Charles University, Faculty of Law, Prague
Employment Law
(Professor Sanchez)
(sanchezj@nsu.law.nova.edu)
Syllabus May 2009
(Room num. 243, from 3 pm to 5 pm)
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Introduction:
I.
Federal Laws Prohibiting Job Discrimination
 US Constitution (created 1787, ratified 1788)
- The 14th amendment (1868):
The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill
of Rights to the states. (Nevertheless, the balance of state and federal power has remained a
battle in the Supreme Court.)
 Equal Pay Act (EPA) of 1963
- prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and
women perform work of similar skill, effort, and responsibility for the same employer under similar
working conditions.
Note that:

Employers may not reduce wages of either sex to equalize pay between men and women.

A violation of the EPA may occur where a different wage was/is paid to a person who
worked in the same job before or after an employee of the opposite sex.

A violation may also occur where a labor union causes the employer to violate the law.
 Civil Rights Act of 1964
Title VII prohibits not only intentional discrimination, but also practices that have the effect of
discriminating against individuals because of their race, color, national origin, religion, or sex.
 Age Discrimination in Employment Act of 1967 (ADEA)
- bans against age discrimination also specifically prohibits:

statements or specifications in job notices or advertisements of age preference and
limitations. An age limit may only be specified in the rare circumstance where age has been
proven to be a bona fide occupational qualification (BFOQ);

discrimination on the basis of age by apprenticeship programs, including joint labormanagement apprenticeship programs; and

denial of benefits to older employees. An employer may reduce benefits based on age only if
the cost of providing the reduced benefits to older workers is the same as the cost of
providing benefits to younger workers.
 Rehabilitation Act of 1973
 The Immigration Reform and Control Act (IRCA) of 1986
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- requires employers to assure that employees hired are legally authorized to work in the U.S.
However, an employer who requests employment verification only for individuals of a particular
national origin, or individuals who appear to be or sound foreign, may violate both Title VII and
IRCA; verification must be obtained from all applicants and employees. Employers who impose
citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities
also may violate IRCA.
 Americans with Disabilities Act of 1990 (ADA)
Titles I and V
The ADA prohibits discrimination on the basis of disability in all employment practices.
 Civil Rights Act of 1991
The Civil Rights Act of 1991 made major changes in the federal laws against employment
discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that
limited the rights of persons protected by these laws, the Act also provides additional protections.
The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and
provides for obtaining attorneys' fees and the possibility of jury trials. It also directs the EEOC to
expand its technical assistance and outreach activities.
II.
Agencies on federal (EEOC) and local level
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws.
EEOC also provides oversight and coordination of all federal equal employment opportunity
regulations, practices, and policies. EEOC is an independent federal agency originally created by
Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964.
Many states and localities have anti-discrimination laws and agencies responsible for enforcing those
laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)."
Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort
while at the same time ensuring that a charging party's rights are protected under both federal and
state law.
III. Other federal laws, not enforced by EEOC
-also prohibit discrimination and reprisal against federal employees and applicants.
- The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as
prohibited personnel practices, which are designed to promote overall fairness in federal
personnel actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to take
certain personnel actions from discriminating for or against employees or applicants for
employment on the bases of race, color, national origin, religion, sex, age or disability. It also
provides that certain personnel actions can not be based on attributes or conduct that do not
adversely affect employee performance, such as marital status and political affiliation.
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- The Office of Personnel Management (OPM) has interpreted the prohibition of
discrimination based on conduct to include discrimination based on sexual orientation. The
CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for
exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of
Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).
IV. Which Employers and Other Entities Are Covered by These Laws?
Title VII and the ADA cover all private employers, state and local governments, and education
institutions that employ 15 or more individuals. These laws also cover private and public
employment agencies, labor organizations, and joint labor management committees controlling
apprenticeship and training.
The ADEA covers all private employers with 20 or more employees, state and local governments
(including school districts), employment agencies and labor organizations.
The EPA covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor
Standards Act). Virtually all employers are subject to the provisions of this Act.
Title VII, the ADEA, and the EPA also cover the federal government. In addition, the federal
government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended,
which incorporate the requirements of the ADA. However, different procedures are used for
processing complaints of federal discrimination. For more information on how to file a complaint of
federal discrimination, contact the EEO office of the federal agency where the alleged
discrimination occurred.
The CSRA (not enforced by EEOC) covers most federal agency employees except employees of a
government corporation, the Federal Bureau of Investigation, the Central Intelligence Agency, the
Defense Intelligence Agency, the National Security Agency, and as determined by the President, any
executive agency or unit thereof, the principal function of which is the conduct of foreign
intelligence or counterintelligence activities, or the General Accounting Office.
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I) Monday , 4th May 2009
Cases:
Rutan; Kotch; EEOC; Wardwell; Green; VonRaab; Malorney; Kadlee Medical; Price
Waterhouse; Wilson; Burlington; Lomack
The above cases address the following employment issues:
- discrimination on the basis of political association (Rutan);
- nepotism (Kotch); (protěžování příbuzných)
- residency requirements;
- duty owed to employees by a company doctor;
- the constitutionality of routine drug testing of federal employees;
- negligent hiring; former employer’s misrepresentations in letters of reference;
- mixed-motive framework for proving intentional discrimination;
- retaliatory discharge claims under Title VII;
- and non-remedial affirmative action.
Employment at will
- zaměstnanec/zaměstnavatel mohou kdykoli z jakéhokoli důvodu ukončit prac.poměr
- tradiční pravidlo, nejvýznamnější
Employment security
- nejvíc
Sources of law
Federal Constitution + State Constitution
Statutes (federal, state)
Common law (judge-made law)- federal const. cases
- state const. cases
Contracts, torts, property- velký podíl common law
Defamation – to the 3rd party (oběť to nesmí sama rozšiřovat)
Negligence – negligent hiring
Intentional infliction of emotional distress
Workers compensation
- odškodnění jen za gross negligence (jen negligent tort)
- proto se workers většinou nesoudí o negligence, jen pokud prokáží, že se jedná o job
issue
-
1. wrongful discharge in violation in public policy (např. Zaměstnavatel nehodlá
uvolnit zaměstnance)
2. invasion in privacy
a) publication of private facts
in US just public
employees can bring an action – 13th Amendment
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-
involuntary … - zaměstnavatel nikdy nemůže nutit zaměstnance, aby pracoval proti své
vůli, ale po dobu trvání kontraktu nesmí pracovat pro konkurenci
b) intentional interference with contractual relations – Baker case?
14th Amendment – equal protection
(strict security – race, gender
x intermediate security – age, religion, sex
x rational basis analysis)
Rutan case (1990)
- C.Rutan v. Republican Party of Illinois
- Public sector
- 1st amendment of the Constitution
- Republican Governor of Illinois has been using the Governor's Office to operate a political
patronage system to limit state employment and beneficial employment-related decisions to those
who are supported by the Republican Party. In order to get a job in a state office, the candidate must
have been approved by Governor´s Office, which approved only supporters/voters of Republican
Party.
- dissent:
- Court makes its constitutional civil service reform absolute, extending to all decisions regarding
government employment
- policy makers can be fired
Kotch case (1947)
- Kotch v. BOARD OF RIVER PORT PILOT COM'RS FOR PORT OF NEW
ORLEANS
-
-
Louisiana statutes provide that all seagoing vessels moving between New Orleans and
foreign ports must be navigated exclusively by pilots who are State Officers. New State
pilots are appointed by the governor only upon certification of a State Board of River
Pilot Commissioners, themselves pilots. Have they not served the requisite six months
apprenticeship under Louisiana officer pilots, they have been denied appointment as
State pilots. Since ‘membership * * * is closed to all except those having the favor of the
pilots' the result is that only their relatives and friends have and can become State pilots
they hired only friends/relatives
discrimination based on friendship is not discrim. Of race
rational basis analysis
The Supreme Court in Louisiana did not find any violation of 14th Amendment
-
Special kind of job -)special regulation (this particular job requires experience, knowledge
of the locality, its weather, etc. more than formalized education) – traditional job in this
region-fathers, sons, friends…pilot communities…limited number of positions
-
The practice of nepotism in appointing public servants has been a subject of controversy
in this country throughout the history. However, Louisiana and some other states don´t
prohibit it.
-
Court: [W]e cannot say that the practice appellants attack is the kind of discrimination
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-
which violates the equal protection clause of the Fourteenth Amendment.
Dissent: Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden
by the Fourteenth Amendment's guaranty against denial of the equal protection of the
laws.
EEOC case (80´s, Chicago)
- Equal Employment Opportunity Commission x a company providing cleaning services,
owned by a Korean immigrant – most of the employees were Korean as well
- Action by EEOC against the company for discrimination in favor of Korean origin
- You cannot prove disparate treatment
- 93% of the company is created by Koreans-that´s not discrimination
- If 100% , it could be
- Title VII of Civil Rights Act 1964 was not breached
- US: burden of proof is on the plaintiff
- Disparate treatment- intentional discrimination X disparate impact - unintentional
Wardwell case (70´s, Cincinnati)
- 14th Amendment – right to travel – interstate
- intrastate
- Due process - procedural
- substantive
- Terry Wardwell, plaintiff, against board of a public school
- each teacher must live within the area of the school district as long as they are employed– W.
knew, agreed at the beginning, but did not do it
We conclude that the ‘compelling state interest’ test is the applicable test in cases involving infringement of the
right to interstate travel by durational residency requirements. On the other hand, where, as in the present case, a
continuing employee residency requirement affecting at most the right of intrastate travel is involved, the ‘rational
basis' test is the touchstone to determine its validity.
Equal protection
- right to trial
- strict scrutiny
- more basic interference
Green case (80´,90´s)
- Sidney Green worked as a cook, his employer wanted him to undergo an annual physical
examination by doctor Walker. Doctor said he is OK (employable without restrictions),
but he was diagnosed one year later with a lung cancer-) reducing his life expectancy
-)claim
- Pokud v US společnost najme doktora, doctor nemusí oznámit pacientovi nález nemoci,
ale řekne to společnosti-ale to se teď zrušilo
- did the doctor owed a duty ?
- case of malpractice
- DUTY+BREACH+CAUSATION+INJURY=) NEGLIGENCE
Von Raab case
- 4th Amendment case
- Unreasonable search
- Right to carry a gun
- Drug tests- drug-free
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-
Public sector
Civil case
Reasonableness
Depends on the nature of your job- safety is more important
It does not violate the 4th Amendment
Malorney case
- negligent hiring
- zaměstnanec byl sexuální násilník a napadl 3.stranu-)žaloba
- doktrína respondent superior
- employer is liable for his employees only in the course of work
- limitation: foreseeability of harm – the injury must be foreseeable
Kadlec case
- doctor-narkoman zaměstnán v nemocnici, našli ho zfetovanýho, neschopnýho práce,
když usnul na pracovišti-) propuštěn
- misrepresentation
- letter of recommendation required by the new employer – one was good, the other said they were
to busy to say- no liability
II) Tuesday, 5th May 2009
Cases:
Reed; Fragante; Smith; Sutton; Toyota; Shahar; AFSCME I & II; McDowell; Ragsdale; Lang; Alaska;
Kelley
The above cases address the following employment issues:
- religious discrimination under Title VII;
- national origin discrimination;
- disparate (různorodý) impact claims under the Age Discrimination in Employment Act;
- defining disability under the Americans With Disabilities Act;
- Sexual orientation discrimination in the public sector;
- comparable worth;
- federal law allowing former employees to continue health insurance under former employer’s plan;
- the federal Family and Medical Leave Act;
- duty owed by employers toward pregnant workers;
- domestic partnership benefits;
- and regulation of grooming (péče o vzhled) and dress.
Labour statutes:
ADEA – age discrimination- both sectors (private, public)
ADA – disability discrimination – both sectors
US Constitution
4th amendment:
Prohibits unreasonable searches
Public employees only in all of the cases in this class.
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Tort claims:
- Intentional- fraud (remedy: breach of contract X tort)
- Negligent
PWC case
- sex discrimination
- a woman – very qualified partner of the company
- they said that she was too aggressive, not female enough
- mixed motive
- two reasons was she did not make a partner:
- 1. she was not feminine enough - negative
- 2. she had poor interpersonal skills
Wilson case
- The employer insisted that all the flight attendants have to be attractive women
- The employer admitted it – they will be more successful with attractive women
=facial discrimination
- bona fidae occupational qualification X business necessity
- BFOQ based on sex
- here: business essence
-) The court: it does not hurt the essence of the business
Viz kauza s naším pilotem důchodcem: propuštěn protože dosáhl věku 60let, který byl stanoven pro
piloty obecně kvůli veřejné bezpečnosti
Page 45
Burlington case
- retaliation
- any employer nemůže žalovat zaměstnance pokud…
page 50:
Lomack case
Affirmative action
Firefighters-) public employees
Under People Protection – scrutiny
Court: in this case- no evidence that there was discrimination
Diversity is a compelling government…
Affirmative action: taky na uni v Michiganu
Právnic.fakulta diskriminovala
Dnešní kauzy:
Reed case
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Mr Reed=plaintiff, housekeeper in a hotel
Měl se starat o to, aby v každým pokoji byla jedna bible
Bible neměli a tak požádali jednu společnost
Meeting s modlitbou- zaměstnavatel se urazil a odešel a vyhodil Reeda
…
Reed je žaloval pro diskrimace náboženskou podle čl. 7
Court: diskriminace podle čl. 7
Duty of reasonable accommodation for employees
- není břemenem pro zaměstnavatele
- Reed o ubytování nikdy nepožádal
Pokud by to bylo jeho jediná práce (dávání Biblí do pokojů), tak ho zaměstnavatel nemusí
zaměstnat
Jury: facts, judge: points of law
7čl pouze k federální úrovni-právo k jury trial
States are free to use whatever they want (jury, single judge)
Fragante case
Frangante-plaintiff, imigrant z Filipín
Oral examination: failed – natolik silný filipín. Accent, že mu průměrný zákazník zaměstnavatele
nebude rozumět
Written examination : byl nejlepší
Public sector
Discrimination of national origin
Court: does not believe that it was not discrimination
Fragante prohrál
Pokud by však nemusel komunikovat s veřejností v aj, ale pouze psát, tak by jeho accent nevadil
a pak by se to dalo považovat za diskriminaci
Discrimination:
- facial
- mixed motive /PWC/
- case McDowell (McD)
statutes X regulations
Secretary of Labour, EEOC
Reasonable accommodation: religion, disability
Duty of employer to pregnant women: to treat pregnant women the same way
Smith case
older employee preferred – yes – under the ADEA
age is changing
immutable characteristics: you cannot change your race, sex, religion, etc. ale věk se mění (proto
pokud zaměstnávají radši starší zaměstnance se zkušenostmi, je to v pořádku
reasonable factor other than age (ADEA) – title 7
-hned nad Sutton case
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-zaměstnanec to může namítat, ale it is hard to prove
…
Definition of disability:
Mitigating circumstances taken into account
Toyota case
-music tools
…
Shahar case
- Shahar is a lawyer for Attorney General in Georgia
- Vzala si jinou ženu, ale nebylo to legální- stat svatby žen neuznává
- Obě public employee
- Wedding ceremony is private/public?, 200 hostů- toť otázka
- Zaměstnavatel: může to mast veřejnost
- Before Texas v. Laurence?
- Title 7 no- nezakazuje diskriminace homosexuálů/leseb
- Zaměstnavatel na obranu uvádí pouze spekulace
- Pickering test:
- 1. step: whether or not a public employee may
- Court: Shahar loses her case- She was hired and supposed to handle death penalty cases
2types of process:
-procedural
-substantive (she- bring People Protection Claim)
III) Wednesday, 6th May 2009
Cases:
Jesperson; Pennsylvania; Harris; Oncale; Bodewig; Rankin; Garcetti; Curay-Cramer; NLRB; RulonMiller; Nelson; Chambers
The above cases address the following employment issues:
- requiring women to wear makeup at work;
- constructive discharge claims under Title VII;
- hostile (nepřátelské) work environment sexual harassment (Oncale);
- same-sex sexual harassment (Oncale);
- strip searches and invasion of privacy;
- the free speech rights of public employees;
- how federal labor laws governing collective bargaining protect even non-unionized
employees;
- employer’s right to regulate employees’ off-duty conduct;
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-
activist journalists and freedom of the press;
and comparing employer defenses of business necessity and bona fide occupational
qualification.
Title VII-race, sex, origin, national origin
-desperate treatment (intentional) x desperate impact (unintentional)
-ADEA
- ADA
- US Constitution (14th amendment)
AFSME Case
- comparable work: librarians x truck drivers
- 4factors
- Equal value to the employer
- State Washington: 20%less paid jobs for women then for men in comparable positions
- Court: violation of Title VII
- 1964-public sector only, 1972 amended – private sector too – a nebo naopak?
- The market system created the disproportionality
- Comparable worth cannot be under Title VII?
McDowell case
-Mr McDowell – insurance from the employer
- COBRA law: employee has right to continue, if you lose a job in the US, you often you your
insurance as well; COBRA law said that you can continue – maybe share it
- he signed a release that …
- in the hospital with his wife, he discovered that they have no insurance for his wife, only for
him- ) the employer violated COBRA
- the remedy: to pay for the expenses of the hospital treatment
- qualifying event: termination, and others
- not qualifying event: if your children are adult and leave the house and live independently
Obama: the government will pay up to 65% of health insurance for a certain period of time
Private insurance: very expansive
Ragsdale case
- private company
- employee Ragsdale had cancer and stay at home for 40 weeks, which employer provided
- but she wanted to use more weeks for her leave
- FMLA leave
- who does issue regulations? Secretary of Labour (EEOC)
Lang case
- Ms Lang was pregnant and had some health problems, so her doctor told her she should not
go back to work
- the employer must keep the job for his pregnant employee
- she refused some opportunity and she was dismissed
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- if you quit you will not get compensation for unemployment (in Florida only a third of fired
people qualified for this compensation)
- Title VII amended (PDA): discrimination for pregnancy prohibited
- employer´s duty: for disability, religion-) has to provide reasonable accommodation, but not for
pregnant women
- the only duty of employer he owes to pregnant women: to treat pregnant women the same way
- p. 99, 2nd §
Alaska case
- it involves Alaska state constitution
- equal protection
- health insurance for spouses only for MARRIED spouses
- analogy:
- fundamental right is involved or not? No-) employment benefits are not fundam. rights
- the lowest level of scrutiny
- law fails rational basis analysis
- this policy is irrational
- what was Alaska´s reason: they wanted to encourage people to get married, same sex couples
are not entitled there to get married-) irrational relationship
- Arbitrary Irrational Capricious?
Kelley case
- demand to have special style of hair, moustache, etc.
- police requested this grooming standard- it should make it easier for the public to recognize
the policemen
- Against:
- violation of free expression
- liberty
- not everything in the Bill of Rights applies to all of the states (for example: right to have
process with jury)
- rational based scrutiny
- closed to military
- public employees
- irrational policy
Jesperson case
- Jesperon worked as bar employer
- Certain uniform
- Sex stereotyping
- Makeup was required for women, but she didn´t and refuse to obey it so she quit
- Private sector
- Title VII-sex discrimination (like PWC)
- Sex stereotyping that all women should wear makeup (it is harder to women)
- Court: it applies to all employees
- Higher scrutiny
- Rational basis- reasonable policy
- Grooming standards applied to all women-that limits applicability of PWC
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SEXUAL HARASSMENT
- hostile environment x quid pro quo (sex with your boss)
Pennsylvania case
- Ms S worked as a police officers
- Harassers were supervisors, they made comments about her, worse and worse
- Almost an insult
- They told her that she failed her exam, but they never marked the exam
- She quit
- Unbearable working conditions
- Constructive discharge it recognizes this doctrine
- Strict liability to the employer pokud nadřízený užívá pravomoci vůči podřízenému
Harris case
- sexual harassment
- Ms Harris x boss Hardy insulted her, he apologies to her that it was only a joke
- She quit the job
- Psychological injury does not have to be proved
- Harassment was severe or provasive?
- Should it be proved a reasonable person or woman?
- If she was not offended she cannot complain
- Court: victim of sexual harassment does not have to suffer psychological injury to prove
hostile environment
Oncale case
- Supreme Court of the US (1998)
- Private sector
- Mr Joseph Oncale (petitioner) X Sundowner Offshore services
- Subject matter of the case: This case presents the question whether workplace harassment
can violate Title VII´s prohibition against “discrimination because of sex”, when the harasser
and the employee are of the same sex.
- Hostile environment
- Situation: In the early 90´s, Oncale was working for respondent Sundowner at an oil
platform in the Gulf of Mexico. Oncale was employed as a roustabout. On several occasions,
Oncale was forcibly subjected to sex-related, humiliating actions against him by his coworkers in the presence of the crew. Two of them physically assaulted Oncale in a sexual
manner, and another co-worker threatened him with rape.
- =) Oncale´s complaints to supervisory personnel produced no remedial action. Surprisingly,
the clerk, Mr Oncale complaint to, told Mr Oncale that the same employees had called him a
name suggesting homosexuality too.
- =) As a result, Mr Oncale voluntarily left the company due to sexual harassment and verbal
abuse. When Mr Oncale was asked why he had left the company, Mr Oncale stated that he
had felt that if he had not left his job, he would have been raped or forced to have sex. For
these reasons, Oncale filed a complaint against Sundowner (in Louisiana)
- Court: held that Mr Oncale has no action under Title VII for harassment by male coworkers
- ) On appeal, the Court concluded that Garcia case was binding precedent and the original
judgment was affirmed.
- The Supreme Court was considering following issues:
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-
According to Title VII, it can be considered as discrimination even if the plaintiff and
defendant are the same sex.
Workplace harassment is actionable regardless of harasser´s sex, sexual orientation, or
motivations
Sexual harassment of any kind that meets the statutory requirements
Title VII does not prohibit all verbal or physical harassment in the workplace (it is not
discrimination if the words have sexual connotations) The critical issue: whether members of
the other sex are exposed to the same disadvantage terms and conditions
Harassing conduct does not need to be motivated by sexual desire
The prohibition of harassment on the basis of sex does not require asexuality in the
workplace
Harassment must be objectively offensive in order to be discriminatory
The objective severity is judged from the perspective of a reasonable person
Necessary to distinguish between simple teasing and objective abusive behavior
Bodewig case
IV) Thursday, 7th May 2009
Cases:
Whirlpool; Marshall; Johnson Controls (770); Eckis; Perry; Guess; Mandolitis; Bard; Goetz; Marcy;
Gordon; Pugh
The above cases address the following employment issues:
- the right of an employee to refuse to perform hazardous work;
- the right of an employer to demand a search warrant before a government inspector may
investigate health and safety standards in a workplace;
- whether an employer may exclude fertile women from jobs that might lead to defects in
fetuses (plod);
- what types of work-related accidents and illnesses are covered by workers’ compensation;
- despite workers compensation, when may an injured or ill employee sue his employer in tort;
- retaliatory (odvetné, represivní) discharges under state whistleblower (udavač) laws;
- property and liberty interests in public employment;
- procedural due process;
- Montana’s unique wrongful discharge statute;
- contractual exceptions to at-will employment;
- and implied-in-fact contracts for continued employment.
We covered:
- negligence
- defamation
- emotional distress
- tort of outrageous conduct – ve většině států neuznávají, nutno prokázat recklessness
To prove:
- malice
- intense
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- willful
- wanton
- reckless
- gross negligence
- negligence
- strict liability
Employer´s liability for supervisor´s conduct-strict liability OR …
Rankin case
- Public sector
- Texas
- A black young woman=a probationary(zkušební) employee (she can be fired without reason)
- She said a joke about the President and was sacked
- Cause of action:
- 1st Amendment-free speech
- 1.step: public X private sector
- We must look at : content, context, form of speech
- 2. step: balancing
- Public employee´s right
- She offended somebody at work (coworker and her boss)
- Her boss was upset enough to fire her
- Low ranking employee – non-policy maker
- Disruption – actual X potential
- But if she was an assistant to her boss, it would be different
- What she said is not going to interfere with her work
- Dissent: private concern-especially when you work for police you cannot say that you hope
they will kill the President next time
Garcetti case
- 1st Amendment – free speech
- 14th Amendment- provedl většinu dodatků do pr. Řádů států
Curay – Cramer case
- C-C was a teacher at private catholic school-alleging free speech
- Private sector
- Title VII entitles employers to discriminate only in case of religion – only when hiring
people
Pregnancy Discrimination Act
- Retaliation
- She loses – this is a religious thing – Court has no right to intervene
- She was given a choice: to resign or be fired
- Religious employer
- 1st Amendment-free exercise clause
- Not comparable with men because they were differently situated
NLRB case
- 7 men working in a shop were discharged
- They were complaining about the heating
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-
Once it was really too cold, so they left without permission of the supervisor
Private sector
No union – unorganized
National Labour relations act-1935 passed – only for private sector
Protected
Concerted=collective-more than 1employee with union, at least 2 without union
Activity
The extent is important
Rulon – Miller case
- A woman – low ranking employee – she did not have access to confidential information
- She had a relationship with a manager of rival company – everybody knew it and did not
care
- After one year, it started to matter to them
- Conflict of interests?
- Moonlighting – another job for another company could be a problem- it depend on a
position
- Invasion of privacy – codified everywhere – it is based on federal labor law
- Freedom of association
- Freedom of autonomy
- Private sector
- Employee at will
- The Watson memo: it is necessary to have a balanced judgment, which weights the need of
the business and right of an individual, any action should be taken only when a legitimate
interest of the company is injured or jeopardized
- Court: no evidence of any information given to the rival company
- Question of fact: jury : Ms Rulon-Miller´s behavior was fine and she got compensation
- They said: the damage must be clear beyond reasonable doubt – but this is not a criminal
case!
Caesar´s wife´s argument:
You are always giving out information
Court: rejected it- it was only a suspicion , rumor, but court judges facts
Nelson case
- the newspaper wanted to show that they are unbiased
- the plaintiff is very politically active-) they wanted her to stop these activities
- they put her to another position where she is not in contact with readers, the same salary
- state statute
- 1st Amendment- freedom of speech
- The state may not say what may be in the newspapers
- She loses
Chambers case
- Afro-American teenage girl
- A club teaches girls that to be unmarried, pregnant and a teenager –)A lot of job
opportunities will be closed to you
- Disparate treatment
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Facial discrimination
Her BFOQ never available under Title VII – race, because it is not about race, but sex
The rough model image goes to the essence of business
Very unusual employer: they would send a bad image to teenagers
That´s only speculation
Dissent: the employer did not provide any evidence
It is a business necessity , even more it´s BFOQ
Whirpool case
- OSHA- purpose of the act is to prevent accidents before they happen
- Rational basis
- It promotes safety to employees
Marshall case
- OSHA –constitutionality of provision
- The employer refused OSHA to check him
- 4th Amendment – unreasonable searches
- Private sector
- Zaměstnavatele mají informovat předem
- OSHA needs a warrant from court for the search
- OSHA must show to the court that they are neutral when choosing this employer, they have
to describe the scope of the search
Johnson Controls case (important one)
- Vyloučili těhotné ženy z urč. Pozic v době těhotenství
- facial discrimination
- BFOQ based on sex
- Court: refuses to acknowledge that as those in other cases
- How can employer protect himself?
- Any liability could be influenced by negligence
- Man suffered form hepatitis C – working with chemicals
Friday, 8th May 2009
No Classes
Monday, 11th May 2009
No Classes
V) Tuesday, 12th May 2009
Cases:
Woolly; Russell; Foley; Gantt; Hanson; Gardner; Lingle; Wilson; Lukaszewski; Wilde; Estee Lauder;
KGB
The above cases address the following employment issues:
- the legal status of promises made by employers in employee handbooks (Russel);
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wrongful discharge in violation of public policy and the implied covenant (smlouva, dohoda) of
good faith and fair dealing;
sources of public policy in wrongful discharge cases;
regulating guns on employers’ private property;
when an employee is justified in disregarding an employer’s work rule;
federal labor preemption of state tort claims;
intentional infliction of emotional distress;
how to measure employer’s damages when employee breaches employment contract;
breach of fiduciary duties by managerial employees;
and post-employment restrictions such as non-compete agreements.
Job related illnesses & injuries
- illnesses more difficult to prove
- state compensation system
- Title VII-each states has some compensation statute
- Before: the workers sued the employers
- Reason: money is limited, you get % of your wages, etc.
- 4types:
- Permanent partial…
- You have to prove it arises in the course of employment
Case 1970s
- a good-looking girl was asked to let them make some pictures of them
- they knew that there was a possibility of injury
- she failed of the whale and was seriously injured (several weeks in a hospital, permanent
scarves)
- she wanted to bring a tort action (she had to prove:
- compensation-to recover
- damages-to punish
- she wanted both
- fraud (intentional tort) and negligence
- her job was to be a secretary and not this
- Employer: this case should be not before the court-) only worker´s compensation
- Her argument: it was not in the course of employment-she wanted to get more money
- The strongest argument: she was hired as a secretary, not rider of whales, she was paid, the
bought her a suit, it was in the working hours
- She loses, the employer won
- Remedial
- Another issue: She was not told about the possible danger
- Program: Social Security Disability
Gass case
- a woman believes that a man is gay and that he was HIV positive
- she had fresh manicure
- she was avoiding other people, got tested 5xtimes, she suffered mental distress
- she honestly believed that and was really upset – her fear is unreasonable
- it was her subjective reality-she is trying to get workers compensation (for mental distress it
is possible)
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she didn´t get anything
Court: there must be a real exposure
Nobody orders her to get tested
She loses because it was only subjective, not scientifically recognized (you are not likely to
get HIV only when you have somebody´s blood on your hands)
People don´t have to say that they are HIV positive. Supreme Court: you are disabled if you have
HIV, even if you have no syndromes (they are protected by Disability Act). Medical exam must be
for all employees and the employer says that the illness must be job-related.
Mandolitis case
- OSHA
- You can produce more without the gear?
- Somebody got injured
- Exclusively compensation:
- When can you sue?
- Compatibility:
- ?
- Intense
- Willful
- Reckless (this case-the employer was at least reckless, you can sue the employer for tort)
- Gross negligence (only remedy: workers compensation)
- Negligence
- Strict liability
Bard Case
- he thinks his employer is commiting
- he said it to his supervisors-they became critical
- nuisance
- they disagreed with him
- reveals wrongdoing
- vitalization
- the employee is punished for whistle blowing
- cause of action:
Breach of contact, violation of a statute, wrongful discharge,
- the plaintiff must prove: his good faith,
- he fails to establish
- he is alleging a breach of contract-it is not illegal, it is not a violation of a statute
Goetz case
- school district – position of a cleaner
- Goetz was accused of being thief
- Public sector
- 14th Amendment – but this is not about equal protection, 2types of due process:
- Substantive & Procedural (this is procedural)
- Property interest in this job (at-will public employee – no)& liberty interest
- If you are not at will, the employer needs a cause to fire you.
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State statute: after 5? years-see above-) you have property interest in that job and the
employer needs a cause to fire you – you don´t look at the Constitution (private: the
contract)
Liberty interest: he can – every public employee can raise the liberty interest
Defamation: fault statement, communicated to the 3rd party, insulted
He was arrested at school
Confidentially of these facts
It is a question of facts- it should be decided by jury
Stigma: he is a thief-it hurts his reputation- is stigma sufficient? No, you need more
Your reputation must be so damaged that it will influence your future employment
Only Montana always requires a cause to fire you (even in private sector)
Marcy case
- Susan Marcy worked in Delta Airlines in Montana
- She was fired
- 2 documents- she made there some mistakes (common for other employees as well), she got
a chance to correct the mistake (but this time, they did it differently, they waited for her to
correct herself alone)
- Wrongful discharge statute (Montana is the only state, which has it)
- If an employee was discharged
- She tried to claim wrongful discharge, because she did it unintentionally
- She said that she worked 14more hours than she actually did
- Dissent: it doesn´t matter what she did in the past
- Major argument: the cause to fire her – the working hours
Case
-
selling books
issue: is the contract at will, or not?
Acceptable work performance-as long as this is true, the employer cannot fire him
Answer: He was at will
The employer changed the working conditions and found the employee´s work
unsatisfactory
Pugh case
- Pugh went to Europe with his family and stayed there a little bit longer
- He was fired without a reason
- He fought : the union took pressure on the employer to fire the employee
- California- 3different common law theories:
- Common law ..at will status
- Implied in fact contract- based on conduct of the party (32years in service), no manager has
ever been fired without cause
- Pugh never complained, several times promoted
- Breach of contract
- He sued the company for damages
- Court: he must get the reason for firing
- The only remedy for all wrongful discharges: damages (money)
Wooly case
- Is employer´s manual binding
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The employee was fired without a case
He was fired because he had written a report about somebody
He was asked to go, he didn´t
He is at will
The employer can change the manual in favor of employees´ benefits, never reduced
Promise &conduct
You should say that nothing changes for employees at will
In Florida: promises in a handbook are not binding
page197
Russel case
- Supreme Court of Oklahoma (1997)
- 10 plaintiffs – deputy sheriffs of Carter County (Mr Russel was one of them) against the
defendant the Board of County Commissioners, Carter County
- The deputies brought a breach-of-employment contract action against the Board of
Commissioners to recover overtime pay (alleged to be due to them under an at-will
employment arrangement with the county)
- The deputies were arguing that the commissioners:
a) established uniform personnel policies for county employees
b) published the policies in a handbook (which embodied the Board´s practice of paying
overtime to county employees)
c) distributed the handbook to county employees
=) The written policy became a part of their at-will employment contract, which the county has
breached by its refusal to overtime payments.
X The Board was arguing that the handbook did not constitute a contract, and did not
create contractual obligations.
Deputy sheriffs fall within FAIR LABOUR STANDARTS ACT (FLSA) and its personal
staff exception that the deputies stand excluded from the Act´s overtime pay provisions.
(The Board indicated the case Nichols v. Hurley as relevant for this case, but the Court did not
accept it.)
-)The deputies failed and appealed.
The Supreme Court:
- Oklahoma jurisprudence recognizes that an employee handbook may establish a contract
with the employer if 4 traditional contract requirements exist:
- 1) competent parties
- 2) consent
- 3) a legal object,
- 4) and consideration
- =) The promises must be DEFINITE! If the employer does not intend to make such
provisions of the handbook part of the contract, s/he must make it CLEAR. However, the
employer´s practices inconsistent with the denial may negate the effect of the denial.
=) The Court held that it cannot decide the contractual efficacy of the handbook as a matter of law.
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The Court interpreted the handbook as
A working guide
ambiguity
Not representing an employment contract
The law enforcement personnel shall be entitled to overtime payments. A question of fact
remains: Are the deputies this kind of stuff, or not? The handbook does not say.
RESULT: The Court reversed the previous judgment and the case remanded for further
proceedings consistent with the Court´s pronouncement.
Promissory estapol (instead of consideration) – can force …
It can be implied by conduct
Representation (practice of the employer)
…
Injuries
Foley case
- California
- Executed employee for 7 years- he raises 3claims
- Wrongful discharge in violation of public policy
- Tortuous breach of implied covenant of good faith should be decided as a breach of
contract or tort
- Tort
- b
VI) Wednesday, 13th May 2009
Cases:
Mileham; Local 1330; Dillard; Jaime; Quik ‘n Tasty; Tri-County; Pesce; Solon; Kentucky Ret. Sys.;
Donovan; LTV; Manhart
The above cases address the following employment issues:
- trade secrets;
- Federal Plant-Closing and Mass-Layoff (hromadné propouštění) Law;
- a wide array of issues dealing with unemployment compensation;
- fiduciary duties under federal pension law; and sex discrimination in public pensions.
Tort x contract
Distinguish breach of – insurance contract-)tort
-employment contract -) contract
(Employees would of course prefer torts because of compensation)
Contracts – prevail x statutes
Is it possible to recover for all 3, or do you have to choose?
Breach of implied id fact-contract
Wrongful discharge-public policy – tort
Torts
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4categories:
- a) employee refuses to do sth
- b) performing statutory obligation –
- c) exercise a statutory privilege/right
- …
Majority states: Federal constitutions, federal statutes
Employee has a right to keep a gun in his/her car (Title VII) - c)
Public policy on both sides of the case
Right to determine safety…
Florida: excludes schools- no guns in schools
Disneyland-no guns
Florida: the city can refuse to employ smokers
Case
- the company has strict rules: picking up money-only one employee may leave the car with
money, the other has to stay in the car whatever happens – the employee left the car because
he wanted to stop a man with a knife against a woman
- he saved them-)hero, nothing happened, but he was fired for leaving the car
- the employee knew he was breaking company´s strict policy
- absurd – the majority: the plaintiff had a right to break the company´s policy- in order to
achieve “higher good”
Lingle case
- private sector
- unionist
- plaintiff injured
- she went to court claiming tort (in Illinois possible)
- sec. 301 of preemption: federal labour law preempts state claims
- Court: test for sec. 301 preemption-if in the state action, in order to resolve …the state court
has to look at the same facts-that does not sec. 301-state court must …
Wilson case
- private sector
- the employer should fire the employee
- who would subject himself to such humiliating situation
- suffered from depression, the humiliating experience
- age irrelevant
- emotional distress
- very rare to recover : it must be really serious
Lukaszewski case
- she was hired as a teacher for one year very far away
- the doctor recommend her to leave the old job and get a new job, which was closer to her
home
- employer sued her for breach of contract, because she left earlier than she should have done
- no court is going to order her back to the former job
- she hated that job and did not want to move
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she has no excuse for breaching the contract
rule: the employee must: the cost to replace the employee (it is difficult to find a new one at
the beginning of a new school year)
Dissent
Wilde case
- non-compete clause (konkurenční doložka- jako u nás)
- non-solicitation provision
- the defendants rented an office and prepared to work
- they breached this clause in their agreement
- some of them did not succeed: no breach of duty
- they did not compete before they had left
- tort of interference: taking away some of the clients: this fails: it overlaps the recovery for
breach of contract, no tort-remedy for breach of not-compete clause: remedy-injunctions
- damages is a legal remedy
- injunctions - equity?
- Two possibilities: - one succeed:
- The other not: speculation-no evidence that clients left because of them
Estee Lauder case
- you cannot compete for one year after you leave the company, but the company will pay you
- applied New York law
- they wanted damages, an injunction
- Court: reduced the clause to 5months- after it s/he can compete
- Damages cannot make you off
- Must show …harm – the injunction will stop somebody from doing sth
Review
PWC case
- desperate treatment-to prove that even if absent of illegal motive, they would not make
her partner
- too aggressive partner
McDowell case
- burden of proof : plaintiff-fired because she was a woman
- defendant: no, we fired you for your incompetence
Affirmative action
- 14th amend, Title VII
- Most of them: race
- Strict scrutiny required
- Justifiable: reduced
- 14th Amendment:
- Aff.a. in public sector: only if you can justify it for the employer-must have history of
this discrimination
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Wilson? case
- sex discr., BFOQmust go to the essence of the business
- if it implicates public safety, discrimination possible
- not here
Burlington? case
- Title VII
- Retaliation case
- Adverse empl. Action that would lead a reasonable person not to bring an action
Lomack case
- firefighters
- NY
- No evidence of history discrimination on the base of race- you cannot discrim
Fragante (Filippino) case
- Insufficient English skills- the job required it – difficult to understand his English
- Desperate treatment case- he loses
- Court: understandable Eng. Necessary, he lost
Smith case
- age discrimination.
- Desperate impact case
- ADEA
- Reasonable factor of that age
Sutton case
- disability
- how do we define somebody
- two sisters wanted to became pilots
- with the glases are not disabled and therefore not protected
Toyota Case
- she could still do major life activities
Shahar case
- woman married to a woman
- Georgia: illegal
- Not Title VII
- She sues for 1st amend.
- Public sector
- They applied “pickering test”- which is for public speech
AFSCME case
- doctrine: two very different jobs (truck drivers x librarians) : if you decide, they have the
same value for the employer
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comparable case is not actionable under Title VII
desperate impact case
employment practice- Washington state has no obligation to correct it
COBRA case
- people are entitled to continue in their insurance after they stopped working
- the employer did not inform the employee
- employee´s wife did not get the insurance
- Exception- the employer does not have to pay for insurance: termination, bankruptcy of
the employer, a child becomes independent, etc.
Ragsdale case
- it can be assumed that it is FMLB
- employers must allow employee to stay at home some weeks after the birth of child,
illness, etc.
Lang case
-
pregnancy disc.
The only duty is to treat pregnant employees to treat the employees the same as not
pregnant
Alaska case
-
their protection stronger than federal
rational basis analysis
not unmarried couples- they have opportunity to marry
irrational policy
Kelley office
- police officers required grooming
- 1st amend. Sued
- Challenged under Title VII
- Only case based of religion, race, or for medical reasons would succeed in grooming case
- It was legitimate requirement
Case
-
casino-woman without makeup-she refused makeup
she claimed PWC
she loses
Court: this is not sexual discrimination
Pennsylv. Case
- constructive discharge
- reasonable person- would quit?
- If you quit, you are not eligible for …
Harris case
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Case
-
does the victim have to prove
severe or provasive?
Harassment based on sexual orientation under Title VII not actionable when…
-
clerk
she had to prove to recover: intent, recklessness,
Rank. Case + Cassidy case?
-
1,step : does public employee on behalf of his office
2. step: if the speech was said in the course of employment or not
Public employee- 2. stage- balances of rights
The employer proves only …
-
religious institutions could
abortion
religious belief justifiable- she loses
Case
case
case
- too cold workplace
- several employees left without permission – safety yes, otherwise not
- union- at least 1employee, without union- at least 2employee
case
- dating a manager of rival company
- relevance
- invasion of privacy
- she won
-
newspapers wanted their employee to quit her political activity in order to be unbiased
the put her to different position
state cannot tell the newspapers what to do- freedom of press
-
Omaha club
Teenage girls – unmarried pregnant girl
Title VII
BFOQ (never based on race-exception) x business necessity-both apply
-
OSHA
If the reasonably employee believes the work is dangerous, can refuse
-
OSHA
case
Case
Case
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Employer refuses search of OSHA
Only provide the judge: they neutrally picked up this employer
-
facial gender dicr.
Desperate treatment
Court: BFOQ case is not this one
Medical evidence uncertain
DISPARATE impact (not desperate)
Case
Goetz?
- plaintiff loses
- you have to show reckless, more than gross negligence
case
-
property interest x liberty interest
Thursday, 14th May 2009
Final Exam – 29 questions (about concepts, holdings, etc.)
- we will choose 20 q., which we want to do
- two hours
Friday, 15th May 2009
Introduction to Nova SE University Law Center (3pm – 5pm)
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case