Chapter 2
The Employment Law
Toolkit: Resources for
Understanding the Law
and Recurring Legal
Concepts
Copyright 2015 McGraw-Hill Education. All rights reserved. No
reproduction or distribution without the prior written consent of
McGraw-Hill Education.
Learning Objectives (1)
 Understand the structural setting of
employment law: the court systems, the role of
stare decisis (precedent) and the processes of
the EEOC
 Examine the nature and implications of
employment-at-will, vs. other employment
relationships (e.g., civil service, or per defined
contract, collective bargaining agreement)
 Understand the exceptions to employment-atwill
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Learning Objectives (2)
 Understand concepts of retaliation and
wrongful discharge.
 Recognize the background of Civil Rights Act,
and the common features and distinctions
among claims, depending on which protected
characteristic(s) form the basis of the claim.
 Distinguish between disparate treatment and
disparate impact discrimination claims, and
know the common employer defenses.
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Stare Decisis and Precedent (1)
 Stare decisis (the thing decided)
 Elements, role of Opinions (maj/concurrence/dissent)
 Balances stability/predictability and evolution of law
 Liberal v. Conservative as applied to judging
 Federal court system
 Reverse funnel: trials, appeal 1(right), appeal 2 (cert.)
 100 district courts, 13 circuit courts of appeal, 1 Supreme
Court
 Reasons to grant “cert” (certiorari)
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Stare Decisis and Precedent (2)
 State court system – same template
 Trial court  intermediate court of appeals  state
supreme court
 Interplay between states and feds
 Hierarchy: Constitution > statutes > common law
 Bill of Rights + 14A
 State decisions on state law final, unless US
Constitution violated
 US Supreme Court decisions are final
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Understanding the Case Parties
Key Terms
Meaning
Plaintiff
One who brings a civil action in court
Defendant
One against whom a case is brought
Appellant
One who brings an appeal
Appellee
One against whom an appeal is brought
Petitioner
One who appeals a case to the Supreme Court
Respondent
One against whom a case is appealed at the Supreme
Court
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Understanding the Case: Information
Key Terms
Meaning
Case citation
The book volume, case reporter and page where the
court opinion can be found, and decision date.
Motion to
dismiss
Request for court to dismiss plaintiff’s case before
trial, based on any of various defects in Complaint
Motion for
summary
judgment
Request for the court to rule on plaintiff’s case based
on the documents submitted, alleging that facts are
not in-dispute, only application of law to them
Per curiam
A ruling made by an appellate court as a group,
rather than individual opinion (usually unanimous)
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Prima Facie Case (“on the face of it”)
 Cause of action: Right provided by law for a
party to sue for remedies when that right is
violated
 Prima facie case: Presentation of evidence that
fits each element of a cause of action
 Demonstrates plaintiff’s claim to a cause of action
 Requires defendant to answer and defend claim(s).
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Employment-at-Will Concepts (1)
 At-will employment: Employment relationship
where there is no contractual obligation to
continue for an agreed time.
 Agreement renews itself every second, until it doesn’t
 Either party may terminate, without liability to the
other
 Other types of employment relationships include
government employment, terms of a collective
bargaining agreement, or individual contracts
that define terms and duration.
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Employment-at-Will Concepts (2)
 Key concept and general rule: either Party
may terminate the employment relationship, at
any time, for a good reason (incompetence,
better offer), or no-reason-at-all (including
many stupid reasons) – just not a bad reason =
one that falls within one of the few exceptions to
the doctrine (next).
 Most private-sector employment is at-will
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Exceptions to the At-Will Doctrine
 Violation of employment law: e.g., race discrimination or
retaliation motivated the termination
 Bad faith or malicious termination may violate public
policy (other law, legal right)
 Breach of some other implied contract term (e.g.,
handbook terms that limit employer discretion)
 Breach of the implied covenant of good faith and fair
dealing (CA and a few other states)
 Termination in violation of the doctrine of “promissory
estoppel”
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Public Policy Exception
 Public policy: Legal concept intended to ensure
that no ‘person’ lawfully do that which may
injure the public or damage the public good
 Whistle-blowing
 Federal Whistleblower Statute
 Whistleblowers Protection Act
 State protection
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Retaliatory Discharge
 Terminations in response to an employee
exercising rights provided by law
 E.g., filing a claim charging discrimination
 Limited constitutional protections (recurring
theme)
 State action – no free speech in the private sector(!)
 A government employer is prohibited from terminating
a worker or taking other adverse employment action
against a worker on the basis of the worker’s
engaging in constitutionally protected activities
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Retaliatory Discharge: Prima Facie
Case
Participation in a
protected activity
An adverse
employment action
Causal connection
between the protected
activity and the
adverse action
 Burlington Northern & Santa Fe Railway Co. v.
White
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Implied Contract Exception
 Implied contract: An unexpressed contract term
created by words or conduct of the parties
 Employee Handbook statements may imply
termination only for ‘just cause’
 Other provable conduct that suggests limitation on
employer’s at-will discretion.
 Melott v. ACC Operations, Inc.
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‘Implied Covenant of Good Faith and
Fair Dealing’ Exception
 Implied contractual obligation to act in good faith
in the fulfillment of each party’s reasonable
contractual expectations
 The court examines the parties’ actions to
ascertain whether termination demonstrated bad
faith (e.g., termination to avoid paying bonus
earned, but due if employed at year-end).
 Narrowly construed – most risks do not qualify,
and only a few states recognize this claim
Case: Guz v Bechtel National, Inc.
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Promissory Estoppel Exception: Prima
Facie Case; other statutes of note
The employer
made a promise
On which the
worker
reasonably
relied
To the
employee’s
detriment
 Promissory estoppel proof problems abound –
definiteness of the promise is important
 Other statutory exceptions to employment at-will
 Occupational Safety and Health Act
 Fair Labor Standards Act
 Pregnancy Discrimination Act
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Constructive Discharge
 Constructive discharge: Occurs when
conditions so intolerable the employee has no
reasonable alternative but to end the
employment relationship
 Employer may be seeking to make worker leave
‘voluntarily’ to avoid wrongful discharge claim
 Courts require new burdens to be substantial
 Paloni v. City of Albuquerque Police Department (no)
 Nassar v. Univ. of Texas Southwestern Medical Center at
Dallas (yes)
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Other Restrictions on At-Will Doctrine
 The Worker Adjustment and Retraining
Notification Act (WARN)
 Requires that employers with over 100 employees
must give 60 days’ advance notice of a plant closing
or ‘mass layoff’ (as defined in statute) to affected
employees
 Exceptions for faltering business seeking capital;
sudden, dramatic, unexpected business changes; or
certain natural calamities
 Co’s. ‘sabotage’ fear may  60-days severance
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Other Exceptions to At-Will Doctrine
 Wrongful Discharge Based on Other Tort Liability
 Tort of outrageous conduct
 Tort claim for emotional distress
 Tort action of defamation
 Wrongful invasion of privacy
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Employment Discrimination Concepts:
Disparate Treatment (1)
 Concepts common to most discrimination
claims: analyses are similar. Protected
characteristics also have unique features or
issues (covered in specific future chapters)
 Generally two types of discrimination claims:
 Disparate treatment: Treating similarly-situated
employee or applicant differently because of a
characteristic covered by Title VII.
 Intentional acts: e.g., “Mexicans need not apply”
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Employment Discrimination Concepts,
Disparate Treatment: Prima Facie Case
Employee belongs to a class
protected under Title VII
Employee applied for and was qualified for a job
for which the employer was seeking applicants
Employee was rejected and, after the rejection, the position
remained open
Employer continued to seek applicants with the rejected
applicant’s qualifications
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Employment Discrimination Concepts,
Disparate Treatment: Defenses
 Employer’s defense
 Legitimate, Nondiscriminatory Reason Defense
 Employee’s counter – legitimate, nondiscriminatory
reason is a mere pretext for the employer to
discriminate.
 The Bona Fide Occupational Qualification
Defense: Permissible discrimination if legally
necessary for employer’s particular business
 Very limited application – and Never in Race cases
 Case: Wilson v. Southwest Airlines Company
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Employment Discrimination Concepts,
Disparate Impact
 Disparate impact: Discriminatory effect of a
facially neutral policy on a Title VII group
 Facially neutral policy: specific workplace
policy that applies equally to all employees
 Key distinction: needn’t prove Intent to
discriminate; key consideration is differential
effect on protected group
 Case: Griggs v. Duke Power Co.: “built-in headwinds;”
test results as servants, not masters
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Employment Discrimination Concepts:
Disparate Impact
 Screening device: Mechanism used to separate
applicants from the general pool of candidates
 Four-fifths rule: Minority must do at least 80
percent (four-fifths) as well as majority on
screening device or presumption of disparate
impact arises (see business necessity defense,
next slide)
 Subjective or objective criteria may qualify
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Employment Discrimination Concepts:
Disparate Impact
 Pre-employment interviews
 Employment applications
 The business necessity defense: Defense to a
disparate impact case based on the employer’s
need for the policy/device as a legitimate
requirement for the job
 Test validation
 Employee rejoinder: less discriminatory policy or
screening alternatives exist
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Other Defenses to Employment
Discrimination Claims
 The employee’s evidence is not true – Plaintiff
burden of proof to establish > 50% probability
 (No) The employer’s “bottom line” comes out
correctly
 Statute aimed at individuals, not groups
 Case: Connecticut v. Teal
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Other Common Concepts
 Reasonable Accommodation: employer duty
in Title VII religious discrimination claims, and
under Americans With Disabilities Act (ADA)
 Upper limit: ‘undue burden’ on employer
 Extent of duty varies between religious and disability
accommodations
 Exhaustion of Administrative Remedies: must
complete EEOC administrative process before
seeking judicial review of agency decision
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Exhibit 2.9 - Employment Discrimination
Remedies
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Employment Discrimination Remedies
Key Terms
Meaning
Back pay
Money awarded for time employee was not working
because of illegal discrimination
Front pay
Equitable remedy of money awarded to claimant
when reinstatement is not possible or feasible
Retroactive
seniority
Seniority that dates back to the time the claimant
was treated illegally
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Employment Discrimination Remedies
Key Terms
Meaning
Make-whole
relief
Attempt to put the claimant in position he or she
would have been in, absent proven discrimination
Compensatory Money awarded to compensate the injured party for
damages
direct losses
Punitive
damages
Money over and above compensatory damages, to
punish employer or deter future acts
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Management Tips
 Most employment relationships begin and end
without legal implications
 But when they don’t, it’s expen$ive
 Prevention beats cure
 Employers are always allowed to hire the best
person for a job
 Claimants must always be qualified for the job
 Employees must not face retaliation from their
employers
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