he met his sales goals. When Gordon failed to meet his sales goals, MB Co. terminated his
employment. Gordon sued MB Co. for breach of his employment contract. Gordon alleged that the
probationary letter transformed his at-will contract into a contract for continuous employment based on
acceptable sales performance. Gordon claimed that the termination was a breach of his contract because
his performance had been acceptable. MB Co. moved to dismiss on the ground that Gordon’s employment
was at will. Does satisfactory performance language in an employment contract transform at-will
employment into employment that can only be terminated for cause? Satisfactory performance language
in an employment contract does not transform at-will employment into employment that can only be
12
terminated for cause. Generally, an employment contract for an unspecified duration is at will and is
therefore terminable at any time at the will of either party for any reason. Language in an at-will
employment contract conditioning employment on satisfactory or acceptable performance does not
affect the at-will relationship. Here, Gordon’s employment agreement does not specify the duration of
employment and is therefore an at-will employment contract. The language in Gordon’s probationary
letter referencing acceptable sales performance did not prevent either party from terminating the
employment relationship at any time and for any reason. Therefore, MB Co.’s termination of Gordon did
not violate the employment contract. Satisfactory performance language in an employment contract does
not transform at-will employment into employment that can only be terminated for cause.
Scribner v. Worldcom, Inc. – 9th circuit, 2001, p. 868 - Beginning in 1994, Donald Scribner (plaintiff) was
the vice president of the operator-services division of WorldCom, Inc. (WorldCom) (defendant).
WorldCom granted Scribner stock options that were to vest at a future date. According to WorldCom’s
stock-option plan (Plan) and stock-option contract with Scribner, his stock options were to immediately
vest if WorldCom terminated his employment without cause. Neither the Plan nor the contract defined
“without cause.” The Plan gave WorldCom’s board of directors (Board) broad discretion to determine
whether a termination was with or without cause. In 1996, WorldCom terminated Scribner’s employment
as a result of WorldCom’s sale of the operator-services division. Because the purchaser wanted to hire
the essential employees who were in charge of the division, including for Scribner’s position, WorldCom
agreed to terminate those employees. Scribner believed his termination was without cause and sought to
exercise his stock options. Although WorldCom did not terminate Scribner based on his performance,
WorldCom considered Scribner’s termination to be for cause for the purposes of the stock-option
contract. Scribner sued WorldCom, and the district court granted summary judgment in favor of
WorldCom. Scribner appealed. The phrase “termination without cause” in the employment context
ordinarily relates to an employee’s performance. In interpreting the meaning of “without cause” in a
stock-option contract, courts will look to the language of the contract, the context in which the contract
was drafted, and the subsequent dealings of the parties. Here, these factors show that the term “cause”
relates to performance and that termination without cause refers to a termination not due to the fault of
the employee. WorldCom concedes that its discharge of Scribner was unrelated to his performance.
Scribner’s termination was therefore without cause for the purposes of the stock-option contract.
Although the Board has broad discretion to determine whether a termination is for performance-related
reasons, the Board does not have unfettered discretion to redefine the meaning of “without cause,” such
that Scribner’s reasonable expectations would be frustrated. Because Scribner was terminated without
cause, the district court granted summary judgment to WorldCom in error. Accordingly, the judgment of
the district court is reversed. Termination without cause in the employment context ordinarily relates to
an employee’s performance.
Pugh v. See’s Candies, Inc. – cal app, 1981, p. 873 - Wayne Pugh (plaintiff) began working for See’s Candies,
Inc. (See’s) (defendant) in January 1941. Pugh began working as a dishwasher and received several
promotions until 1971, when he became the vice president in charge of production. In 1972, Pugh
received a gold watch from See’s in recognition of his 31 years of service. In 1972, Pugh oversaw the most
successful Christmas season in See’s history. In 1973, See’s set a sales record over the Valentine’s Day
holiday. In June 1973, See’s terminated Pugh’s employment without explanation. Until then, Pugh had
received no formal criticism regarding his work. When Pugh first started working for See’s, the thenpresident of See’s had repeatedly said that if Pugh was loyal to See’s and worked hard, Pugh’s future at
See’s would be secure. Two subsequent See’s presidents had a known practice of not terminating
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administrative personnel without good cause. Pugh sued See’s for breach of contract, alleging that See’s
had wrongfully terminated Pugh’s employment upon the urging of a labor union (defendant) with which
Pugh had friction. The union was joined in the case as a defendant for its alleged involvement in the
conduct. The defendants moved for nonsuit. The trial court granted the defendants’ motion. Pugh
appealed. Under employment law, may an employer discharge an employee in violation of an implied
promise for continued employment? No. Under employment law, an employer may not discharge an
employee in violation of an implied promise for continued employment. An employer’s right to terminate
an employee is subject to two limitations. First, the discharge must not be in violation of public policy.
Second, the discharge must not conflict with the terms of the employment agreement. Although there is
a presumption that an employment agreement is terminable at will, this presumption may be rebutted
by evidence of a promise, whether express or implied in fact, for continued employment. In determining
whether an implied-in-fact promise for continued employment exists, courts look to the personnel
policies of the employer, the length of employment, any acts or communications of the employer
suggesting continued employment, and industry practice. Here, Pugh worked for See’s for over 30 years.
Pugh received numerous promotions and commendations for his work and never received formal criticism
regarding his work. Pugh was told by a former president of See’s that if he worked hard and was loyal, his
future at See’s would be secure. Furthermore, two subsequent See’s presidents adhered to the practice
of not terminating the employments of administrative personnel without cause. Under the totality of the
circumstances, a jury could have found that an implied-in-fact promise for continued employment existed.
Moreover, the record has not been sufficiently developed with respect to Pugh’s claim that the labor
union induced the wrongful conduct by See’s. Therefore, the trial court’s grant of the defendants’ nonsuit
motion was in error. The judgment of the trial court is reversed. Under employment law, an employer
may not discharge an employee in violation of an implied promise for continued employment.
Wooolley v. Hoffman la roche, inc. – NJ, 1985, p. 879 - Beginning in 1969, Richard Woolley (plaintiff) was
employed as an engineering-section head for Hoffmann-La Roche, Inc. (Hoffmann) (defendant). Woolley
did not have an employment contract with Hoffmann. In December 1969, Woolley received Hoffmann’s
Personnel Policy Manual (manual). The manual included a termination clause, providing that employees
would only be fired for cause, and setting forth a specific procedure to attempt to rehabilitate employees
before resorting to termination. Hoffmann distributed the manual to all of its employees. In 1978,
Hoffmann lost confidence in Woolley after discovering piping problems. Hoffmann terminated Woolley’s
employment without following the procedures outlined in the manual. Woolley sued Hoffmann for breach
of contract, alleging that the termination clause in the manual constituted a binding provision that
prevented Hoffmann from terminating Woolley’s employment without cause. Hoffmann argued that the
termination provision was not contractually binding and that Woolley could be fired without cause
because he was an at-will employee. The trial court granted summary judgment in favor of Hoffmann. The
appellate division affirmed. Woolley appealed. Court: Under employment law, an implied promise in an
employment manual may transform at-will employment into employment that can only be terminated
for cause. If an employment manual can reasonably be construed by an employee to be legally binding,
the manual is considered an offer for a unilateral contract. The bargained-for action sought by the
employer is the employee’s continued employment, which the employee otherwise has no obligation to
continue. By continuing employment, the employee accepts the offer and thereby creates a unilateral
contract. Here, in the absence of an employment agreement, Hoffmann’s manual was the only written
expression of the terms and conditions of Woolley’s employment. Woolley thus reasonably believed that
the termination provision in the manual was legally binding. Consequently, Hoffmann’s manual
14
constituted an offer that was accepted by Woolley’s continued employment. The termination provision is
therefore legally binding, unless there is a prominent disclaimer stating that Hoffmann did not intend for
the provisions of the manual to be binding. For these reasons, the judgment of the appellate division is
reversed, and the case is remanded. [Editor’s Note: Hoffman subsequently filed a motion for clarification,
and the court issued an order modifying the judgment, 499 A.2d 515 (1985), to allow Hoffman to attempt
to prove on remand that Hoffman did not violate the termination provision and had good cause to
terminate Woolley.] Under employment law, an implied promise in an employment manual may
transform at-will employment into employment that can only be terminated for cause.
Russel v. board of cnty commissioners – Oklahoma, 1997, p. 888 - Under employment law, an employee
handbook may form the basis of an implied contract between an employer and an employee. An
employee handbook forms the basis of an implied contract if: (1) the contract is between competent
parties, (2) there is consent, (3) there is a legal object, and (4) there is consideration. The promises in the
handbook must be sufficiently definite to create an implied contract. An employer may disclaim an intent
for the provisions of a handbook to constitute contractual obligations. However, the disclaimer must be
clear. Moreover, any conduct by the employer that is inconsistent with the disclaimer may have the effect
of negating the disclaimer. Here, the handbook includes a disclaimer stating that the provisions of the
handbook will not form part of the employees’ employment contracts. However, the language in the
overtime provision clearly states that employees are entitled to overtime pay. Furthermore, some
employees in the sheriff’s office did in fact receive overtime pay pursuant to the handbook. Consequently,
there is a material issue of fact as to whether the Board’s disclaimer was negated by the Board’s conduct.
Additionally, there is a material issue of fact as to whether the deputies qualify as law-enforcement
personnel and are thus entitled to overtime pay under the handbook. Remand.
Fortune v. national cash register co. – Massachusetts, 1977, p. 891 - Generally, an at will employment
contract may be terminated by either the employer or employee without cause. However, where an
employer’s termination of an at will employee is motivated by bad faith or malice, such termination
constitutes a breach of the employment contract. Here, NCR’s termination of Fortune’s position as a
salesman immediately after a $5 million order was secured within Fortune’s territory supports an
inference that NCR was attempting to withhold as much of Fortune’s bonus credit as possible. Such an
action constitutes bad faith and is a breach of the employment contract. Therefore, the judgment of the
Superior Court is affirmed.
Tort exceptions to at will
Cleary v. American airlines – cal app, 1980, p. 897 - American Airlines had a regulation setting forth
procedures for employee grievances and discharges. Specifically, the regulation provided that employees
would only be discharged for just cause, and afforded employees an objective hearing to challenge any
suspensions or discharges. Under California employment law, there is an implied duty of good faith and
fair dealing in all employment contracts. An at-will employment contract may be terminated at the will of
either party at any time and for any reason. However, an implied contractual right to job security may
arise in an at-will employment relationship. In determining whether this implied right exists, relevant
factors include the existence of separate consideration, the common law of the job, and the longevity of
the employment. All employment contracts include an implied duty of good faith and fair dealing,
pursuant to which employers are obligated to not act in a manner that would deprive an employee of
accrued benefits, whether express or implied. Here, Cleary worked for American Airlines for 18 years and
satisfactorily performed his duties. Consequently, a duty arose on the part of American Airlines to not
deprive Cleary of his employment without legal cause after the long period of employment. Furthermore,
15
American Airlines’ own policy recognizes its duty of good faith and fair dealing toward all employees by
establishing procedural protections from suspension and discharge. Cleary’s longevity of service and
American Airlines’ policy, taken together, prevent American Airlines from discharging Cleary without good
cause.
Foley v. interactive data corp – cal, 1988, p. 899 – guy told his big boss about his new supervisor being
investigated for embezzlement by the fbi. Under California law, absent evidence of an agreement to the
contrary, an employment relationship is presumed to be “at will,” meaning that either party may
terminate the relationship at any time. An employer’s ability to fire an at-will employee may be limited in
some cases by public policy concerns. For example, an employee may not be fired for refusing to commit
a crime. However, where only private interests are at stake, this exception to at-will termination does not
apply. Alternatively, the presumption that an employment relationship is at-will may be overcome by
evidence that the parties intended for termination to occur only for cause. Such evidence may include
oral assurances that the employee has job security, positive feedback such as bonuses and promotions,
employer policies regarding termination, and the existence of a non-compete agreement. Finally, in
limited circumstances, termination may constitute a tortious breach of the implied covenant of good faith
and fair dealing. Breach of contract normally gives rise only to contract damages, not a tort claim.
However, in unique situations like the insurance market, tort damages may be appropriate, because badfaith breach by the insurer undermines public confidence. In this case, Foley’s termination does not
implicate public policy concerns, but it may have violated an implied employment contract. Because
Foley’s act of whistleblowing was intended to protect IDC’s interest only, and not the broader public
interest, the public policy exception is not implicated. An implied contract may supersede the at-will
presumption here, however. Foley asserts that he was personally assured that he would not be
terminated. This is supported by the length of Foley’s employment, his bonuses and promotions, and by
the existence of a company policy mandating seven steps be taken before termination. At the pleadings
stage, Foley’s factual assertions are assumed to be true. Under that standard, he has adequately stated a
claim that his termination breached an implied contract. He is not, however, entitled to tort damages for
breach of the implied covenant of good faith and fair dealing. An employment contract is not analogous
to an insurance contract. When an insurer fails to honor a claim, the insured cannot seek another
insurance company to pay the benefit, because the injury has already occurred. A terminated employee,
by contrast, can go seek another job. Because Foley has stated a claim for breach of contract, the decision
of the trial court dismissing that claim is reversed and the case is remanded for further consideration.
Guz v. Bechtel nat’l inc – cal, 2000, p. 909 - Under California employment law, the implied covenant of
good faith and fair dealing does not impose substantive terms and conditions of employment beyond
what was actually agreed to by the parties. California Labor Code section 2922 states that an employment
contract with no specified term is presumed to be a contract for at-will employment. This means that the
employment relationship may be terminated by either party at any time and for any reason. However,
the parties are free to agree to limitations on the employer’s right to terminate the employment. This can
be done either impliedly based on the parties’ conduct, or expressly. In determining whether there is an
implied contract limiting an employer’s right to terminate, courts examine the employer’s personnel
policies or practices, the employee’s length of service, the employer’s actions, and the industry practice.
Once contract terms are established, whether express or implied, there is an implied covenant of good
faith and fair dealing that requires both parties to refrain from unfairly denying the other party of the
benefits of the contract. Here, Personnel Policy 1101 raises an issue of fact as to whether Guz had an
implied right to only be terminated for cause. However, Personnel Policy 1101 placed no restriction on
16
Bechtel’s right to eliminate Guz’s work unit. Guz’s longevity of service and Bechtel’s apparent approval of
Guz’s work, without more, are insufficient to provide Guz with protection against layoffs resulting from
the elimination of his work unit. Because Bechtel and Guz did not have an implied contract restricting
Bechtel’s right to eliminate Guz’s work unit, Guz’s breach-of-contract claim fails. Moreover, because the
covenant of good faith and fair dealing does not impose substantive duties beyond what the parties have
actually agreed to, Guz’s argument that he was entitled to additional protections under this covenant also
fails. Therefore, the judgment of the court of appeal is reversed.
Gantt v. sentry insurance – cal, 1992, p 917 - Under California employment law, a court in a wrongfuldischarge action may not declare public policy that is not based on the state constitution or a state
statutory provision. Generally, an employer may discharge an at-will employee at any time and for any
reason. However, there is an exception to the at-will employment rule if the discharge violates public
policy. An employer may not discharge an employee for performing an act encouraged by public policy or
for refusing to perform an act discouraged by public policy. The public policy relied upon must affect
society at large and be fundamental, substantial, and well-established. By limiting the public-policy
exception to clearly defined public policy found in the constitution or in statutory provisions, courts strike
a proper balance between the interests of employers, employees, and society in general. California statute
prohibits the obstruction of a DFEH investigation and defines this conduct as a misdemeanor. Thus, there
is a clear public interest in protecting employees who cooperate with investigations of sexual harassment
in the workplace. Here, there is sufficient evidence to establish that Sentry discharged Gantt in retaliation
for his refusal to lie to the DFEH investigator. This conduct is contrary to California’s public policy in favor
of encouraging employees to cooperate with DFEH investigations. Because the public policy at issue is
based on a state statutory provision, Gantt has made a valid claim for a wrongful discharge in violation of
public policy.
Arres v. IMI Cornelius remcor, inc. – 7th circuit, 2003, p. 922 – lady doesn’t do what boss tells her on advice
from lawyers and the literal IRS about employees potentially fake SSNs. Under employment law, a state
may not declare public policy that is inconsistent with federal immigration laws. Immigration laws are
exclusively within the purview of the federal government. Congress alone can determine whether an
employee’s interpretation of federal immigration policy is entitled to anti-retaliation protection. Here,
significantly, Congress has not provided for anti-retaliation protection for employees in Arres’s position,
but has provided for anti-retaliation protection in other contexts. This court may not ignore this
distinction, and therefore must reject Arres’s claim for retaliatory discharge. Furthermore, Remcor was
entitled to follow the reasonable advice of the SSA and its own counsel. Arres was not at liberty to impose
her own interpretation of federal law, and her refusal to implement Remcor’s approach constituted
insubordination. For these reasons, Arres’s claim of retaliatory discharge fails.
Hansen v. aol – 2004, Utah, p. 925 – employees had guns in their cars and switched them between cars in
the parking lot and aol had strict no gun policy on the whole premises. Fired. Argued right to have guns
was public policy. Under employment law, the public-policy exception to the at-will employment rule does
not apply if the public policy is not clear and substantial. Generally, an employer may terminate an at-will
employee at any time and for any reason. However, employers may not discharge employees in violation
of clear and substantial public policy. Because the at-will employment rule provides stability and
predictability to employers and employees, an exception based on public policy to the at-will employment
rule is narrowly construed by courts. This court has recognized four categories in which the public-policy
exception is applied: (1) where an employee refuses to commit an illegal or wrongful act, (2) where an
employee performs a public obligation, (3) where an employee exercises a legal right or privilege, or (4)
17
where an employee reports the criminal activity of the employer to a public authority. In determining
whether public policy protects an employee’s exercise of a legal claim or right, courts must balance the
interest of the employer in regulating the workplace with the interest of the employee in exercising his or
her statutory and constitutional rights. In Utah, the legislature has enacted legislation restricting the sale
and possession of firearms. The legislative history shows that the right to bear arms is not paramount.
Rather, the legislature has indicated that private-property rights should prevail over the right to bear
arms. Consequently, this court cannot find a public policy protecting the plaintiffs’ right to bear arms that
is clear and substantial enough to overcome AOL’s right to restrict firearms on its private property.
Gardner v. loomis – guy in armored truck saves someone’s life. Fired for leaving the vehicle unattended.
Under Washington law, an employer’s discharge of an employee for breaking a work rule in the course of
saving another person’s life is void as against public policy. Generally, an employer may terminate an atwill employee at any time and for any reason. However, courts have carved out a narrow exception that
prohibits employers from discharging employees for reasons that violate public policy. Society highly
values those who would rescue others in danger, and there is a public policy in favor of encouraging this
behavior. In this case, consequently, Loomis’s termination of Gardner for his heroic conduct in attempting
to rescue the bank manager is void as against public policy.
Lingle v. norge division of magic chef – scotus, stevens, p. 939, 1988 – lady got hurt at work, filed for
workers comp, got fired for filing for workers comp. union sued and she sued. D said her tort claim was
preempted by the union suit, per the LMRA. but it wasn’t preempted: An employee’s state-tort claim for
retaliatory discharge is not preempted by the Labor Management Relations Act if the application of the
state law does not require the interpretation of a collective-bargaining agreement.
Wilson v. monarch paper co – 5th circuit, 1991, p. 947 – old man degraded after being a big corporate
honcho then got old. Sued for iied and age discrimination in employment act. Workplace conduct supports
liability for intentional infliction of emotional distress where it is entailed by purposeful, systematic, and
severe humiliation.
Health benefits
Employment retirement income security act of 1974 (ERISA) provides minimum standards for when
employers provide benefits, which they don’t have to do. p. 536-37.
Comprehensive omnibus budget reconciliation act of 1985 (COBRA) requires employers with 20 or more
employees that offer health benefits to offer continued coverage to former employees their spouses and
dependent children for 18 or 36 months or until coverage begins under another plan. Cobra obligations
are triggered by a qualifying event including termination for any reason other than discharge for gross
misconduct or a reduction of hours. More details on page 537.
health insurance portability and accountability act of 1996 (HIPAA) applies to employer based group
health plans. Employers and insurers may apply a maximum, one time 12 month exclusion to illnesses
that were diagnosed or treated within the six months prior to enrollment, but individuals must be given a
credit for the time they were covered under another plan. No exclusions at all may be applied for
pregnancy newborns or adopted children. There are no exclusions for genetic predisposition. the privacy
rule requires employers to build a firewall between employee health benefit information and other
employment records.
Salley v. E.I. Dupont de Nemours & co – 1992, 5th circuit, p. 547 - In determining eligibility for benefits
under the ERISA, an employer’s failure to consider a treating physician’s advice without conducting an
independent investigation constitutes an abuse of discretion. A decision to terminate benefits under an
ERISA benefit plan is usually reviewed de novo. However, if an employer exercises discretionary authority
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to determine eligibility, the decision is reviewed for abuse of discretion. Generally, courts look to the facts
known to the employer at the time the decision was made. However, there can be an abuse of discretion
based on information not known to the employer, if the employer failed to obtain necessary information.
An employer may conduct an independent investigation or rely on the advice of a treating physician.
However, once an employer chooses to rely on a treating physician’s advice, the employer must accept
all of the advice. The employer may not ignore part of the advice without conducting an independent
investigation. Here, Dupont relied on Dr. Blundell’s observation that Danielle had improved and was
stable, but ignored Dr. Blundell’s opinion that Danielle should not be released until a suitable treatment
plan was identified. In determining that hospitalization was not medically necessary, Dr. Ahluwalia failed
to independently examine Danielle and did not review the medical records from Danielle’s second and
third hospitalizations. Had Dr. Ahluwalia reviewed the medical records from Danielle’s third
hospitalization, it would have been apparent that hospitalization was medically necessary, because a
suitable alternative had not yet been identified. Consequently, Dupont’s decision to terminate Danielle’s
benefits was an abuse of discretion.
Phelps v. field real estate co – 10th circuit, 1993, p. 555 - An employer does not discriminate under the
Employee Retirement Income Security Act by discharging an employee who receives health benefits if the
employer is not motivated by an intent to interfere with the employee’s benefits. Section 510 of ERISA
prohibits employers from discharging or discriminating against an employee for the specific purpose of
interfering with the employee’s benefits under ERISA. Courts typically look to circumstantial evidence to
prove that the requisite intent exists, because direct evidence of that intent is rare. Here, Poole was aware
that Phelps had the AIDS virus. However, there is no evidence that Poole or anyone else in management
was concerned about the effect of Phelps’s condition on Field’s benefit plans. Phelps had consistently
failed to meet Poole’s sales expectations, and Phelps’s division had suffered particularly poor sales in
1988. Moreover, the decision to discharge Phelps did not occur until over 14 months after Phelps disclosed
his condition. Field’s reorganization is further evidence that Phelps’s medical condition was not the
motivating factor for Phelps’s discharge. In light of these facts, the district court correctly determined that
Phelps had failed to prove that Field had the requisite intent to interfere with Phelps’s benefits under
ERISA.
New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Co. – scotus, souter,
p. 560, 1995 - The Employee Retirement Income Security Act does not preempt state laws that have an
indirect economic effect on covered employee-benefit plans. The Supremacy Clause of the U.S.
Constitution provides that Congress may preempt state law by express provision, by implication, or
through a conflict between federal and state law. There is a presumption that Congress does not intend
to preempt state law, particularly in areas of traditional state regulation. Section 514(a) of ERISA expressly
preempts state laws that relate to ERISA benefit plans. Because the plain language of § 514(a) gives little
guidance as to which state laws should be preempted, courts often look to the purpose of ERISA to
determine whether a state law should be preempted. ERISA was enacted in order to avoid differing or
conflicting state and local regulation of benefit plans so as to allow for the uniform administration of
employee-benefit plans nationwide. Accordingly, § 514(a) has been found to preempt state laws that
mandate benefit structures or dictate the manner in which benefit plans are administrated. Here, New
York law requires that hospitals assess surcharges against certain commercial insurers and HMOs. The law
does not require surcharges against members of Blue Cross and Blue Shield plans, because those plans
tend to pay hospitals more quickly and efficiently and insure more people. The law has the effect of
making certain plans more expensive than others and therefore has an indirect economic effect on the
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decisions made by ERISA insurance buyers. However, this indirect economic effect does not mandate that
ERISA administrators join any particular plan or preclude the uniform administration of employee-benefit
plans nationwide. Rate differentials are common among hospitals, and with or without the New York law,
benefit plans would continue to shop for the best price for coverage. Moreover, other existing state
regulations, such as quality-control standards or workplace regulations, also have indirect economic
effects on ERISA benefit plans. It is unlikely that Congress intended to supersede all such regulations. That
interpretation would render obsolete the limiting language requiring that state laws relate to ERISA plans.
Congress did not intend to promote cost uniformity among benefit plans, and price differentials are not
the type of conflicting directives that Congress intended to prevent.
Kentucky association of health plans v. miller – 2003, scotus, scalia, p. 571 - ERISA does not preempt state
laws that regulate insurance. ERISA preempts state laws that relate to benefit plans governed by ERISA.
However, state laws that regulate insurance fall outside ERISA’s preemption provision. If a state law is
specifically directed toward the insurance industry and substantially affects the risk-pooling arrangement
between insurers and the insured, then the state law regulates insurance and is saved from preemption.
Here, the AWP statutes are specifically directed toward the insurance industry, because the statutes
restrict the ability of insurers to operate in Kentucky. The plaintiffs nonetheless argue that the AWP
statutes are not specifically directed at the insurance industry, because the statutes not only regulate
insurers, but also regulate healthcare providers. One consequence of the AWP statutes is that healthcare
providers are restricted in their ability to contract with insurers governed by the statutes. However, the
fact that the AWP statutes have a consequential effect on entities doing business with insurers does not
mean that the statutes are not specifically directed at insurers. Furthermore, the AWP statutes
substantially affect the risk-pooling arrangement between insurers and the insured, because the statutes
expand the number of providers available to the insured, thus affecting the scope of permissible bargains.
Finally, the plaintiffs argue that the AWP statutes do not regulate insurance, because the statutes do not
control specific terms of insurance policies. However, no such requirement is found in the text of ERISA.
Because the AWP statutes are specifically directed toward the insurance industry and substantially affect
the risk-pooling agreement between insurers and the insured, the AWP statutes regulate insurance and
therefore are exempt from preemption.
Family and medical leave
Family and medical leave act of 1993 (FMLA) requires that employers provide leaves of absence for
childbirth or the care of children or other family members unpaid leave. p 575-76.
Ballard v. Chicago park district – 7th circuit, 2014, p. 577 – lady who is moms caregiver takes mom to las
vegas as moms dying wish. Fired for it smh. CPD argues that an away-from-home trip constitutes care
under FMLA only if the trip is taken in connection with ongoing medical treatment. However, neither
FMLA nor FMLA’s regulations require that away-from-home care be related to ongoing treatment.
Furthermore, neither FMLA nor FMLA’s regulations place any limitations on where the care takes place.
Court rules The Family and Medical Leave Act covers an employee who requests leave to care for a
terminally ill parent while the parent is traveling away from home.
Lang v. star herald – 8th circuit, 1997, p. 585 - An employer does not violate the Pregnancy Discrimination
Act by refusing to apply a neutral leave policy more favorably to a pregnant employee. Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., prohibits employers from discriminating against
individuals on the basis of sex. The PDA amends Title VII to define sex discrimination as including
discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima
facie case of disparate treatment under the PDA, a pregnant employee must show that she is treated
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differently from non-pregnant employees. To establish a prima facie case of disparate impact under the
PDA, a plaintiff must show that a neutral policy is disproportionately harsher on pregnant women. This
showing must be made through satisfactory statistical evidence. Here, none of the Star Herald’s
employees were granted indefinite leaves of absences with a guarantee of reemployment. Thus, Lang has
failed to establish that Star Herald’s unpaid leave-of-absence policy was applied any differently to her
than to non-pregnant employees. Moreover, Lang has failed to establish that she was entitled to an
indefinite leave of absence with a guarantee of reemployment. Therefore, Lang has not established a
prima facie case of disparate treatment under the PDA. Furthermore, Lang has failed to establish disparate
impact, because she has not produced any statistical evidence showing that the Star Herald’s policy is
disproportionately harsher on pregnant women.
Braatz v. labor & industry review commission – Wisconsin, 1993, p. 589 - A policy that prohibits only
married employees from having dual health-insurance coverage constitutes marital-status discrimination
under the WFEA. The WFEA prohibits discrimination on the basis of marital status. Here, the District’s
non-duplication policy constitutes marital-status discrimination, because the policy treats married
employees differently from single employees. Only married employees are required to elect between
District insurance and a spouse’s insurance. Single employees with duplicate coverage from a different
source need not make that election. Therefore, the non-duplication policy violates the WFEA provisions
against marital-status discrimination. The LIRC, however, argues that health-insurance benefits are
implicitly excepted from the WFEA provisions against marital-status discrimination. The LIRC cites two
specific state practices that suggest health-insurance benefits are excepted. First, the state gives health
benefits to spouses of employees but does not give health benefits to dependent adult companions of
employees. Second, the state prohibits the duplication of health insurance by married couples if both
spouses are employed by the state. However, the two state practices that LIRC cites as support are
inapposite. The first practice has been held to not constitute marital-status discrimination, and the second
statute applies only if both spouses are employees of the state. Furthermore, the WFEA explicitly excepts
health-insurance benefits from the WFEA’s prohibition against age discrimination, but does not explicitly
except health-insurance benefits in the context of marital-status discrimination.
Alaska CLU v. state – Alaska, 2005, p. 592 - An employer’s policy that has the effect of excluding only samesex couples from receiving benefits violates equal protection. Depending on the importance of the
individual right or government interest at stake, courts apply different levels of scrutiny in evaluating
equal-protection claims. If minimum scrutiny is appropriate, the government action must be substantially
related to a legitimate government interest. Here, there is no need to consider whether heightened
scrutiny is warranted as argued by the plaintiffs, because the spousal limitation cannot survive minimum
scrutiny.
OSHA
Frank diehl farms v. secretary of labor – 11th circuit, p. 706, 1983 - The Occupational Safety and Health Act
does not apply to temporary housing that is work-related but not a condition of employment.
Chao v. OSHRC – 5TH circuit, 2005 - OSHA governs employers who are engaged in interstate commerce.
The secretary of labor bears the burden of demonstrating that an employer is engaged in interstate
commerce, but this burden is light. In reviewing a decision of the OSHRC, this court looks to whether the
decision is supported by substantial evidence. Here, there is substantial evidence to support the OSHRC’s
finding that Ho’s illegal asbestos removal affected interstate commerce. By undertaking the asbestos
removal himself, Ho deprived Alamo of the opportunity to perform asbestos removal in compliance with
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the requirements of the law and thus affected interstate commerce in the national market of asbestos
removal. This is sufficient to place Ho under the jurisdiction of the Act.
Industrial union department v. American petroleum institute (the benzene case) – scotus, stevens, 1980,
p. 720 – secretary of labor took the position that no safe exposure level to benzene can be determined
and that § 6(b)(5) requires him to set an exposure limit at the lowest technologically feasible level that
will not impair the viability of the industries regulated. 6b5 says the secretary shall set the standard which
most adequately assures, to the extent feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional capacity. This evil company sued bc
secretary didn’t do any tests, and court said: In promulgating standards regarding exposure levels to
carcinogens, the Secretary of Labor must make appropriate findings that exposure presents a significant
health risk in the workplace at higher levels in order to set exposure levels at the lowest possible level.
Durez Division of Occidental Chemical Corp. v. OSHA – dc, 1990, p. 730 - Under the Act, manufacturers are
required to disclose all potential health risks from exposure to hazardous chemicals, regardless of
likelihood of harm. In General Carbon Co. v. OSHRC, 860 F.2d 479 (D.C. Cir. 1988), this court required a
manufacturer of electrical toothbrushes to affix labels disclosing all potential health hazards to its
containers because downstream users were exposed to small amounts of hazardous chemicals when they
handled the toothbrushes. In General Carbon, downstream users were not foreseeably exposed to
enough of the chemicals to constitute a hazard. However, the manufacturer was required to disclose all
potential hazards, because generally, manufacturers are unable to foresee all potential uses of their
products. This court deemed downstream employers to be better positioned to communicate the
likelihood of potential hazards to their employees. Here, the same reasoning applies to an MSDS. Durez
should disclose all potential hazards to downstream users on its MSDS, because its downstream users are
better able to assess the likely risk of harm to their employees. The Secretary’s interpretation of the HCS
to require disclosure of all health hazards is reasonable and entitled to deference. Therefore, the Secretary
properly issued a citation for Durez’s failure to list all potential hazards associated with phenol.
Seaworld of florida, LLC v. perez – dc, 2014, p. 735 - Under the Act, employers have a general duty to
provide a workplace free from recognized hazards likely to cause death or serious physical harm to
employees. This duty is established in the general-duty clause of the Act. In order to demonstrate a
violation of the general-duty clause, the Secretary must establish that (1) an activity or condition at the
workplace was hazardous to the employee, (2) either the employer or the industry recognized the hazard,
(3) the hazard was likely to or did actually cause death or serious physical harm, and (4) there were feasible
means to eliminate or materially abate the hazard. Abatement is feasible if it is economically and
technologically capable of being done. If an employer has already established safety procedures, the
Secretary bears the burden of showing that the procedures were inadequate. Here, SeaWorld’s trainers
performed with killer whales that had known aggressive tendencies. SeaWorld recognized that this work
was hazardous, as evidenced by the protocols established for Tilikum and the other killer whales. These
protocols were ineffective in preventing Brancheau’s death or the dangerous incidents associated with
the other killer whales. Significantly, the fact that SeaWorld ceased all waterwork performances after
Brancheau’s death and required trainers to work from a distance or behind a barrier shows that the
Secretary’s proposed abatement procedures were indeed feasible before Brancheau’s death. The
Secretary has therefore demonstrated that SeaWorld violated the general-duty clause.
Brennan v. OSHRC – 7TH CIRCUIT, 1974, P. 741 – the new employee gets into some shit he had no business
being in or touching and was badly injured. An employer does not violate the general-duty clause of the
Act if the danger in question is unforeseeable. The general-duty clause of the Act requires employers to
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provide a workplace free from recognized hazards that cause or are likely to cause death or serious harm
to employees. A serious violation of the general-duty clause exists if there is a substantial probability that
death or serious physical harm could result from a condition on the premises or a practice that has been
adopted or is in use. However, a serious violation only exists if the employer knew or should have known
of the violation upon using reasonable diligence. Under the general-duty clause, an employer has a duty
to train an employee on safe procedures for completing certain dangerous tasks. However, the Act does
not require employers to train employees who are merely present when the task is being completed and
who will not foreseeably be exposed to danger. Here, although unloading ties can be a dangerous task,
Davis was not participating in the unloading. In fact, Davis was expected to remain safely away from the
unloading. Worley’s clear instruction to Davis to stay away from the truck was sufficient under the Act.
Because a reasonably diligent employer would not have foreseen that Davis would injure himself, Republic
did not violate the general-duty clause. Accordingly, the decision of the OSHRC is affirmed.
Whirlpool corp v. marshall – scotus, stewart, 1980, p. 745 – mesh wire thing that didn’t protect. The
Occupational Safety and Health Act affords an employee the right to walk off the job if the employee
reasonably believes that the Act does not sufficiently protect against death or serious injury. The Act
prohibits employers from discriminating against employees for exercising a right afforded by the Act. The
Secretary’s reasonable interpretations of the Act are entitled to judicial deference. The Secretary has
interpreted the Act to afford an employee the right to refuse to perform an assigned task if the employee
has a reasonable apprehension of death or serious injury, together with a reasonable belief that there is
no less drastic alternative available. The Act does not explicitly provide that employees may walk off a job
due to potential unsafe working conditions. However, notwithstanding the Act’s detailed statutory
scheme, circumstances exist in which an employee might not be adequately protected by the Act. This
situation can arise if an employee believes that working conditions pose an imminent risk of death or
serious bodily injury and there is reason to believe there is insufficient time to seek redress under the
statutory scheme. Requiring an employee to work under these circumstances would be inconsistent with
the purpose of the Act, which is to prevent occupational deaths and serious injuries. Here, for these
reasons, the Secretary’s regulation validly protects the actions of Deemer and Cornwell in walking off their
jobs due to a reasonable apprehension of death or serious injury.
Marshall v. barlow’s inc – scotus, white, 1978 - The Warrant Clause of the Fourth Amendment protects
commercial property as well as residential property. The history of the Fourth Amendment demonstrates
this. A forerunner of the Bill of Rights, the Virginia Bill of Rights, opposed “general warrants” which
permitted an official to search a property without evidence of a fact committed. General warrants were
opposed by Revolutionary War colonists, particularly in regards to commercial properties, as merchants
did not appreciate their businesses being searched for compliance with the tax measures imposed by the
British Parliament. Furthermore, the Fourth Amendment prohibits warrantless searches for civil as well
as criminal investigations. Although this Court has permitted this kind of search without a warrant in
certain situations, those have been in certain, heavily regulated industries such as liquor and firearms.
Those have been the exception rather than the rule. It is important to note that employees are not
prevented from reporting violations. Employees are free to observe things in their daily duties that are
beyond what the public can see and to report any violations. Requiring warrants will not harm OSHA’s
enforcement scheme. Although the Secretary argues that warrantless inspections are essential because
they provide the ability to inspect with the element of surprise, we do not think that requiring warrants
will prevent OSHA from doing so. First, many companies will consent to inspection. For the ones who do
not, OSHA could seek ex parte warrants. Furthermore, there need not be probable cause to get a warrant.
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For purposes of an administrative search such as this, probable cause as in the criminal sense is not
required. It is sufficient for the agency to show that “reasonable legislative or administrative standards
for conducting an inspection are satisfied with respect to a particular establishment.” Camara v. Municipal
Court, 387 U.S. at 538. OSHA could have gotten a warrant in this case by a showing that Barlow’s had been
chosen for inspection based on a general administration plan for enforcement derived from neutral
sources.
International union, UAW v. johnson controls – not employing any women because the chemicals can hurt
fetuses. Sued by women. D said not being a person who can get pregnant is a bona fide occupational
qualification. Court: In order to be considered a bona fide occupational qualification (BFOQ), a job
requirement must affect an employee’s ability to do the job. The BFOQ defense, provided in § 703(e) of
Title VII, is a narrow exception only available to an employer if the job qualification in question is one that
is objectively essential to the employer’s business. Whether a policy is facially discriminatory is not
determined by the employer’s motive, however ostensibly benign (e.g., protecting female employees’
potential fetuses). Here, Johnson’s fetal-protection policy was facially discriminatory on the basis of sex:
it excluded fertile women, as a class, from lead-exposed job positions. This violated Title VII’s prohibition
against gender-based discrimination in employment. In addition, the Pregnancy Discrimination Act of
1978 shored up Title VII’s ban on gender discrimination in employment by explicitly defining
discrimination “on the basis of sex” to include discrimination based on pregnancy, childbirth, or related
medical conditions. Johnson’s fetal-protection policy plainly violated these provisions; it excluded only
women, based on both gender and the ability to reproduce. Accordingly, Johnson may only defend the
policy if it can show that sex is a BFOQ for battery making. Nothing in the record suggests that fertile
women are less capable or less efficient at making batteries than any other employee. Ethical and moral
concerns about the wellbeing of future offspring rest with the individual employee, not the employer, and
in any event cannot be said to comprise an essential part of Johnson’s business. Summary judgment is
reversed.
Disabling injury and illness
Workers comp system requires employers to obtain insurance or to self insure against the economic
consequences of certain workplace injuries and illnesses. Workers compensation word grandpa choir
employers to provide cash benefits, medical care, and rehabilitative services for workers who suffer
injuries or illnesses arising out of and in the course of their employment. Most compensation cases
involving cash payments are for temporary total disability. Other labels which define how benefits are
provided are temporary partial disability, permanent total disability, permanent partial disability, death
benefits, and medical benefits. The descriptions can be found on page 771-72.
Eckis v. seaworld – cal, 1976, p. 775 - plaintiff was the secretary at SeaWorld and she was asked to take
pictures on shamu who bit her. Severely. SeaWorld argued that because these injuries happened outside
of the employees work duties her workers compensation benefits were limited. Court: Under California’s
Workers’ Compensation Act, an employee’s compensation benefits are not limited to injuries caused by
activities related to the employee’s normal work duties.
Perry v. state – Wyoming, 2006, p. 778 - plaintiff was a nurse where she worked had a policy of not
allowing patients to be lifted by less than two employees. A patient needed help nobody else was around
plaintiff lifted her by herself and hurt herself. she was not entitled to workers compensation benefits
because her injury resulted from violating a safety rule.
Guess v. sharp manufacturing of America – Tennessee, 2003, p. 787 - homophobic woman accused man
of being gay and having aids and giving her HIV. she wanted workers compensation but she was not
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actually exposed to HIV. Under the Tennessee Workers’ Compensation Law, an employee may not
recover for a mental injury based on perceived exposure to HIV at the employee’s workplace without
proving actual exposure to HIV.
Turner v American mutual insurance co. – 1980, Louisiana, p. 793 - An employee is entitled to
permanent-disability compensation in Louisiana if there is no form of suitable work available to the
employee within a reasonable proximity to the employee’s residence.
Stone container corp v. castle – iowa, 2003, p 801 - Under Iowa’s workers’ compensation law, an
employer is required to provide a device requested by an injured employee if the device replaces a
function that was lost as a result of the employee’s injury.
Weinstein v. st. mary’s medical center – cal app, 1997, p. 812 - woman worked in the hospital and she
got hurt. She came back to the hospital for treatment and slipped and fell which aggravated her injury.
Defendant argued that her only remedy was workers compensation. Court: An employee may sue an
employer for injuries if the employer owes the employee a duty of care independent of the employment
relationship. Generally, if an employee sustains injuries while acting in the course and scope of the
employee’s duties, the employee’s exclusive remedy is through a workers’ compensation claim.
However, under the dual-capacity doctrine, an employee may recover in tort for negligent aggravation
of an industrial injury if the employer owes the employee a duty of care arising independently of the
employment relationship. An employer may have an independent duty of care based on nonemployment relationships, such as those existing between medical-care providers and patients or
between business owners and invitees. The mere fact that a person is an employee at the time of an
injury does not restrict the person to workers’ compensation benefits if the person is not acting under
conditions of compensation at the time the injury occurs. Here, Weinstein was initially injured while
acting within the course and scope of her duties as an employee of the Hospital, and there is no
question that Weinstein is limited to workers’ compensation benefits for her initial injury. However,
when Weinstein visited the Hospital in January 1995, she was not on duty and was not performing a
service growing out of or incidental to her work. Thus, conditions of employment were not present.
Rather, the Hospital was acting as a medical provider to Weinstein, independent of its capacity as an
employer, and owed her a duty of care independent of the employment relationship. Under these
circumstances, the dual-capacity exception applies, and Weinstein is entitled to sue the Hospital in tort
for the aggravation to her injury
Mandolidis v. elkins industries, inc – 1978, wv, p. 817 - Under the Act, an employer is not immune from
common-law actions for an employee’s injuries if the employer acted with knowledge of the high degree
of the risk of physical harm. Generally, the Act provides employers with immunity from common-law
actions for negligently caused workplace accidents. However, an employer loses this immunity if the
employer acts with deliberate intention to inflict death or injury upon an employee. An employer acts
with deliberate intention for the purposes of the Act if the death or injury results from willful, wanton, or
reckless misconduct. For an employer’s action to constitute willful, wanton, or reckless misconduct, the
employer must subjectively know of the high risk of physical harm to the employee. On a motion for
summary judgment, a trial court is required to take all of the non-moving party’s facts as true. Here, the
trial court found that, taking Mandolidis’s facts as true, there was insufficient evidence that Elkins acted
with deliberate intent. However, a reasonable person could infer from the facts alleged by Mandolidis
that Elkins acted with deliberate intent. Moreover, there are clearly unresolved issues of material fact,
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including whether Mandolidis was threatened with discharge if he refused to use the unguarded saw and
whether Mandolidis was instructed not to operate the saw by himself. For these reasons, the trial court
erroneously dismissed the complaint.
York v. union carbide corp – Indiana, 1992, p. 823 - Under the Occupational Safety and Health Act (OSH
Act), 29 U.S.C. §§ 651-678, a manufacturer of a hazardous chemical is not required to direct warnings of
potential hazards to all employees of a consumer if the manufacturer has no control over the consumer’s
workplace or employees. The Federal Hazard Communication Standards (FHCS), which were promulgated
pursuant to the OSH Act, comprehensively address how chemical manufacturers should evaluate
potential hazards and communicate those hazards to employees. Generally, a federal regulation will
preempt state law if Congress has comprehensively regulated in a particular area. However, the OSH Act
includes a savings clause that exempts state-tort rules from preemption. In this case, therefore, York’s
wife’s tort action against Union Carbide is not preempted by federal law. Under the FHCS, a manufacturer
has a duty to provide a warning that will reach the ultimate user or consumer of any potential hazards
posed by the manufacturer’s products. This duty can be satisfied by simply warning a consumer’s
employees who receive and set up a product. However, a manufacturer has no duty to warn every
employee who will ultimately use the product if the manufacturer has no control over the work premises
or the selection and training of employees who will ultimately handle the product. Moreover, here, the
facts show that USX was aware of the proper procedures for handling argon gas and that additional
warnings from Union Carbide would not have improved USX’s awareness of the hazards of handling argon
gas. Therefore, the warnings issued by Union Carbide were sufficient.
Teal v. E.I. dupont de Nemours & co – 6th circuit, 1984, p. 831 - The employees of an independent
contractor are members of the class of persons that the OSH Act regulations are intended to protect.
Under Tennessee law, a defendant’s breach of a duty imposed by statute or regulation constitutes
negligence per se if the injured plaintiff is a member of the class of persons that the statute or regulation
was intended to protect. The OSH Act and its accompanying regulations impose two types of duties on
employers in order to ensure that men and women can work under safe and healthful working conditions.
The first is a general duty of employers to protect their employees from hazards that are likely to cause
death or serious bodily injury. The second is a specific duty to comply with OSH Act regulations. This duty
is interpreted to be for the benefit of all employees, including the employees of an independent
contractor. This interpretation is consistent with Congress’s goal of ensuring that all workers enjoy safe
and healthful working conditions. Here, DuPont failed to comply with the OSH Act regulation that required
DuPont to ensure a clearance of at least seven inches between the ladder and the wall. Teal, as an
employee of an independent contractor working on DuPont’s premises, was a member of the class of
persons that the regulation was intended to protect. Therefore, Teal was entitled to a jury instruction on
negligence per se.
Barnhart v. Thomas – 2003, scotus, scalia, p. 836 - Under the Act, the Social Security Administration may
deny disability benefits on the ground that the claimant can perform his or her previous work, without
considering whether the work still exists in the national economy. The Act provides for disability insurance
and Supplemental Security Income for people who have a disability. Under the Act, a person is only
entitled to benefits if the person is “unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” The SSA has promulgated regulations establishing a five-step sequential evaluation to
determine whether a claimant is entitled to disability insurance. At the fourth step, the SSA considers
whether the claimant can do his or her previous work. If the claimant can do the previous work, disability
26
insurance is denied. The SSA moves to the fifth step only if the claimant is able to demonstrate that he or
she cannot perform his or her previous work. At the fifth and final step, the SSA considers factors such as
the claimant’s age, education, and past work experience to determine whether the claimant can perform
any other jobs existing in significant numbers in the national economy. The structure of the SSA’s fivestep inquiry allows the SSA to deny disability benefits on the ground that the claimant can perform his or
her previous work without considering whether the previous work still exists in significant numbers in the
national economy. Under Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837
(1984), courts must give deference to an agency’s reasonable interpretation of an ambiguous statute.
Here, an ordinary reading of the Act shows that the phrase “which exists in the national economy”
modifies the phrase “any other kind of substantial gainful work,” but does not modify the phrase “previous
work.” The SSA’s regulation is therefore a reasonable interpretation of the statute, and the SSA was not
required to consider whether Thomas’s previous work still existed in the national economy.
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