Chapter 2
The Employment Law
Toolkit: Resources for
Understanding the Law
and Recurring Legal
Concepts
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
 Understand how to read and digest legal cases
and citations
 Explain and distinguish the concepts of stare
decisis and precedent
 Evaluate whether an employee is an at-will
employee
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Learning Objectives
 Determine if an at-will employee has sufficient
basis for wrongful discharge
 Recite and explain at least three exceptions to
employment-at-will.
 Distinguish between disparate impact and
disparate treatment discrimination claims
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Learning Objectives
 Provide several bases for employer defenses to
employment discrimination claims
 Determine if there is sufficient basis for a
retaliation claim by an employee
 Identify sources for further legal information and
resources
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Stare Decisis and Precedent
 Stare decisis
 A system of using legal precedent
 Federal court system
 U.S. Court decisions applicable in all jurisdictions
 Circuit court decisions applicable only in that
particular circuit
 District court decisions applicable only in that
particular district
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Stare Decisis and Precedent
 State court system
 Trial court  intermediate court of appeals  state
supreme court
 State supreme court decisions can be appealed
to the U.S. Supreme Court
 U.S. Supreme Court decisions are final
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Understanding the Case Information
Key Terms
Meaning
Plaintiff
One who brings a civil action in court
Defendant
One against whom a case is brought
Appellant
One who brings an appeal
Appellee
One against whom an appeal is brought
Petitioner
One who appeals a case to the Supreme Court
Respondent
One against whom a case is appealed at the Supreme
Court
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Understanding the Case Information
Key Terms
Meaning
Case citation
The several number and a few letter under the case
name
Motion to
dismiss
Request by defendant for court to dismiss plaintiff’s
case
Motion for
summary
judgment
Defendant’s request for the court to rule on plaintiff’s
case based on the documents submitted, alleging
there are no tribal issues of fact to be decided
Per curium
A brief decision made by the court
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Prima Facie Case
 Cause of action: Right provided by law for a
party to sue for remedies when that right is
violated
 Prima facie case: Presenting evidence that fits
each requirement of a cause of action
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Employment-at-Will Concepts
 At-will employment: Employment relationship
where there is no contractual obligation to
remain in the relationship
 Exclusions
 Government employees
 Employees under a collective bargaining agreement
 Employees under individual contract with employer
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Employment-at-Will Concepts
 Title VII of the Civil Rights Act of 1964
 Age Discrimination in Employment Act
 Americans with Disabilities Act
 Wrongful termination
 Employees may seek reinstatement or compensatory
and punitive damages for the any losses suffered
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Exceptions to the At-Will Doctrine
 Bad faith, malicious, or retaliatory termination
may serve as a violation of public policy
 Termination in breach of the implied covenant of
good faith and fair dealing
 Termination in breach of some other implied
contract term
 Termination in violation of the doctrine of
promissory estoppel
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Violation of Public Policy
 Public policy: Legal concept intended to ensure
that no individual lawfully do that which has a
tendency to be injurious to the public or against
the public good
 Whistle-blowing
 Federal Whistleblower Statute
 Whistleblowers Protection Act
 State protection
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Retaliatory Discharge
 Terminations in response to an employee
exercising rights provided by law
 Constitutional protections
 An employer is prohibited from terminating a worker
or taking other adverse employment action against a
worker on the basis of the worker’s engaging in
constitutionally protected activities
 Applies only where the employer is a public entity
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Retaliatory Discharge: Prima Facie
Case
Participation in a
protected activity
An adverse
employment action
Causal connection
between the protected
activity and the
adverse action
 Burlington Northern & Santa Fe Railway Co. v.
White
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Breach of Implied Covenant of Good
Faith and Fair Dealing
 Covenant of good faith and fair dealing:
Implied contractual obligation to act in good faith
in the fulfillment of each party’s contractual
duties
 A breach of implied covenant of good faith looks
to the actions between the parties to ascertain
whether there were any violations of public
policy
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Breach of Implied Contract
 Implied contract: An unexpressed contract that
is created by words or conduct of the parties
involved
 Melott v. ACC Operations, Inc.
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Promissory Estoppel: Prima Facie
Case
The employer
made a promise
On which the
worker
reasonably
relied
To the
employee’s
detriment
 Exceptions to at-will doctrine based on
promissory estoppel
 Statutory Exceptions to employment at-will
 Occupational Safety and Health Act
 Fair Labor Standards Act
 Pregnancy Discrimination Act
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Constructive Discharge
 Constructive discharge: Occurs when the
employee is given no reasonable alternative but
to end the employment relationship
 Considered an involuntary act on the part of the
employee
 Paloni v. City of Albuquerque Police Department
 Nassar v. Univ. of Texas Southwestern Medica
Center at Dallas
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Other Exceptions to At-Will Doctrine
 The Worker Adjustment and Retraining
Notification Act (WARN)
 Requires that employers with over 100 employees
must give 60 days’ advance notice of a plant closing
or mass layoff to affected employees
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Other Exceptions to At-Will Doctrine
 Wrongful Discharge Based on Other Tort Liability
 Tort of outrageous conduct
 Tort claim for emotional distress
 Tort action of defamation
 Wrongful invasion of privacy
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Disparate Treatment Discrimination:
Prima Facie Case
Employee belongs to a class
protected under Title VII
Employee applied for and was qualified for a job
for which the employer was seeking applicants
Employee was rejected and, after the rejection, the position
remained open
Employer continued to seek applicants with the rejected
applicant’s qualifications
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Employment Discrimination Concepts:
Disparate Treatment
 Disparate treatment: Treating similarly situated
employee differently because of prohibited Title
VII factors.
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Employment Discrimination Concepts:
Disparate Treatment
 Employer’s defense
 Legitimate, Nondiscriminatory Reason Defense
 Employee’s counter – legitimate, nondiscriminatory reason is
a mere pretext for the employer to discriminate.
 The Bona Fide Occupational Qualification
Defense: Permissible discrimination if legally
necessary for employer’s particular business
 Wilson v. Southwest Airlines Company
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Employment Discrimination Concepts:
Disparate Impact
 Disparate impact: Deleterious effect of a
facially neutral policy on a Title VII group
 Facially neutral policy: Workplace policy that
applies equally to all appropriate employees
 Griggs v. Duke Power Co.
 Wards Cove Packing Co. v. Atonio
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Employment Discrimination Concepts:
Disparate Impact
 Screening device: Factor used to weed out
applicants from the pool of candidates
 Four-fifths rule: Minority must do at least 80
percent (four-fifths) as well as majority on
screening device or presumption of disparate
impact arises
 Device must be shown to be a legitimate business
necessity
 Subjective and objective criteria
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Employment Discrimination Concepts:
Disparate Impact
 Pre-employment interviews
 Employment applications
 The business necessity defense: Defense to a
disparate impact case based on the employer’s
need for the policy as a legitimate requirement
for the job
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Other Defenses to Employment
Discrimination Claims
 The employee’s evidence is not true
 The employer’s “bottom line” comes out
correctly
 Connecticut v. Teal
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Accommodation
 Religious discrimination under Title VII
 Americans With Disabilities Act (ADA)
 Conditions for religious accommodation and
accommodation of those with disabilities differ
 Exhaustion of Administrative Remedies:
Going through the EEOC administrative
procedure before being permitted to seek
judicial review of an agency decision
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Exhibit 2.9 - Employment Discrimination
Remedies
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Employment Discrimination Remedies
Key Terms
Meaning
Back pay
Money awarded for time employee was not working
because of illegal discrimination
Front pay
Equitable remedy of money awarded to claimant
when reinstatement is not possible or feasible
Retroactive
seniority
Seniority that dates back to the time the claimant
was treated illegally
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Employment Discrimination Remedies
Key Terms
Meaning
Make-whole
relief
Attempt to put the claimant in position he or she
would have been in had there been no
discrimination
Compensatory Money awarded to compensate the injured party for
damages
direct losses
Punitive
damages
Money over and above compensatory damages
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Legal Resources
 Law libraries
 Law reporters
 Law journals
 Legal treaties
 Books and other legal resources
 The Internet
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Management Tips
 Employers are always allowed to hire the best
person for a job
 Policies and procedures must have space for
employees to voice their concerns and
complaints
 Firing must not be due to specific reasons
prohibited by law
 Employees reporting wrongdoings must not face
retaliation from their employers
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Management Tips
 Termination decisions should undergo internal
review
 Employees belonging to a protected must be
made aware of their rights
 Employees pursuing legally protected rights
must not face retaliation
 Certain protected categories must be
accommodated
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