Emp’nt Law
Professor Court, Fall 2000
OUTLINE
Establishing the Emp’nt Relationship
I.
The Hiring Process – the role of law in regulating the job search process. Careful hiring, perhaps, provides emp’rs
the best defense from emp’nt suits b/c if select “correct” emp’ee, will never have trouble & end up in ct.
A. Introduction
1. People are more likely to find jobs through informal means, such as reliance on contacts through family, friends,
or acquaintances. Informal job-search methods tend to be inherently discriminatory – those who have contact
more likely to find jobs; those who lack contacts usually ones most often discriminated against.
2.
Nepotism – hiring system that relies on training successive generations of workers.
a. Kotch v. Bd of River Port Pilot Comm’ners (US, 1947) – ability to become river pilot based on licensing.
Licensing authority given to those already licensed, which made for tight-net fraternity. Informal
requirement of living in “pilot town” also made for close community. P was denied license b/c not part of
pilot town community & b/c not a family member of an already licensed river pilot. P sued for violation of
equal protection.
(1) Held – Regulation of emp’nt law & hiring processes does not violate equal protection. Lax approach.
Discretion given to locality in regulating emp’nt.
(2) Dissent – violates equal protection – not appropriate for legislation to be framed or administered to
perpetuate family monopolies of either private occupations or branches of public service.
b.
Backlund v. Hesson (8th Cir, 1997) – “Kotch makes clear that nepotism in governmental hiring requires
some measure of justification before it can pass constitutional muster.”
c.
Title VII – first federal statute to impact hiring process. Nepotism, per se, does not violate Title VII, but if
effect of nepotism is discrim on basis of race, sex, or some other proscribed classification, it is illegal.
(1) EEOC – formed w/ Title VII – initially an attempt to involuntarily resolve disputes – originally was a
conciliatory agency & not an investigatory agency as today. Act amended to give EEOC investigative
power. Checkered history in terms of success in investigating & eradicating discrim. During
Republican presidents & Congress, EEOC is under-funded generally.
(a) Individual who wants to file charge has 180 days from incident to file w/ EEOC. In states like OK,
that has state regulatory agency, individual has 300 days to file charge. These states are called
“deferral states.” Filing w/ commission is prerequisite to filing suit.
(b) Initially, EEOC was required to investigate all complaints, including those frivolous. Emp’rs got
upset b/c feel they should not have to cooperate in frivolous complaints. Now, there is a prioritizing
system to label claims as:
i.
A - frivolous (either on the facts or as to jurisdiction) – tossed out
ii.
B – may have merit – need further investigation
iii.
C – class action – EEOC should target for class action. (EEOC has authority – but not
obligation – to prosecute these cases. For such cases, it looks for systemic discrim.)
(c) 2-fold investigation – (1) get facts; (2) settle case.
(d) After investigation - EEOC decides whether (1) to litigate or (2) to issue notice of right to sue.
Notice of right to sue is P’s key to cthouse. W/o notice, case would be dismissed. After receiving
notice, have to file case w/in 90 days. Commission can issue notice of right to sue even if find
grounds for discrim & could prosecute itself.
(e) EEOC no longer needs (necessarily) an aggrieved emp’ee in order to bring suit against certain
emp’r. Now, they sometimes send “testers” into workforce to find Title VII violations. Not
considered entrapment as in criminal cases. Selective in use of testers – normally used where other
complaints lodged against emp’r have led to no finding of discrim.
(2) Types of discrim under Title VII:
(a) Disparate Treatment – intentional discrim
(b) Disparate Impact – policy or practice that has effect of disrim – intent irrelevant.
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3.
Word of Mouth Hiring
a. EEOC v. Consolidated Service Systems (7th Cir, 1997) - P’s disp treatment theory – D was deliberately, on
its face, discriminating against non-Koreans in its hiring process. P’s disp imp theory (which it dropped) –
hiring process (hiring by word of mouth) was facially neutral but impacted to exclude non-Koreans from
workforce.
(1) labor pool – persons from whom emp’rs draw applicants for hire. Statistical significance. Disparity
here b/w actual workforce’s ethnic composition & ethnicity of labor pool. Significantly more Koreans in
emp’nt than in pool. Word of mouth hiring practices of small company in immigrant community can
lead to or perpetuate statistical disparity.
(2) Held – Circumstantial evidence (of word of mouth hiring) does not compel inference of intentional
discrim. Discrim is not preference or aversion; it is acting on preference or aversion. If most efficient
method of hiring, adopted b/c it is most efficient, just happens to produce work force whose racial or
religious, ethnic, nat’l-origin, gender composition pleases emp’r – not intentional discrim.
(3) Important from this case – (1) difference b/w disp treatment & disp imp; (2) everything is not as it seems
– statistically seems to “smack” of discrim but actually no discrim.
4.
Other Hiring Processes:
a. Want Ads – Discriminatory want ads expressly prohibited by Title VII & ADEA.
b.
Emp’nt Agencies – § 703(b) – Title VII applies to emp’nt agencies as well as to emp’rs.
c.
Hiring Halls – union hiring process – emp’r goes to union hiring hall to find emp’ees. Unions abusive in
discrim, especially b/w union & nonunion.
(1) NLRA § 8(b)(2) makes unfair labor practice for union to cause or attempt to cause emp’r to discriminate
against emp’ee in violation of § 8(a)(3), which makes it unfair labor practice for emp’r, by discrimin in
regard to hire or tenure or any term or condition of emp’nt, to encourage or discourage union
membership.
(2) Sup Ct in Internat’l Brotherhood of Teamsters v. NLRB held union hiring halls not illegal per se but
that union members cannot be given preference. In practice, though, unions engage in other practices
(referrals on basis of seniority) that encourage hiring union members.
B. Legal Restrictions on Access to Jobs
1. Residency Requirements
a. Durational Residency – must live in area for certain time before receiving benefits
b. Continuing Residency – to continue receiving benefits, must continue to live in area
c.
2.
Wardell v. Bd of Ed (6th Cir, 1976) – residency requirement (requiring school teachers to reside in school
district) challenged on grounds of violating right to travel. Ct found no fundamental right to intrastate travel
that afforded constitutional protection. Ct applied rational basis test & found rational basis related to keeping
motivated teachers involved in district & racial integration. Upheld residency requirement.
(1) Case brought under 42 U.S.C. § 1983 as relates to emp’nt – intentional discrim by fed gov entities. §
1981 is counterpart that deals w/ nongovernmental discrim. Critical under these statutes to prove intent.
Disp treatment only.
Undocumented Aliens
a. Immigration Reform & Control Act of 1986 – restricted hiring process – see that people have gone
through proper immigration processes – ensure that they can work (eligibility) & that they are who they say
they are – drivers license or passport. Act applies to all emp’rs, regardless of size. Civil penalties of $250$2000 for first offense & up to $10,000 for subsequent offenses. For “pattern or practice” violation, emp’r
subject to $3000 criminal fine & imprisonment.
b.
Collins Foods v. INS (9th Cir. 1991) – D hired emp’ee who presented fake SS card, which if D had flipped
card over, would have been (or should have been) apparently fake to D. ALJ found constructive knowledge
of falsity of SS card.
(1) Held – Doctrine of constructive knowledge will not be implied & w/o such constructive knowledge, no
evidence of actual knowledge & could not find D liable.
(2) Rationale – Congress intended to minimize burden & risk placed on emp’r in verification process. If
start process of constructive knowledge, will put emp’rs in bind in many situations b/w Title VII & INS
requirements. If constructive knowledge pushed to limits, emp’rs will stop interviewing any persons that
look foreign.
C. The Emp’r’s Information-Gathering Process
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1.
Applications
a. Sullivan v. US Postal Service (W.D.N.Y. 1996) – On application w/ Post Office, P checked box that could
not contact current emp’r. Post Office contacted current emp’r anyway & as consequence, P was fired from
current job but was not hired by Post Office.
(1) Two causes of action:
(a) constitutional c/a for violation of right to privacy – allowed b/c suing gov entity. No analysis.
(b) Privacy Act – prohibits fed gov from publishing certain info. Whether this situation fits under
Privacy Act: (a) Is there a document? Job application is document. (b) Was there disclosure?
Disclosure of P’s name to current emp’r is the imparting of info from the document.
(2) Held – Survived motion for Summ J b/c judge found that job application was a document under Privacy
Act & that D had made a disclosure of P’s name from the document.
b.
Under Title VII, questions as to age/sex/etc on applications are not per se illegal but are suspect. As to
disability, can ask whether can perform essential job functions w/ or w/o reasonable accommodation. Cannot
ask specific medical questions – “what disability do you have?” – until after hiring; until after offered the job
– conditional offer of emp’nt.
c.
Under NLRA, cannot ask whether a union member.
d.
Applicants who misstate background, qualifications, work history, or other matters need not be hired when
misstatements discovered. If misstatements not discovered until after individual begins work, misstatements
will establish cause for discharge. If not discovered until after an alleged unlawful discharge, cts will
determine applicability of after-acquired evidence, which will decide what effect post-discharge evidence of
misstatements should have.
e.
On application, questions oftentimes are not sufficiently written (in Prof. Ct’s opinion) – should inquire into
gaps b/w emp’nt.
2.
Interviews – one-on-one conversations
a. Lysak v. Seiler Corp. (Mass. 1993) – emp’ee claims fired b/c she told emp’r she was pregnant. Problem
arose in interview. Emp’r claimed emp’ee voluntarily told him during interview that she had no intention to
become pregnant. Weeks later, though, P told emp’r she was pregnant. Emp’ee claims no discussion of
pregnancy during interview. D won at jury trial. Issue to emp’r was emp’ee’s honesty – not fact that she was
pregnant. P asked for jury instruction based on premise that emp’r cannot use pregnancy no matter how
communicated & no matter that was misrepresentation.
(1) Held – A rule that bars emp’r from discharging emp’ee b/c of emp’ee’s false responses to emp’r’s
unlawful inquires does not bar discharge due to unsolicited, volunteered, false statements made by
emp’ee.
(2) Mixed Motive – admit that D thought about discrim but even if had not discriminated, would have fired
emp’ee anyway. Shifts burden of proof. Ordinarily, burden rests on P, but mixed motive puts burden on
D. Ct rejected this instruction b/c P did not object at trial in order to preserve for appeal.
3.
References
a. Chambers v. Amer Trans Air, Inc. (Ind. App. 1991) – put two past supervisors as references on application
for subsequent jobs. When had trouble securing further emp’nt, suspected references were not favorable.
She had mom & boyfriend call to check references. Claimed defamation.
(1) Rule for defamation - Need publication (w/in OK discussions w/in workplace are not defamation);
must be malicious; & there must be damages.
(2) Qualified Privilege – defense to defamation & applies to communication made in good faith on any
subject-matter in which party making communication has interest or in reference to which has duty,
either public or private, either legal, moral, or social, if made to a person having corresponding interest
or duty. Qualified privilege applies when emp’ee reference given by former emp’r to prospective emp’r.
(a) Exceptions to Qualified Privilege – (1) motivated by ill-will; (2) excessive publication; (3) made
w/o belief or w/o grounds for belief in statement.
(b) Procedure – once D shows privilege, burden shifts to P to show exception.
(3) Held – No excessive publication here; no evidence of ill-will. Is there lack of grounds for belief, equated
w/ reckless disregard for truth of what is said? Evidence does not show reckless disregard.
(4) Publication can occur outside scope of qualified privilege & emp’r be held liable where emp’r mistaken
about identity of to whom communicating defamatory statement. For example, where former emp’r
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mistakenly believes communicating to prospective emp’r, could be held liable for defamation &
qualified privilege would not provide a defense.
4.
b.
Fair Credit Reporting Act – most sweeping congressional attempt to limit private sector info abuse.
Entitles consumer to give permission for credit checks beforehand; consumer can make changes to report; act
also prohibits dissemination of info more than seven yrs old.
c.
Lewis v. Equitable Life Assurance Soc. (Minn. 1986) – emp’ees sent on business trip, submitted expense
reports, were asked to change reports to comply w/ home office rules. Emp’ees were honest & refused to
change reports. They were fired for insubordination & could not find new jobs.
(1) Issue – Whether self-publication (communicating to prospective emp’rs that had been fired for
insubordination) applies to test of defamation
(2) Rule – Doctrine of self-publication holds that if defamed person compelled to communicate defamatory
statement to third person, & if it was foreseeable to D that defamed person would be so compelled, then
D could be liable for defamation.
(3) Held – Foreseeable that must disclose to others b/c emp’r put them in such position to have to disclose
reason for termination. This ct accepts self-publication as long as no other elements of defamation are
present.
(4) OK does not accept doctrine of self-publication.
d.
Frank B. Hall & Co. v. Buck (Tex. App. 1984) – hires private investigator to determine how bad references
were. Comments clearly defamatory – “paranoid, sociopath, etc.” Most companies now will not comment
upon quality of work & integrity of emp’ee but only communicate position held w/ company, dates of
emp’nt, & salary.
Negligent References
a. Mid 1980s – once emp’ee left emp’nt, obligations to them ended. As long as emp’r going through
preliminary steps of checking on emp’nt matters, OK relations generally. States developed common law
principles. Two part doctrine: (1) negligent hiring & (2) negligent references
(1) Negligent References – Emp’ee works for Company A, terminated. Applies at Company B & leaves A
as reference. Company A gave start & end dates & end salary w/ no other info. Emp’ee is hired.
Emp’ee murders customer. Customer’s survivor sues Company A on theory of negligent reference – had
given complete & thorough reference as to violent tendency, emp’ee would not have been hired at
Company B & would not have had opportunity to murder the customer.
(a) Cases have been limited to violent tendencies but has potential for more widespread use in other
circumstances. Obligation to reveal only in circumstances of eye-witness or very accurate info of
violent nature & tendencies.
(b) Border states of OK (Missouri, Colorado) have adopted negligent references doctrine, but OK has
not yet adopted it.
(2) Negligent Hiring – OK has no published opinion on this doctrine.
b.
Malorney v. B & L Motor Freight, Inc. (Ill. App., 1956) – On application, truck driving applicant lies about
criminal record. Company policy against picking up hitchhikers. Emp’ee picks up a 17 year-old hitchhiker
& rapes her & beats her. Arrested & convicted. She brings negligent hiring claim against company. P’s
complaint charges D w/ recklessness & willful & wanton misconduct in negligently hiring emp’ee w/o
adequately checking his background & providing him a vehicle w/ sleeping compartment. D filed summ j,
contending no duty to verify emp’ee’s responses on application.
(1) Issue – Does emp’r have to check criminal record of every applicant or can it rely on what applicant puts
on application.
(2) EEOC guidelines – Emp’rs cannot check arrest records but only convictions b/c disp imp on black males
(harassing conduct of southern police to arrest but never bring to trial young blacks).
(3) Held – refused summ j. Duty is a question of law – once find legal duty, factual question whether emp’r
did enough under law. Two principal duties imposed on this emp’r: (1) select drivers who will exercise
reasonable care; (2) can hold emp’r negligent when hire emp’ee who is unfit for job. Should have
checked criminal record. Does not have to be foreseeable as to precise injury this emp’ee will commit.
c.
Victims of Negligent Hiring – (1) innocent third parties; (2) co-emp’ees. What difference does it make
whether injure third party or emp’ee? Workers comp eliminates punitive damages for injuring co-emp’ees.
Type of victim is important, then.
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d.
J. v. Victory Tabernacle Baptist Church (Va, 1988) - Tort of negligent hiring does not require proof that
misconduct was w/in wrongdoer’s scope of emp’nt.
D. Truth-Detecting Devices & Psychological & Personality Testing
1. The Polygraph- used as pre-emp’nt device to determine reliability & trustworthiness. Polygraph actually
measures: (1) breathing; (2) blood pressure; (3) perspiration.
a. Polygraph reliable in criminal setting b/c due to detective work, most persons given polygraph are guilty.
Does not work in emp’nt settings where accuracy goes down.
b.
2.
Emp’ee Polygraph Protection Act (1988) – prevents use of polygraph for hiring purposes b/c not reliable in
emp’nt situations. Exceptions – (1) does not apply to fed, state, or gov empee’s; (2) experts of nat’l security;
(3) emp’ees reasonably suspected of involvement in workplace incident that results in economic loss to
business; (4) prospective emplee’s of armored car or security guard firms; (5) prospective emp’ees of firms
involving controlled substances.
Other Truth-Detecting Devices & Psychological & Personality Tests
a. Soroka v. Dayton Hudson (Cal. App. 1991) – Emp’r developed test to evaluate security applicants.
Questions on test about religion & sex. Three people who took tests brought suit for invasion of privacy.
Discrim on basis of race, sex, religion, etc.
(1) Held – To justify invasion of privacy resulting from use of Psychscreen test, D must show compelling
interest & must establish that test serves a job-related purpose. Must show nexus b/w questions asked &
duty or performance of job for which applying.
(2) Asking question itself not per se illegal – need adverse emp’nt action.
b.
c.
d.
Achievement Tests measure proficiency in specific area
Aptitude Tests used as general measure of person’s potential to learn specific body of knowledge.
Personality & Psychological Functioning Assessments – measure personality traits, temperament, personal
preferences, interests & attitudes, ways of thinking about oneself, styles of relating to others, & psychological
symptoms & problems.
E. Medical Screening
1. Purpose
a. Heath insurance is the largest cost to emp’rs.
b.
Americans w/ Disability Act (ADA)
(1) Three categories of protection:
(a) individual w/ disability (physical or mental) – originally intended for bulk of protection.
(b) had disability, recovered, but still treated as having disability
(c) “stupid emp’r category” – no disability, never had disability, never entitled to protection, but
perceived & treated as having disability.
(2) To be qualified under ADA, must show able to perform essential functions of job w/ or w/o reasonable
accommodation.
(a) Job description – emp’r given opportunity to describe capabilities of job – emp’r’s opportunity to
create evidence of its own before claim.
(b) Essential function – percentage of job time spent on that task. Function that takes 80% of emp’ee’s
time is essential. But task that takes 10% of time could also be considered essential – ie. landing a
plane. Fact that do task small amount of time does not make it nonessential. Cost of failure to
perform can make function essential – ie. firefighter carrying body out of burning building.
(c) Forensic Job Analysts – experts that consult job descriptions.
(d) Overtime, include in job descriptions that attendance is essential job function. Before job offer, may
ask, “can you perform essential job descriptions” – make them initial & sign description.
(e) ADA has made emp’rs go to procedure of making applicants apply for specific jobs so that can
answer essential function questions.
(f) Cannot ask about medical condition or specifics – can only ask about reasonable accommodation.
Gather info thru casual conversation. Protective category (disability) makes emp’r try to help them
overcome category. Must provide reasonable accommodation unless such causes undue hardship –
case by case determination – too expensive or creates disruption for other emp’ees.
(g) ADA gives emp’r things to look at, mostly in hiring process.
2.
Medical Questionnaires
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3.
a.
Griffin v. Steeltek, Inc. (N.D. Okla. 1997) – Emp’r asked applicant about workers’ comp claims. (Prior to
ADA, commonplace to ask about workers comp injuries preemp’nt. After ADA, do not ask about injuries
before hiring). Doesn’t get job & sues b/c claims discriminated against based on past workers comp claims.
Applicant does not have disability. Defense argues no standing under ADA b/c applicant not disabled – not
part of class intended for protection.
(1) Held – Job applicant need not make showing that he or she is disabled or perceived as having disability
to state p/f case under ADA.
(2) Reasoning – Particular section of ADA at question here differs in terminology used. Here term “job
applicant” or “emp’ee” relevant – elsewhere statute uses term “qualified individual w/ disability.”
Difference in language indicates intent to allow nondisabled persons to bring suit under this specific
provision of ADA. Also policy of ADA to eliminate disability discrim is best served by allowing
nondisabled persons to sue based on questions asked in interview process.
b.
McDonald-Douglass v. Green – P proves p/f case of discrim (depending on adverse action): (1) in protected
category (race, gender, age, etc.); (2) doing job satisfactorily; (3) fired; (4) replaced by someone outside
protected category. If P cannot meet p/f case, will be dismissed. If P meets p/f case, burden of production
shifts to emp’r to show legit business reason (for disp imp claims) or nondiscriminatory reason (disp
treatment claims). Emp’r must articulate reason – not necessarily prove it. BOP then shifts back to emp’ee
to prove emp’r’s offered reason is actually pretext for discrim.
c.
Drug Testing – does not violate ADA. Former drug user is considered disability. Current drug abuser is not
disabled b/c does not affect performance. Apply prohibition on questions to all categories of disabilities.
d.
Refusing to Hire Smokers – illegal in OK to consider smoker status on any emp’nt decision. Can prohibit
smoking on job but cannot consider off job smoking in making emp’nt decisions.
Medical Exams
a. Green v. Walker (5th Cir, 1990) – wife & child bring suit against doctor who administered routine exam as
part of application process. Test results found normal & classified husband as employable w/o restrictions.
Year later, diagnosed w/ lung cancer & died.
(1) Rule – no doctor-patient privilege – dr discloses exam to third party –emp’r. ADA gives medical
records certain protection – must be stored separate from emp’nt records & can only be disclosed to
certain “need to know” individuals w/in company, & can be provided to outside gov investigators.
(2) Held – When individual is required, as condition of future or continued emp’nt, to submit to medical
exam, that exam creates relationship b/w physician & examinee, at least to extent of tests conducted.
Relationship imposes on physician duty to conduct requested tests & diagnose results thereof, exercising
level of care consistent w/ doctor’s professional training & expertise, & to take reasonable steps to make
info available timely to examinee of any findings that pose imminent danger to examinee’s physical or
mental well-being.
b.
Whether emp’ee has right to see medical records is state determination. No right to copy of it. In OK, do
not have to show file to emp’ee. Public emp’ees have right of access. In OK, if emp’r requires medial exam,
emp’ee entitled to have copy of results if requested. If give medical exams, must give all applicants (to those
already receiving offer) – cannot selectively administer.
F. Drug Testing & Other Laboratory Procedures
1. Drug Testing
a. Drugs constitute epidemic in workplace. Consequences to emp’rs: (1) loss of productivity causes substantial
loss in workplaces. (2) Increased cost of workers comp.
b.
Amer emp’rs adopted variety of policies for drugs influencing ability to work. Immediate termination
(whether done at work or merely impacting work). If use on Sat night, likelihood to use on job or don’t want
to employ those who break the law.
c.
Burden of Proof – accusation of drug use can impact ability to find another job. Response – allow emp’r to
test for drugs so that have hard evidence of drug use.
d.
Drug testing – all involve some bodily invasion. Breath, blood, urine, hair. Render results w/ different
capabilities. Urine & blood sampling more limited in scope of how far back it detects drug use as compared
to hair test. Right of privacy becomes an issue.
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e.
Nat’l Treasury Emp’ees Union v. Von Raab (US, 1989) – Issue – Whether violates 4th Amend for US
Customs Service to require urinalysis test from emp’ees who seek transfer or promotion to certain positions:
(1) direct involvement w/ drug enforcement; (2) carry firearms; (3) handle confidential material.
(1) Rule – 4th Amend involved b/c public emp’r – gov. Under 4th Amend, which protects individuals from
unreasonable searches, urine tests (which are searches) must meet reasonableness requirement. Where
4th Amend intrusion serves special gov needs, beyond normal need for law enforcement, necessary to
balance individual’s privacy expectations against gov’s interests to determine whether impractical to
require warrant or some level of individualized suspicion in particular context.
(2) Gov’s compelling interest – ensuring front-line interdiction personnel are physically fit & have
unimpeachable integrity & judgment. Public should not bear risk that emp’ees who suffer impaired
perception & judgment will be promoted to positions where they may need employ deadly force.
(3) Held – testing of emp’ees who carry firearms & those involved directly in drug enforcement does not
violate 4th Amend. Requiring warrant unnecessary b/c emp’ees are on notice of search & volunteer to
such search where apply for positions. However, ct remands on issue of classified emp’ees. Ct not sure
whether agency has defined classified category of emp’ees more broadly than necessary.
(4) Since VonRaab – challengers’ position is whether presented enough evidence to justify intrusion.
f.
Drug-Free Workplace Act (1988) – congress reconfirmed gov’s commitment to stop drugs. (1) publish
policy on drug use; (2) provide penalties for emp’ee convicted of drug abuse on job; (3) awareness program
on dangers of drugs. Fail to meet these requirements, not eligible for gov Ks for five years.
g.
Drug testing is not a medical test under ADA – so can give drug test w/o violating ADA before offering
conditional emp’nt.
h.
Random Testing
(1) OK has emp’ee friendly drug testing statute. Allows drug testing in six categories/settings:
(a) applicants for emp’nt;
(b) reasonable suspicion of drug use – don’t know yet what is reasonable suspicion. Important to have
two witnesses to any incidents (slurred speech, inability to perform coordinated functions).
(c) Post-accident testing – OK differs – can only engage in post accident testing if have reasonable
suspicion of drug use
(d) Random testing – no limitations on private emp’rs. For public emp’rs, can only test police or
enforcement officials authorized to carry firearms, etc.
(e) Scheduled periodic testing – done only as routine fitness for duty medical exam. Given to every
emp’ee in certain emp’nt category.
(f) Post rehab testing – require testing w/o prior notice when emp’ee return to work from participating
in drug rehab program.
(2) In OK, must publish written policy of who can be tested & identify what drugs subject to testing. Must
be specific. Eight categories of drugs tested in OK. Alcohol test must initially be breath or saliva;
subsequent blood test. Done by lab certified by board of health. Use EMIT test & confirming test. Test
must be reviewed by reviewing officer of company & must also look at medical history of emp’ee.
Tests come back only negative or positive & do not show how much drug use.
(3) In OK, drug testing more difficult than in other states but remains important aspect of hiring.
II.
Discrim
A. Discrim on Basis of Race or Sex
1. Sources of Protection
a. Civil Rights Act of 1964 – Title VII – must have minimum 15 emp’ees over certain number of weeks.
Payroll test – snapshot in time, number of emp’ees on payroll.
(1) § 703(a) – “It shall be unlawful emp’nt practice for emp’r (1) to fail or refuse to hire or to discharge any
individual, or otherwise to discrim against any individual w/ respect to his compensation, terms,
conditions, or privileges of emp’nt, b/c of such individual’s race, color, religion, sex or nat’l origin; or
(2) to limit, segregate, or classify his empl’ees or applicants for emp’nt in any way which would deprive
or tend to deprive any individual of emp’nt opportunities or otherwise adversely affect his status as
emp’ee, b/c of such individual’s race, color, religion, sex, or nat’l origin.”
(2) Exceptions to nondiscrim obligation:
(a) BFOQ – bona fide occupational qualification
(b) Bona fide seniority or merit system
(c) Professionally developed ability test
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(d) Differences in pay authorized by Equal Pay Act
(3) § 706 describes enforcement procedures:
(a) Equal Emp’nt Opportunity Commission charged w/ administering Title VII.
(b) Violations brought to EEOC attention by agency investigation, record-keeping, & compliance
activity as well as individual complaints. Individual complaints must be filed w/ EEOC w/in 180
days of occurrence unless state or local law similar to Title VII w/ its own procedure. Charges may
be filed w/ EEOC, state, or local agency. If charge filed w/ state or local agency, EEOC charge may
be filed up to 300 days after occurrence or 30 days after notice of termination of local proceedings,
whichever comes first. If charge filed w/ EEOC, must defer to local proceedings for 60 days before
undertaking own investigation.
(c) After Title VII charge filed, EEOC must serve notice on respondent w/in 10 days.
(d) All dis ct proceedings under Title VII de novo.
(e) If ct finds unlawful emp’nt practice, it may enjoin practice & grant affirmative relief including
reinstatement, retroactive seniority & back pay. Compensatory & punitive damages may be
awarded up to $300K for emp’rs w/ more than 500 emp’ees.
(4) Amended Three Times
(a) Pregnancy Discrim Act – amended Title VII to provide for jury trial;
(b) Equal Emp’nt Opportunity Act of 1972 – expanded coverage & increased enforcement pwr.
(c) Civil Rights Act of 1991 – amended Title VII & overruled Sup Ct decision on burden of proof
(especially mixed motive); punitive damages & compensatory damages
2.
b.
State Fair Emp’nt Practice Laws - § 708 permits parallel state regulation of emp’nt discrim as long as state
law does not conflict w/ Title VII.
(1) State fair emp’nt practice laws do not exempt small emp’rs.
(2) State legislatures have gone beyond Title VII & ban discrimin on other criteria such as marital status &
sexual orientation.
c.
42 U.S.C. § 1983 – (State action required) – “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Terriotry or D.C., subjects or causes to be subjected, any citizen
of US or other person w/in juris thereof to deprivation of any rights, privileges, or immunities secured by
Const & laws, shall be liable to party injured in an action at law, suit in equity, or other property proceeding
for redress.”
d.
Executive Order 11246 – Prohibits discrim by gov contractors. Contractor must take affirmative action to
insure that applicants are employed & that emp’ees are treated w/o regard to race, creed, color, or nat’l
origin.
What is Unlawful Discrim?
a. Relevant Cases:
(1) Griggs v. Duke Power Co. – created disparate impact theory. Whether emp’r is prohibited by Title
VII from requiring high school education or passing standardized general intelligence test as condition of
emp’nt when neither standard shown to be significantly related to successful job performance, both
requirements disqualify blacks at higher rate than whites & jobs in question formerly had been filled by
only white applicants as part of long standing practice of giving preference to whites. Touchstone is
business necessity. If empn’t practice that operates to exclude blacks cannot be shown to be related to
job performance, practice is prohibited. Here, neither high school completion requirement nor general
intelligence test shown to bear demonstrable relationship to successful performance of jobs for which it
was used.
(2) International Brotherhood of Teamsters v. US (US 1977) – Sup Ct approved use of statistics to prove
discrimination. Stats can be used to establish p/f case of racial discrim. Stats must be limited to
relevant labor market.
(3) Hazelwood School Dist v. US – Ct endorsed use of standard deviations to determine whether data has
statistical significance. Standard deviations measure likelihood that particular set of numbers is result
of chance rather than what one would expect to occur naturally as result of emp’r’s emp’nt process.
8
(4) EEOC Guidelines – establish four-fifths rule of thumb for determining when adverse impact exists in
emp’r’s selection process. If selection rate for protected group of emp’ees is less than 4/5 (80%) of
selection rate for rest of workforce or applicant pool, selection process presumed to have adverse impact.
(5) Albermarle Paper Co. v. Moody (US, 1975) – Ct rejected company’s attempt to show validity of high
school diploma & standardize test requirements. Illustrates to emp’rs how not to validate selection
procedure.
(a) EEOC guidelines for validating job relatedness of emp’ee tests constitute administrative
interpretation & are entitled to “great deference.” Provide that tests are impermissible unless shown,
by professionally acceptable methods, to be “predictive of or significantly correlated w/ important
elements of work behavior which comprise or are relevant to job for which candidate is evaluated.”
(b) Held – Emp’r failed to prove job relatedness of its testing program b/c its validation study fell short
of EEOC guidelines for such valuation in a number of ways. First, tests were not validated for all of
skilled lines of progression for which their administration was required. Second, study compared
test scores w/ subjective supervisorial rankings. Third, study focused on top-level jobs. Fourth,
study was not conducted on emp’ees comparable w/ applicants taking the tests.
b.
Disp treatment
(1) McDonnell Douglas v. Green (US, 1973) – set out elements for disp treatment:
(a) P in Title VII case must carry initial burden of establishing p/f case of discrim:
i.
Belongs to protected class;
ii.
Applied & was qualified for job for which emp’r was seeking applicants;
iii.
Despite qualifications, emp’r rejected him for emp’nt;
iv.
After rejection, position remained open & emp’r continued to seek applicants from person
of equal qualifications.
(b) Burden then shifts to emp’r to articulate legit, nondiscriminatory reason for emp’ee’s rejection;
(c) P must then show that D’s stated reason for P’s rejection was pretext for actual discrimin.
(2) Texas Dept of Community Affairs v. Burdine (US 1981) – clarified burdens of P & D:
(a) P has ultimate burden of persuading trier of fact that D intentionally discriminated;
(b) P must prove by POE that she applied for available position for which she was qualified but was
rejected under circumstances giving rise to inference of unlawful discrim;
(c) Establishing p/f case creates presumption that emp’r unlawfully discriminated against P;
(d) Burden shifts to D to rebut presumption of discrim by producing evidence that P was rejected, or
someone else was preferred, for legit, nondiscriminatory reason. To do this, D must clearly set forth
reasons for P’s rejection.
(e) P retains burden of persuasion. Must have opportunity to demonstrate D’s proffered reason was not
true reason for empn’t decision.
(3) Price Waterhouse v. Hopkins (US 1989) – When P in Title VII case proves that gender played
motivating part in emp’nt decision, D may avoid liability only by proving by POE that it would have
made same decision even if it had not taken P’s gender into account. Mixed Motive Case.
(a) Civil Right Act of 1991 responded to Price Waterhouse by allowing unlawful emp’nt practice be
established when complaining party demonstrates that race, color, religion, sex, or nat’l origin was
motivating factor for any emp’nt practice, even though other factors also motivated practice. If
emp’r demonstrates that it would have taken same action absent impermissible motivating factor, ct
may grant P declaratory relief, certain types of injunctive relief & partial atty’s fees but may not
award damages. Proving mixed motive precludes damages recovery.
(4) St Mary’s v. Hicks (US 1993) – Articulated reason not believed – “Pretext Plus”. Held – proving
emp’r’s offered reasons pretext is not equivalent of finding discriminatory animus. Rejection of D’s
reasons will permit trier of fact to infer ultimate fact of intentional discrim but does not compel judgment
b/c P still bears ultimate burden of persuasion
(a) No direct evidence, tending to prove factual existence of intentional discrim. Theory in this type of
case – prove by indirect evidence – eliminate non-discriminatory reasons & left w/ inference of
discrim. After St. Mary’s, still allowed to draw this inference but not compelled to do so.
(5) McKennon v. Nashville Banner Publishing Co. (US, 1995) – held after-acquired evidence of emp’ee
wrongdoing does not defeat valid claim of discrim. Price Waterhouse does not apply. Emp’r motivated
solely by illegal considerations so that ct’s remedial power not limited. To avoid damages, emp’r must
establish that wrong-doing was of such severity that emp’ee in fact would have been terminated on those
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grounds alone had emp’r known of it at time of discharge. Does not show mixed motive b/c did not
have info at time of adverse decision so that did not play motivating factor at that time.
c.
3.
Adverse Impact
(1) Wards Cove Packing Co. v. Atonio (US 1989) – salmon cannery case. Alleged disp imp based on hiring
practices – rehire preference, separate hiring channels, no promotion from w/in.
(a) Comparison – Ps tried to compare minority workers w/ white management to show discrim. Ct
said “proper comparison is b/w racial composition of at-issue jobs & racial composition of qualified
population in relevant labor market.”
(b) Specific Proof – isolate each selection criteria & show its discriminatory impact. Cannot say
disparity at bottom line.
(i)
Burden on P – isolate & prove each criteria discriminates.
(ii)
Defense Burden – show business justification (1991 Act requires necessity).
(iii)
Two phase test: (1) consider emp’r’s offered justification; (2) P shows less restrictive
alternatives that will have less disp imp.
(c) Stevens’ Dissent & Blackmun Concur – too much burden on P to show disp imp of each isolated
practice.
(d) Overruled by Civil Rights Act of 1991 – overruled Wards Cove’s formulation of burden of proof
& type of proof necessary to show disp imp. Must isolate which emp’nt practice caused dis imp but
if practices indistinguishable, can analyze as one practice. Business necessity (not justification) is
aff def. Act provides:
An unlawful emp’nt practice based on disp imp is established under this title only if –
(i)
complaining party demonstrates that respondent uses particular emp’nt practice that causes
disp imp on basis of race, color, religion, sex, or national origin & respondent fails to
demonstrate that challenged practice is job related for position in question & consistent w/
business necessity.
BFOQ – Defense to Disp Treat – allow emp’r to overtly discriminate based on protected category. § 703(e) –
not unlawful for emp’r to differentiate on basis of religion, sex, or nat’l origin in instances where religion, sex, or
nat’l origin is bfoq reasonably necessary to normal operation of that particular business or enterprise. NO BFOQ
as to race.
a. Dothard v. Rawlinson (US 1977) – leading Sup Ct case on bfoq. Held could refuse to hire women in
prisoner contact positions. “Bfoq exception was in fact meant to be extremely narrow exception to general
prohibition of discrim on basis of sex,” but Alabama met that test b/c “a woman’s relative ability to maintain
order in male, max-security, unclassified penitentiary could be directly reduced by her mere womanhood.”
b.
Situations that do not warrant application of BFOQ defense:
(1) refusal to hire woman based on assumption of emp’nt characteristics of women in general;
(2) refusal to hire based on sex stereotypes;
(3) refusal to hire based on preferences of co-workers, clients, customers or emp’r;
(4) fact that emp’r may have to provide separate facilities
c.
Wilson v. SW Airlines (N.D. Tex. 1981) – Men filed suit to challenge SW’s open refusal to hire males & its
published height/weight requirement as operating to exclude men from being hired as flight attendants.
(1) Issue – Whether femininity (female sex appeal) is bfoq for job of flight attendant & ticket agent w.
(2) Argument centering on customer preference rejected – if allow customer preference to be BFOQ, will be
able to carry too far. Will allow customer preference notion in only limited contexts, such as acting &
French chef, etc.
(3) 2-step BFOQ test – (1) does particular job under consideration require worker to be of one sex only? (2)
is that requirement reasonably necessary to “essence” of emp’r’s business?
(4) Held – Functions served by SW’s sex requirement are not essential job functions but are merely
tangential so that cannot be bfoq.
d.
To require BFOQ for jobs requiring multiple abilities, some sex-linked & some sex-neutral, sex-linked
aspects of job must predominate.
(1) Only one case where sex held BFOQ for occupation not providing primarily sex oriented services –
Fernandez v. Wynn Oil – ct approved restricting to males job of international marketing director for
company w/ extensive overseas operations. Case overruled.
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e.
4.
Ferrill v. Parker Group (11th Cir., 1999) – During election, agency hired to supply persons to call &
encourage voters to turn out at elections. Whites call whites & blacks call blacks. P temporary emp’ee who,
at end of election, was laid off in RIF. Sued under §1981 (temp emp’ee not covered under Title VII).
(1) Ct grants Summ J against P b/c RIF was bfoq. But ct grants Summ J for P on issue of assignments.
Explicitly no racial bfoq under Title VII. § 1981 applies bfoq for race by judicial creation.
(2) Difference b/w Title VII & § 1981 – (1) Showing of disp imp insufficient for § 1981 – must show
intentional discrim. (2) B/c disp imp not a claim under § 1981, defense of business necessity, which is
available only to disp imp claims, is not available under § 1981.
(3) Case important in two ways: (1) difference b/w Title VII & § 1981; (2) race bfoq for § 1981.
Affirmative Action - allows emp’rs to be race conscious – conscious of all categories & allows (sometimes
compels) emp’rs to consider protection in making emp’nt decision. Affirmative Action is creation of executive
branch to try to stop discrim & alleviate past discrim. State statutes sprung from this federal order.
a. Emp’r seeks to recruit minorities or set aside specific number or % of jobs for minorities. Plans often
challenged by white males who claim discrimination under § 703(j) – “nothing contained in this title shall be
interpreted to require any emp’r, emp’nt agency, labor organization, or joint labor-management committee to
grant preferential treatment to any individual or to any group b/c of race, color, religion, sex, or nat’l origin
of such individual or group.”
b. Taxman v. Bd of Educ (3d Cir. 1996) – School affirmative action plan. School faced RIF situation in which
needed to lay off one emp’ee. White & black women of equal qualifications, equal performance records,
equal seniority. Chose white woman for layoff b/c of affirmative action plan.
(1) Companies must have set criteria for deciding whom to lay off during RIF – seniority, qualifications,
performance, etc. Performance based criteria is more subjective. Facially neutral way to do it is by
seniority. Seniority is easiest to uphold from legal standpoint.
(2) School Board’s justification for using affirmative action – diversity in school body – wanted teachers to
reflect that. No evidence of past discrim at the school or w/in district.
(3) “Underrepresented” or “Underutilized” – analysis of workforce that divides based on protected
categories to determine prevalence in workplace.
(4) Rule –United Steelworkers v. Weber – AA has two goals – (1) end discrim – prohibit; (2) remedy effect
of past discrim. To remedy, structure preference for hiring those who have been discriminated against
in past. Set aside % of jobs & determine for certain time, will hire % of minorities until workforce
reflects labor pool; add points to hiring/promotion point system based on minority status. Title VII not
violated by AA plan that (1) has purpose that mirrors statute (remedy or prohibit); and (2) does not
unnecessarily trammel interests of non-minority emp’ees.
(5) Held – AA plan here is not remedial. “Although applaud goal of racial diversity, cannot agree that Title
VII permits emp’r to advance goal through non-remedial discriminatory measures.”
(6) Rationale – “Title VII was written to eradicate not only discrim per se but consequence of prior discrim
as well . . . Unless affirmative action plan has remedial purpose, cannot be said to mirror purposes of
statute, and, t/f, cannot satisfy first prong of Weber.”
c.
Constitutional Attack on Affirmative Action
(1) US v. Paradise (US, 1987) – lower ct ordered AA plan – 50% black promotions until each rank is 25%
black. Plan challenged by white emp’ees complaining that it discriminated against them. Sup Ct
affirmed plan b/c “plan was temporary in nature, did not require gratuitous promotions, could be waived
by ct if no qualified black candidates, numerical relief ordered bore proper relationship to percentage of
nonwhites in relevant labor force, & did not impose unacceptable burden on innocent white candidates
for promotion.”
(2) Justice v. Civil Service Comm (9th Cir, 1992) – emp’r could “band” scores (as alternative to rank
ordering according to scores) in attempt to choose more minority & female emp’ees, even though there
had been “undisputed history of discrim.”
B. Discrim Based on Factors Other Than Race or Sex
1. Religion
a. Tucker v. Calif Dept of Educ (9th Cir., 1996) – emp’ee using acronym on documents & engaging in other
religious activities. Emp’r develops order to not use acronym, to refrain from initiating religious discussions,
to refrain from displaying religious books, posters, etc. Order broadened to apply to entire workforce. 1st
Amendment challenge. Order as to acronym not challenged.
(1) Rule – Gov’s burden when justifying broad deterrent on speech that affects entire group of its emp’ees is
greater than when defending individual disciplinary decision. “Gov must show interests of both
11
potential audiences & vast group of present & future emp’ees in broad range of present & future
expression are outweighed by that expression’s necessary impact on actual operation of Gov.”
(2) Reasoning – Weakness of this case is lack of evidence that emp’ee’s conduct was disrupting workplace
or that others were complaining of conduct.
(3) Order Banning Religious Postings – Interior offices not public forum or limited purpose forum.
Reasonableness Test – not reasonable to allow emp’ees to post materials on all sorts of subjects &
forbid only posting of religious info. Not legit justification - sole target is religious speech.
b.
Reasonable Accommodation – can make changes to accommodate protected categories. Most categories
are physical characteristics & not able to accommodate. Can accommodate religion. Litigation of reasonable
accommodation was slow in starting.
(1) § 701(j) – establishes duty on part of emp’rs to “reasonably accommodate . . . an emp’ee’s or
prospective emp’ee’s religious observance or practice [unless it would result in] undue hardship on
conduct of emp’r’s business.”
(2) TWA v. Hardison (US, 1977) – Reasonable accommodation to protect religious beliefs – only
obligation is de minimus attempt. Different standard than reasonable accommodation of ADA.
(a) Held – Obligation of reasonable accommodation does not have to meet emp’ee’s choice. As long as
accommodate emp’ee’s right to celebrate religion, sufficient.
(b) Exemption in § 702 – Religious institutions may favor members of own religion in all emp’nt.
2.
3.
Nat’l Origin
a. Freagante v. City & County of Honolulu (9th Cir, 1990) – applicant for gov position not hired b/c of spoken
English – heavy Filipino accent. City/County introduced evidence of high stress atmosphere – need to be
able to speak good English in order not to further frustrate customers.
(1) Rule – Adverse emp’nt decision may be predicated upon individual’s accent when – but only when – it
interferes materially w/ job performance. Cites Fernandez v. Wynn Oil for proposition that inability
to communicate effectively is one valid ground for finding job applicant not qualified. Trait indigenous
to nat’l origin but also reflects level of success in job.
(2) Held – Must look honestly at accent as job skill – cannot use accent as pretext. Here, D made oral
communication a skill reasonably related to normal operation of job sought & no evidence that used
Fragante’s accent as pretext for any discriminatory reason for refusing to hire him.
b.
Term “nat’l origin” includes country of one’s ancestors, even if that country no longer exists.
(1) Pejic v. Hughes Helicopters (9th Cir., 1988) – animosity based on nat’l origin can outlast political
boundaries so that statutory protection is not limited to nations with modern boundaries or nations that
have existed for set period of time.
c.
Can emp’r require emp’ee to speak English only?
(1) If tied to safety reasons. For example, if emp’ee is accustomed to speaking Spanish during work day, if
that emp’ee needs to yell to English-only emp’ee to “Watch Out!”, would probably yell in Spanish &
English speaking emp’ee would not understand. Sup Ct just granted cert on this issue.
d.
Title VII applies to US operations of foreign companies (provided in Civil Rights Act of 1991).
e.
Immigration Reform & Control Act (IRCA) – “unfair immigration-related emp’nt practice” to
discriminate in hiring, recruitment, or discharge against lawfully admitted alien b/c of individual’s nat’l
origin. “Intending citizens” include aliens who are lawfully admitted & who complete Declaration of
Intent to Become Citizen.
Age
a. Age Discrim in Emp’nt Act (ADEA) – prohibits age discrim in emp’nt, discharge, promotion, or treatment
of persons over age 40. ADEA applies to every emp’r engaged in enterprise affecting commerce that has 20
or more emp’ees for each working day in each of 20 or more calendar weeks in current or preceding year.
EEOC has responsibility for enforcing ADEA.
b.
EEOC v. Francis W. Parker School (7th Cir. 1995) – distinction b/w age & characteristics bound in age.
School decides will pay drama teacher only certain salary. Did not hire P b/c his years of experience
qualified him for higher salary. Lawsuit claims disp treatment & disp imp.
(1) Rule – Hazen Paper – intentional discrim based on economics not protected. Inaccurate stereotyping of
elderly was “essence of what Congress sought to prohibit in ADEA.” When emp’r’s decision wholly
12
motivated by factors other than age, stigmatizing stereotypes disappears – even if motivating factor is
correlated w/ age, as pension status typically is.
(2) Disp imp – most cts do not recognize disp imp under ADEA. Title VII not enforcement mechanism for
ADEA; enforcement FLSA (Portal to Portal Act), which does not recognize disp imp claims.
(3) Two points from this case: (1) certain characteristics linked to age but separate enough to avoid liability;
(2) no disp imp theory as relates to age discrim.
4.
c.
McDonnel Douglas v. Green sets same p/f case & burden shifting for age. P proves p/f case; burden shifts
to emp’r to prove lawful nondiscriminatory reason for adverse treatment. Five affirmative defenses:
(1) BFOQ;
(2) Action based on reasonable factor other than age;
(3) Observe terms of b/f seniority system;
(4) Observe terms of b/f emp’ee benefit plan;
(5) Discharge or otherwise discipline individual for good cause;
d.
EEOC Guidelines – emp’r asserting BFOQ has burden of proving:
(1) Age limit is reasonably necessary to essence of business; & either:
(2) All or substantially all individuals excluded from job involved are in fact disqualified; or
(3) Some individuals so excluded possess disqualifying trait that cannot be ascertained except by reference
to age.
e.
Kimel v. Florida Bd of Regents (US 2000) – ADEA not validly abrogated as to States – fed & state emp’rs
cannot be sued under ADEA.
Disability
a. Americans w/ Disabilities Act (ADA) – requires emp’nt law attys to make different kinds of decisions that
other statutes do not require.
(1) When passed in 1990, enforcement mechanism of Title VII – trial to judge – done for reason of
sophisticated decision-making of what is disability & what is reasonable accommodation. Now, Title
VII allows jury trials & ADA is difficult to try to jury. When in Congressional debate, those who
otherwise may have opposed the statute passed it b/c of fact tried to judge.
(2) What is disability:
(a) disability – physical or mental condition that limits one or more of life’s major activities of that
person (ability to walk, to lift, etc.). Inability to perform certain job where could perform other
work is not disruptive of major life activity.
(b) Perceived as having disability (stupid emp’r) – don’t have disability but emp’r treats as having
disability. B/c emp’r makes error in judgment, emp’ee is treated as having disability & as being w/
class protected by ADA.
(c) Past record of disability – has recovered from disability but still treated as having disability.
Temporary change of condition is not sufficient (broken leg). Case-by-case analysis.
b.
Vande Zande v. State of Wisconsin Dept of Administration (7th Cir., 1995) – Posner case. P asked to be
allowed to work at home. Emp’r refused to purchase computer for home; but allowed her to work at home
15-20 hours a week w/ full time pay & take remaining hours from paid sick leave time.
(1) P/f case – P proves reasonable in accommodating & reasonable in cost. D offers business reason for
not accommodating – undue hardship (one factor of which is cost). Impact of cost on business is
evaluative factor – not actual price (takes into account difference b/w large & small emp’rs). Undue
Hardship – not severe test – does not require equating to emp’r going out of business. Unduly costly =
undue hardship.
(2) Working at Home – No reasonable jury could find that allowing emp’ee to work at home & purchase
computer is required as reasonable accommodation. Cost of computer is not issue. Supervising emp’ee
at home is key. “Generally emp’r is not required to accommodate disability by allowing disabled worker
to work by himself, w/o supervision, at home.”
(3) Kitchen Sink – No need to modify kitchen sink b/c sink in restroom is right height & w/in reasonable
access to kitchen. Stigmatizing not part of ADA. Equal access to similar facility not identical
facility is all that is required of emp’r in making reasonable accommodation.
c.
Rehabilitation Act – 1973 fed statute to impose on fed emp’rs an obligation to deal w/ disabled. In early
days, cts looked to Rehab Act to interpret ADA. Now sufficient case law on ADA not to have to look to
Rehab Act.
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5.
d.
Bragdon v. Abbot (US, 1998) – dentist wanted to treat HIV patient in hospital rather than in office. Court
held HIV in asymptomatic stage is a disability covered by ADA b/c it disrupts the major life function of
reproduction.
e.
Key to ADA – underlying determinative factor – individualization – case-by-case analysis.
f.
Leave of absences from work – idea of ADA was to get people into workplace who had been excluded; but
providing leave for illness or conditions resulting from disability is considered reasonable accommodation.
How long of leave is reasonable? Appear to have accommodated by granting leave but have gotten along
w/o disabled individual so not unreasonable to grant another month of leave.
g.
Defenses
(1) Employee misconduct;
(2) Customer/Co-worker Preference – does not work for race, sex, etc, but may work for disability;
(3) Direct Threat – § 103(b) of ADA - disabled person may not pose direct threat to individual, coworkers,
customers, or public.
h.
Social Security Disability Benefits – totally disabled under SS v. ADA need reasonable accommodation.
Emp’rs siad this is inconsistent to allow emp’ee to collect disability SS by declaring totally disabled but then
to expect emp’r to accommodate their disability to allow them to work in the workplace.
(1) Cleveland v. Policy Management Systems (US, 1999) – filing SS no estoppel from seeking ADA accommodation. Use different standards. SS used for Summ J as prior inconsistent statement in cross of P.
i.
Sutton v. United Airlines (US, 1999) – Blind twin pilots case.
(1) Held – Evaluate twins w/ glasses. Must look at individuals in corrected or medicated condition to
determine whether they have disabilities. “Use of corrective device does not, by itself, relieve one’s
disability. Rather, one has disability if, notwithstanding use of corrective device, that individual is
substantially limited in major life activity.”
(2) Reasoning – Sup Ct does not follow EEOC guidelines, which suggested to ignore mitigating measure.
Congress’s intention to look at individual after correction. Whether disability interferes w/ ability to do
job. If can do job, no interference w/ major life activity. O’Connor focuses on language “substantially
limits” – present tense, statute saying that person must be presently limited. W/ corrective lenses, no
present limitation w/ performing job. Legis history indicates certain number of disabled individuals that
will fall under ADA protection. If Congress had intended to include all those who wear eyeglasses w/in
ADA, that number would have been much greater.
Sexual Orientation
a. Shahar v. Bowers (11th Cir, 1997) – Emp’r revoked job offer when found out P was “marrying” another
woman. P claimed this violated her rights to equal protection & substantive due process.
(1) Held – did not violate equal protection.
(2) Reasoning – Considered public perception. Cannot say that Atty Gen was unreasonable to think that
P’s acts were likely to cause public to be confused & to question Law Dept’s credibility; to interfere w/
Law Dept’s ability to handle certain controversial matters, including enforcing law against homosexual
sodomy; & to endanger working relationships inside Dept. Also cannot say that Atty Gen was
unreasonable to lose confidence in P’s ability to make good judgments as lawyer for Law Dept.
(3) Title VII does not extend coverage to sexual orientation but probably just matter of time.
b.
III.
State statutes commonly protect sexual orientation
(1) Romer v. Evans (US, 1996) – held Colorado’s Amendment 2 unconstitutional as a broad isolation of
invidious groups that violates equal protection. Amendment 2 invalidated all existing & future
legislation, including those dealing w/ emp’nt, that protect homosexuals from discrim.
Chapter 5 – Wages & Hours
A. State & Fed Wage & Hour Regulations
1. Lochner v. NY (US, 1905) – held NY labor statute (prohibited working more than 40 hours per week) interferes
/w right of K b/w emp’r & emp’ees. General right to K in relation to one’s business is part of liberty of individual
protected by 14th Amend. State can only interfere w/ this liberty to K if an exercise of its police powers. Here,
the law in question does not pertain to health, safety, or welfare.
2.
Federal Wage & Hour Regulation: The Fair Labor Standards Act (FLSA)
a. Passed in 1938 w/ three purposes:
(1) Guarantee minimum wage (at about half of average wage)
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(2) Intended to spread work – imposed penalty for overtime w/o paying time & half to encourage emp’rs to
hire more workers rather than make current workers perform more work.
(3) Prohibit child labor
b.
Coverage
(1) Whether emp’r covered?
(a) must be small business not to be covered. Covered if have two emp’ees & meet commerce test –
goods or services produced by business cross state lines.
(b) Public emp’ees covered
(i)
Garcia v. San Antonio Metro Transit (US, 1985) – gov emp’rs covered by FLSA
(ii)
1985 Amendment – amended to allow cumulative comp time in lieu of time & half
overtime pay for gov emp’rs. Imposed cap on how much time can accrue. Comp time
does not apply to private emp’rs.
(2) Whether emp’ee covered?
(a) § 203(e)(1) – broad definition of emp’ee but many exemptions where statute does not apply to
emp’ee – no overtime pay requirement, etc.
(b) Distinction not b/w salaried & non-salaried. Must be paid on salary to be exempt, but mere fact
of salary does not exempt – must also fall w/in statutory exemption.
(c) Four Exemptions:
i.
Executive Exemption – Supervisors, bosses, etc.
 Criteria – mgt of enterprise or department; must supervise at least 2 emp’ees.
 Two Tests – critical factor is how much emp’ee is paid.
(a) Short Test – paid more than $250/week. Look to primary duty – no
mathematical computation as to how much time spent on executive duties.
(b) Long Test – paid b/w $155 & $250/week. Look to % of time spent on
exempt/nonexempt tasks. Look at each week to determine type of work doing. If
less than 80% of function in that week, lose exemption.
ii.
Administrative Exemption
 Criteria – not managers but are important to business in that implement policy. Must
have right to exercise discretion as to fairly broad decisions.
 Tests – Same short & long tests as apply to executive exemption
(a) O’Dell v. Alyeska Pipeline (1988 9th Cir) – Long test requires looking for whether
emp’ee customarily & regularly exercised discretion; Short test requires looking
for whether work includes exercise of discretion.
iii.
Professional Exemption
 Three subcategories:
(a) requirement of higher ed learning – traditionally lawyer, doctor, nurse, etc.
Experience does not count as higher ed.
(b) Teachers
(c) People in artistic profession that requires creative expression – actress, writer,
performer
 Dalheim v. KDFW-TV (5th Cir, 1990) – no bright line test that news reporters
nonexempt as not falling w/in artistic expression exemption – depends on
specific fact situations.
iv.
Outside Sales Exemption [not discussed in book] – sales person not sitting at desk. Doorto-door sales. Outside sales person can lose exemption by doing inside work on occasion.
v.
Professor Court’s nat’l group trying to add two new exemptions:
(a) Inside Sales by telephone solicitation
(b) Computer Professionals
(d) Determining Salary – Two ways to screw up exemptions by salary computation:
i.
Salary deductions for absences of less than 8 hours. Cannot “dock” emp’ee for absence
of less than full day. Instead, use disciplinary procedures.
ii.
Unpaid suspension of less than a week. Cannot discipline exempt emp’ee w/ unpaid
leave of less than a week – must send them home for a day w/ pay to “think about their
conduct & whether they want to keep their job.”
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
c.
Family Medical Leave Act allows intermittent leave w/o pay – can give FMLA leave
to exempt emp’ee w/o losing exempt status.
Hours Worked
(1) Emp’ees must be paid for all hours worked, at minimum wage for first 40 hours worked in given week &
at time & half for all hours in excess of 40 hours per week.
(2) Comp time in private industry must be taken in same period as overtime. For example, work overtime
on Monday, must take time off on Friday if work period is only one week. There is a bill before
Congress to allow private emp’ees to accrue comp time.
(3) If emp’r requires emp’ee to wear cell phone or pager & anticipate call to return to work, is this time on
the clock? Depends on how much personal discretion/freedom one has during waiting time. Do they
have to stay w/in certain distance, such as being able to respond w/in 15 min, etc? Ability to accomplish
personal tasks during waiting time is key factor.
(a) Halferty v. Pulse Drug Co. (5th Cir., 1989) – Telephone dispatcher at home.
i.
“Waiting to be engaged” Doctrine – may entitle workers to receive compensation for
periods of inactivity when they spend such periods waiting on emp’rs.
ii.
“Homeworkers” Doctrine may allow emp’r to pay emp’ee according to reasonable
compensation agreement instead of FLSA’s specific hourly rate requirements when emp’r
cannot determine exact hours emp’ee works.
iii.
When idle time is spent predominantly for benefit of emp’r, not emp’ee, emp’ee is engaged
to be waiting, not waiting to be engaged, & is entitled to compensation.
iv.
Held – B/c dispatcher in case at bar could use time for own purposes while waiting on
calls, not entitled to compensation for idle time under waiting to be engaged doctrine.
(4) Pay for travel time to seminars & for seminar time? Depends on how much seminar benefits emp’r.
(5) If have rule that secretary must get permission to work overtime but works overtime w/o permission,
when accept “fruits of her labor” from overtime work, must pay her overtime or violate FLSA.
IV.
d.
Regular Rate of Pay – What is the wage? How calculate time & half? Emp’ees need not actually be paid
on hourly basis – piece work rates permissible as long as emp’ees in fact receive at least min wage for time
worked. Fixed weekly or monthly salaries fine as long as average weekly salary equals or exceeds min
wage. Wages need not be in cash. Cost of facilities provided at emp’r’s expense for emp’ee’s benefit may
not be included in computing wage.
(1) Nondiscretionary bonus – must be calculated into salary. Christmas ham, etc.
(2) Stock bonus –legislation last year exempts stock options from calculation of regular salary.
(3) Benefits may have to be included in rate of pay. For example, apartment manager receives free rent may
have to include cost of apartment in calculating wage.
e.
Enforcement Scheme
(1) Same as ADEA – Portal to Portal Act. Different from Title VII scheme. Can go straight to ct w/o
filing complaint w/ state or federal agency. Lawsuit can also be filed by US Dept of Labor – can file
complaint w/ Dept or Dept can initiate own investigation w/o complaint.
(2) Different damages – Dept usually seeks only equitable relief rather than monetary relief. No
compensatory or punitive damages allowed under FLSA. Liquidated damages – double recovery only
when violation is willful. Entitled to Atty fees.
(3) State Law – states not preempted from having different minimum wage as long as wage is not lower
than fed wage.
(4) Statute of limitations – Floating – 2 years for nonwillful violations; 3 years for willful violations.
(a) McLaughlin v. Richland Shoe Co. (US, 1988) – Held – meaning of word “willful” as used in
statute of limitations of FLSA is consistent w/ standard of willfulness adopted in Thurston—that
emp’r either knew or showed reckless disregard for matter of whether its conduct was prohibited by
statute. Rejected Jiffy June standard – action willful when substantial evidence to support finding
that emp’r knew or suspected that actions might violate FLSA.
Chapter 7 – Conditions of Emp’nt
A. Work Environment – What is appropriate level of emp’r control of emp’ee’s personal affairs while on the job?
1. Grooming & Dress
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2.
a.
Kelley v. Johnson (US, 1976) – police haircut case – does not violate 14th Amend. Ct assumes citizenry has
some sort of liberty interest w/in 14th Amend in matters of personal appearance.
(1) Justifications offered for haircut rule: (1) make policemen identifiable to public; (2) increase police
force’s espirit de corps. Problem – not challenging as member of general citizenry but as police officer.
Cannot view regulation in isolation, but must consider it in context of force’s organization.
(2) “Question is not whether State can establish genuine public need for specific regulation. Rather, it is
whether respondent can demonstrate no rational connection b/w regulation, based on its method of
organizing police force, & promotion of safety of persons & property.”
(3) Test – Whether regulation is so irrational that it is “arbitrary” & deprives one’s liberty interest in
freedom to choose own hairstyle.
(4) Dissent – 14th Amend protects against comprehensive regulation of what citizens at large may do as to
personal appearance.
b.
No beard policy – skin disorder that affects more black men than white men – beard makes disorder better.
Policy disparately impact black males. Need not make blacks suffer as condition of emp’nt.
c.
Most hair length cases in private emp’nt brought under Title VII sex discrim theory. Unsuccessful for two
reasons: (1) Title VII designed to prohibit discrim based on immutable characteristics & (2) hair regulations
do not inhibit emp’nt opportunity.
d.
EEOC v. Sage Realty Corp (SDNY, 1981) – flag outfit. P not rebelling against wearing uniform in general,
just about wearing particular outfit b/c it did not fit properly.
(1) Persons harassing P are not under emp’r’s control so why is emp’r liable for their conduct? Title VII
does not bring end to emp’r’s liability just as relates to specific emp’ees. Must deal w/ clients & vendors
as well. Emp’r is in best place to deal with such situation.
(2) Rule – Emp’r can impose reasonable grooming & dress requirements on emp’ees, even where different
requirements are set for male & female emp’ees, when those requirements have negligible effect on
emp’nt opportunities & present no distinct emp’nt disadvantages.
(3) Held- In requiring P to wear revealing uniform, D made acquiescence in sexual harassment a prerequisite of her emp’nt. Hence, D discriminated against P on basis of sex, in violation of Title VII.
e.
Hooters Case – Problem not necessarily revealing costume itself but how emp’r allows customers to react to
waitresses wearing costumes. Assumption of Risk Defense – waitresses know type of uniforms/costumes
they will be required to wear when they apply for job.
f.
Requiring women to wear uniforms but just that men dress professionally violates Title VII b/c cannot
require of one gender wearing uniform but giving other gender choice in what to wear. Different treatment
based on sex. Must have gender neutral treatment.
(1) O’Donnell v. Burlington Coat Factory – require females wear smock but not males – blatant effect of
perpetuating sexual stereotypes. “Demeaning for one sex to wear uniform when members of other sex
holding same positions are allowed to wear professional business attire.”
Harassment
a. From management perspective, sexual harassment suit is hard to defend b/c automatic presumption that
where there’s smoke there’s fire.
b.
Daniel Goleman’s article – sexual harassment is motivated by power & not sex. Harassment is way to keep
women in their place by devaluing their role in workplace in calling attention to their sexuality.
c.
Ellison v. Brady (9th Cir, 1991) – Case is wrong. Held – View episode from perspective of reasonable
woman in place of victim.
(1) Today – Look at alleged sexual harassment conduct from perspective of reasonable person. Two
separate standards: (1) perspective of individual involved – did they really believe this was harassment;
(2) would reasonable person view this as harassment.
d.
Burns v. McGregor Elec. Indus. (8th Cir, 1993) – female P posed nude in magazine. Co-workers harassed
her for that. Held – conduct outside workplace does not strip emp’ee from Title VII protection in workplace.
“P’s choice to pose nude outside work is not material to issue of whether P found her emp’r’s work-related
conduct offensive. Private life, regardless of how reprehensible trier of fact finds it, did not provide lawful
acquiescence to unwanted sexual advances at her workplace by her emp’r.”
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3.
e.
Reasonable person standard important b/c of perceptions – perceptions vary among individuals so that
what one person may find offensive may not be conduct that reasonable person would find offensive.
(1) Burden – rests w/ P to prove he/she offended & that reasonable person would also be offended.
f.
Two types of harassment:
(1) Quid Quo Pro – sex for favors
(2) Sexually hostile work environment – jokes, sexual innuendo, etc.
(a) Isolated acts are not enough. Must be pervasive environment. But more severe the act, less often
it must occur.
(b) Recognition that Title VII not meant to be code of civility in workplace.
g.
Harris Forklift Systems, Inc. (US, 1993) – Held – So long as environment would reasonably be perceived, &
is perceived, as hostile or abusive, no need for it also to cause psychological injury.
(1) Reasoning – When workplace is permeated w/ discriminatory intimidation, ridicule, & insult that is
sufficiently severe or pervasive to alter conditions of victim’s emp’nt & create abusive working
environment, Title VII violated. Such environments, even when do not seriously affect emp’ee’s job
performance, discourage emp’ees from remaining on job, or keep them from advancing in career.
(2) Checklist – Look at all circumstances, including “frequency of discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance, & whether it
unreasonably interferes w/ emp’ee’s work performance.”
h.
EEOC Guidelines on Sexual Harassment: “Unwelcome sexual advances, requires for sexual favors, &
other verbal or physical conduct of sexual nature constitute sexual harassment when (1) submission to such
conduct is made either explicitly or implicitly a term or condition of individual’s emp’nt, (2) submission to or
rejection of such conduct by individual is used as basis for emp’nt decisions affecting such individual, or (3)
such conduct has purpose or effect of unreasonably interfering w/ individual’s work performance or creating
intimidating, hostile, or offensive working environment.”
i.
Damages in sexual harassment cases can exceed Title VII cap when Ps couple their Title VII claims w/
claims of assault/battery or claims of IIED.
j.
Oncale v. Sundowner Offshore (US, 1998) – alleged same-sex harassment on oil rig.
(1) Test – Whether members of one sex are exposed to disadvantageous terms or conditions of emp’nt to
which members of other sex are not exposed.
(2) Held – Nothing in Title VII necessarily bars claim of discrimination “b/c of sex” merely b/c P & D are of
same sex. Harassing conduct need not be motivated by sexual desire to support inference of
discrimination on basis of sex. Objective severity of harassment judged from perspective of reasonable
person in P’s position considering all circumstances.
k.
Faragher v. City of Boca Raton & Burlington Indus. v. Ellerth (US, 1998) – Emp’r can be vicariously
liable for sexually harassing conduct of its supervisory emp’ees. When supervisor’s action culminates in
tangible emp’nt action, no defense for emp’r. When no tangible, adverse action, emp’r may defend by
showing it exercised reasonable care to prevent & correct promptly any sexually harassing behavior &
emp’ee unreasonably failed to take advantage of preventive or corrective opportunities to avoid harm.
(1) Emp’rs must establish, disseminate, & enforce sexual harassment policies.
Privacy
a. Bodewig v. K-Mart, Inc. (Or. App. 1981) – customer accuses cashier of stealing $20 that she laid on
checkout counter. Tort action for outrageous conduct against supervisor, K-Mart, & customer.
(1) K-Mart’s defense – consent to strip search. Moved for summ j. Respond to summ j by arguing dispute
of material fact – whether it is an issue of material fact depends upon whether, assuming P’s version to
be true, facts are sufficient to submit case to jury on outrageous conduct theory.
(2) Outrageous Conduct Theory Against Emp’r – conduct beyond all means of decency – similar to
IIED. Must show special relationship. Emp’ee has special relationship b/c emp’r exercises position of
authority over emp’ee – emp’ee subject to direction & control of emp’r & may be discharged for any
reason or no reason. Issue of fact exists whether conduct outrageous – survive summ j.
(3) Outrageous Conduct Theory Against Customer – must prove action was intentional b/c no special
relationship. Ct found intent to embarrass.
(4) Emotional Distress – element of damages – P testifies as to own symptoms suffered – loss of sleep,
sheer humiliation, etc. “Here, not unreasonable to expect that shy, modest, young woman put in P’s
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position would suffer effects she claims to have suffered & that her distress was more than that which
person might be reasonably expected to pay as price of living among people.”
4.
b.
K-Mart v. Trotti – locker search for missing watch. Emp’ee finds locker left open & personal items from
purse in disarray. Held – c/a for invasion of privacy.
(1) Could avoid c/a by putting in emp’ee handbook no expectation of privacy w/ regard to lockers b/c can be
searched at any time. Have emp’ee sign acknowledgement of this policy. Don’t allow emp’ee to bring
own lock– emp’r provided locks. Theory extends to desks that lock, file cabinets, etc. Emp’r must strip
emp’ees of any & all expectations of privacy w/in workplace. Have written policy include & cover
personal items – purse, car in lot, lock boxes w/in locked desks, etc. If emp’r asks for consent, emp’ee
could say no. Does written policy overcome lack of consent?
c.
Vega-Rodriguez v. Puerto Rico Telephone (1st Cir, 1997) – Held – emp’r may monitor work area by means
of continuous video surveillance w/o offending Const. 4 th Amend applies to state actors – telephone
company quasi-state actor.
(1) Privacy Rgts & 4th Amend – P must have actual expectation of privacy in this case & society must
view expectation as reasonable. Key case – O’Connor v. Ortega – held public emp’ees sometimes
may enjoy reasonable expectation of privacy in his or her workplace vis-à-vis searches by superiors or
other representative of public emp’r.
(2) Rule – Emp’r possesses legit interest in efficient operation of workplace & one attribute of this interest is
that supervisors may monitor at will that which is in plain view w/in open work area.
(3) 2 themes underlying surveillance – (1) want emp’ees to work full eight hours while at work; (2) don’t
want emp’ees to engage in conduct at work that they would not do in open.
d.
Employment Records
(1) What rights do emp’ees have to access records? Governed by state law. Emp’r owns records &
emp’ee has no right to access except thru subpoena in lawsuit. However, emp’r should use discretion in
allowing emp’ee to look at records. Allow emp’ee to see in order to preserve evidence – demonstrate
that no documents created or destroyed/lost from records. Do not give emp’ees copies of records. Give
copies of evaluations at time conducted. Emp’ees should also receive disciplinary reports – primary
reports, warnings but not supplementary reports.
(2) Professor Court’s Six Parts to an Emp’ee Warning:
(a) what they did wrong;
(b) how emp’ee should improve or correct conduct;
(c) how long emp’ee has to correct conduct; What is end result to achieve w/ this emp’ee? Rehabilitate
or fire (merely creating paper trail when specifying this info to emp’ee) or probationary period;
(d) tell emp’ee what will happen if fail to correct behavior;
(e) have the emp’ee sign the warning. If emp’ee fails to sign, have witness sign it that says emp’ee saw
the warning but failed to sign;
(f) Give emp’ee copy of the warning. Emp’ee should be given opportunity to write in own comments
indicating that they do not agree that the incident occurred.
Freedom of Expression – legal regulation of emp’ee speech, inside workplace or out, depends on whether emp’r
is private or public. Where gov is emp’r, US Const protects emp’ees from arbitrary state action adversely
affecting job status. 1st Amend free expression; 14th Amend ensures due process protection against discipline &
discharge.
a. Rankin v. McPherson (US, 1987) – emp’ee fired based on content of speech (remarking after hearing of
attempt on life of Pres, “If they go for him again, I hope they get him”) in violation of 1 st Amend.
(1) Right of freedom of expression v. right of emp’r to orderly workplace. Pickering balancing test –
threshold question – whether speech may be “fairly characterized as constituting speech on matter of
public concern.” Commenting on life & death of Pres is matter of public concern. Balance interest in
making comment against interest of State, as emp’r, in promoting efficiency of public service it performs
through its emp’ees. State must plead as affirmative defense.
(2) State, in this instance, should have given P’s comment enough time to become disruptive in workplace.
“Possibility of interference w/ functions of workplace had not been consideration in discharge of P &
that emp’r did not even inquire whether remark had disrupted workplace.”
b.
Waters v. Churchill (US, 1994) – gov’s interests greater when acting as emp’r than when acting as
sovereign. State may restrict more of emp’ee speech in interest of efficiency. Public emp’r must merely
proceed w/ reasonable care to determine facts of what was said & act in good faith.
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5.
c.
Johnson v. L.A. Co. Fire Dept. (C.D. Cal. 1994)– Cannot have rule against porno mags in workplace b/c of
1st Amend. Rejected argument that permitting presence of sexually-charged magazines inevitably leads to
sexual harassment.
d.
Exercise of 1st Amend does not protect emp’ees who would have been legitimately discharged anyway.
e.
§ 7 of NLRA – targeted at concerted action. Allows emp’ees in disciplinary proceedings to have
representative. Not exclusively labor context privilege. Entitled to have co-emp’ee present.
f.
Novosel v. Nationwide Ins. Co. (3rd Cir. 1983) – tort action for wrongful discharge in private emp’nt
arises under Const where emp’ee discharged for refusing to participate in lobbying efforts encouraged by
emp’r. Must identify “clearly mandated” public policy – for this, cts can look to const.
(1) Identified factual basis P would have to establish in order to prevail on wrongful discharge claim:
(a) Whether, b/c of speech, emp’r is prevented from efficiently carrying on its responsibilities;
(b) Whether speech impairs emp’ee’s ability to carry out his own responsibilities;
(c) Whether speech interferes w/ essential & close working relationships;
(d) Whether manner, time & place in which speech occurs interferes w/ business operations.
(2) Weighing these issues, ct should employ following balancing test:
(a) nature of actor’s conduct;
(b) actor’s motive;
(c) interest of other w/ which actor’s conduct interferes;
(d) interests sought to be advanced by actor;
(e) social interests in protecting freedom of action of actor & contractual interest of other;
(f) proximity or remoteness of actor’s conduct to interference; and
(g) relations b/w the parties.
(3) Novosel extends constitutional protections to private sector emp’ees via public policy exception to at
will doctrine.
Collective Bargaining
a. Edward G. Bud v. NLRB (3rd Cir not in book) – Emp’ee comes to work drunk (if comes at all) & other
problems. Supervisors ask that he be fired. Company refused to fire & gave him raises b/c labor union
steward. When eventually fired, ct found discrim against him as union shop rep b/c had not taken previous
action against him for similar conduct. NLRA not concerned w/ performance of emp’ees but only concerned
w/ motivation of discharge.
b.
NLRB v. Washington Aluminum Co. (US, 1962) – Industrial setting w/ no heat - Emp’ees leave work.
(1) Is conduct reasonable? Does not matter under NLRA how reasonable. NLRB found conduct was
concerted activity protected by § 7, which guarantees that “Emp’ees shall have right to engage in
concerted activities for purpose of collective bargaining or other mutual aid or protection.” Bd also
found that discharge of emp’ees amounted to unfair labor practice under § 8(a)(1), which forbids emp’rs
“to interfere w/, restrain, or coerce emp’ees in exercise of rights guaranteed by § 7.” (Not all concerted
action protected; violence, threats, insubordination, & disloyalty may constitute “discharge for cause”
under § 10(c).
(2) Held – emp’ees do not lose right to engage in concerted activities under § 7 merely b/c do not present
emp’r w/ specific demand to remedy certain condition. Also, no defense by emp’r that emp’ees, in
walking out, violated company policy of not leaving work w/o supervisor approval so as to give emp’r
“cause” to terminate. Coercive conduct here of walking off the job was protected by § 7.
c.
Classic case of concerted activity to send message regarding working conditions. Do not have to form union
to fall w/in Act, only need engage in concerted activity.
(1) Interboro doctrine – single person acting on behalf of group constitutes concerted activity & is
protected by act. When act for good of group – protected; when act individually – not protected.
Concept is similar as to free speech & to concerted activity. But no constructive concerted activity in
absence of CBA. Individual non-union emp’ee’s assertion of group rights not deemed concerted activity
unless other emp’ees directly involved in dispute.
(2) Classic concerted activity – strike. Can have strike w/o labor union. Hire permanent replacement
workers but don’t fire striking emp’ees. Firing is discrimination. Striker has right of first refusal when
permanent replacement leaves. Unfair labor practice strike – temporary emp’ees only – strikers can
return when they choose, unless engage in violence, etc.
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B. Seniority & Promotion
1. Seniority
a. 2 types of seniority: (1) benefits seniority – emp’ee’s eligibility for benefits based on length of service; (2)
competitive seniority – priority system for allocating scare emp’nt conditions, involves relations among
emp’ees.
b.
2.
§ 703(h) – “not unlawful emp’nt practice for emp’r to apply diff standards of compensation, or diff terms,
conditions, or privileges of emp’nt pursuant to b/f seniority system, provided such differences are not result
of intention to discriminate.”
Promotions
a. Tenure – allows subjectivity in decision – opens door to overt or disguised discrimination.
(1) Namenwirth v. Bd of Regents (7th Cir., 1985) – P denied tenure; brought Title VII suit for sex discrim.
Disparate numbers of women hired into professor positions – earlier found to be pattern of sex discrim.
(a) Held – no sex discrim. Compared P’s record w/ record of men awarded tenure & found Univ’s
claim of insufficient promise in P’s work was not pretextual.
(b) Evidence consists in large part of opinions of academics who serve not only as experts on
qualifications but also as decision-makers in tenure process. “It is not our role, as fed cts have
acknowledged, to consider merely hard evidence of research output & hours spent, & reach tenure
determinations de novo. Crucial part of evidence is esteem in which candidate is held by persons
making tenure decision.” Tenure is unique decision.
(c) Univ does not have burden of persuasion – makes difference in this case. Must only put on
evidence to show that lack of esteem – not viewing P as having adequate potential – was an actual
factor of decision & was not pretext.
(d) Judges making these holdings understand & appreciate tenure so as to want to protect the concept
b/c judges have tenure themselves.
(e) Deference to those who make tenure decisions but cts today, in face of evidence of overt discrim,
will be more likely to find discrim & award tenure. Cts were reluctant to interfere w/ tenure
decisions b/c of implications w/in workplace – tenured emp’ee can never be fired. Promotion &
tenure cases can affect entire structure of workplace.
(2) Autry v. N.C. Dept of Human Resources (W.D.N.C. 1987) – emp’nt laws do not prohibit decisions to be
made on friendships or politics – just prohibit decisions based on race, sex, etc.
(3) Paramour Exception – sex discrim really deals w/ gender & not sex. If retaliate based on refusal to
sleep w/ boss, actionable based on gender. Favoritism different – cts consistent in saying not illegal to
choose emp’ees based on close, personal (ie. sexual) relations.
V.
Chapter 8 – Occupational Safety & Health
A. OSHA – initiated by Jimmy Carter – prior gov had done little to invade right of private business to deal w/ safety. To
administer, developed Occupational Safety & Health Admin – OSHA not structured as Title VII but as FLSA –
agency taxed w/ responsibility of investigating, evaluating, & remedying situations. OSH Review Commission –
agency. Find violation; charges issued; ALJ hears case; no jury trials, damages in form of penalties or criminal
prosecution. Subject to fine & written order to abate conduct: (1) specify violation; (2) level of violation; (3) amount
of fine; (4) date by which correct safety problem. Emp’r files “Notice of Contest” – plans to contest either violation,
amount of fine or date of correction. Informal conference to negotiate deal. Don’t reach deal, OSHA files complaint.
B. Emp’r Duties
1. Goal of OSHA is to prevent workplace hazards. Broad scope of act (covers 5 mill workplaces) but not capable of
inspecting all workplaces covered so that Act confers a pre-inspection duty (under § 5(a)(2)) on emp’rs to
comply w/ specific standards & the general duty clause (under § 5(a)(1)) to use for safety in workplace where
OSHA have not established specific standards for industry.
2.
Determining whether to cite emp’r under § 5(a)(1) or § 5(a)(2) & under which particular standard under § 5(a)(2),
cts use principle that specific takes precedence over general. Emp’r may not be cited under § 5(a)(1) unless no
specific standard under § 5(a)(2) applies.
3.
OSHA Inspections
a. OSH Inspector will inspect workplace for two reasons:
(1) OSHA target industry or company b/c of past safety problems/record. Certain industries inherently more
dangerous than others;
(2) Emp’ee complaints (disgruntled emp’ee likely to file complaint).
21
b.
c.
d.
e.
f.
g.
4.
Unannounced inspections – OSHA does not have right just to walk in & inspect. Emp’r can delay by
insisting on search warrant. But inspectors forced to go to fed ct to get warrant often conduct more
thorough inspections.
Political philosophy of Pres, who appoints dir of OSHA, affects how inspections conducted – whether they
will always find violations or will cite only egregious violations.
Concessions – w/ area director – can get violations dismissed & reduce amount of penalties. Subsequent
fines increase based on past fines so want fines to be as low as possible. Litigation process used to test
standards – often more costly to litigate than to pay fine.
File complaint (after filing notice of complaint) – can continue negotiations w/ area dir. Trial to ALJ. If
adverse finding, have right to appeal. Any commissioner of OSHA can call for review of a case.
Enforcement goes to ct of app (skip dis ct).
Key is standards & what obligations emp’rs have in regard to standards. Standards hard to interpret. Need
experts to help interpret. Standards developed by scientists & are technical. NIOSH – nat’l institute of
safety & health – used to interpret standards.
When agency initially developed, safety inspectors found tons of violations – petty enforcement. Political
resistance to new standards that OSHA tries to implement. OSHA does not cover all emp’rs but does cover
roughly 85%.
Compliance w/ Standards
a. Interpretation of Standards – (1) Comply w/ standards; (2) if no standard, gen duty to provide safe workplace. Cannot be cited under gen duty standard unless no standard exists specific to industry or situation.
(1) Brock v. City Oil Well Serv. Co. (5th Cir., 1986) – oil well workers died b/c of poison gas. OSHA found
violation of specific standard – precautions could have been implemented to avoid deaths – monitors,
respirators, etc.
(a) What does standard require? Ct notes company did nothing to protect workers. Company says,
according to exact language of standard, only two situations exist where required to provide
respirators: (1) when effective controls not feasible, or (2) when effective engineering controls are
being implemented. Standards do not specify respirators required when effective controls are
feasible but are not being used. Ct rejects this contention – “We thus read [standard] to require an
emp’r to provide either effective engineering controls or respirators to its emp’ees.”
(b) Notice – how much notice required before must supply respirators or other safety equipment? Gas
unexpected but ct says if had researched would have found same gas present in other wells around
same area. Hence, gas reasonably foreseeable & ct required compliance w/ standard.
(c) Industry custom is not a defense – entire industry may be ignoring standard. Under the Act, it is
emp’r’s responsibility to ensure that its emp’ees are protected. Cannot circumvent this
responsibility based on vaguely defined industry custom of noncompliance w/ standard.
(d) In this case, ct was interpreting an imprecisely worded standard. Cts must balance remedial
interest of protecting worker health & safety against emp’r’s interest in due process. Cts, though,
generally reluctant to give broad interpretations to standards.
(2) Durez Division of Occidental Chem. Corp v. OSHA (D.C.C. 1990) – Challenged disclosure
requirements of Hazard Communication Standard. HCS imposes upon chemical manufs & upon other
emp’rs who expose emp’ees to chemical products at workplace variety of requirements intended to
ensure that emp’rs & emp’ees receive info necessary to anticipate & to protect against potential chemical
hazards. Here emp’r had told emp’ees that exposure to chemical could cause certain problems – but had
not told emp’ees of more serious problems. OSHA issued “other than serious” violation. ALJ upheld
violation.
(a) Held – Upheld violation & required disclosure of all health risks, even though company had argued
that the health risks were so minimal as not necessary to disclose. Relied on precedent that had
required disclosing all health risks, reasoning “hazard potential does not change even though risk of
experiencing health effects does vary w/ degree of exposure.” Ct also looked to Secretary
interpretation of the standard, which comported w/ requiring disclosure of all risks.
(b) Two approaches required by OSHA – (1) provide equipment; (2) provide notice & info.
b.
Safety Training
(1) Superior Custom Cabinent Co. (OSHA Bd. 1997) – Custom cabinets delivery. Stairs do not have
guardrails. Deliveryman falls & dies. OSHA issues citation for four serious violations of construction
safety standards requiring instructions to emp’ees in recognizing & avoiding hazards.
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(a) Failure to give adequate safety training. Superior had no written safety rules specifically addressing
unguarded stairs or landings. Requirement of periodic safety inspections – not supervisor’s role.
Mere fact that not in control of site does not relieve obligation to inspect for hazardous conditions.
Superior held safety meetings in which told if encounter unsafe condition, call office, leave cabinet
at worksite, & leave worksite. Company has evidenced concern about safety & its emp’ees. This
factor probably helped to lower penalty to $2000.
(b) Commission recognizes that guardrails not feasible in all circumstances. Safety Standard §
1926.21(b)(2) – Emp’r shall instruct each emp’ee in recognition & avoidance of unsafe conditions
& regs applicable to work environment to control or eliminate any hazards or other exposure to
illness or injury.
(c) Held – Superior liable for safety violation b/c instructions to emp’ees inadequate for two reasons:
(1) too general; (2) not modeled on applicable regulations. Standard requires education on safety
applicable to industry; an emp’r’s instructions are adequate if they are “specific enough to advise
emp’ees of hazards associated w/ their work & the ways to avoid them” & are modeled on
applicable standards. Here, too general in identifying unsafe conditions & too general on what to do
when unsafe. “Rules such as Superior’s that give emp’ees too much discretion in identifying unsafe
conditions are too general to be effective.”
(d) Emp’rs required to train emp’ees. Degree of training required depends on obviousness of hazard,
experience of emp’ee, likelihood of accident, degree of harm likely to result from accident. Current
industry practice is relevant but not dispositive.
c.
Burden of Proof
(1) Syntron, Inc. (OSHA Bd. 1984) – exposed saw blade. Emp’r used videotape to show that emp’ee
operating saw never comes w/in one foot of saw. Majority found no violation – evidence insufficient to
establish that during operation of saw emp’ees were exposed to “hazard” w/in meaning of standard. A
footnote to the case states: “The standard was not, however, intended to protect against the mere
possibility of injury. Rather, whether a machine presents a hazard w/in meaning of standard must be
determined by how machine functions & how it is operated by emp’ees.”
(a) Dissent recognized that operator could be injured through inadvertence; contends that is why
standard requires physical methods of guarding rather than methods of guarding that depend on
correct human behavior – behavior includes inadvertant mishaps. But no evidence here of past
mishaps to put emp’r on notice that inadvertence can cause injury.
(2) P/f Case of § 5(a)(2) – Sec must prove by POE:
(a) cited standard applies;
(b) failure to comply w/ standard;
(c) emp’ee had access to violative conditions;
(d) emp’r knew or could have known of condition & w/ exercise of reasonable diligence.
5.
General Duty Clause - § 5(a)(1) - “Each emp’r (1) shall furnish to each emp’ee emp’nt & place of emp’nt free
of recognized hazards causing or likely to cause death or serious physical harm.”
a. Pepperidge Farm (OSHA Bd, 1997) – Ergonomics; injury difficult to diagnose exact cause & difficult to
remedy. No specific standard addressed ergonomics.
(1) Issue – What steps were emp’r required to take to abate injury? (1) Did job cause injury? (2) Is emp’r
on notice of causing injury?
(2) Evidence – Medical records showing various emp’ees developing same symptoms. Employed physician
to treat. Internal corp memos from expert w/in company that studies ergonomics.
(3) Commission finds carpal tunel syndrome is serious injury or serious physical harm defined as:
physical disorders that so adversely affect emp’ees that they are disabled from doing their jobs – even if
disability not permanent.
(4) Held – found existence of hazard; empr has knowledge of hazard; hazard causing physical harm; &
evidence of feasible means to eliminate apparent from emp’r’s own steps it had already taken in
recognition of problem. Ct found that it was not feasible to take further steps & ct dismissed citation.
b.
P/f Case of § 5(a)(1):
(1) condition or activity in emp’r’s workplace presents hazard to emp’ees;
(2) cited emp’r or emp’r’s industry recognizes hazard;
(3) hazard causing or likely to cause death or serious physical harm;
(4) feasible means exist to eliminate or materially reduce hazard.
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6.
OSHA Defenses
a. Brennan v. OSHRC (Republic Cresoting Co.) (7th Cir., 1974) – Railway tie case. Citation for serious
violation of general duty clause. Serious violation present only where “substantial probability that death or
serious harm could result from condition that exists or from practices, means, methods, etc. adopted or in use,
unless emp’r did not & could not w/ exercise of reasonable diligence, know presence of violations.” Citation
here for lack of posted warning signs & lack of barricades.
(1) Appealed fine for three reasons: (1) don’t want record of violations; (2) don’t want expense of erecting
barricades; (3) don’t want OSHA citation used as evidence in tort action brought for wrongful death by
decedent’s family.
(2) OSHA’s protections limited to those who are participants on worksite. Decedent was not intended to
be participant. Training not required for him, then. Emp’r warned decedent to stay away from
unloading but decedent did not follow instructions.
(3) Emp’ee Misconduct Defense – Four elements:
(a) emp’r establishes work rules designed to prevent violation (notice);
(b) communication to emp’ees;
(c) emp’r takes steps to discover violations of safety standard;
(d) emp’r effectively enforced rules when violations discovered.
(4) Other affirmative defenses:
(a) vagueness of standard (seldom prevails);
(b) infeasibility of compliance;
(c) compliance would cause greater hazard.
C. Emp’ee Rights
1. § 5(b) – “Each emp’ee shall comply w/ occupational safety & health standards & all rules, regulations, & orders
issued pursuant to Act which are applicable to own actions & conduct.” Not enforceable by gov.
2. Rights:
a. At rule-making stage, Emp’ees may petition for adoption of standard, serve on standards advisory committee,
& seek judicial review of new standards.
b. At enforcement stage, Emp’ees may file complaint w/ OSHA, bring mandamus action in dis ct to compel
inspection when imminent dangers exist; participate in inspection tour; & have emp’r post all citations.
c. At adjudicatory stage, Emp’ees may file notice of contest to abatement period in citation; elect party status in
contests initiated by emp’r; & seek judicial review of Commission decisions.
3.
Access to Info
a. OSHA provides exception to OK’s rule that emp’ee records are emp’r’s property. Medical records
should be given to emp’ees so that they can help in enforcing OSHA. Emp’ee has right to request info
(medical records) & emp’r has obligation to grant
b.
General Motors Corp. (OSHA Bd., 1991) – conflict b/w state & fed law. State law (workers comp) did not
allow discovery requests. Request for medical files made under OSHA as discovery for workers comp claim.
Emp’r did not turn over records b/c intended not to be used for OSHA purposes but instead to be used as
evidence in workers comp case. Complaint then filed w/ OSHA. Citations issued.
(1) Looked to United Steelworkers v. Marshall – held OSHA regs not to be interpreted to alter workers
comp laws. Although fed law normally trumps state law, Congress specifically addressed this issue. Ct
finds that OSHA records access rule does not change terms of either state workers comp act or other
applicable act. Limitations – do not have to turn over all file – not required to turn over atty-client
privileged docs & not required to turn over docs related to workers comp claim – just medical records.
OSHA is unique statute b/c can impose penalties on emp’rs for violation of act.
(2) Defense to willful violation – good faith belief that not violating act. Look to objective test – whether
this emp’r actually had good faith belief that not violating act. Found such good faith belief here.
Argues nothing more than de minimus violation – ct rejected. Violations of the request for info
provision is not de minimus b/c provision allows emp’ees to play role in managing own health & also to
help in role of “private” inspector for OSHA. Should have turned over non-privileged docs.
c.
Emp’ee has individual right to see his own record but union cannot have access to individual records w/o
emp’ee’s consent.
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VI.
Chapter 10 - Discharge – most litigation cases will focus on discharge
A. At will – can terminate employment w/ or w/o cause – for no reason at all. Both emp’r & emp’ee are free to terminate
relationship at any time, w/o reason & w/o notice. Issue for summ j – b/c hard to convince jury on defense of at will.
Juries expect cause.
1. First intrusion into at will doctrine – K – unions, CBAs have just cause clauses. Bulk of economy, though, not
unionized.
2.
Public Policy – next intrusion – started in Michigan & Calif – judicial declarations that non-union sector should
have same protections as unions. Public Policy Exception – bad facts scream for remedy for emp’ees.
a. Petermann v. Teamsters – 1st wrongful discharge case. Emp’ee fired for refusing to perjur himself. Ct noted
right to discharge emp’ee under at will K could be limited by statute or public policy. “To hold that one’s
continued emp’nt could be made contingent upon his commission of felonious act at instance of emp’r would
be to encourage criminal conduct upon part of both emp’ee & emp’r & serve to contaminate honest
administration of public affairs.
b.
Gantt v. Sentry Ins. (Cal. 1992) – As supervisor, P testified on harassment of emp’ee. Ultimately
constructively discharged. Issue – Whether emp’ee, terminated in retaliation for supporting coworker’s
claim of sexual harassment, may state c/a for tortious discharge against public policy.
(1) Rule – At will emp’ee possesses tort action when discharged for performing act that public policy would
encourage, or for refusing to do something that public policy would condemn.
(2) Difficulty lies in where & how to draw line b/w claims that genuinely involve matters of public policy &
those that concern merely ordinary disputes b/w emp’r & emp’ee. Policy in question must involve
matter that affects society at large rather than purely personal or proprietary interest of P or emp’r; in
addition, policy must be “fundamental,” “substantial,” & “well established” at time of discharge.
Few cts have recognized public policy claim absent statute or const provision evidencing policy in
question. Violations of public policy generally fall into four categories: (1) refusing to violate statute;
(2) performing statutory obligation; (3) exercising statutory right or privilege; (4) reporting alleged
violation of statute of public importance.
(3) Held – Found policy against sexual discrim in state const. Statements w/in sexual harassment
investigation essential to effective enforcement. T/f public policy here mandates finding of wrongful
discharage.
c.
Murphy v. Amer. Home Products (NY, 1983) – refused to judicially enforce public policy exception to at
will emp’nt w/o legislative action.
d.
Evolution of Oklahoma’s Public Policy Exception:
(1) Hall – OK Sup Ct borrows from K law & creates c/a in emp’nt for implied covenant of good faith &
fair dealing. Written K that deprived emp’ee of what deserved. Limited to situations where being
denied something emp’ee has already earned.
(2) Burk – Crafted public policy exception to at will doctrine – source can be statute, const, & case law.
(a) Tort suits – unlimited compensatory & punitive damages. Developed public policy exception b/4
Title VII amended in 1991 to allow for punitives. T/f allows greater recovery in state ct than fed ct
on same fact situation. Also – issue of whether have to follow statutory administrative requirements
under state c/a.
(3) List v. Anchor Paint – cannot bring public policy action where statutory relief available. Here, ADEA
provides remedies – no public policy tort. Opinion is wrong, though, b/c ADEA does not allow punitive
damages. Also, subsequently overturned.
(4) Tate – Title VII cannot be source of public policy tort b/c after amend Title VII, provides punitives so
that same recovery available.
(5) Collier Case – Under OK state discrim statutes, unlike fed, atty gen must bring action - no individual
c/a. State antidiscrim statutes may be basis for Tort of public policy claim b/c state statute (policy) lacks
individual c/a & access to jury trial.
(6) OK Summary of law today – Collier – (1) state statute, const, or case law as source of public policy.
(2) Can bring public policy tort for discrim claims, except in area of “handicap” – state discrim statutes
allow adequate recovery, individual action & jury trial on handicap claims but not for other areas of
discrim. Policy conflict – b/w admin procedure aimed at settlement under Title VII & state remedy.
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3.
Br/K
a. Written K
(1) Gordon v. Matthew Bender (N.D. Ill., 1983) – emp’ee fired for not meeting performance expectations.
Sued for Br/K. Alleged that although K for no definite time, not terminable at will b/c certain letter
created K for continuous emp’nt conditioned on acceptable sales performance, which emp’r br/ by firing
emp’ee even though met requirement of acceptable sales.
(a) Held – rejected proposition that satisfactory or acceptable performance language transforms K w/ no
definite period – at will – into K that cannot be terminated by either party at any time for any reason.
(b) Reasoning – “condition” of satisfactory or acceptable performance theoretically could be implied in
every emp’nt K. Such end run around at will doctrine would eviscerate it altogether.
b.
Implied Terms of Oral K
(1) Pugh v. See’s Candy (Calif., 1981) – after 21-years of emp’nt & promotions from dishwasher to a vice
president, terminated w/ no explanation. Evidence that had been told that future would be secure if he
were loyal & did a good job. Pres of company had practice of firing only for good cause.
(a) Does P have K? No written K, but at will K w/ certain contractual implications. Limitations upon
K may be implied. 2 forms: (1) K for specific term or duration; (2) limitation based on event –
working as long as satisfactory performance. Consideration – continued stay w/ emp’r.
(b) Things to look at: Length of service; loyalty owed long-term emp’ees – is there assurance of
continued emp’nt; practice of others in industry (Prof says this is wrong).
(c) Allowed intrusion into at will based on implied K.
c.
Emp’ee Handbooks & Manuals – developed to help emp’ee moral & give emp’ees guidance as to rules.
Nothing more than non-negotiated union-like CBA. Emp’ee handbook was non-union strategy to implement
union strategies. Manuals supplement handbooks.
(1) Woolley v. Hoffman-LaRoche, Inc. (NJ, 1985) – terminated emp’ee sues for br/K arising from emp’nt
handbook. Ks are more than written docs signed by two or more parties. Manual created K that emp’ee
could only be fired for cause & emp’r must follow certain procedures for firing.
(a) Held – absent clear & prominent disclaimer, implied promise contained in emp’nt manual that
emp’ee will be fired only for cause may be enforceable against emp’r even when emp’nt is for
indefinite term & would otherwise be terminable at will.
(b) Diff b/w handbook & manual – emp’ee knows handbooks but may not see manual b/c manual
intended only for supervisors. Reliance on promise if never see manual? Vague assurances are not
Ks – not specific promise.
(2) OK cts recognize emp’ee rights arising from emp’ee handbook. If we say what emp’r writes is what
emp’r means – make emp’r write more – specify emp’nt at will regardless of provisions in handbook.
Specify that no official may modify at will except pres & must be in writing. Policy irrelevant – look to
practice. (Policies in writing; Practice what is done day to day).
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