Employment Law Outline
Professor Howard Datz – Spring 2012
WORK & LAW
Work & Society
[Mostly background material. Not necessary for exam.]
1. Trajectory of Course – Life history of an employment relationship.
a. Hiring  workplace  discharge  retirement  post-employment restrictions.
2. Labor Law v. Employment Law
a. Labor Law – Relationships between employers and unions; operations of organizational
campaigns; collective bargaining; strikes; lock outs.
i. Employers dealing with employees on a collective basis.
b. Employment Law – Deals with individual rights of employees. Employer relationships
with non-union, individual employees.
3. Differentiate between law that deals with things, e.g., property and contracts, from law that deals
with people, e.g., labor and employment law.
4. Paramount Importance of Work – Work is one of the most important institutions in our lives.
Problems in the workplace affect us all very deeply. The legal, political, social, and philosophical
issues run deep.
5. Note on Employee Class Actions – Employers dislike class actions. See Wal-Mart v. Dukes
(U.S. 2011). Reasons:
a. Individuals suing as individuals do not stand to recover a large amount of damages.
Individuals suing as a class stand to recover a much larger sum of money.
b. Actions by individuals are squelched much more easily than class actions.
c. Employers would prefer to litigate before arbitrators, rather than in court, because they
generally are more successful before arbitrators. Runaway or unduly sympathetic juries
may be more likely to find for employees.
DEVELOPMENT OF EMPLOYMENT LAW
Sources of Modern Employment Law
1. Overregulation v. Under-Regulation of the Employment Relationship
a. Arguments for Regulation
i. Certain employment practices that we want to forbid:
1. Discrimination;
2. Payment below a living wage; and
3. Unsafe working conditions.
ii. Want to ensure decency and fairness in the workplace.
iii.  Justified by certain social values.
b. Arguments for Deregulation
i. Employers should be able to run their business as they wish.
ii. Employers are afraid to take certain actions, e.g., disciplining employees. Too
many regulations breed timidity in employers.
iii. Overregulation cuts against the admirable notion of individual responsibility. It
undermines the entrepreneurial spirit.
1. Example – For any adverse action, an employee’s first instinct is to file a
claim of some kind. The employee is in all instances unwilling to admit
that her misfortune is her own fault. (Overly litigious society.)
c.  The trend over the past ten years has been to increase regulation, which also has led to
increased employment litigation.
2. Sources of Employment Law
a. No single source of employment law. An amalgam of state and federal constitutional,
statutory, regulatory, and common law rights and remedies.
b. Sources of Employment Law
i. Constitution
1. Due Process and Equal Protection Clauses.
2. Particularly important for public-sector employees.
3. Offers both substantive and procedural protections, e.g., with regard to
the latter, it provides employees some minimal due process before they
can be shown the door.
ii. Protective Legislation
1. E.g., OSHA (safety and health standards); FLSA (wages and overtime);
workers’ compensation.
2. Nondiscrimination Statutes – E.g., Title VII; PDA; ADEA; ADA and
ADAAA.
iii. Collective-Bargaining Contracts (available in union settings)
1. Including grievance procedures.
iv. Common Law
1. Comes up usually in departures from employment at-will doctrine.
2. Contract law is particularly important, e.g., implied terms.
v. Public Policy – Judges simply saying that certain employer actions are offensive
to public policy.
1. Invoked when no other sources of employment law are available.
c. Numerous gaps and overlaps because of its patchwork nature.
i. Recurring Themes – (1) Preemption and (2) election of remedies.
Civil Service/Public Employment
1. Different Roles for Government – Distinction between (1) government as employer and (2)
government as regulator of society.
2. McAuliffe v. Mayor & City of New Bedford (Mass. 1892)
a. Public Employer Can Impose Reasonable Regulations – “There is nothing in the
[state] constitution or the statute to prevent a city from attaching obedience to a rule as a
condition to the office of policeman, and making it part of the good conduct required. A
public employee, such as a policeman, may have a constitutional right to talk politics, but
he has no constitutional right to be a policeman. There are few employments for hire in
which the servant does not agree to suspend his constitutional right of free speech, as well
as of idleness, by the implied terms of his contract. The servant cannot complain, as he
takes the employment on the terms which are offered him. On the same principle, the
city may impose any reasonable condition upon holding offices within its control.”
i. When you come to work for the government, you check some of your
constitutional rights at the door. As an employee, the government may impose
reasonable regulations curtailing your constitutional rights.
ii. City fired police officer because it did not like his politics.
2
3. Rutan v. Republican Party (U.S. 1990)
a. Patronage System – “Replacing certain office staff with members of [one’s] own party
‘when the existing employees lack or fail to obtain requisite support from, or fail to
affiliate with, that party.’”
b. Patronage Violates 1st Amendment – 1st Amendment forbids basing decisions as to
promotion, transfer, recall after layoff, and hiring of low-level public employees on party
affiliation and support.
i. “What the 1st Amendment precludes the government from commanding directly,
it also precludes the government from accomplishing indirectly,” e.g., by
dismissing an employee.
ii. Rationale – Patronage inhibits protected 1st Amendment activity, e.g., freedoms
of speech, belief, and association. Party affiliation is a 1st Amendment activity.
iii. Exception – “Unless patronage practices are narrowly tailored to further vital
government interests, they impermissibly encroach on freedoms under the 1st
Amendment.”
1. Only (1) high-level employees (2) in policy-making positions may be
selected on the basis of their political views.
4. Typical Constitutional Claims
a. 1st Amendment – Involving freedom of expression and association.
b. 4th Amendment – Involving searches or seizures in the workplace.
c. 5th & 14th Amendments – Due process and equal protection claims.
5. Current Law
a. Somewhere between McAuliffe and Rutan.
b. Overall Trend – Greater constitutional and statutory protection.
Collective Bargaining
1. Advantages
a. Strength in numbers.
b. More bargaining power.
c. Psychological benefits of a shared destiny; collective spirit.
2. Disadvantages
a. Your plight is wedded to that of everyone else. Union is your sole representative.
b. You must adhere to the union-mandated grievance procedure. No outside claims.
3. Many employers prefer mandatory arbitration because they are fearful of runaway juries and
court-imposed punitive damages.
4. Key Statutes
a. Clayton Act
b. Railway Labor Act
c. Norris-LaGuardia Act
d. National Labor Relations Act (Wagner Act)
i. Based on commerce clause.
ii. Section 8(a)(1) – Makes it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees” in the exercise of their rights to selforganization and collective bargaining.
iii. Disputes are heard by the National Labor Relations Board.
iv. Damages – Back pay, reinstatement, orders to bargain, and cease and desist
orders.
e. Fair Labor Standards Act
f. Taft-Hartley Act
g. Labor-Management Reporting and Disclosure Act
3
5. Union Security
a. Closed Shop Provision – Obligates employer to hire only union members and to
discharge employees that drop or lose their membership.
b. Union Shop Provision – Employee may be required to become a union member in order
to retain a job, but she need not be a member at the time of hiring and has a grace period
of at least 30 days to join the union.
c. Agency Shop Provision – Employees need not join the union but are required to pay the
union an amount equal to the union’s initiation fees and dues.
d. Right to Work Laws – Proscribing union membership as a condition of employment.
6. Unionism in the United States was on the decline throughout the 20th century.
Overlapping & Conflicting Remedies
1. San Diego Bldg. Trades Council v. Garmon (U.S. 1959)
a. Rule – NLRA preempts state jurisdiction only if the controversy presented in state court
was identical to the one which was or could have been presented to the NLRB.
i. Contrast with Alexander.
2. Alexander v. Gardner-Denver Co. (U.S. 1974)
a. Rule – Arbitration of a discrimination claim under a collective-bargaining agreement did
not foreclose subsequent administrative and judicial proceedings under Title VII.
i. No preclusive effect, substantively or procedurally.
ii. Neither an employee nor a union can waive the right to bring an action in court.
iii. “Title VII was designed to supplement, rather than supplant, existing laws and
institutions relating to employment discrimination.”
b. SUBSEQUENT UNDERMINING – An employee now can waive her right to go to
court. Employer and employee can agree to settle all disputes in mandatory arbitration,
and courts now are willing to enforce such clauses.
3. 14 Penn Plaza LLC v. Pyett (U.S. 2009)
a. Holding – Provision in collective-bargaining agreement that unmistakably required union
members to arbitrate claims arising under the ADEA held enforceable as matter of
federal law.
i. Rule – Union can waive an employee’s right to go to court and agree that all
claims will be submitted to mandatory arbitration.
1. Waiver must be clear and unmistakable and un-coerced.
2. Some courts require employers to include fairness terms in any
mandatory arbitration clauses to protect employees’ substantive rights to
some degree. See AT&T Mobility v. Concepcion (U.S. 2011).
ii. Retreat from Alexander.
iii. This is simply to say that courts will honor mandatory arbitration agreements, but
it is a separate matter whether an employer may require an employee, as a
condition of employment, to forgo her right to public adjudication.
b. Counterargument – Resolution of public wrongs should not be confined to private
forums. (Largely a losing viewpoint today.)
4
HIRING PROCESS
Introduction
1. Two Kinds of Discrimination Under Title VII
a. Disparate Treatment – Employer has treated one class of employees differently than
another class of employees. Intentionally (with bad motive) discriminated against an
employee for a prohibited reason.
i. Employer’s Defenses
1. No intentional discrimination.
2. BFOQ – E.g., hiring only a male to play Hamlet.
b. Disparate Impact – Plaintiff is not alleging a bad motive but is alleging a bad practice—
which may appear benign on its face—that has a disparate impact against some particular
group.
i. Employer’s Defenses
1. Employer must show that the requirement is (1) job-related and (2)
consistent with business necessity.
2. BFOQ
2. EEOC v. Consolidated Serv. Sys. (7th Cir. 1993)
a. Facts – Hwang relied on word of mouth from within the Korean community to meet his
hiring needs because this was the cheapest hiring method available to him.
b. Disparate treatment case.
c. Question – Does word-of-mouth recruitment give rise to an inference of intentional
discrimination? What is the employer’s motive?
d. Disparate treatment liability requires (1) intentional discrimination (2) that is a but-for
cause of the discriminatory outcome.
i. Intentional Discrimination – “Discrimination is not preference or aversion; it is
acting on the preference or aversion. If the most efficient method of hiring,
adopted because it is the most efficient (not defended because it is efficient—the
statute does not allow an employer to justify intentional discrimination by
reference to efficiency) just happens to produce a work force whose racial or
religious or ethnic or national-origin or gender composition pleases the employer,
that is not intentional discrimination. The motive is not a discriminatory one.
Knowledge of a disparity is not the same thing as an intent to cause or maintain
it.”
ii. But-For Cause – “Or if, though the motives behind adoption of the method were
a mixture of discrimination and efficiency, an employer would have adopted the
identical method of recruitment even if he had no interest in the national origin of
his employees, the fact that he had such an interest would not be a ‘but for’ cause
of the discriminatory outcome and again there would be no liability.”
1. Even if Hwang had intentionally preferred Koreans over non-Koreans,
he could have shown a non-discriminatory reason for his hiring practices
because word-of-mouth recruitment was the cheapest means available to
him.
e. Nothing inherently wrong with hiring members of one ethnic group exclusively.
i. “The social and business network of an immigrant community racially and
culturally distinct from the majority of Americans is bound to be largely confined
to that community, making it inevitable that when the network is used for job
recruitment the recruits will be drawn disproportionately from the community.”
ii. “People who share a common culture tend to work together as well as marry
together and socialize together. That is not evidence of illegal discrimination.”
5
Labor Pool: Undocumented Aliens
1. Immigration Reform and Control Act of 1986
a. Applies to all employers, regardless of size or industry.
b. Prohibits employers from hiring undocumented workers.
c. Employer is not required to check the authenticity of employees’ documents.
2. Collins Foods Int’l, Inc. v. INS (9th Cir. 1991)
a. Definition of Hiring – “The actual commencement of employment of an employee for
wages or other remuneration.”
b. Verifying Eligibility to Work – IRCA requires an employer to examine an employee’s
documentation and complete Form I-9 “within three business days of the hire.”
i. “An employer will have satisfied its verification obligation by examining a
document which ‘reasonably appears on its face to be genuine.’”
c. Constructive Knowledge Test – Constructive knowledge requires willful blindness.
i. Very high standard. Does not create a strong duty on employers to confirm
workers’ citizenship status.
ii. That an employer did not exercise due diligence or was careless is not the same
as showing that he knowingly hired an undocumented worker.
d. Policy Argument/Title VII Liability – We do not want employers to inquire into
citizenship status before hiring is concluded. We want them inquiring into citizenship
status only after an employee has been hired.
i. “The EEOC has held that pre-employment inquiries concerning a job applicant’s
race, color, religion, national origin, or citizenship status ‘may constitute
evidence of discrimination prohibited by Title VII.’ An employer who makes
such inquiries will have the burden of proving that the answers to such inquiries
‘are not used in making hiring and placement decisions in a discriminatory
manner prohibited by law.’ For that reason, employers attempting to comply
with IRCA, are well advised not to examine documents until after an offer of
employment is made.”
e. E-Verify – Currently required for all new hires. Requires submission of I-9 Form.
i. Employer is not required to check the authenticity of employees’ documents.
f. Chamber of Commerce of the United States v. Whiting (U.S. 2011)
i. Holding – The provision of the Legal Arizona Workers Act that provides for the
suspension and/or revocation of the business licenses of Arizona employers who
knowingly or intentionally employ unauthorized aliens is not expressly
preempted by the federal IRCA, which prohibits the knowing hiring of
unauthorized immigrants and preempts state laws imposing sanctions on those
who hire unauthorized immigrants; the Arizona law falls within the IRCA’s
exception that preserves state authority to impose sanctions through licensing and
similar laws. Nor is Arizona’s requirement that employers use the federal EVerify system to confirm eligibility for employment not impliedly preempted, as
it does not conflict with the federal scheme, and the federal statute establishing
E-Verify does not constrain state action.
ii. Argument that the AZ law may be preempted by Title VII.
3. Hoffman Plastic Compounds, Inc. v. NLRB (U.S. 2002)
a. Facts – A corporation hired an employee (an undocumented alien) who had presented
documents that appeared to verify his authorization to work in the United States. The
employee was laid off after supporting a labor union’s organizing campaign and
distributing authorization cards to coworkers. The NLRB having found that the
corporation had selected the employee and others for layoff in order to rid itself of known
6
union supporters ordered the corporation to (1) cease and desist from further violations of
the NLRA, (2) post a detailed notice to its employees regarding the remedial order, and
(3) offer reinstatement and back pay to the affected employees.
b. Status as Employee – An undocumented worker is considered an employee within the
meaning of protective statutes, such as the NLRA. He is rendering a service for an
employer in exchange for money and is entitled to the protections of the NLRA despite
his immigration status.
c. Undocumented Worker Is Not Entitled to Back Pay & Reinstatement
i. A NLRB back pay award to an undocumented alien, who had never been legally
authorized to work in the United States, was a form of relief foreclosed by IRCA.
1. No legal right to work in United States is key.
ii. NLRB’s discretion to select and fashion remedies for violations of the NLRA,
though generally broad, is not unlimited.
iii. Where the NLRB’s chosen remedy trenches upon a federal statute or policy
outside its competence to administer, its remedy may be required to yield.
iv. Awarding back pay to illegal aliens runs counter to policies underlying IRCA,
policies the NLRB has no authority to enforce or administer. Therefore, such an
award lies beyond the bounds of the Board’s remedial discretion.
v. Allowing the NLRB to award back pay to illegal aliens would unduly trench
upon explicit statutory prohibitions critical to federal immigration policy, as
expressed in IRCA.
d. Remedy – Court ordered Hoffman to (1) cease and desist its violations of the NLRA and
(2) post a notice to employees (a) setting forth their rights under the NLRA and (b)
detailing its prior unfair practices.
i. Illegal Worker Paid Below Minimum Wage – May be entitled to back pay.
Court suggests that immigration laws are not offended by paying an employee
minimum wage in exchange for the services that he has rendered.
ii. Illegal Worker Injured at Workplace – May be entitled to workers’
compensation. The focus is on injury and compensation, not the right to work.
See Farmers Bros. Coffee (Cal. Ct. App. 2005).
e. Breyer, Dissenting
i. Without the possibility of the deterrence that back pay provides, the NLRB can
impose only future-oriented obligations upon law-violating employers—for it has
no other weapons in its remedial arsenal. The statutory language of IRCA does
not require an illegal alien to forfeit all pay earned, nor do the purposes of the
immigration laws support the majority’s conclusion. The denial of the back pay
remedy to the NLRB lowers the cost to the employer of an initial labor law
violation, at least in regard to illegal aliens. It thereby increases the employer’s
incentive to find and to hire illegal-alien employees. The discharge in this case
did not sever any connection with an unfair labor practice. Indeed, the discharge
was the unfair labor practice. The NLRB’s position in this case was, at the least,
a reasonable one. Consequently, it was lawful and the Court should have
deferred to it.
4. Ramroop v. Flexo-Craft Printing, Inc. (N.Y. 2008)
a. Holding – Workers’ compensation claimant was denied additional compensation for
vocational rehabilitation services because, as an undocumented alien, he could not be
legally employed in the United States.
i. No right to the job in the first place. We will not help him get it again.
7
Medical Screening
1. Americans with Disabilities Act – Two Main Components
a. Nondiscrimination based on disability.
b. Employer cannot inquire of an applicant as to whether he has or has had a disability.
i. Employer may ask whether an applicant is able to perform the job though.
2. Griffin v. Steeltek, Inc. (10th Cir. 1998)
a. Question – Whether improper medical questions are actionable under § 12112(d)(2) if
asked of a non-disabled applicant?
b. Americans with Disabilities Act § 12112(d)(2)
i. Section 12112(d)(2)(A) – “Prohibited examination or inquiry: Except as
provided in paragraph (3), a covered entity shall not conduct a medical
examination or make inquiries of a job applicant as to whether such applicant is
an individual with a disability or as to the nature or severity of such disability.”
ii. Section 12112(d)(2)(B) – “Acceptable inquiry: A covered entity may make
preemployment inquiries into the ability of an applicant to perform job-related
functions.”
1. Employers may make inquires that are “job-related or consistent with
business necessity.”
c. Disability Not Required for Prima Facie Case – “A job applicant does not
automatically fail as a matter of law to state a prima facie claim under the Americans
with Disabilities Act, § 12112(d)(2), if the applicant is neither disabled nor perceived to
be disabled.”
i. ADA PROTECTION APPLIES TO DISABLED AND NONDISABLED
EMPLOYEES.
ii. Disability is an element of the claim, not a component of standing.
iii. Remedial Statute – ADA is remedial legislation, and a broad net aids in
accomplishing its purpose.
1. “Congress wished to curtail all questioning that would serve to identify
and exclude persons with disabilities from consideration for employment
by drafting ‘a prohibition on pre-offer medical examinations or
inquiries,’ and allowing non-disabled job applicants who are injured
thereby to sue will enhance and enforce the blanket prohibition drafted
by Congress.”
iv. Stigmatizing Effects – “Congress was also concerned with the potential
stigmatizing effect of medical inquiries and examinations, noting that individuals
with diseases such as cancer ‘may object merely to being identified, independent
of the consequences.’ If we were to require individuals to make a showing of
disability as part of a prima facie § 12112(d)(2) case, we would in effect be
making individuals with disabilities identify themselves as disabled to prevent
potential employers from inquiring whether they have a disability.”
3. Current Law – Whether a nondisabled plaintiff can state a claim under § 12112(d)(2) remains
unsettled.
Drug Testing
1. National Treasury Employees Union v. Von Raab (U.S. 1989)
a. Urine Tests & 4th Amendment – Urine tests are searches and must satisfy 4th
Amendment reasonableness requirement.
b. Dispensation of Warrant Requirement – “Where a Fourth Amendment intrusion serves
special governmental needs, beyond the normal need for law enforcement, it is necessary
8
to balance the individual’s privacy expectations against the government's interests to
determine whether it is impractical to require a warrant or some level of individualized
suspicion in the particular context.”
i. Requires balancing of interests.
ii. Requiring warrant for every work-related intrusion by the government would be
impracticable.
iii. Individualized Suspicion Not Required – “In certain limited circumstances, the
government’s need to discover latent or hidden conditions, or to prevent their
development, is sufficiently compelling to justify the intrusion on privacy
entailed by conducting such searches without any measure of individualized
suspicion.”
c. Two Compelling Government Interests
i. “Ensuring that front-line interdiction personnel are physically fit, and have
unimpeachable integrity and judgment.”
ii. “The public interest likewise demands effective measures to prevent the
promotion of drug users to positions that require the incumbent to carry a
firearm, even if the incumbent is not engaged directly in the interdiction of
drugs.”
iii.  Here, government’s interests outweigh employees’ privacy interests.
d. Court is concerned about the APPEARANCE OF DRUG USE BY CUSTOMS
OFFICIALS.  “The mere circumstance that all but a few of the employees tested are
entirely innocent of wrongdoing does not impugn the program’s validity. The Service’s
program is designed to prevent the promotion of drug users to sensitive positions as much
as it is designed to detect those employees who use drugs.”
e. Employees handling (1) sensitive information and (2) weapons may be tested, but it is an
open question whether employees not likely to gain access to sensitive information
should be tested.
i. Remand on this question.
f. Marshall, Dissenting
i. 4th Amendment searches require PC.
ii. Balancing of interests in inappropriate under 4th Amendment.
g. Scalia, Dissenting
i. Drug testing customs employees is a symbolic show designed to show the public
that the government is tough on drugs. This is insufficient justification for the
intrusion on individual liberty. See Chandler v. Miller (U.S. 1997).
ii. “Implementation of the drug screening program would set an important example
in our country’s struggle with this most serious threat to our national health and
security. Or as respondent’s brief to this Court asserted: ‘If a law enforcement
agency and its employees do not take the law seriously, neither will the public on
which the agency’s effectiveness depends.’ What better way to show that the
Government is serious about its ‘war on drugs’ than to subject its employees on
the front line of that war to this invasion of their privacy and affront to their
dignity? To be sure, there is only a slight chance that it will prevent some serious
public harm resulting from Service employee drug use, but it will show to the
world that the Service is ‘clean,’ and—most important of all—will demonstrate
the determination of the Government to eliminate this scourge of our society!”
2. Skinner v. Railway Labor Executives’ Ass’n (U.S. 1989)
a. Holding – Upheld post-accident drug-testing requirement for railroads because of the
unique history of drug-using railroad employees.
3. Private-Sector Drug Testing – Challenges based on state constitutional rights to privacy have
been unsuccessful.
9
4. ADA § 104(d) – “A test to determine the illegal use of drugs shall not be considered a medical
examination.”
a. May be given at any time, even at the pre-employment stage.
b. After an initial positive screening, employer may ask about prescription medications.
(Remember, employer cannot inquire about disabilities pre-employment.)
Genetic Testing
1. Genetic Information Nondiscrimination Act of 2008 (“GINA”)
a. Prohibits discrimination in employment and health insurance.
i. Not Covered – Life insurance, disability insurance, long-term care insurance, etc.
b. Title II – (1) Prohibits employers from requiring or requesting that an individual undergo
genetic testing or disclose the results of prior genetic testing as a condition of
employment. (2) Prohibits discrimination based on genetic information, e.g., information
about genetic testing, family members’ genetic testing, or disease occurrence in family
members.
i. Applies only to asymptomatic individuals, i.e., prohibits discrimination based on
genotype, not phenotype. No protection once an individual develops a disease.
ii. ADA – After a conditional offer of employment, ADA authorizes an employer to
require an individual to sign an authorization to disclose all of her health records.
GINA does not affect this provision.
c. Private-Sector Employers – Same coverage and remedies as Title VII, except that
disparate impact claims may not be brought.
Negligent Hiring
1. Malorney v. B&L Motor Freight, Inc. (Ill. App. 1986)
a. Question – “Whether [employer] had a duty under the circumstances of this case to
investigate Edward Harbour’s nonvehicular criminal record and to verify his negative
response regarding criminal offenses which he furnished on his employment application
prior to employing him and furnishing him an over-the-road truck with sleeping
facilities”?
b. Duty in Negligence Action
i. Existence – “The existence of a duty is a question of law to be determined by the
court, rather than by the factfinder.”
1. Foreseeability
a. Not a dispositive factor.
b. “The ultimate injury must be the natural and probable result of
the negligent act or omission such that an ordinary and prudent
person ought to have foreseen as likely its occurrence as a result
of the negligence. It is not essential that one should have
foreseen the precise injury which resulted from the act or
omission.”
c. Employer’s Duty – “This interpretation thus requires an
employer to exercise that degree of care reasonably
commensurate with the perils and hazards likely to be
encountered in the performance of an employee’s duty, that is,
such care as a reasonably prudent person would exercise in view
of the consequences that might reasonably be expected to result
if an incompetent, careless, or reckless agent were employed for
a particular duty.”
10
2.
3.
4.
5.
2. Includes consideration of public policy and social requirements.
ii. Performance – “Once a duty has been found, the question of whether the duty
was properly performed is a fact question to be decided by the trier of fact,
whether court or jury.”
c. Two Duties of Employer
i. “The degree of care which an owner should exercise in selecting a driver is that
which a reasonable person would exercise under the circumstances.”
ii. “A vehicle owner has a duty to deny the entrustment of a vehicle to a driver it
knows, or by the exercise of reasonable diligence could have known, is
incompetent.”
d. Negligent Hiring – “A cause of action exists against an employer for negligently hiring a
person the employer knew, or should have known, was unfit for the job.”
i. Lack of Forethought – “One remains in voluntary ignorance of facts concerning
the danger in a particular act or instrumentality, where a reasonably prudent
person would become advised, on the theory that such ignorance is the equivalent
of negligence.”
ii. Questions of Law & Fact – “A question of foreseeability is at times a question
for the court and at times, if varying inferences are possible, a question for the
jury. Questions of negligence, due care, and proximate cause are questions of
fact to be determined by the factfinder.”
Duty of Former Employer to Disclose Damaging Information About Applicant – Conflicting
case law.
Many state laws restrict employers from obtaining information about applicants’ and employees’
criminal records.
Two Types of Negligent Hiring Cases
a. Employee injures a third party.
b. Employee injures a co-employee.
i. Injured co-employee may be entitled to both workers’ compensation and tort
damages from employer for negligent hiring.
Negligent Supervision – Defendant employer knew (perhaps from information learned after
hiring an employee) that the employee posed a risk of harm to the plaintiff and that the harm was
reasonably foreseeable.
DISCRIMINATION
Discrimination Based on Race or Sex
1. Title VII of the Civil Rights Act of 1964 – 42 U.S.C. § 2000e-2(a):
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex, or national origin;
or
(2) to limit, segregate, or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin.
a. Based on (1) Commerce Clause and (2) 14th Amendment.
b. Exceptions to Nondiscrimination Obligation Where:
11
i. BFOQ – Religion, sex, or national origin (but not race) is a bona fide
occupational qualification (BFOQ) reasonably necessary to the normal operation
of that particular business or enterprise;
ii. The employer acts pursuant to a bona fide seniority or merit system, or a system
which measures earnings by quantity or quality of production;
iii. The employer acts on the results of a professionally developed ability test
provided that such test that “is not designed, intended or used to discriminate
because of race, color, religion, sex or national origin”; and
iv. Differences in pay based upon sex are authorized by the Equal Pay Act of 1963.
c. Covered Employers
i. Private employers with 15 or more employees.
ii. Federal, state, and local government employers.
iii.  All employees of these employees are covered.
d. Exclusions from Title VII Coverage:
i. Educational institutions owned or supported by a religious organization and
employing members of that religion;
ii. Businesses operating on or near an Indian reservation and giving preferential
treatment to Indians; and
iii. Members of the Communist Party.
2. 14th Amendment (1868)
§ 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
§ 5. The Congress shall have power to enforce, by appropriate legislation, the provisions
of this article.
3. Two Types of Discrimination Claims Under Title VII
a. Disparate Treatment – Deliberate differential treatment.
i. Defenses
1. No intentional discrimination.
2. BFOQ.
a. Section 703(e)(1).
b. Narrow.
c. Does not apply to race or color.
d. Employer must admit intentional discrimination first.
e. Two-Prong Test – The employer must persuade the court that
(1) the gender prerequisite involves the essence of the business
and (2) either that substantially all women cannot perform the
job or, on an individual basis, it is impossible to deal with
women.
b. Disparate Impact – Practices such as high-school diploma requirements that, while
neutral on their face, nonetheless have the consequence of discriminating on the basis of
a classification proscribed by Title VII.
i. Plaintiff must be a member of the adversely impacted group.
ii. Plaintiff must identify a specific employment practice/requirement causing a
disparate impact.
1. Merely pointing to disparate results is insufficient.
iii. Defenses
1. (1) Job-related and (2) consistent with business necessity.
12
2. See Chambers (8th Cir. 1987) for more detailed explanation.
iv. Rebuttal – “Plaintiff may prevail by showing that other practices would
accomplish the employer’s objectives without the attendant discriminatory
effects.” Chambers (8th Cir. 1987).
4. Engquist v. Oregon Dep’t of Agriculture (U.S. 2008) (EQUAL PROTECTION CLAUSE)
a.  Government’s responses to a government employee’s challenge of her dismissal under
the Equal Protection Clause:
b. Government May Discharge at Will – Government, like private employers, can live in
an employment-at-will world and discharge for reasons that may appear arbitrary.
i. Does not want every discharge to become a constitutional case.
c. Rule – Government as regulator must satisfy a constitutional standard of rationality, but
government as employer has greater discretion, unless, as with civil service, collective
bargaining, or individual contracts, it chooses to grant greater security of employment.
5. McConnell Douglas Corp. v. Green (U.S. 1973)
a. Purpose of Title VII – “To assure equality of employment opportunities and to eliminate
those discriminatory practices and devices which have fostered racially stratified job
environments to the disadvantage of minority citizens.”
b. Prima Facie Case & Burden Shifting – [1] “The complainant in a trial under Title VII
of the Civil Rights Act of 1964 carries the initial burden under the statute of establishing
a prima facie case of racial discrimination. This may be done by showing:
(i) that he belongs to a racial minority;
(ii) that he applied and was qualified for a job for which the employer was
seeking applicants;
(iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s qualifications.
 That a member of the same protected class was hired in place of the
plaintiff is not fatal per se to the plaintiff’s prima facie case.
[2] The burden then shifts to the employer to ARTICULATE some legitimate,
nondiscriminatory reason for the employee’s rejection.”
c. Rebutting Employer’s Proffered Reason – [3] “A plaintiff must be given a full and fair
opportunity to demonstrate by competent evidence that the presumptively valid reasons
for his rejection were in fact a cover-up for an unlawful discriminatory decision [i.e.,
mere pretext].”
i. E.g., showing that other people with the same “defects” were hired.
d. Employee Engaging in Illegal Acts – Employer need not “absolve and rehire one who
has engaged in deliberate, unlawful activity against it” and “may justifiably refuse to
rehire one who was engaged in unlawful, disruptive acts against it, but only if this
criterion is applied alike to members of all races.”
6. Texas Dep’t of Community Affairs v. Burdine (U.S. 1981)
a. Ultimate Burden – “The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff.”
b. Plaintiff’s Initial Burden
i. Must prove by a preponderance of the evidence.
ii. Rejected under circumstances which give rise to an inference of unlawful
discrimination.
c. Burden Shifts to Employer
i. Need not persuade the court, but only must raise a genuine issue of material fact.
ii. Explanation must be legally sufficient to justify judgment for defendant.
d. Rebutting Employer’s Proffered Reason
13
i. Present burden merges with plaintiff’s ultimate burden.
ii. “She may succeed in this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.”
7. St. Mary’s Honor Center v. Hicks (U.S. 1993)
a. Rebutting Employer’s Proffered Reason
i. A finding that employer was not actually motivated by the reasons asserted for
dismissal is not the equivalent of a finding of discriminatory animus.
ii. “That the employer’s proffered reason is unpersuasive, or even obviously
contrived, does not necessarily establish that the plaintiff’s proffered reason of
race is correct. That remains a question for the factfinder to answer.”
iii. Shows that defendant could lie and prevail.
1. You would think that if a plaintiff made out a prima facie case and then
destroyed the defendant’s defense, then the plaintiff should win. But this
is not always the outcome in Title VII cases. The plaintiff could show
that the defendant’s proffered reason is mere pretext, but the plaintiff still
must show that the real reason for the adverse employment action is one
prohibited by Title VII.
8. EEOC v. BCI Coca-Cola Bottling Co. (10th Cir. 2006)
a. Employer’s Ignorance of Protected Status – Employer may violate Title VII for taking
an adverse action against an employee even if the employer did not know of the plaintiff’s
protected status.
9. Price Waterhouse v. Hopkins (U.S. 1989)
a. Gender Discrimination – Title VII encompasses gender discrimination.
i. Sex Stereotyping – “In the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot be aggressive, or that she
must not be, has acted on the basis of gender.”
1. Relevant Evidence – “Remarks at work that are based on sex
stereotypes do not inevitably prove that gender played a part in a
particular employment decision. The plaintiff must show that the
employer actually relied on her gender in making its decision. In making
this showing, stereotyped remarks can certainly be evidence that gender
played a part.”
2. SEXUAL ORIENTATION is not protected under Title VII. Such cases
often are brought under sex-stereotyping theories.
b. But-For Causation – “In determining whether a particular factor was a but-for cause of a
given event, the court begins by assuming that that factor was present at the time of the
event, and then asks whether, even if that factor had been absent, the event nevertheless
would have transpired in the same way.”
c. Mixed-Motive Theory – “Title VII condemns employment decisions based on a mixture
of legitimate and illegitimate considerations. Therefore, when an employer considers
both gender and legitimate factors at the time of making a decision, that decision was
‘because of’ sex and the other, legitimate considerations.”
i. Mixed motives (illegitimate and legitimate motivations) are sufficient to make a
prima facie case.
ii. May use direct or circumstantial evidence. Desert Palace, Inc. v. Costa (U.S.
2003).
d. Burden Shifts to Employer
i. “An employer shall not be liable if it can prove that, even if it had not taken
gender into account, it would have come to the same decision regarding a
particular person.”
14
ii. “After a plaintiff has made out a prima facie case of discrimination under Title
VII, the burden of persuasion does not shift to the employer to show that its
stated legitimate reason for the employment decision was the true reason.”
iii. Preponderance of the evidence standard. (Court rejects clear and convincing
evidence standard.)
e. Summary of Rules – “When a plaintiff in a Title VII, case proves that her gender played
a motivating part in an employment decision, the defendant may avoid a finding of
liability only by proving by a preponderance of the evidence that it would have made the
same decision even if it had not taken the plaintiff's gender into account.”
f. O’Connor, Concurring
i. O’Connor’s Rule – “In order to justify shifting the burden on the issue of
causation to the defendant, a disparate treatment plaintiff must show by direct
evidence that an illegitimate criterion was a substantial factor in the decision.”
1. NOT THE LAW.
g.  Civil Rights Act of 1991 – Mixed-Motive Remedies
i. Congressional response to Price Waterhouse.
ii. An unlawful employment practice may be established “when the complaining
party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m).
iii. However, if the employer demonstrates that it would have taken the same action
absent the impermissible motivating factor, the court may grant the plaintiff
declaratory relief, certain types of injunctive relief, and partial attorney’s fees,
but it may not award damages. 42 U.S.C. § 2000-B5(g)(2)(B).
1. No reinstatement or back pay because the plaintiff would have been fired
in any case (because of the legitimate motive).
iv. Also made compensatory and punitive damages available for cases of intentional
discrimination, subject to caps based on the size of the workforce.
10. McKennon v. Nashville Banner Publishing Co. (U.S. 1995)
a. After-Acquired Evidence – Valid claim of discrimination is not defeated by afteracquired evidence of wrongdoing by the employee.
i. After-acquired evidence is not relevant to the issue of liability since it does not
help to prove the employer’s motive at the time of the adverse employment
action.
b. Damages – Back pay from the day of the discriminatory action to the date of the afteracquired evidence, when employee would have been fired anyway.
11. Stella v. Mineta (D.C. Cir. 2002)
a. No Requirement to Show Replacement Is Outside Protected Class – Discrimination
plaintiff need not demonstrate that she was replaced by a person outside her protected
class to establish that her dismissal was a consequence of unlawful sex discrimination.
12. Gross v. FBL Financial Services, Inc. (U.S. 2009)
a. Rule – Mixed-motive theory does not apply to claims brought under the ADEA, even
though the statutory language is the same as the Title VII language interpreted in Price
Waterhouse.
i. Plaintiff always bears the burden of showing but for age, she would not have
been subject to an adverse action.
ii. Civil Rights Act of 1991 applies only to Title VII. Courts therefore infer that
Congress intended the legislation only to apply to Title VII.
b. Age Discrimination in Employment Act – Plaintiff has the burden of showing that but
for the impermissible reason (i.e., age), she would have been hired/not fired.
i. Burden framework is the opposite of Title VII.
15
ii. Strict but-for requirement at odds with Price Waterhouse.
13. Griggs v. Duke Power Co. (U.S. 1971)
a. Disparate impact case.
b. Congressional Purpose in Title VII
i. “To achieve equality of employment opportunities and remove barriers that have
operated in the past to favor an identifiable group of white employees over other
employees.”
ii. Not to guarantee a job to every person regardless of qualifications.
iii. Congress proscribed only discriminatory preference for any group, majority or
minority.
iv. “What is required by Congress is the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible classification.”
c. Disparate Impact Claims – Neutral rule with disparate impact on a protected group.
i. “Under Title VII practices, procedures, or tests neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the
status quo of prior discriminatory employment practices.”
ii. “Title VII proscribes not only overt discrimination but also practices that are fair
in form, but discriminatory in operation. The touchstone is business necessity. If
an employment practice which operates to exclude Negroes cannot be shown to
be related to job performance, the practice is prohibited.”
iii.  Employer’s Defense – Employer is not liable if discriminatory qualification
is (1) job-related and (2) consistent with business necessity.
1. Employer bears the burden of proof.
iv.  Employer’s Intent – IRRELEVANT. “Good intent or absence of
discriminatory intent does not redeem employment procedures or testing
mechanisms that operate as ‘built-in headwinds’ for minority groups and are
unrelated to measuring job capability.”
d. Unanswered Question/Promotions – “In the context of this case, it is unnecessary to
reach the question whether testing requirements that take into account capability for the
next succeeding position or related future promotion might be utilized upon a showing
that such long-range requirements fulfill a genuine business need.”
i. That is, may employer require a high-school diploma for an entry-level position
if she expects to promote this employee to a managerial position in the future?
ii. Datz thinks that this question never has been addressed but that an employer
likely would lose.
14. Wileman v. Frank (4th Cir. 1992)
a. Superior Education as Tiebreaker – “When two applicants meet the minimum
educational qualifications of a position, Title VII does not prevent an employer from
preferring the applicant who has educational qualifications which surpass the minimum
requirements of the position.”
15. Lanning v. SEPTA (3d Cir. 2002)
a. Physical Fitness – Meeting a physical fitness requirement may be necessary for job
performance.
i. Case concerned a mile-run requirement for police applicants.
Bona Fide Occupational Qualification Defense
1. BFOQ/Title VII Exception – It is not unlawful for an employer to differentiate in hiring on the
basis of religion, sex, or national origin (but not race) “in those certain instances where religion,
16
2.
3.
4.
5.
sex, or national origin is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e); § 703(e)(1).
a. Applies only to intentional discrimination (not disparate-impact claims).
b. Very narrow defense. Sparingly applied.
c. Does not apply to race or color.
d. EMPLOYER MUST ADMIT INTENTIONAL DISCRIMINATION.
e. Employer’s Burden – Must show that discriminatory requirement is reasonably
necessary to operation of the particular business or enterprise.
i. Two-Prong Test – The employer must persuade the court that (1) the gender
prerequisite involves the essence of the business and (2) either that substantially
all women cannot perform the job or, on an individual basis, it is impossible to
deal with women.
ii. Contrast Disparate-Impact Defense & BFOQ – To defend against a disparate
impact claim, defendant must show that the discriminatory requirement is
(1) job-related and (2) consistent with business necessity—not necessarily
necessary for normal business operations, as with a BFOQ.
f. Two Exceptions
i. Character/Authenticity – Actor; chef at Chinese restaurant.
ii. Sex – Stripper.
EEOC Regulations on Sex as a BFOQ – 29 C.F.R. § 1604.2: The following situations do not
warrant the application of the BFOQ exception:
a. The refusal to hire a woman because of her sex based on assumptions of the comparative
employment characteristics of women in general. For example, the assumption that the
turnover rate among women is higher than among men.
b. The refusal to hire an individual based on stereotyped characterizations of the sexes.
Such stereotypes include, for example, that men are less capable of assembling intricate
equipment: that women are less capable of aggressive salesmanship. The principle of
nondiscrimination requires that individuals be considered on the basis of individual
capacities and not on the basis of any characteristics generally attributed to the group.
c. The refusal to hire an individual because of the preferences of coworkers, the employer,
clients or customers.
d. The fact that the employer may have to provide separate facilities.
State “women’s protective laws” are illegal.
Dothard v. Rawlinson (U.S. 1977)
a. Holding – AL’s height and weight requirements discriminated impermissibly, but the
state could refuse to hire women for “contact positions” even though the rule excluded
women from 75% of the jobs in the AL prison system.
i. Conditions of prison elevate the risk of assault directed at women.
ii. Concern for institutional or public safety justified BFOQ.
b. Marshall & Brennan, Dissenting
i. Prisoners and/or AL should pay the price for failures in the prison system, not the
class of female applicants.
Wilson v. Southwest Airlines Co. (N.D. Tex. 1981)
a. Two-Step BFOQ for Sex – There exists a two step BFOQ test:
(1) Does the particular job under consideration require that the worker be of one
sex only?
1. “The first level of inquiry is designed to test whether sex is so essential
to job performance that a member of the opposite sex simply could not
do the same job. To rely on the BFOQ exception, an employer has the
burden of proving that he had reasonable cause to believe, that is a
17
factual basis for believing, that all or substantially all women would be
unable to perform safely and efficiently the duties of the job involved.”
(2) If so, is that requirement reasonably necessary to the essence of the
employer’s business?
2. “The second level is designed to assure that the qualification being
scrutinized is one so important to the operation of the business that the
business would be undermined if employees of the ‘wrong sex’ were
hired.”
3. The fundamental nature of the business must be based on sex. It is not
enough that the business would be more successful if it employed only
attractive women. Neither is it enough that a business’ customers simply
prefer female employees to men.
ii.  Narrowly applied.
b. Acceptable Applications of BFOQ for Sex – Actor, stripper, etc.
c. Sex BFOQ Inapplicable Solely for Marketing or Profit – “Sex does not become a
BFOQ merely because an employer chooses to exploit female sexuality as a marketing
tool, or to better insure profitability.”
i. PROFIT ALONE IS INSUFFICIENT.
d. Customer Preference – “Customer preference for one sex may be taken into account in
those limited instances where satisfying customer preference is ‘reasonably necessary to
the normal operation of the particular business or enterprise.’”
e. Sex-Linked & Sex-Neutral Qualifications – “To recognize a BFOQ for jobs requiring
multiple abilities, some sex-linked and some sex-neutral, the sex-linked aspects of the job
must predominate.”
i. “Only then will an employer have satisfied Weeks’ requirement that sex be so
essential to successful job performance that a member of the opposite sex could
not perform the job.”
f. Comments
i. Datz thinks the case would have come out the same even if discriminating were
the only means by which Southwest could have succeeded in its market. If your
business is successful only through discrimination (and you are not a strip club or
a playhouse, where sex may be a BFOQ), then maybe you should not be in
business.
ii. A Chinese restaurant trying to deliver an authentic Chinese dining experience is
not allowed to restrict its wait staff hires to only Chinese persons.
iii. U.S. law distinguishes between the customs of a country and the laws of a
country.
1. An American employer can obey the laws of, e.g., Saudi Arabia and
discriminate.
2. An American employer cannot discriminate on the basis of the non-legal
customs of, e.g., Saudi Arabia.
6. Kern v. Dynalectron Corp. (N.D. Tex. 1983)
a. Religion BFOQ – “Dynalectron has proven a factual basis for believing that all nonMoslems would be unable to perform this job safely. Specifically, non-Moslems flying
into Mecca are, if caught, beheaded. . . . Thus, the essence of Dynalectron’s business
would be undermined by the beheading of all the non-Moslem pilots based in Jeddah.”
7. Scott v. Parkview Mem. Hosp. (7th Cir. 1999)
a. Smiling Is a Lawful Factor – Even if smiling is more common among women, paying
attention to a smile is not unlawful because smiling is an appropriate trait for a social
worker.
8. Ledbetter v Goodyear Tire & Rubber Co., Inc. (U.S. 2007) (STATUTE OF LIMITATIONS)
18
a. OVERTURNED BY STATUTE.
b. Charging Period of EEOC Claim (i.e., Statute of Limitation for Title VII Claim)
i.  If past discrimination has a continuing effect into the statutory period, it may
be attacked.
ii. “The time for filing a charge of employment discrimination with the EEOC
begins when the discriminatory act occurs. This rule applies to any discrete act
of discrimination, including discrimination in termination, failure to promote,
denial of transfer, and refusal to hire. Because a pay-setting decision is a discrete
act, it follows that the period for filing an EEOC charge begins when the act
occurs.”
iii. “An EEOC charging period runs from the time when the discrete act of alleged
intentional discrimination occurred, not from the date when the effects of the
practice were felt.”
iv. “The EEOC charging period is triggered when a discrete unlawful practice takes
place. A new violation does not occur, and a new charging period does not
commence, upon the occurrence of subsequent nondiscriminatory acts that entail
adverse effects resulting from the past discrimination. But of course, if an
employer engages in a series of acts each of which is intentionally
discriminatory, then a fresh violation takes place when each act is committed.”
v. “An employer violates Title VII and triggers a new EEOC charging period
whenever the employer issues paychecks using a discriminatory pay structure.
But a new Title VII violation does not occur and a new charging period is not
triggered when an employer issues paychecks pursuant to a system that is facially
nondiscriminatory and neutrally applied. The fact that precharging period
discrimination adversely affects the calculation of a neutral factor (like seniority)
that is used in determining future pay does not mean that each new paycheck
constitutes a new violation and restarts the EEOC charging period.”
vi.  Discriminatory intent cannot be transferred. If a discriminatory action took
place outside the charging period, that discriminatory intent cannot be transferred
into the charging period. Majority does not want to find a continuing violation.
c. Ginsburg, Dissenting
i. Disagreed with what she termed the Court’s “cramped interpretation of Title VII,
incompatible with the statute’s broad remedial purpose.” Agreeing with the
employee’s position, Justice Ginsburg based her conclusions on Supreme Court
precedent, the realities of the workplace, and the EEOC’s Compliance Manual
and administrative decisions. Justice Ginsburg charged the majority with
overlooking common characteristics of pay discrimination, including the fact that
pay disparities often occurred in small increments, comparative pay information
was often hidden from employees, and small initial discrepancies might not
warrant federal action. Consequently, she determined that both the pay-setting
decision and the actual payment of discriminatory wages should be counted as
unlawful practices, allowing each payment of a wage or salary infected by sexbased discrimination to constitute an unlawful employment practice that was not
itself actionable but was relevant in determining the lawfulness of conduct within
the charging period.
ii. Primarily, Justice Ginsburg focused on the notion that pay disparities were
fundamentally different from other types of discrimination, in which the discrete
unlawful acts were easy to discern, and merited special treatment in order to
achieve Title VII’s purposes and to uphold basic principles of fairness. Contrary
to the majority’s assertions, employers would not suffer prejudice as a result of
19
this interpretation because of the availability of defenses such as waiver,
estoppel, equitable tolling, and laches.
d. Lilly Ledbetter Fair Pay Act of 2009
i. Overturned Ledbetter.
ii. Amended Title VII, ADEA, and ADA “to clarify that a discriminatory
compensation decision . . . occurs each time compensation is paid pursuant to the
discriminatory compensation decision.”
iii. Title VII Action – Successful plaintiff is entitled to back pay for up to two years
preceding the filing of the charge.
9. Federal Express Corp. v. Holowecki (U.S. 2008)
a. Rule – To be deemed a charge under the ADEA, an EEOC filing must be reasonably
construed as a request for the agency to take action to vindicate the employee’s rights.
10. Staub v. Proctor Hosp. (U.S. 2011)
a. USERRA – “Very similar to Title VII, which prohibits employment discrimination
because of race, color, religion, sex, or national origin and states that such discrimination
is established when one of those factors was a motivating factor for any employment
practice, even though other factors also motivated the practice.”
b. “Cat’s Paw” Theory of Liability – “If a supervisor [i.e., not ultimate decision maker]
performs an act motivated by antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable under USERRA.”
i. Burden of Proof – As in tort law, plaintiff bears the ultimate burden of proof.
ii. Two Key Issues – (1) Intent and (2) proximate cause.
iii. Intent – Supervisor must intend the consequences of the act, not simply the act
itself.
1. “Animus and responsibility for the adverse action can both be attributed
to the earlier agent if the adverse action is the intended consequence of
that agent's discriminatory conduct. So long as the agent intends, for
discriminatory reasons, that the adverse action occur, he has the scienter
required to be liable under USERRA.”
iv. Discrimination Must Be Motivating Factor in USERRA – “In the context of
USERRA, the governing text requires that discrimination be ‘a motivating factor’
in the adverse action. When a decision to fire is made with no unlawful animus
on the part of the firing agent, but partly on the basis of a report prompted
(unbeknownst to that agent) by discrimination, discrimination might perhaps be
called a ‘factor’ or a ‘causal factor’ in the decision; but it seems a considerable
stretch to call it ‘a motivating factor.’”
v. Proximate Cause – “And it is axiomatic under tort law that the exercise of
judgment by the decisionmaker does not prevent the earlier agent’s action (and
hence the earlier agent’s discriminatory animus) from being the proximate cause
of the harm. Proximate cause requires only some direct relation between the
injury asserted and the injurious conduct alleged, and excludes only those links
that are too remote, purely contingent, or indirect. The ultimate decisionmaker’s
exercise of judgment does not automatically render the link to the supervisor’s
bias ‘remote’ or ‘purely contingent.’ The decisionmaker’s exercise of judgment
is also a proximate cause of the employment decision, but it is common for
injuries to have multiple proximate causes. Nor can the ultimate decisionmaker’s
judgment be deemed a superseding cause of the harm. A cause can be thought
‘superseding’ only if it is a cause of independent origin that was not foreseeable.”
1. Question of fact.
20
2. Superseding Intervening Cause – Will negate proximate cause of
supervisor’s discriminatorily motivated action.
a. Independent Investigation by Decision Maker – Intervening
cause. No proximate cause.
b. Whether the top supervisor has done an independent inquiry and
come to an independent conclusion also is a question of fact and
is relevant to proximate cause.
c. Proximate cause will turn on how independent the final decision
maker was.
3. Datz thinks that plaintiffs will be able to show proximate cause in most
cases.
Affirmative Action & Reverse Discrimination
1. Ricci v. DeStefano (U.S. 2009)
a. Disparate Treatment Case
i. Express race-based decision making. City set aside test for racial reasons.
ii. Placed great weight upon, the white firefighters’ “legitimate expectations” that
the test result would be honored, language taken from the Court’s affirmative
action jurisprudence.
b. Discriminatory Act at Issue – White applicants scored disproportionately high, and
black applicants scored disproportionately low. Employer then set aside the test so as to
avoid disparate-impact liability, which to him seemed to be looming. He wanted to avoid
a disparate impact claim.
c. Resolving Tension Between Disparate Treatment & Disparate Impact Claims
i. Rule – “Under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an unintentional
disparate impact, the employer must have a STRONG BASIS IN EVIDENCE to
believe it will be subject to disparate-impact liability if it fails to take the raceconscious, discriminatory action.”
1. Restatement of Rule – An employer taking a race-based action is
impermissible disparate treatment under Title VII unless the employer
can demonstrate a “strong basis in evidence” that had it not taken the
action, it would have been liable under the disparate-impact statute.
2. Strong Basis in Evidence – Is a disparate-impact case pending? How
likely is a disparate-impact case to arise? It should look like litigation is
very close.
3. Statistically Significant Disparity – Alone not sufficient to meet this
heightened standard.
a. But see Lewis v. Chicago (U.S. 2010) (holding that statistical
evidence could support a cognizable disparate-impact claim).
4. Avoiding Disparate-Impact Liability – If the City had implemented the
test results, it could have avoided liability under a disparate-impact
theory based on the strong basis in evidence that not certifying the
results would have led to liability under a disparate-treatment theory.
5.  No Strong Basis in Evidence in Instant Case – The City could not
be liable under a disparate-impact theory unless (1) the tests were not
job-related for the positions in question and consistent with business
necessity or (2) the City rejected less-discriminatory alternatives that also
would have served the City’s needs. Court found that there was no
21
strong basis in evidence for concluding that the tests were deficient on
either of these grounds.
ii. Employer wanted to settle because he had a good-faith belief that he would lose a
disparate-impact case.
1. By settling the case, employer may injure the white individuals that
performed well on the test without a strong basis in evidence that he
would be subject to disparate-impact liability.
2. Datz believes that such a settlement would be approved. This suggests
that the employer should have hanged back, waited to be sued, and then
settled afterward. This essentially tells an employer not to take any
prophylactic/preventative steps, which seems to be odd/perverse.
d. Scalia, Concurring
i. “I join the Court’s opinion in full, but write separately to observe that its
resolution of this dispute merely postpones the evil day on which the Court will
have to confront the question: Whether, or to what extent, are the disparateimpact provisions of Title VII of the Civil Rights Act of 1964 consistent with the
Constitution's guarantee of equal protection? The question is not an easy one.”
1. Court did not rule on equal-protection question.
2. Scalia thinks that the disparate-impact doctrine is unconstitutional under
the Equal Protection Clause.
e. Ginsburg, Dissenting
i. Faulted the majority for “pretend[ing]” that the public employer’s action
rejecting a selection device solely because the higher scoring candidates were
white ignored substantial evidence of multiple flaws in the tests.
ii. Criticized the Court’s failure to acknowledge the better tests used in other cities,
yielded less racially skewed outcomes, suggesting that the City should have
considered this alternative selection device with a less discriminatory impact
based on existing law.
iii. Found significant that the Court barely acknowledged the path-marking decision
in Griggs “which explained the centrality of the disparate-impact concept to
effective enforcement of Title VII.”
Retaliation
1. Supreme Court, even in its relatively conservative current makeup, has gone out of its way to
protect retaliation claimants.
2. Title VII Anti-Retaliation Provision – “It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or applicants for employment, for an
employment agency, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
3. Burlington No. & Santa Fe Ry. Co. v. White (U.S. 2006)
a. Summaries of Rules
i. An employee can bring a Title VII retaliation claim based on retaliatory actions
taken by an employer that do not directly impact the terms and conditions of an
employee’s employment, provided such actions are materially adverse to the
employee. The employee must only show that a “reasonable person” would have
been dissuaded from exercising his or her Title VII rights as a result of the
22
employer’s actions, even if such actions are unrelated to the workplace. “A
plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, ‘which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” In other words, even if an employer’s action does not affect the
employee’s wages or job status, even if the adverse action is within the
employees’ job description, and even if the action is not related to employment at
all, so long as the action would be perceived as negative by a reasonable person
in the individual’s circumstances and has more than a trivial effect on that
individual, the action may be deemed unlawful retaliation. Thus, unlawful
retaliation may now include assignment of undesirable job duties, even if within
the employee’s job description.
ii. “Title VII forbids employment discrimination against ‘any individual’ based on
that individual’s race, color, religion, sex, or national origin. A separate section
of the Act—its anti-retaliation provision—forbids an employer from
‘discriminating against’ an employee or job applicant because that individual
opposed any practice made unlawful by Title VII or made a charge, testified,
assisted, or participated in a Title VII proceeding or investigation.”
b. Anti-Retaliation Provision – “Title VII’s anti-retaliation provision forbids employer
actions that ‘discriminate against’ an employee (or job applicant) because he has
‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified, assisted, or
participated in’ a Title VII ‘investigation, proceeding, or hearing.’ No one doubts that the
term ‘discriminate against’ refers to distinctions or differences in treatment that injure
protected individuals.” 42 U.S.C. § 2000e-3(a).
i. Anti-retaliation provision is NOT limited to discriminatory actions that affect the
terms and conditions of employment.
ii. “Protects an individual not from all retaliation, but from retaliation that produces
an injury or harm.”
iii. Plaintiff’s Burden/Broad Basis for Claim – “A plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
1. Objective Standard – “Reasonable worker.”
2. Challenged Retaliatory Act, Not Underlying Discrimination – “The
standard is tied to the challenged retaliatory act, not the underlying
conduct that forms the basis of the Title VII complaint.”
iv. Liability requires that retaliatory motivation be the sole purpose. See Merritt v.
Dillard Paper Co. (11th Cir. 1997) (holding that employer could fire employee on
sexual harassment grounds even if it could not on retaliation grounds).
c. Retaliation Outside Employment – “An employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing him
harm outside the workplace. A provision limited to employment-related actions would
not deter the many forms that effective retaliation can take.”
i. Covers effects inside and outside the workplace.
ii. May Include – Change in schedule (consider young mothers); lack of invitations
to lunch (if lunch contains training or mentoring); shunning; change in job
responsibilities; suspension without pay; reassignment to less desirable jobs
(even if within employee’s job description); job transfer; etc.
iii. Title VII does not protect against petty slights or minor annoyances in the
workplace.
iv. Broad meaning of “adverse action.”
23
4. Gomez-Perez v. Potter (U.S. 2008)
a. ADEA Anti-Retaliatory Provision – Makes it unlawful to discriminate against an
individual because the individual “has opposed any practice made unlawful by this
section, or because such individual . . . has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or litigation under this
chapter.” 29 U.S.C. § 623(d).
b. Rule – ADEA covers retaliation by the federal government. 29 U.S.C. § 633a(a), which
prohibits “discrimination based on age” in federal employment, also prohibits retaliation.
i. Absence of explicit anti-retaliation provision in the federal-sector provisions does
not preclude a claim for retaliation.
ii.  Shows that Congress is willing to read anti-retaliation provisions into
antidiscrimination statutes that do not contain them explicitly.
5. Crawford v. Metropolitan Government of Nashville (U.S. 2009)
a. Rule – Title VII Opposition Clause protection extends to an employee who speaks out
about discrimination not on her own initiative, but in answering questions during an
employer’s internal investigation.
i. Justification – “If it were clear law that an employee who reported
discrimination in answering an employer’s questions could be penalized with no
remedy, prudent employees would have a good reason to keep quiet about Title
VII offenses against themselves or against others. This is no imaginary horrible
given the documented indications that ‘[f]ear of retaliation is the leading reason
why people stay silent instead of voicing their concerns about bias and
discrimination’.”
b. Two Anti-Retaliation Clauses in Title VII – “The anti-retaliation provision of Title VII
has two clauses, making it an unlawful employment practice for an employer to
discriminate against any of his employees:
i. Opposition Clause – “Because he has opposed any practice made an unlawful
employment practice by this subchapter; or
1. Covers in-house investigations.
ii. Participation Clause – Because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.”
1. Arguably applies only where there is a formal proceeding (e.g., EEOC
complaint, lawsuit, etc.). Datz seems to be saying that it applies only
where something has been filed.
2. Filing
a. May be written or oral.
b. May be internal or external.
c. May be by person claiming to have been sexually harassed or by
someone simply opposing such a practice.
3. Kasten v. Saint-Gobain Performance Plastics Corp. (U.S. 2011) – “Filed”
can include an oral complaint.
4. Court does not resolve plaintiff’s claim under Participation Clause.
c. Broad Definition of “Oppose” – “The term ‘oppose,’ being left undefined by the statute,
carries its ordinary meaning: to resist or antagonize; to contend against; to confront;
resist; withstand. Although these actions entail varying expenditures of energy, resist
frequently implies more active striving than oppose.”
i.  Plaintiff need not show much. Easy standard to meet.
ii. Communication of Observance of Discrimination – “When an employee
communicates to her employer a belief that the employer has engaged in a form
24
of employment discrimination, that communication virtually always constitutes
the employee’s opposition to the activity.” EEOC Guideline.
iii. “There is, then, no reason to doubt that a person can oppose for purposes of 42
U.S.C. § 2000e-3(a) by responding to someone else’s question just as surely as
by provoking the discussion, and nothing in the statute requires a freakish rule
protecting an employee who reports discrimination on her own initiative but not
one who reports the same discrimination in the same words when her boss asks a
question.”
iv. Policy Rationale – Broad definition of “oppose” because Court does not want to
discourage employees from speaking up. Wants individuals to feel safe going to
their employers and reporting unlawful discrimination.
d. “Mere Reportage” May Not Be Covered
i. E.g., a human resources employee makes a report of an unlawful employment
practice by a high-ranking official in the company, and the high-ranking official
fires the HR employee.
ii. Datz – This is an example of mere reportage, and in that sense, it may not be
protected under Title VII. But for the sake of an adequate investigation, one
would want to protect the HR employee in this case. Therefore, Datz believes
that a court would go out of its way to extend Title VII protection to such an HR
employee.
Discrimination Based on Factors Other Than Race or Sex
Religion
1. Reed v. The Great Lakes Cos., Inc. (7th Cir. 2003)
a. Religious Discrimination Under Title VII – “Title VII forbids an employer, unless it is
a religious organization, from discriminating against an employee on the basis of the
employee’s religion.”
i. Includes atheism under this umbrella.
ii. Broad coverage is consistent with remedial spirit of Title VII.
b. Plaintiff’s Burden at Summary Judgment – If plaintiff declines to specify her religious
beliefs, she can survive summary judgment if she attests:
i. Her religious beliefs differ from her employer’s; and
ii. That is why she was fired.
c. Employer’s Duty to Accommodate – “Title VII requires an employer to try to
accommodate the religious needs of its employees, that is, to try to adjust the
requirements of the job so that the employee can remain employed without giving up the
practice of his religion, provided the adjustment would not work an undue hardship on
the employer.”
i. Not Absolute Duty – “The duty to accommodate an employee’s religious needs
is not absolute; the cost to the employer must be considered.”
1. Employer need not accommodate if it would impose an UNDUE
HARDSHIP. Anything more than a de minimis change in an employer’s
practices is likely to be rejected by a court as an undue burden on the
employer.
2. Very narrow interpretation of employer’s obligation.
ii. “Religious” Belief Required – “An employee is not permitted to redefine a
purely personal preference or aversion as a religious belief.”
25
1. See § 701(j) (protecting “all aspects of religious observance and practice,
as well as belief”)  Very broad coverage; may include idiosyncratic
beliefs as long as they are “religious.”
d. Employee Must Provide Fair Warning – “Title VII imposes a duty on the employer but
also a reciprocal duty on the employee to give fair warning of the employment practices
that will interfere with his religion and that he therefore wants waived or adjusted.”
i. Employee probably has the obligation to notify her employer of her religious
belief at the time that she is hired (i.e., as early as possible).
ii. Her employer then has the obligation to respond by proposing some reasonable
accommodations.
e. Sanctions for Frivolous Claims – “A judge can sanction a litigant for filing a frivolous
suit or claim regardless of the motives for such filing, and in deciding whether to sanction
such a litigant he can take into account a history of frivolous litigation. The fact that the
previous suits were the result of an unbalanced mind rather than an extortionate one
would be no defense.”
f. EXAMPLES
i. Jewish employee objects to working on Saturday for religious reasons.
1. If employer can find a substitute employee easily, then she probably has
an obligation to do so.
2. If employer cannot find a substitute employee easily (i.e., if she had to
exert any effort at all), then she probably has no obligation to
accommodate her employee’s religious belief.
ii. Catholic pharmacist does not want to fill prescriptions for birth control or
emergency contraceptive. Employee tells her employer about her religious belief
at the time that she is hired.
1. Is it a reasonable accommodation for an employer to ask a second, nonCatholic pharmacist always to fill these prescriptions?
2. (I’m not sure where Datz comes down on this question.)
iii. Same situation as the previous example, but it involves Rite-Aid. Would the
employer have a duty to tell a customer that she has to go to another Rite-Aid to
fill her birth control order? A: No, this is too much to ask.
1. Are we talking about an undue burden on the employer or customer?
2. Would the customer even go to another Rite-Aid, or would she be so
annoyed that she would go to CVS instead?
2. No 1st Amendment or Title VII violation when an employer restricts an employee from
practicing her religion in view of clients at the workplace.
a. See p. 334.
National Origin
1. Fragante v. City & County of Honolulu (9th Cir. 1989) (NATIONAL ORIGIN)
a. Discrimination Solely Because of Accent – “The EEOC submits that a plaintiff who
proves he has been discriminated against solely because of his accent does establish a
prima facie case of national origin discrimination.”
i. Accent discrimination can be national-origin discrimination.
ii. “EEOC guidelines define discrimination to include the denial of equal
employment opportunity because an individual has the linguistic characteristics
of a national origin group.”
1. Accent discrimination is especially relevant to disparate impact claims.
iii. National Origin – Applies to country of one’s ancestors, even if that country no
longer exists.
26
2.
3.
4.
5.
6.
7.
8.
b. Permissible Grounds for Accent Discrimination – “An adverse employment decision
may be predicated upon an individual’s accent when, but only when, it interferes
materially with job performance. There is nothing improper about an employer making
such an honest assessment of the oral communications skills of a candidate for a job
when such skills are reasonably related to job performance.”
i.  In the interest case, there was no disparate treatment because there was no
discriminatory motive. The employer did not hire the plaintiff because his accent
made it difficult to understand him, and the position required lots of
communication with the public, many of whom were impatient and irate. This
was a completely legitimate reason for refusing to hire the plaintiff.
c. Competing Interests – “Title VII clearly articulates the policy of the nation of the
United States: unlawful discrimination based on national origin shall not be permitted to
exist in the workplace. But, it is also true that there is another important aspect of Title
VII: the preservation of an employer’s remaining freedom of choice.”
d. Disparate-Impact Case – Employer requires her employees to be “understandable.”
i. This requirement will have an adverse impact on people from different countries.
ii. Employer may assert a BFOQ defense, however.
English & English-Only Requirements
a. Requirement that employees be able to read and understand the English language  In
most situations, an employer may require this. It is relatively unproblematic.
b. Employer’s rule that only English and no other languages may be spoken in the
workplace.
i. Employer will argue that customers and supervisors will wonder what the
employees are saying. Customers will think that the employees are making fun
of them. Supervisors will think that the employees are being insubordinate.
ii. There are cases going both ways on this question.
iii. Datz is of the opinion that there is more sentiment toward accepting the EEOC’s
view on this issue, which is that if an English-only rule applies at all times it is
presumptively in violation of Title VII, but a limited rule justified by business
necessity will be upheld.
EEOC Regulations on National Origin Discrimination – Title VII protection extends to the
following:
a. Marriage to or association with persons of a national origin group;
b. Membership in, or association with an organization identified with or seeking to promote
the interests of national origin groups;
c. Attendance or participation in schools, churches, temples or mosques, generally used by
persons of a national origin group; and
d. Because an individual’s name or spouse’s name is associated with a national origin
group. 29 C.F.R. § 1606.1.
BFOQ for National Origin Discrimination – Legislative history suggests that a BFOQ would
permit a restaurant to advertise for or hire only a French or Italian chef.
Title VII applies to U.S. operations of foreign companies.
Title VII and the ADA apply to American citizens working for American businesses abroad.
State Laws – States generally may not enact laws restricting access to certain jobs to citizens.
a. Exception – State may require citizenship for non-elected, policymaking positions.
National origin discrimination under IRCA. See p. 347.
Disability
1. Americans with Disabilities Act of 1990
a. Based on the Rehabilitation Act of 1973.
27
b. Applies to:
i. Private employers with 15 or more employees;
ii. State and local government employers.
c. Does not preempt state or federal antidiscrimination laws.
d. Enforcement procedures and remedies are the same as under Title VII.
2. State Law
a. May cover private employers with fewer than 15 employees.
b. May cover a broader range of disabilities.
3. Sutton v. United Air Lines, Inc. (U.S. 1999)
a. OVERTURNED BY STATUTE.
b. Definition of Disability – “A ‘disability’ is defined as: (A) a physical or mental
impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment. 42 U.S.C. § 12102(2).”
i. Must Account for Corrective Measures – “If a person is taking measures to
correct for, or mitigate, a physical or mental impairment, the effects of those
measures—both positive and negative—must be taken into account when judging
whether that person is ‘substantially limited’ in a major life activity and thus
‘disabled’ under the Act.”
1. “The use of a corrective device does not, by itself, relieve one’s
disability. Rather, one has a disability under subsection A if,
notwithstanding the use of a corrective device, that individual is
substantially limited in a major life activity.”
2. “The use or nonuse of a corrective device does not determine whether an
individual is disabled; that determination depends on whether the
limitations an individual with an impairment actually faces are in fact
substantially limiting.”
ii. This is a narrower reading than the lay reading of “disability.” Most people
would think of the definition of disability as encompassing more.
iii. Changed by ADAAA.
iv. “Regarded as” Having a Disability – “Individuals who are ‘regarded as’ having
a disability are disabled within the meaning of the Americans with Disabilities
Act of 1990. Having a disability includes ‘being regarded as having a physical or
mental impairment that substantially limits one or more of the major life
activities of such individual.’ There are two apparent ways in which individuals
may fall within this statutory definition: (1) a covered entity mistakenly believes
that a person has a physical impairment that substantially limits one or more
major life activities, or (2) a covered entity mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more major life activities. In
both cases, it is necessary that a covered entity entertain misperceptions about the
individual—it must believe either that one has a substantially limiting
impairment that one does not have or that one has a substantially limiting
impairment when, in fact, the impairment is not so limiting.”
c. A plaintiff also must be a qualified individual with a disability.
i. Qualified Individual with a Disability – “A ‘qualified individual with a
disability’ is identified as an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires. 42 U.S.C. §
12111(8).”
28
ii. If an employer with a reasonable accommodation can place an employee in a
position to do the job, then the employer is under an obligation to reasonably
accommodate the employee’s disability.
1.  UNLESS the accommodation imposes an undue burden on the
employer. (E.g., employer cannot afford to modify his workplace.)
d. Two Requirements for an ADA Plaintiff
i. Disability
ii. “Qualified” Individual with a Disability
iii.  Third Question: Is the accommodation reasonable, or does it impose an undue
burden on the employer?
e. Congress vigorously disagreed with Sutton and other cases (Toyota) and subsequently
passed the ADAAA to expand the definition of “disability.”
i. The disability evaluation must be made prior to any corrective measures, but
there is an exception for glasses. Glasses may be considered when adjudging
whether a plaintiff is disabled.
f. Stevens, Dissenting
i. Although he expressed no opinion on the ultimate merits of petitioners’ claim,
Justice Stevens believed that petitioners had a disability that was covered by the
ADA. Justices Stevens stated that although Congress had not intended to require
respondent to hire unsafe or unqualified pilots, he believed that if the Supreme
Court applied customary tools of statutory construction, the threshold question of
whether an individual was “disabled” within the meaning of the ADA and,
therefore, was entitled to the basic assurances that the statute afforded, focused
on her past or present physical condition without regard to mitigation that had
resulted from rehabilitation, self-improvement, prosthetic devices, or medication.
ii. Specifically, Justice Stevens argued that people with prosthetic devices were
intended by Congress to be covered by the ADA. Justice Stevens contended that
the ADA protected individuals who had “correctable” substantially limiting
impairments, such as diabetes, loss of limb, and the inability to hear, from
unjustified employment discrimination on the basis of those impairments.
Further, Justice Stevens believed that visual impairments were to be judged by
the same standards as hearing impairments or any other medically controllable
condition, inasmuch as uncorrected vision could have been as substantially
limiting in the same way that unmedicated epilepsy or diabetes could have been.
Justice Stevens found that the reasoning issued by the majority failed to justify a
construction of the ADA that obviously deprived many of Congress’ intended
beneficiaries of the legal protections afforded by the statute.
4. ADA Amendments Act of 2008
a. OVERRULED Sutton and Toyota.
i. Rejected requirement “that whether an impairment substantially limits a major
life activity is to be determined with reference to the ameliorative effects of
mitigating measures.” ADAAA § 2(b)(8).
ii. Rejected narrow interpretations of “substantially” and “major” in Toyota.
b. Meant to expand definition of “individual with a disability.”
c. Prima Facie ADA Case
i. Disabled individual;
ii. Otherwise qualified;
1. With reasonable accommodation can perform the essential functions of
the job.
iii.  If both are met, employer must provide reasonable accommodation.
29
1. Employer need not accommodate if the accommodation poses an undue
hardship.
2. NO ACCOMMODATION for people “regarded as” having a disability.
iv.  If not met, employer need not provide reasonable accommodation.
d. Major Life Activities – Very, very broad. E.g., walking, seeing, putting on clothes,
bodily functions (bladder, endocrine, etc.).
e. Substantially Limits – Compared to most people in our society. E.g., if you could not
raise your arm as high as most people, this may differentiate you from the general public,
and in a particular case, it may prevent you from performing a particular job. It is very
easy to be qualified as disabled.
f. Episodic Conditions/Remission – Covered if they would substantially limit a major life
activity when active.
g. Mitigation Measures – Conditions are evaluated in their UNMITIGATED states.
i. Exception – Ordinary eyeglasses and contact lenses.
WAGES & HOURS
Who Is an Employee?
1. Federal Laws
a. Not all federal laws use the same definition of “employee.”
b. Determination must be made under each statute.
2. Fair Labor Standards Act
a. Establishes minimum wage for all employees of covered employers. § 206(a).
i. No sex discrimination in wages for men and women doing equal work. § 206(d).
ii. Tip credit for employers of tipped employees. Tipped employees still must earn
minimum wage through combined tips and wages.
b. Provides for mandatory overtime payment for covered employees working more than 40
hours per week.
i. No limit on overtime.
ii. 1.5 times normal wage for all hours above 40 in a workweek. § 207(a)(1).
c. FLSA does not require:
i. Vacation, holiday, severance, or sick pay.
ii. Meals or rest periods.
iii. Premium pay for holiday or weekend work.
iv. Pay raises or benefits.
v. Discharge notice, reason for discharge, or immediate payment of final wages.
d. If an employee is over 16, FLSA does not limit:
i. Number of hours in workday; or
ii. Number of days in workweek.
e. Covered Employer
i. Must (1) meet definition of an “enterprise” or (2) meet the commerce test.
ii. Enterprise Definition
1.  Liberal interpretation.
2. Small businesses may be exempt.
3. Must have $500,000 annual gross volume of sales or business done.
4. Hospitals, schools, and public agencies are covered regardless of
financial size.
a. Garcia – FLSA applies to state and local governments.
b. State and local governments may be immune from suit under the
FLSA. See Alden; Seminole Tribe of Florida.
30
5. Businesses employing only immediate family members are exempt
regardless of financial size.
6. Gross sales of separate businesses having unified operations or common
control may satisfy definition. § 203(r).
a. Three-Part Test – Companies must (1) perform related activities
(2) under unified operations or common control (3) for a
common business purpose. Martin v. Deiriggi (4th Cir. 1992).
iii. Commerce Test – Goods or services produced by business must cross state lines.
Very broad interpretation.
f. Covered Employee
i. FLSA only covers employees.
ii. Employee – “Any individual employed by an employer.” § 203(e)(1).
iii. Employ – “To suffer or permit to work.” § 203(g).
iv. Governed by “economic reality” test.
v. Independent contractors are not covered employees.
vi. Misclassification – State and local governments become very upset at employer
misclassification of who is an employee. They often treat the misclassification
not only as a civil violation, but also as a criminal offense to which criminal fines
attach.
1. Datz – There is a distinction to be made between employers that, after
looking at all the factors, determine that an individual is an independent
contractor and employers that make no such effort. Employers that make
a good-faith effort to determine the correct classification, but err, should
not be subject to criminal fines—even though it is OK that they are
subject to civil penalties, back pay, etc.
3. Donovan v. DialAmerica Mktg., Inc. (3d Cir. 1985) (FLSA COVERED EMPLOYEE)
a. The whole activity should be examined rather than any one particular factor. Rutherford
(U.S. 1947).
i. Rutherford Factors:
1. Whether the work being done is part of the integrated unit of production;
2. Whether the workers shift from one workplace to another as a unit;
3. Whether managers from the alleged employer keep in close touch with
the workers; and
4. Whether the work is more like piecework than an enterprise dependent
for success on the workers’ initiative, judgment or foresight.
b. Six Factors – Sureway Cleaners (9th Cir. 1981)
i. The degree of the alleged employer’s right to control the manner in which the
work is to be performed;
1. Right of Control –Focuses on both end result and the means by which the
employee will arrive at the end result. If employer controls both 
employee.
ii. The alleged employee’s opportunity for profit or loss depending upon his
managerial skill;
iii. The alleged employee’s investment in equipment or materials required for his
task, or his employment of helpers;
iv. Whether the service rendered requires a special skill;
v. The degree of permanence of the working relationship; and
vi. Whether the service rendered is an integral part of the alleged employer’s
business.
1. “The factor relates not to the percentage of total work done by the
workers at issue but to the nature of the work performed by the workers:
31
does that work constitute an ‘essential part’ of the alleged employer’s
business? In other words, regardless of the amount of work done,
workers are more likely to be ‘employees’ under the FLSA if they
perform the primary work of the alleged employer.”
2. Work can be tiny in percentage, but it still may be integral to the
employer’s business.
vii.  No factor is dispositive; must examine “circumstances of the whole activity;”
holistic, balancing inquiry.
viii.  Economic Reality Test – As a matter of economic reality, are the individuals
“dependent upon the business to which they render service”?
1. In addition to the six factors above.
2. “The economic-dependence aspect of the employee test does not concern
whether the workers at issue depend on the money they earn for
obtaining the necessities of life. Rather, it examines whether the workers
are dependent on a particular business or organization for their continued
employment.”
3. Reflects some of the social values entailed in the test.
ix.  Court looks at the actual facts of how the individual works, not some
abstraction of her work duties.
1. Court may disregard independent-contractor language in an employment
contract if the facts suggest otherwise.
c. Working at Home – Not dispositive of employee status under the FLSA.
i. Homeworkers were intended to be encompassed by FLSA.
ii. FLSA employees even though both aspects of right to control are not present.
4. Prisoners – May be FLSA employees.
a. Working under prison programs  Not covered by the FLSA. See McMaster (8th Cir.
1994).
b. Working for private employers  Covered by the FLSA. See Henthorn (D.C. Cir.
1994).
5. Undocumented Aliens
a. Covered by FLSA. See Patel (11th Cir. 1988).
b. Covered by Title VII.
6. Migrant Farmworkers – Probably covered by FLSA.
HEALTH BENEFITS
ERISA – Substantive Provisions
1. ERISA – Primary federal law of employee benefits.
a. Does not require employers to provide pensions or other benefits, but if they do, benefit
plans must satisfy minimum standards to protect employees and other beneficiaries.
2. Two Types of Benefit Plans
a. Pension Benefit Plans
b. Welfare Benefit Plans – Including medical, surgical, or hospital care; benefits in the
event of sickness, accident, disability, death, or unemployment; vacation benefits;
apprenticeships or training programs; daycare centers; scholarship funds; prepaid legal
services; etc.
3. Amendments
a. COBRA – Providing for continuation of health benefits after loss of employment.
b. HIPAA – Providing for portability of health benefits.
4. ERISA Procedure
32
a. Relief Sought
i. Injunctive Relief – Plaintiff seeks court order directing approval of a certain
treatment.
1. Great-West Life (U.S. 2002) – Because Great-West was seeking legal
relief, i.e., the imposition of personal liability on Knudson for a
contractual obligation to pay money, ERISA does not authorize this
action. The suit, which sought relief under § 502(a)(3) of ERISA, was
not authorized under ERISA’s catch-all provision authorizing equitable
relief because the claim was for a legal remedy, or monetary damages.
ii. Reimbursement – Plaintiff seeks payment after treatment already has been
provided.
b. Beneficiaries usually must exhaust internal plan remedies before seeking judicial relief.
Denial of Benefits
1. Salley v. E.I. Dupont De Nemours & Co. (5th Cir. 1992).
a. Facts – Claim was denied because hospitalization was found not to be “medically
necessary.” The plan covered only expenses that were “medically necessary.”
b. Standard of Review for Denial of Benefits
i. De Novo – General rule.
ii. Abuse of Discretion – If the plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the
terms of the plan.
1.  Most benefit plans reserve this discretion.
2. Did the plan administrator act arbitrarily and capriciously?
3. Conflict of Interest – “If a benefit plan gives discretion to an
administrator or fiduciary who is operating under a conflict of interest,
that conflict must be weighed as a factor in determining whether there is
an abuse of discretion.”
a. Conflict of interest in the company not wanting to pay the
benefits is an element, but it is not the only dispositive element.
4. Information Known at Time – “Based upon the information known to
the administrator at the time he made the decision.”
a. Failure to Obtain Necessary Information – “The administrator
can abuse his discretion if he fails to obtain the necessary
information.”
c. Treating Physician Rule – “The treating physician rule requires a court, in appropriate
circumstances, to defer to a patient’s treating physician's testimony unless substantial
evidence contradicts the testimony.”
i. Not applied in ERISA context. No presumption in favor of treating physician.
1. Conflict of Interest – “Under [the treating physician rule], the treating
physician would stand to profit greatly if the court were to find benefits
should not be terminated.”
ii. Evaluating Treating Physician’s Credibility – “A court nevertheless may
properly assess each case’s individual circumstances and evaluate the witnesses’
credibility. If a court believes the treating physician is more credible than other
witnesses, it is entitled to give greater weight to his or her testimony.”
2. Experimental Treatment – Together with treatments that are not “medically necessary,”
experimental treatments often are denied under ERISA-qualified plans.
Pregnancy
33
1. Pregnancy Discrimination Act of 1978
a. “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to,
because of or on the basis of pregnancy, childbirth, or related medical conditions; and
women affected by pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected but similar in their ability or inability
to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit
otherwise.” 42 U.S.C. § 2000(k).
b. Overruled Gilbert (U.S. 1976) (holding that an employer’s pregnancy exclusion from its
benefit plan was not directed at women, but at pregnancy, and that pregnancy is not a
disability).
c. Employer must treat pregnant employees the same as non-pregnant employees.
i. UNLESS employer can establish (1) a business necessity or (2) BFOQ defense.
d. Johnson Controls – Employer argued that the exclusion of women from leadmanufacturing jobs was not directed at women, but at fertile women. Employer was
interested in protecting potential fetal health. Becoming pregnant, however, is peculiar to
the female sex; and since the PDA condemns discrimination based on anything peculiar
to women, the exclusion was unlawful.
2. Lang v. Star Herald (8th Cir. 1997)
a. PDA, Pregnancy Discrimination & Sex Discrimination – The PDA amended the
definitional provision of Title VII to clarify that discrimination on the basis of pregnancy,
childbirth, or related medical conditions is sex discrimination under Title VII.
i. Equal Treatment Only, Not Accommodation – “Title VII requires employers
to treat employees who are members of protected classes the same as other
similarly situated employees, but it does not create substantive rights to
preferential treatment. The PDA specifically states that women affected by
pregnancy, childbirth, or related medical conditions shall be treated the same for
all employment-related purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected but similar in their ability or
inability to work. The PDA does not require that employers make
accommodations for their pregnant workers; employers can treat pregnant
women as badly as they treat similarly affected but non-pregnant employees.”
b. Prima Facie Disparate-Impact Case – “To establish a prima facie case of disparate
impact, a plaintiff must show that the defendant’s facially neutral policy is in fact
unjustifiably more harsh on pregnant women than on other people. To prove this, a
plaintiff must offer STATISTICAL EVIDENCE of a kind and degree sufficient to show
that the practice in question has caused the exclusion of benefits because the beneficiaries
would be women.”
i. Prima facie case may be shown by statistical evidence.
c. Hypothetical Disparate Treatment – If the employer had had a short-term disability
plan covering other disabilities and guaranteeing an employee’s job when she returned
(e.g., after recovering from a broken leg), how would this affect the case?
i. Pregnancy would be differentiated from things such as, e.g., breaking one’s leg.
There would be disparate treatment.
3. Ensley-Gaines v. Runyon (6th Cir. 1996)
a. Rule – Employers are not required to provide pregnant employees with light-duty work.
4. In re Union Pac. R.R. Employment Practices Litigation (8th Cir. 2007) [Case-in-Brief is
available.]
a. Facts – The employer provided health care benefits through several plans to workers,
such as the employees, who were covered by collective-bargaining agreements. The
34
b.
c.
d.
e.
plans excluded, inter alia, both male and female contraceptive methods, prescription and
non-prescription, when used for the sole purpose of contraception. Contraceptives were
covered only when medically necessary for a non-contraceptive purpose. The employees
used prescription contraception for contraceptive purposes, the cost of which was not
covered by the employer’s plans. The employees and two other female workers filed
discrimination suits against the employer under Title VII, as amended by the PDA.
Specifically, it was alleged, inter alia, that the failure to provide coverage for prescription
contraceptives was contrary to the PDA, and in addition, amounted to disparate treatment
under Title VII.
Precedent
i. “A company’s health insurance plan that provided greater pregnancy benefits to
its female employees than to the female spouses of its male employees was a
violation of Title VII, as amended by the PDA.” Newport News (U.S. 1983).
ii. Johnson Controls (U.S. 1981) – “An employer could not prevent a woman from
working in those positions when it did not also prevent men from working in
those positions, ‘unless her reproductive potential prevent[ed] her from
performing the duties of her job.’ Since reproductive potential did not prevent
women from performing the duties of the positions in question, the Court held
that discriminating against women on the basis of potential pregnancy was a
violation of Title VII, as amended by the PDA.”
iii. In the United States Court of Appeals for the Eight Circuit, infertility is outside
of the PDA’s protection because it is not pregnancy, childbirth, or a related
medical condition. Krauel (8th Cir. 1996).
PDA Does Not Require Contraception Coverage
i. Rejection of Mere Causal Connection – While contraception may certainly
affect the causal chain that leads to pregnancy, the Eight Circuit has specifically
rejected the argument that a causal connection, by itself, results in a medical
condition being “related to” pregnancy for PDA purposes.
ii. “Contraception is not ‘related to’ pregnancy for PDA purposes because, like
infertility treatments, contraception is a treatment that is only indicated prior to
pregnancy. Contraception is not a medical treatment that occurs when or if a
woman becomes pregnant; instead, contraception prevents pregnancy from even
occurring. The result in Johnson Controls does not require coverage of
contraception because contraception is not a gender-specific term like ‘potential
pregnancy,’ but rather applies to both men and women like ‘infertility.’ In
conclusion, the PDA does not require coverage of contraception because
contraception is not ‘related to’ pregnancy for PDA purposes and is genderneutral.”
EEOC Interpretation Receives Little Deference – “An EEOC decision is similar to a
policy statement or enforcement guideline, and a court respects such interpretations only
to the extent that those interpretations have the power to persuade. Since Congress did
not give the EEOC rule-making authority, the amount of deference a court gives to a
decision will depend upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.”
Conclusion of PDA Analysis – “Based on the language of the PDA and our previous
holding in Krauel, we hold that the PDA does not encompass contraception.
Contraception, like infertility treatments, is a treatment that is only indicated prior to
pregnancy because contraception actually prevents pregnancy from occurring.
Furthermore, like infertility, contraception is a gender-neutral term. Therefore, Union
35
Pacific’s denial of coverage for contraception for both sexes did not discriminate against
its female agreement employees in violation of Title VII, as amended by the PDA.”
i.  Plan in this case excluded prescription and non-prescription measures and
applied to men and women. Broad coverage not restricted to women. Therefore,
it was not condemned as gender discriminatory.
f. Disparate-Treatment Claim – “To establish a disparate treatment claim, plaintiffs must
show, in part, that other employees outside of the protected group were allegedly treated
more favorably and were similarly situated in all relevant respects. While an employer
must treat its employees similarly, it does not have to treat employees in a protected class
more favorably than other employees.”
i. No Title VII Violation – “The proper comparator is the provision of the medical
benefit in question, contraception. Union Pacific’s health plans do not cover any
contraception used by women such as birth control, sponges, diaphragms,
intrauterine devices or tubal ligations or any contraception used by men such as
condoms and vasectomies. Therefore, the coverage provided to women is not
less favorable than that provided to men. Thus, there is no violation of Title
VII.”
g. Bye, Dissenting
i. Agreed with how the district court framed the discrimination inquiry and agreed
with the district court’s conclusion that the employer’s policy discriminated
against women under Title VII. Specifically, the dissent argued that the PDA
covered more than mere pregnancy, which was indicated by Congress’ use of the
phrase “related medical conditions” in § 2000e(k), as well as by the Supreme
Court’s decision in Johnson Controls, which, the dissent claimed, broadened the
scope of the PDA to include pre-pregnancy discrimination.
5. Erickson v. Bartell Drug Co. (W.D. Wash. 2001)
a. Holding – Judge ordered Bartell to “cover each of the available options for prescription
contraception to the same extent, and on the same terms, that it covered other drugs,
devices, and preventative care for non-union employees.” The court also ordered Bartell
to offer coverage for contraception—related services, including the initial physician visit,
to the same extent it did for other services. Judge explained that when an employer offers
a generally comprehensive prescription plan “covering everything except a few
specifically excluded drugs and devices, it has a legal obligation to make sure that the
resulting plan does not discriminate based on sex-based characteristics and that it
provides equally comprehensive coverage for both sexes.”
i. Employer’s Argument – Defendant claimed that its failure to provide coverage
for prescription contraceptive devices did not violate Title VII or the PDA
because contraceptives were voluntary, preventative, did not treat or prevent an
illness or disease, and control of one’s fertility was not pregnancy, childbirth, or
related medical conditions under the PDA.
1. Court rejected.
ii. Because prescription contraceptives were used only by women, defendant’s
choice to exclude that particular benefit from its generally applicable benefit plan
was discriminatory, and that defendant’s prescription drug plan provided less
complete coverage to its female employees than to its male employees.
Sexual Orientation
1. Alaska Civil Liberties Union v. State (Alaska 2005)
a. Facts – Defendants provided benefits for married employees but not for domestic
partners. The court found that those programs violated equal protection under the Alaska
36
Constitution. Although the programs did not explicitly exclude same-sex couples, they
were facially discriminatory because same-sex couples were barred from marriage in
Alaska under the Alaska Constitution, which defined marriage as between a man and a
woman. Opposite-sex couples in domestic partnerships were not treated the same
because marriage was available to them, while same-sex couples were absolutely
precluded from becoming eligible for benefits.
b. Question – “Whether the Marriage Amendment [Alaska constitutional provision defining
marriage as existing only between one man and one woman] precludes challenges by
same-sex couples to government policies that discriminate between married and
unmarried couples”?
i. Essentially, the court is resolving an apparent conflict between the Marriage
Amendment and the Equal Protection Clause of the Alaska Constitution.
c. Marriage Amendment Does Not Foreclose Equal Protection Claim – “Because the
public employers’ benefits programs could be amended to include unmarried same-sex
domestic partners without offending the Marriage Amendment, that amendment does not
foreclose plaintiffs’ equal protection claims here. That the Marriage Amendment
effectively prevents same-sex couples from marrying does not automatically permit the
government to treat them differently in other ways. It therefore does not preclude public
employees with same-sex domestic partners from claiming that the spousal limitations in
the benefits programs invidiously discriminate against them.”
d. Alaska’s Equal Protection Clause – Greater protection than given in federal
constitution.
i. Equal Protection Test – “To implement Alaska’s more stringent equal
protection standard, we have adopted a three-step, sliding-scale test that places a
progressively greater or lesser burden on the state, depending on the importance
of the individual right affected by the disputed classification and the nature of the
governmental interest at stake.”
ii. Question – Is providing employment benefits to spouses of employees
substantially related to the government’s interest?
1. Means – Providing benefits to spouses of employees.
2. Government Interest – Promoting marriage.
iii. Restricting Benefit Eligibility to Opposite-Sex Couples Is Not Substantially
Related to Government Interest in Promoting Marriage – “The first part of
the chosen means—providing a benefit to spouses—is directly related to
advancing the marriage interest. But the second part of the chosen means—
restricting eligibility to persons in a status that same-sex domestic partners can
never achieve—cannot be said to be related to that interest. There is no
indication here that denying benefits to public employees with same-sex
domestic partners has any bearing on who marries. There is no indication here
that granting or denying benefits to public employees with same-sex domestic
partners causes employees with opposite-sex domestic partners to alter their
decisions about whether to marry. There is no indication here that any of the
plaintiffs, having been denied these benefits, will now seek opposite-sex partners
with an intention of marrying them. And if such changes resulted in sham or
unstable marriages entered only to obtain or confer these benefits, they would not
seem to advance any valid reasons for promoting marriage. In short, there is no
indication that the programs’ challenged aspect—the denial of benefits to all
public employees with same-sex domestic partners—has any relationship at all to
the interest in promoting marriage. To repeat: making benefits available to
spouses may well promote marriage; denying benefits to the same-sex domestic
37
partners who are absolutely ineligible to become spouses has no demonstrated
relationship to the interest of promoting marriage.”
iv. Only Spousal Limitation Is Unconstitutional – “Only the spousal limitations in
the benefits laws of the State of Alaska and the Municipality of Anchorage are
unconstitutional, and they are invalid only to the extent they deny benefits to
persons who are absolutely precluded from becoming eligible for those benefits,
even though their domestic relationship is not illegal.”
e. Remedy – No remedy issued at this time.
f. Possible Solution for Alaska – Recognize same-sex marriages performed in other states.
This would allow Alaska to avoid the equal protection violation while also allowing it to
promote its own definition of marriage.
i. This would require an amendment to the Alaska constitution.
FREEDOM IN THE WORKPLACE
Grooming & Dress
1. Kelley v. Johnson (U.S. 1976) (POLICE OFFICERS’ HAIR LENGTH)
a. Court assumes that police officers have a 1st Amendment liberty interest through the
14th Amendment with respect to matters of personal appearance.
b. Public Employees’ Constitutional Rights
i. State employment may not be conditioned on the relinquishment of 1st
Amendment rights.
ii. Public employer may impose reasonable restrictions on public employees’
constitutional rights.
c. Deference to State Policy – “The promotion of safety of persons and property is
unquestionably at the core of the state’s police power, and virtually all state and local
governments employ a uniformed police force to aid in the accomplishment of that
purpose. Choice of organization, dress, and equipment for law enforcement personnel is
a decision entitled to the same sort of presumption of legislative validity as are state
choices designed to promote other aims within the cognizance of the State’s police
power.”
d. Standard of Review – “Whether respondent can demonstrate that there is no rational
connection between the regulation, based as it is on the county’s method of organizing its
police force, and the promotion of safety of persons and property.”
i. Language of rational-basis review.
ii. Court places burden on aggrieved officers, not government, to demonstrate that
there is no rational connection between the hair-length policy and legitimate
government interests.
1. Datz thinks the Court should have placed the burden of proof on the
police department to show that its grooming regulations were rationally
related to a legitimate government interest.
iii. Sufficiently Rational Government Interests
1. A desire to make police officers readily recognizable to the members of
the public; and
2. A desire for the esprit de corps which such similarity is felt to inculcate
within the police force itself.
e. Driving Force Behind Decision – The paramilitary nature of police forces is what is
driving the Court to insist on uniformity in police officers’ appearances.
f. Marshall, Dissenting
38
2.
3.
4.
5.
i. The 14th Amendment protects against comprehensive regulation of what citizens
might wear and that the rationales offered to justify the hair grooming regulation
were insufficient to demonstrate its constitutionality.
Challenges to Hair-Length Policies
a. 1st Amendment. Kelley.
b. Title VII – Sex discrimination because no such policies exist for women.
i. Title VII claims generally are unsuccessful:
1. Title VII was designed to prohibit discrimination based on immutable
characteristics only; and
2. Hair-length regulations do not inhibit employment opportunity.
ii. If a hairstyle is religiously required (e.g., dreadlocks in Rastafarian religion) and
an employer prohibits it, this may be the basis for a successful Title VII claim.
iii. If a skin condition making shaving painful or impractical disproportionately
affects black men, a no-beard policy might give rise to a disparate-impact claim.
c. RFRA – Where the government discriminates on the basis of religious exercise, e.g.,
employee is religiously prohibited from cutting beard, government will prevail only if it
can show a compelling governmental interest in requiring conformity.
i. Difficult for government to meet this burden.
ii. Exceptions – Police, firefighters. Easier for government to prevail.
Firefighters & Beards
a. May be required to shave beards because they interfere with respirator use. Fitzpatrick
(11th Cir. 1993).
b. Firefighters were able to rely on RFRA to place the burden of proof on the government.
They were able to keep their beards because they cited religious reasons. Potter v. D.C.
(D.C. Cir. 2009).
c. Fire department still must show a safety reason for its no-beard policy. See Kennedy v.
D.C. (D.C. App. 1994).
Public-Contact Jobs – Employer may be able to make a stronger case for maintaining
appearance standards. See Mannikko (D. Nev. 1986).
Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006)
a. Two Claims
i. Unequal burdens in grooming standards; and
ii. Sex stereotyping.
1. Dismissed for lack of supporting evidence.
b. Different Grooming Standards for Men & Women
i. Not Disparate Treatment if Burdens Are Equal – “An appearance standard
that imposes different but essentially equal burdens on men and women is not
disparate treatment.”
ii. Not Facially Discriminatory – “Grooming standards that appropriately
differentiate between the genders are not facially discriminatory.”
iii. “Companies may differentiate between men and women in appearance and
grooming policies. The material issue is not whether the policies are different,
but whether the policy imposed on the plaintiff creates an ‘unequal burden’ for
the plaintiff’s gender.”
1. Rule – Different standards are permissible as long as they do not impose
an UNEQUAL BURDEN on one gender.
iv. Negligible Differences Are Permissible – “Not every differentiation between
the sexes in a grooming and appearance policy creates a significantly greater
burden of compliance. Where grooming and appearance policies are reasonable
and are imposed in an evenhanded manner on all employees, slight differences in
the appearance requirements for males and females have only a negligible effect
39
on employment opportunities. Under established equal burdens analysis, when
an employer’s grooming and appearance policy does not unreasonably burden
one gender more than the other, that policy will not violate Title VII.”
1. Negligible differences in grooming standards are permissible.
2. Burden must be UNREASONABLE to be actionable.
v. Sufficient Evidence May Support Unequal Burdens Claim – If a women is
able to show that the time and expense in buying and applying makeup is
considerable—and more considerable than the time and expense involved in men
adhering to their grooming standards—then she may be able to support an
unequal-burdens claim.
c. Makeup Requirement for Women Is Not Necessarily Sex Stereotyping – “A makeup
requirement must be seen in the context of the overall standards imposed on employees in
a given workplace.”
i. Datz thinks that there is an element of sex stereotyping here because the
grooming standards are based on ideas about how men and women should look.
ii. If a woman is able to show that the makeup requirement is designed to be
sexually provocative or otherwise based on a gender stereotype about women,
she may be able to support a sex-stereotyping claim.
d. Analytical Framework
i. Is there gender discrimination to begin with?
ii. Is there a BFOQ defense?
iii.  If it is a grooming policy, does it apply to both sexes? Is the burden unequal?
e. Kozinski, Dissenting
i. Wearing makeup is a substantial personal intrusion.
ii. Makeup is not related to any real difference between men and women. It is
merely a social construct that women should wear makeup.
6. “Essence of Business” Defense – Requiring women to wear proactive outfits would not violate
Title VII if a sexually provocative appearance is the essence of the business, e.g., a strip club.
Harassment
1. Definition of Sexual Harassment
a. “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature.” 29 C.F.R. § 1604.11.
b. Regardless of whether the harassment is an economic quid pro quo, it will violate Title
VII if the “conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or offensive working
environment.” 29 C.F.R. § 1604.11.
2. Two Types of Sexual Harassment
a. Quid Pro Quo Sexual Harassment – Agreement to engage in sexual activity is a
condition of employment.
b. Hostile Environment Sexual Harassment – Statements or conduct of a sexual nature
create an environment of intimidation, insult, or ridicule.
3. Meritor Savings Bank, FSB v. Vinson (U.S. 1986)
a. Unwelcomeness Standard – “Unwelcomeness” and not “consent” is the standard for
determining whether unlawful sexual harassment has occurred.
4. Pennsylvania State Police v. Suders (U.S. 2004)
a. Hostile Work Environment – “To establish hostile work environment, a plaintiff must
show harassing behavior sufficiently severe or pervasive to alter the conditions of their
employment.”
i. Sexual harassment as a Title VII violation.
40
b. Constructive Discharge – “To establish constructive discharge, the plaintiff must make
a further showing: she must show that the abusive working environment became so
intolerable that her resignation qualified as a fitting response.”
i. Title VII encompasses liability for constructive discharge.
ii. “Under the constructive discharge doctrine, an employee’s reasonable decision to
resign because of unendurable working conditions is assimilated to a formal
discharge for remedial purposes. The inquiry is objective: did working
conditions become so intolerable that a reasonable person in the employee’s
position would have felt compelled to resign?”
iii. “For an atmosphere of sexual harassment or hostility to be actionable, the
offending behavior must be sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment. A hostile-environment constructive discharge claim entails
something more: a plaintiff who advances such a compound claim must show
working conditions so intolerable that a reasonable person would have felt
compelled to resign.”
iv. “Harassment so intolerable as to cause a resignation may be effected through coworker conduct, unofficial supervisory conduct, or official company acts. Unlike
an actual termination, which is always effected through an official act of the
company, a constructive discharge need not be. A constructive discharge
involves both an employee’s decision to leave and precipitating conduct: the
former involves no official action; the latter, like a harassment claim without any
constructive discharge assertion, may or may not involve official action.”
v. Damages – “A constructive discharge is functionally the same as an actual
termination in damages-enhancing respects.”
1. Same damages as if employer had discharged employee for an
impermissible purpose.
vi. Employer’s Affirmative Defense – No official action underlying.
c. Tangible Effects v. Intangible Effects
i. Sexual Harassment Having Tangible Effects – “An employer is strictly liable
for supervisor harassment that ‘culminates in a tangible employment action, such
as discharge, demotion, or undesirable reassignment.’”
1. E.g., “employer-sanctioned adverse action officially changing her
employment status or situation, for example, a humiliating demotion,
extreme cut in pay, or transfer to a position in which she would face
unbearable working conditions.”
2. Vicarious Liability – Employer is vicariously liable for sexual
harassment by a supervisor. Agency law.
3. Amounts to an official act of the company.
4. Falls within special province of supervisor, who is empowered to make
economic decisions affecting other employees.
a. Affects one’s pay, departmental assignment, pension, benefits,
etc. Tangible in a monetary or economic sense.
5. Employer cannot escape liability through agency principles.
ii. Sexual Harassment Having No Tangible Effects – “When no such tangible
action is taken, the employer may raise an affirmative defense to liability. To
prevail on the basis of the defense, the employer must prove that:
“(a) It exercised reasonable care to prevent and correct promptly any
sexually harassing behavior; and that
41
5.
6.
7.
8.
“(b) The employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.”
1. E.g., obscene gestures, bad jokes, making fun of others’ appearances,
leering, etc. Affects the environment but not in a tangible way.
2. No Affirmative Defense for Tangible Employment Action – “An
employer does not have recourse to the affirmative defense of failure to
exhaust employer remedies when a supervisor’s official act precipitates
the constructive discharge; absent such a tangible employment action,
however, the defense is available to the employer whose supervisors are
charged with harassment.”
3. Burden of Proof – “A plaintiff who alleges no tangible employment
action from a hostile work environment has the duty to mitigate harm,
but the defendant bears the burden to allege and prove that the plaintiff
failed in that regard. The plaintiff might elect to allege facts relevant to
mitigation in her pleading or to present those facts in her case in chief,
but she would do so in anticipation of the employer’s affirmative
defense, not as a legal requirement.”
Lyle v. Warner Bros. TV (Cal. 2006)
a. Plaintiff was exposed sexually coarse and vulgar language but could not establish a prima
facie case of hostile environment sexual harassment.
b. Rule – Language was not directed at plaintiff. Title VII is not a civility code or meant to
rid the workplace of vulgarity.
Herman v. Western Fin. Corp. (Kan. 1994)
a. Consensual Relationships – If relationship is truly consensual, no action for hostile
environment sexual harassment will lie.
Thomas v. Olson (8th Cir. 1995)
a. Preferential Treatment for Sexual Partner – If a supervisor gives preferential
treatment to an employee with whom he or she is romantically involved, most courts will
hold that the other employees have not been subjected to sex discrimination.
i. Majority rule, but there are exceptions if sexual favoritism is sufficiently
widespread or pervasive.
Harris v. Forklift Sys., Inc. (U.S. 1993) (HOSTILE WORK ENVIRONMENT)
a. Merely Offensive Remarks Do Not Violate Title VII – “Mere utterance of an epithet
which engenders offensive feelings in an employee, does not sufficiently affect the
conditions of employment to implicate Title VII. Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment—an environment
that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.
Likewise, if the victim does not subjectively perceive the environment to be abusive, the
conduct has not actually altered the conditions of the victim’s employment, and there is
no Title VII violation.”
i. OBJECTIVE, reasonable-person standard.
ii. Title VII liability requires severe or pervasive conduct that a reasonable person
would find hostile or abusive.
1. Isolated incidents are not enough.
iii. Victim must SUBJECTIVELY perceive environment as hostile or abusive for any
remarks actually to alter the conditions of his or her employment.
b. Tangible Psychological Injury Is Not Required – “So long as the environment would
reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it
also to be psychologically injurious under Title VII.”
i. Psychological injury is only one factor to be considered.
42
9.
10.
11.
12.
13.
c. Totality of Circumstances Test for Hostile Work Environment – “Whether an
environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the
circumstances. These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.
The effect on the employee’s psychological well-being is, of course, relevant to
determining whether the plaintiff actually found the environment abusive. But while
psychological harm, like any other relevant factor, may be taken into account, no single
factor is required under Title VII.”
Jansen v. Packaging Corp. of America (N.D. Ill. 1994) (EMOTIONAL DISTRESS)
a. Rule – If an employee alleges emotional distress and seeks damages, her employer may
be entitled to conduct a psychological exam of the employee.
Employer Liability for Non-Employees – “An employer may also be responsible for the acts of
non-employees, with respect to sexual harassment of employees in the workplace, where the
employer (or its agents or supervisory employees) knows or should have known of the conduct
and fails to take immediate and appropriate corrective action.” 29 C.F.R. § 1604.11(e).
Lockard v. Pizza Hut (10th Cir. 1998)
a. Employer Liability for Harassment by Customers – Failure of an employer to address
sexual harassment of a waitress by customers is sufficient to establish employer liability.
Causes of Action for Harassment
a. Title VII.
b. Breach of contract.
c. Tort liability, e.g., assault, battery, intentional or negligent infliction of emotional
distress.
Foley v. Polaroid Corp. (Mass. 1987)
a. Rule – Alleged harasser may sue his or her employer if the employer pursued a sexualharassment action without probable cause.
i. Tort Liability – Malicious prosecution, false arrest, defamation, and outrageous
conduct.
Privacy
1. Vega-Rodriguez v. Puerto Rico Tel. Co. (1st Cir. 1997)
a. Concerns a GOVERNMENT EMPLOYER, and so the employer is subject to the 4th
Amendment.
i. 4th Amendment protections safeguard individuals not only against the
government qua law enforcer but also qua employer.
b. Katz Reasonable Expectation of Privacy Test – “Intrusions upon personal privacy do
not invariably implicate the 4th Amendment. Rather, such intrusions cross the
constitutional line only if the challenged conduct infringes upon some reasonable
expectation of privacy. To qualify under this mantra, a privacy expectation must meet
both subjective and objective criteria: the complainant must have an actual expectation of
privacy, and that expectation must be one which society recognizes as reasonable.
Determining the subjective component of the test requires only a straightforward inquiry
into the complainant’s state of mind, and, for purposes of this appeal, we are willing to
assume arguendo that the appellants, as they profess, had some subjective expectation of
privacy while at work.”
i. Objective and subjective components.
ii. Court will condemn invasion of privacy where employee has a reasonable
expectation of privacy.
43
c. Lesser Expectation of Privacy in Business Premises – Generally, business premises
invite lesser privacy expectations than do residences.
d. Employment Relationship Determines Reasonable Expectation of Privacy – “A
public employee sometimes may enjoy a reasonable expectation of privacy in his or her
workplace vis-a-vis searches by a supervisor or other representative of a public employer.
Operational realities of the workplace, such as actual office practices, procedures, or
regulations, frequently may undermine employees’ privacy expectations. In the last
analysis, the objective component of an employee’s professed expectation of privacy
must be assessed in the full context of the particular employment relation.”
i. Totality of the circumstances test. Look at the entire employment relationship.
ii. If employer has a habit of conducting searches of workplace, this may undermine
employees’ reasonable expectation of privacy.
iii. “The precise extent of an employee’s expectation of privacy often turns on the
nature of an intended intrusion.”
iv. Relevant Factors
1. Whether work area in question was given over to an employee’s
exclusive use;
2. Extent to which others had access to the workspace;
3. Nature of the employment; and
4. Whether office regulations placed employees on notice that certain areas
were subject to employer intrusions.
v.  Court held that the employees had no reasonable expectation of privacy
because they worked in the undifferentiated, open space.
vi.  The logical result may be that an employer can tell you that he has cameras
and then you will have no reasonable expectation of privacy.
e. Employer’s Interest in Monitoring Workplace – “Employers possess a legitimate
interest in the efficient operation of the workplace, and one attribute of this interest is
that supervisors may monitor at will that which is in plain view within an open work
area.”
i. Employer also may be interested in increasing efficiency and deterring theft.
Legitimate interests.
f. No Legitimate Expectation of Privacy in Items in Plain View – “Persons cannot
reasonably maintain an expectation of privacy in that which they display openly. Stating
the proposition in no uncertain terms three decades ago, the Court said that what a person
knowingly exposes to the public, even in his own home or office, is not a subject of 4th
Amendment protection. Consequently, no legitimate expectation of privacy exists in
objects exposed to plain view as long as the viewer’s presence at the vantage point is
lawful.”
i. Employer May Use Video Camera – “And the mere fact that the observation is
accomplished by a video camera rather than the naked eye, and recorded on film
rather than in a supervisor’s memory, does not transmogrify a constitutionally
innocent act into a constitutionally forbidden one.”
1. If the human eye can view it, a video camera can do it too.
ii. It is constitutionally immaterial that the videos watched the employees every
private action.
1. “The test of legitimacy of the expectation of privacy is not whether a
person chooses to conceal assuredly private activity, but whether the
intrusion is objectively unreasonable.”
g. Example
i. Do you have a reasonable expectation of privacy if an employer retains a key to
your desk and you are on notice that the employer has the key? A: The
44
reasonable expectation is that an employer will not rummage through your desk
without cause. The mere retention of a key is not constitutionally dispositive.
h. NLRA – Employers cannot watch employees when they are engaged in union activity.
Cameras that watch areas all day long may catch union activity and therefore chill it.
Thus, the NLRA may very well proscribe total surveillance, especially if there is audio
recording too.
i. There is no scienter requirement. The test is whether employees would be chilled
form engaging in union activities.
Freedom of Expression
1. General Protections for Freedom of Expression
a. Where government is employer, Constitution protects employees from arbitrary “state
action” adversely affecting their job status.
b. 14th Amendment – Ensures government employees “due process” protection against
discipline or discharge.
c. 1st Amendment – Provides limited substantive protection.
2. Rankin v. McPherson (U.S. 1987)
a. No Discharge for Exercising Constitutional Interest – “A state may not discharge an
employee on a basis that infringes that employee’s constitutionally protected interest in
freedom of speech.”
b. Balancing Test for Discharge – “The determination whether a public employer has
properly discharged an employee for engaging in speech requires a balance between the
interests of the employee, as a citizen, in commenting upon matters of public concern and
the interest of the state, as an employer, in promoting the efficiency of the public services
it performs through its employees.”
i. Balancing Government Qua Employer & Government Qua Sovereign –
“This balancing is necessary in order to accommodate the dual role of the public
employer as a provider of public services and as a government entity operating
under the constraints of the 1st Amendment. On the one hand, public employers
are employers, concerned with the efficient function of their operations; review
of every personnel decision made by a public employer could, in the long run,
hamper the performance of public functions. On the other hand, the threat of
dismissal from public employment is a potent means of inhibiting speech.”
1. Interests qua employer are greater than interests qua sovereign. Waters
v. Churchill (U.S. 1994).
2. Government may restrict more employee speech in the name of
efficiency. Waters v. Churchill (U.S. 1994).
c. Analysis
i. Threshold Question – May the plaintiff’s speech be “fairly characterized as
constituting speech on a matter of public concern”?
1. Look at “content, form, and context of a given statement, as revealed by
the whole record.”
2. “The inappropriate or controversial character of a statement is
irrelevant to the question whether it deals with a matter of public
concern.”
ii. Second Question – If so, the court must balance the plaintiff’s interest in making
her statement against “the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.”
1. State’s Burden – “The State bears a burden of justifying the discharge
of a public employee on legitimate grounds.”
45
2. Factors Concerning Employee’s Statement – “The statement will not
be considered in a vacuum; the manner, time, and place of the
employee’s expression are relevant, as is the context in which the dispute
arose. It has been recognized as pertinent considerations whether the
statement impairs discipline by superiors or harmony among co-workers,
has a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the
performance of the speaker’s duties or interferes with the regular
operation of the enterprise.”
a. Employer’s Reasonable Belief About Statement – What is key
is what employer reasonably believed was said, not what fact
finder actually determined was said. Employer must use
reasonable care and good faith. Waters v. Churchill (U.S. 1994).
3. Factors Concerning State’s Interest – “Interference with work,
personnel relationships, or the speaker’s job performance can detract
from the public employer’s function; avoiding such interference can be a
strong state interest.”
4. Employee’s Duty of Caution – “The burden of caution employees bear
with respect to the words they speak will vary with the extent of
authority and public accountability the employee’s role entails. Where,
as here, an employee serves no confidential, policymaking, or public
contact role, the danger to the agency’s successful functioning from that
employee’s private speech is minimal.”
5. Speech Concerns Violence – If an employee says that he agrees with the
political goals of Al Qaeda, this would be constitutionally protected
speech as long as he did not urge Al Qaeda-style violence in the
workplace, according to Datz.
d. Preemptive Action by Employer - This would be OK/advisable if a jury would find that
there was a good chance that a disruption would occur following an employee’s
statement.
3. Garcetti v. Ceballos (U.S. 2006)
a. Public Employees’ 1st Amendment Rights – “Public employees do not surrender all
their 1st Amendment rights by reason of their employment. Rather, the 1st Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.”
b. Two-Step Test
i. “The first requires determining whether the employee spoke as a citizen on a
matter of public concern. If the answer is no, the employee has no 1st
Amendment cause of action based on his or her employer’s reaction to the
speech.”
ii. “If the answer is yes, then the possibility of a 1st Amendment claim arises. The
question becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the
general public. This consideration reflects the importance of the relationship
between the speaker's expressions and employment. A government entity has
broader discretion to restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has some potential to affect
the entity’s operations.”
1. “So long as employees are speaking as citizens about matters of public
concern, they must face only those speech restrictions that are necessary
for their employers to operate efficiently and effectively.”
46
c. Dispositive Factor – “The controlling factor is that Ceballos’ expressions were made
PURSUANT TO HIS OFFICIAL DUTIES.”
d. Public Employee Speaking in Official Capacity – “When public employees make
statements pursuant to their official duties, the employees are not speaking as citizens
for 1st Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.”
i.  NO 1ST AMENDMENT PROTECTION.
ii. If a public employee is speaking in her official capacity, she does not get past
step one of the Rankin two-part test. The test does not apply at all.
iii. “Restricting speech that owes its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee might have enjoyed
as a private citizen. It simply reflects the exercise of employer control over what
the employer itself has commissioned or created.”
iv. “Employers have heightened interests in controlling speech made by an
employee in his or her professional capacity.”
v. “When an employee speaks as a citizen addressing a matter of public concern,
the 1st Amendment requires a delicate balancing of the competing interests
surrounding the speech and its consequences. When, however, the employee is
simply performing his or her job duties, there is no warrant for a similar degree
of scrutiny.”
vi. “Court rejects the notion that the 1st Amendment shields from discipline the
expressions employees make pursuant to their professional duties.”
e. Public Employee Reports to a Newspaper – Is the employee acting pursuant to his
official duties in notifying the newspaper? A: No. This produces an absurd result. If the
employee reports internally, i.e., pursuant to his official duties, then he enjoys no
constitutional protection; but if he goes to a newspaper, i.e., outside his official d
4. Statements Pertaining to Political Parties
a. Governed by Hatch Act for federal employees.
b. Employment decisions may not be made on the basis of party affiliation alone. Branti;
Elrod.
i. Exception – Confidential or policymaking positions.
c. States on matters of public concern before a legislature may not serve as the basis for
discharge where the statements do not pertain to a political party. State v. Haley (Alaska
1984).
5. Weintraub v. Board of Education (2d Cir. 2010)
a. Facts – Weintraub claimed that his grievance reflected his public view that the Board of
Education should be more strict in disciplining students. Weintraub was fired.
b. Holding – Court held that the filing of the grievance was part and parcel of his official
duties, and thus, there was no constitutional protection per Garcetti.
i. Datz thinks that the filing of a grievance was not a part of his official duties. It
was related to his work, but it was a volitional act. It was not a duty.
Collective Bargaining
1. NLRB v. Washington Alum. Co. (U.S. 1962)
a. National Labor Relations Act
i. Section 7 – Provides that employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such activities except to the
47
extent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in § 8(a)(3) of
the Act.
1. NLRA protects concerted employee activity, union or not. This may
include group protests.
2. Broad Interpretation – “Employees do not necessarily lose their right
to engage in concerted activities under § 7 of the NLRA merely because
they do not present a specific demand upon their employer to remedy a
condition they find objectionable. The language of § 7 is broad enough
to protect concerted activities whether they take place before, after, or at
the same time such a demand is made. To compel the NLRB to interpret
and apply that language in a restricted fashion would only tend to
frustrate the policy of the Act to protect the right of workers to act
together to better their working conditions. Indeed, such an
interpretation of § 7 might place burdens upon employees so great that it
would effectively nullify the right to engage in concerted activities which
§ 7 protects.”
a. Strike/Protest Notice Requirements – In union strikes,
employees must give notice to an agency and the employer. In
non-union protests, there is no notice requirement, but it
probably would be the prudent thing to do.
3. Good Faith of Employees – Relevant to whether their concerted activity
is protected. See NLRB v. Modern Carpet Indus., Inc. (10th Cir. 1979).
4. Individual Action as Concerted Activity – Employee’s honest and
reasonable assertion of a right contained in a collective-bargaining
agreement was concerted activity. NLRB v. City Disposal Sys., Inc.
(U.S. 1984).
5. Unprotected Concerted Activities – Those that are unlawful, violent, or
in breach of contract.
ii. Section 8(a)(1) – Forbids employers to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in § 7 of the Act.
iii. Section 10(c) – Provides that no order of the NLRB shall require the
reinstatement of any individual as an employee who has been suspended or
discharged, or the payment to him of any back pay, if such individual was
suspended or discharged for cause.
1. Authorizes an employer to discharge employees for “cause.” “But this,
of course, cannot mean that an employer is at liberty to punish a man by
discharging him for engaging in concerted activities which § 7 of the Act
protects.”
a. Cause – Violence, threats, insubordination, and disloyalty.
Vague standards; require case-by-case analysis.
b. Definition of Labor Dispute – “Labor dispute” is defined by § 2(9) of the NLRA as any
controversy concerning terms, tenure or conditions of employment.”
i. Reasonableness Is Irrelevant – “It has long been settled that the reasonableness
of workers’ decisions to engage in concerted activity is irrelevant to the
determination of whether a labor dispute exists or not.”
1. No need to ask whether a walkout is reasonable. Employees have a
statutory right to engage in concerted group activity.
2. Lack of reasonableness requirement shows why it was immaterial that
employer was trying to remedy the situation as the walkout happened.
48
Lifestyle
1. Chambers v. Omaha Girls Club, Inc. (8th Cir. 1987)
a. Disparate impact case.
b. Holding – Plaintiff proved a prima facie disparate-impact claim, but the employer
established a successful business necessity defenses. 8th Cir. affirmed. Justifications for
finding that there was a manifest relationship between the club’s fundamental purpose
and its single-pregnancy policy:
i. Teenage pregnancy is contrary to the club’s purpose and philosophy;
ii. Its purpose is to expose the girls to the greatest number of available positive
options; and
iii. Permitting an unmarried pregnant staff member would convey the impression
that the Girls Club condoned pregnancy without marriage.
c. Disparate-Impact Procedure
i. Prima Facie Case – “A plaintiff seeking to prove discrimination under the
disparate impact theory must show that a facially neutral employment practice
has a significant adverse impact on members of a protected minority group.”
ii. Employer’s Defense – “The burden then shifts to the employer to show that the
practice has a manifest relationship to the employment in question and is
justifiable on the ground of business necessity.”
iii. Rebuttal – “Even if the employer shows that the discriminatory employment
practice is justified by business necessity, the plaintiff may prevail by showing
that other practices would accomplish the employer’s objectives without the
attendant discriminatory effects.”
d. Business Necessity Defense to Disparate Impact– “Establishing a business necessity
defense presents an employer with a heavy burden. Business necessity exists only if the
challenged employment practice has a manifest relationship to the employment in
question. The employer must demonstrate that there is a compelling need to maintain
that practice, and the practice cannot be justified by routine business considerations.
Moreover, the employer may be required to show that the challenged employment
practice is necessary to safe and efficient job performance, or that the employer’s goals
are significantly served by the practice.”
i. Standard of Review – Clearly erroneous.
ii. Although validation studies can be helpful in evaluating such questions, they are
not required to maintain a successful business necessity defense.
e. BFOQ Defense to Disparate Treatment Claim
i. “Extremely narrow exception to the general prohibition of discrimination on the
basis of sex.”
ii. “Several formulations for evaluating whether an employment practice is a
BFOQ. The formulations include: whether the essence of the business operation
would be undermined without the challenged employment practice; whether safe
and efficient performance of the job would be possible without the challenged
employment practice; and whether the challenged employment practice has a
manifest relationship to the employment in question.”
f. Business Necessity & BFOQ Defenses – “Analysis of a BFOQ is similar to and overlaps
with the judicially created business necessity test. The various standards for establishing
business necessity are quite similar to those for determining a BFOQ.”
2. A weight loss center may refuse to hire an obese person. See p. 683.
3. Off-Duty Conduct – Employer may be able to inquire into employees’ off-duty conduct if it is
reasonably related to their ability and fitness to perform official duties. See Broderick (Mass.
1975).
49
4. Employers Imposing Sexual Mores on Employees
a. Private Sector – Permissible unless there has been an invasion of privacy rising to the
level of a public policy violation or there has been sex discrimination.
b. Public Sector – Employees have been more successful in a variety of constitutional and
statutory challenges to a variety of employer policies.
c. In some cases, discharges of employees for gross immorality have been upheld.
OCCUPATIONAL SAFETY & HEALTH
Jurisdiction
1. Occupational Safety & Health Act – Primary federal law that governs occupational health and
safety in the private sector and federal government in the United States.
a. Grounded constitutionally on the Commerce Clause.
b. Employer – “A person engaged in a business affecting commerce who has employees,
but does not include the United States (not including the United States Postal Service) or
any State or political subdivision of a State.” 29 U.S.C. § 652(5).
2. Frank Diehl Farms v. Secretary of Labor (11th Cir. 1983)
a. ANALYSIS  Look at Condition of Employment Test and the court’s glosses on this
test.
b. Condition of Employment Test – “Determine if housing is provided as a condition of
employment. Living in employer-provided housing is construed as a condition of
employment if a) employers require employees to do so; or b) geographical
circumstances require employees to do so, i.e., lack of comparable alternative housing in
the area. Notwithstanding an appearance of a landlord-tenant relationship, OSHA
standards are applicable when housing is provided as a condition of employment.”
i. Court adopts this test.
ii. Narrower test.
iii. If there are no other practicable housing options in the area other than employer
housing, OSHA has jurisdiction.
iv. Because employees were not required to live in the housing, doing so was not a
condition of employment, and thus, OSHA had no jurisdiction over the housing.
1. NRLA – Company-supplied housing at no or low cost is said to be a
condition of employment. It is an emolument of employment. Even if
one does not want it, if it is offered, it is a condition of employment.
c. Directly Related to Employment Standard – “Housing was deemed covered by OSHA
so long as it was in fact directly related to employment.” “A ‘temporary labor camp’ or
‘migrant housing facility’ is defined as farm housing directly related to the seasonal or
temporary employment of migrant farm workers. In this context, ‘housing’ includes both
permanent and temporary structures located on or off the property of the employer,
provided it meets the foregoing definition.”
i. Court rejects this test.
ii. Broader, more liberal test.
d. Definition of Workplace – “Since Congress left the term ‘workplace’ undefined in the
Act, it should be given its ordinary, common sense meaning. The term ‘workplace’
connotes the place where one must be in order to do his job.”
i. Plain Meaning – “In the absence of clearly expressed contrary legislative
intention, the plain language of the statute controls its construction.”
e. Remedial Nature of OSHA & Extension – “OSHA is remedial and should be construed
liberally. For example, the secretary of labor should be able to extend the Act’s coverage
to certain employer provided means of transportation and certain employer provided
50
housing even though such extension exceeds the plain language of the statute. This does
not mean that coverage may be extended to any employer provided device or facility. In
order for coverage under the Act to be properly extended to a particular area, the
conditions to be regulated must fairly be considered working conditions, the safety and
health hazards to be remedied occupational, and the injuries to be avoided work-related.”
i. “Only if company policy or practical necessity force workers to live in employer
provided housing is the degree of coercion such that the hazards of apartment
living are sufficiently related to employment to come under the scope of the Act.
OSHA may then impose additional duties upon the employer as mandatory
landlord to comply with its housing regulations, even though these places would
not otherwise be ‘workplaces’ and even though the hazards associated with the
housing are different in kind and quality from most occupational hazards.”
ii. Employer Bus Hypothetical – What if an employer sends a bus to pick up
employees everyday? Most employees rely on the bus to get to and from work.
1. Covered by OSHA.
2. What about an employee that drives 25 miles to and from work every
day, but he does not want to drive because gas is expensive? Thus, he
chooses to ride the bus, and the bus is in disrepair.
a. A: It is a difficult case to argue that OSHA covers this situation.
3. These show that the test is practical necessity and not mere convenience.
Employer Duties
1. OSHA
a. Purpose – To prevent workplace hazards.
b. Pre-Inspection Duty to Comply with Specific Standards – § 5(a)(2).
i. Prima Facie Violation – Secretary must show by a preponderance of the
evidence that (1) the cited standard applies; (2) there was a failure to comply with
the standard; (3) an employee had access to the violative condition; and (4) the
employer knew or could have known of the condition with the exercise of
reasonable diligence. Dun Par Eng’d Form Co. (1986).
c. General Duty Clause – § 5(a)(1).
d. In determining whether to charge an employer under § 5(a)(2) or § 5(a)(1), courts use the
principle that the “specific” takes precedence over the “general.”
2. Superior Custom Cabinet Co. (1997)
a. Employer’s Duty to Instruct – “The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to illness or injury.”
29 C.F.R. § 1926.1(b)(2).
i. Two-Prong Test for Adequate Instructions – “Section 1926.21(b)(2) requires
instructions to employees on (1) how to recognize and avoid unsafe conditions
they may encounter on the job, and (2) the regulations applicable to those
hazardous conditions. An employer’s instructions are adequate under section
1926.21(b) if they [1] are ‘specific enough to advise employees of the hazards
associated with their work and the ways to avoid them’ and [2] are modeled on
the applicable standards.”
1. Specificity Prong
a. Employer’s instructions must be specific.
b. Too Much Employee Discretion Reveals Inadequacy – “Rules
that give employees too much discretion in identifying unsafe
conditions have been found too general to be effective.”
51
i. Employees should not be allowed to develop their own
ideas about what is “unsafe.”
ii. The less employee discretion in carrying out the
instructions, the better.
2. Applicable Standards Prong
a. Current industry practice is relevant, but it is not dispositive if
industry practice is shown to be inadequate. Baker Tank Co.
(1995).
b. Employee’s Negligence
i. Not the focus. The focus is on the employer’s duty to instruct with a great deal
of specificity—whether it was sufficiently specific.
ii. However, the more specific that the instruction was, and the more that the
employee ignored it, the easier it will be to show that the employee acted
negligently.
3. Employee Training – Even without an explicit requirement, employers are required to train their
employees to perform a job safely. Degree of training required depends on the obviousness of the
hazard, the experience of the employee, the likelihood that an accident would occur, and the
degree of harm likely to result from an accident. See Pratt (1986).
Enforcement & Adjudication
1. Threat of Inspection & Citation – Encourages employers to meet their pre-inspection duty.
2. Four Categories of OSHA Inspections & Their Priority
a. Imminent dangers;
b. Fatality and catastrophe investigations;
c. Investigation of employee complaints; and
d. Regional programmed inspections.
3. Marshall v. Barlow’s, Inc. (U.S. 1978)
a. OSHA § 8(a) – “Empowers agents of the Secretary of Labor to search the work area of
any employment facility within the Act’s jurisdiction.”
i. “The purpose of the search is to inspect for safety hazards and violations of
OSHA regulations.”
ii. “No search warrant or other process is expressly required under the Act.”
b. 4th Amendment & Searches
i. Unreasonable Warrantless Searches – “Warrantless searches are generally
unreasonable, and this rule applies to COMMERCIAL PREMISES as well as
homes.”
ii. Business’ Privacy Interest – “The businessman, like the occupant of a
residence, has a constitutional right to go about his business free from
unreasonable official entries upon his private commercial property.”
1. Legitimate expectation of privacy in records that a business is required to
keep by law. McLaughlin (6th Cir. 1988).
2. Little expectation of privacy in information on employee bulletin board.
McLaughlin (4th Cir. 1988).
iii. Civil & Criminal Investigations – “4th Amendment prohibition against
unreasonable searches protects against warrantless intrusions during civil as well
as criminal investigations.”
iv. Exception for Closely Regulated Businesses/Industries – Applies to businesses
and industries with a long history of close government oversight. E.g., liquor and
firearms.
1. Court declines to apply this exception to OSHA inspections.
52
2. The businesses that the Secretary seeks to inspect do not have a long
history of sufficiently close government regulation. Imposition of
maximum hours and a minimum wage is not enough.
c. Secretary’s Arguments
i. Requiring warrants for inspections will do away with the element of surprise.
Business will be able to patch over deficiencies quickly.
1. Court rejects. Secretary may appear at any time after obtaining a
warrant.
ii. Requiring warrants will place a large administrative burden on the agency.
1. Court rejects. Most businesses will consent to OSHA inspections.
d. Warrant Required for OSHA Inspections
i. Warrant Clause of 4th Amendment applies to inspections for compliance with
regulatory statutes.
1. Concerns expressed by the Secretary do not suffice to justify warrantless
inspections under OSHA or vitiate the general constitutional requirement
that for a search to be reasonable a warrant must be obtained.
ii. Lesser Probable Cause Standard – “Whether the Secretary proceeds to secure
a warrant or other process, with or without prior notice, his entitlement to inspect
will not depend on his demonstrating probable cause to believe that conditions in
violation of OSHA exist on the premises. Probable cause in the criminal law
sense is not required. For purposes of an administrative search such as this,
probable cause justifying the issuance of a warrant may be based not only on [1]
specific evidence of an existing violation but also on [2] a showing that
‘reasonable legislative or administrative standards for conducting an . . .
inspection are satisfied with respect to a particular [establishment].’ A warrant
showing that a specific business has been chosen for an OSHA search on the
basis of a general administrative plan for the enforcement of the Act derived
from neutral sources such as, for example, dispersion of employees in various
types of industries across a given area, and the desired frequency of searches in
any of the lesser divisions of the area, would protect an employer’s 4th
Amendment rights.”
1. Programmed Inspections – (1) Scheduling plan was based on neutral
criteria, and (2) particular establishment was appropriately selected under
the plan. Brock (5th Cir. 1985).
a. Particular suspicion is not required.
2. Un-Programmed Inspections – Where there is further evidence of the
need to inspect, some courts require a higher standard of probable cause,
approaching the criminal law standard.
iii. Warrant may be acquired ex parte (without notice to opposing party), which also
reduces the burden on the Secretary.
iv.  Because a warrant is easy to obtain, the Court does not think that it is that big
of a burden.
4. Donovan v. Dewey (U.S. 1981)
a. “Closely regulated businesses” exception justifies warrantless inspections under the
Mine Safety and Health Act.
5. Exceptions to Warrant Requirement Under OSHA – Camera (U.S. 1967); See (U.S. 1967).
a. Consent;
b. Open view; and
c. Emergency.
6. Scope of OSHA Warrant
a. Narrow – Limited to working conditions of complaining employee.
53
b. Broad – Presumption in favor of a comprehensive inspection.
c. Middle Standard – Comprehensive search only if Secretary makes some showing as to
why a broader search is necessary.
i. Majority view.
Non-OSHA Safety & Health Law
1. OSHA Non-Preemptive Clause – “Nothing in this chapter shall be construed to supersede or in
any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or liabilities of employers and
employees.” 29 U.S.C. § 653(b)(4).
2. International Union, UAW v. Johnson Controls, Inc. (U.S. 1991)
a. Facts – Occupational exposure to lead entails health risks, including the risk of harm to
any fetus carried by a woman subjected to such exposure. After eight employees of an
employer, in whose battery manufacturing process lead was a primary ingredient, became
pregnant while maintaining blood-lead levels in excess of the level that appeared to be
the critical level noted by the Occupational Safety and Health Administration for a
woman who was planning to have a family, the employer announced a policy barring all
women, except those whose inability to bear children was medically documented, from
jobs involving exposure or potential exposure to lead at a level exceeding OSHA
standards.
b. Title VII Liability – “Prohibits sex-based classifications in terms and conditions of
employment, in hiring and discharging decisions, and in other employment decisions that
adversely affect an employee’s status.”
i. Employer concedes that fetal-protection policy discriminates against women on
the basis of their sex.
ii. Discrimination on the basis of fertility, gender, and childbearing capacity.
iii. The regulation is not aimed at women per se because (1) some women, i.e., nonfertile women, can work in lead and (2) the employer is concerned for fetuses
primarily.
1. Before the PDA, this would not be discrimination at all. The PDA,
however, does make this sex discrimination because the regulation is
aimed at something that is peculiar to women, i.e., the capacity to
become pregnant.
iv. Employer regards all female employees as potentially pregnant  discrimination
on the basis of pregnancy  discrimination on the basis of sex under the PDA.
v. Employer is liable under Title VII unless he is able to show a BFOQ.
c. Employer’s Good Faith Is Irrelevant – “The absence of a malevolent motive does not
convert a facially discriminatory policy into a neutral policy with a discriminatory effect.
Whether an employment practice involves disparate treatment through explicit facial
discrimination does not depend on why the employer discriminates but rather on the
explicit terms of the discrimination.”
d. BFOQ Defense
i. Very Narrow Exception – “Discrimination on the basis of sex because of safety
concerns is allowed only in narrow circumstances.”
1. “The safety exception is limited to instances in which sex or pregnancy
actually interferes with the employee’s ability to perform the job.”
ii. Requires a high correlation between sex and ability to perform job functions, and
employers may not use sex as a proxy for strength although it might be a fairly
accurate one.
54
iii. Policy must go to the essence of the business. Social or policy concerns are not
valid.
iv. Third-Party Safety Considerations – “Third-party safety considerations
properly entered into the BFOQ analysis in Dothard and Criswell because they
went to the core of the employee’s job performance. Moreover, that performance
involved the central purpose of the enterprise.”
1. Fetuses are not relevant third parties here.
2. BFOQ defense cannot be used to further social policies.
v. BFOQ Defense in PDA – “The PDA’s amendment to Title VII contains a BFOQ
standard of its own: Unless pregnant employees differ from others in their ability
or inability to work, they must be treated the same as other employees for all
employment-related purposes. Women who are either pregnant or potentially
pregnant must be treated like others similar in their ability to work. In other
words, women as capable of doing their jobs as their male counterparts may not
be forced to choose between having a child and having a job.”
vi.  Court rejects employer’s BFOQ defense.
1. Women must make their own decisions about pregnancy and fetal health.
2. Fetal health is not the employer’s central mission.
3. Court rejects argument that employer must exclude all women because
he cannot know which will become pregnant while working.
e. Employer’s Concerns About Future Tort Liability
i. The employer maintained that it had complied with the lead standard developed
by the Occupational Safety and Health Administration and warned its female
employees about the damaging effects of lead. OSHA had established a series of
mandatory protections which should effectively minimize any risk to the fetus
and newborn child from lead exposure. If, under general tort principles, Title VII
banned sex-specific fetal-protection policies, the employer fully informed the
woman of the risk, and the employer had not acted negligently, the basis for
holding an employer liable seemed remote at best. The employer could not solve
the problem of reproductive health hazards by resorting to an exclusionary policy
because Title VII plainly forbade illegal sex discrimination. Also, the extra cost
of employing members of one sex did not provide an affirmative Title VII
defense for a discriminatory refusal to hire members of that gender.
ii. Added Cost of Employing Women Is No Defense – “The extra cost of
employing members of one sex, however, does not provide an affirmative Title
VII defense for a discriminatory refusal to hire members of that gender. Indeed,
in passing the PDA, Congress considered at length the considerable cost of
providing equal treatment of pregnancy and related conditions, but made the
‘decision to forbid special treatment of pregnancy despite the social costs
associated therewith.’”
1. Totally Prohibitive Cost – Employer may have a valid defense if the
cost of employing women “would be so prohibitive as to threaten the
survival of the employer’s business.”
iii. Hypothetical – Suppose that there is a child born deformed as a direct result of
lead exposure and that child eventually brings a tort action against the employer.
1. Defenses – Waiver/consent; contributory negligence.
2. Employer should:
a. Give extensive warnings to women working in this section of the
factory. Be very precise and cite support for the medical claims.
55
b. Make sure that the employee understands the warnings, and
make sure that the employee states that despite these warnings,
she still wants to work in the lead department.
3. What if working with lead was reclassified as an abnormally dangerous
activity and strict liability was imposed? Then, the employer always
would be liable in tort actions from future generations.
4. If a women signed a consent/waiver document, could she then turn
around and sue the employer anyway under tort law?
5. Fetuses do not have standing to sue, but actual children do.
a. Conflicting case law on whether personal injury claims may be
brought by children for prenatal harm alleged caused by his or
her mother’s workplace exposure.
3. Armstrong v. Flowers Hosp., Inc. (11th Cir. 1994)
a. PDA gives the same rights and responsibilities to pregnant women. A pregnant woman,
therefore, cannot get out of work that she is able to perform because of a concern for the
health of her fetus.
4. PDA does not require employers to provide reasonable accommodations to pregnant employees.
See Urbano (5th Cir. 1988).
DISABLING INJURIES & ILLNESSES
1. Workers’ Compensation
a. Preexisting Tort Liability Regime
i. Before the workers’ compensation regime, it was difficult for an employee
injured in the workplace to obtain any recovery.
ii. Tort suits were required but very hazardous and rarely successful.
b. Legislation established workers’ compensation regimes, which eliminated (1) the burden
of proving all of the elements of negligence and (2) the employer defense of contributory
negligence. All that an employee needs to show now is that she was injured in the
performance of her job.
i. Cuts down on administrative costs and litigation time.
c. Workers’ compensation was intended to be employee-friendly.
i. Some employers prefer workers’ compensation.
1. Eliminates (1) tort liability and (2) the possibility of huge payouts to
prevailing plaintiffs.
2. Employers may avoid negative publicity associated with a tort lawsuit.
2. Weiss v. City of Milwaukee (Wis. 1997)
a. Liberal Construction of Workers’ Compensation Act – “[WCA] must be liberally
construed to effectuate the Workers Compensation Act’s goal of compensating injured
workers. However, courts must also exercise care to avoid upsetting the balance of
interests achieved by the WCA.”
b. Conditions for Employer’s Obligation to Pay Workers’ Compensation
i. The employee sustains an injury;
ii. At the time of the injury, both the employer and the employee are subject to the
provisions of the WCA;
iii. At the time of the injury, the employee is performing service growing out of and
incidental to his or her employment;
1. “The statutory clause ‘performing service growing out of and incidental
to his or her employment’ is used interchangeably with the phrase
‘course of employment.’ Both phrases refer to the time, place, and
circumstances under which the injury occurred.”
56
a. Time & Place – Fairly straightforward.
b. Circumstance of Employment
i. Application of Personal Comfort Doctrine – “An
employee acts within the course of employment when he
or she is otherwise within the time and space limits of
employment, and briefly turns away from his or her
work to tend to matters necessary or convenient to his or
her own personal health or comfort.”
ii. Personal Comfort Doctrine Inapplicable – “The
personal comfort doctrine does not apply, and an
employee is not within the course of employment, if the
extent of the departure is so great that an intent to
abandon the job temporarily may be inferred, or the
method chosen is so unusual and unreasonable that the
conduct cannot be considered an incident of the
employment.”
2. Compensable Injury – “An injury is said to arise in the course of the
employment when it takes place within the period of the employment, at
a place where the employee reasonably may be, and while he or she is
fulfilling his or her duties or engaged in doing something incidental
thereto.”
a. Non-Compensable Injury – “Injuries sustained in an assault
occurring in the course of employment are generally noncompensable under the WCA when [1] the assailant is motivated
purely by personal animus, and [2] the employment in no way
contributes to the incident.”
iv. The injury is not intentionally self-inflicted; and
v. The accident or disease causing injury arises out of the employment.
1. “The ‘arising out of’ language refers to the causal origin of an
employee’s injury. However, ‘arising out of his or her employment’ is
not synonymous with the phrase ‘caused by the employment.’”
a. Under the WCA, the relevant causal relationship is not
proximate cause as it is in tort actions.
2. Accident Arising out of Employment (Positional Risk Doctrine) –
“Accidents arise out of employment if the conditions or obligations of
the employment create a zone of special danger out of which the accident
causing the injury arose. Stated another way, an accident arises out of
employment when by reason of employment the employee is present at a
place where he is injured through the agency of a third person, an outside
force, or the conditions of special danger.”
a. “When an attack occurs during the course of employment and
arises from personal animus imported from a private
relationship, the incident arises out of the claimant’s
employment if employment conditions have contributed to or
facilitated the attack.”
3. Accident Not Arising out of Employment (Positional Risk Doctrine
Inapplicable) – “When [1] the origin of the assault is purely private and
personal, and [2] the employment in no way contributes to the incident,
the positional risk doctrine does not apply.”
57
c. WCA Exclusive Remedy – When conditions of WCA are met, it is an employee’s
exclusive remedy. Employee may not bring a tort/negligence action against employer or
coworkers.
d. Tort or WCA Action/Catch-22 – With respect to a lawsuit sounding in negligence,
plaintiff is trying to show the negligence of the employer or the employer’s agent. The
more a plaintiff does this, the closer she gets to the employment relationship. The
employee wanting to sue in negligence therefore is caught in a catch-22.
3. Mulcahey v. New England Newspapers, Inc. (R.I. 1985) (WORK-RELATED STRESS)
a. Proof of Accidental Injury Not Required – Workers’ compensation law does not
require proof of an accidental injury before compensation can be paid to an injured
worker.
i. Minority of states, including RI.
b. Casual Nexus for Heart Attack Cases – “The crucial issue is whether there is a causal
relationship or nexus between the work and the attack.”
i. Physical Exertion Is Immaterial – “It is immaterial whether the work
performed by an employee involved unusual physical exertion.”
ii. Not Proximate Cause – “In workers’ compensation cases the courts do not
equate the term ‘causal relationship’ with the term ‘proximate cause’ as found in
negligence actions.”
1. Nexus is a lesser standard than cause.
2. Court will not get into the business of parsing the origin of the stress, i.e.,
differentiating work-related from non-work-related stress.
iii. Contributing to Injury Is Sufficient – “It is enough if the conditions and nature
of the employment contribute to the injury.”
1. This is a de minimis test. The work-related stress may be even only a
minor stress.
iv. Aggravating Existing Condition Is Sufficient – “An employer takes its workers
as it finds them, and when the employee aggravates an existing condition and the
result is an incapacity for work, the employee is entitled to compensation for
such incapacity.”
v. Limiting Principle – Stress must be extreme or beyond ordinary, day-to-day
stress. This is why not every stressful day will expose an employer to workers’
compensation liability.
c. Psychic Injury
i. Three Types
1. Physical injury caused by mental stimulus;
2. Psychic injury caused by physical trauma; and
3. Mental injury produced by a mental stimulus where neither physical
causes nor physical results exist.
ii. More Dramatically Stressful Stimulus Required – “If psychic injury is to be
compensable, a more dramatically stressful stimulus must be established.”
Effects of OSHA Standards
1. Teal v. E.I. DuPont De Nemours & Co. (6th Cir. 1984)
a. Breach of Statutory or Regulatory Duty Is Negligence Per Se – “Pursuant to
Tennessee case law, a breach of a duty imposed by statute or regulation is negligence per
se if the party injured is a member of the class of persons the statute or regulation is
intended to protect.”
i. Minority Rule – About ¼ of states employ.
ii. Negligence Per Se Action
58
1. Is breach of statutory or regulatory duty negligence per se if plaintiff is a
member of class of persons that the regulation was intended to protect?
2. Did employer owe a duty?
3. Did employer breach that duty?
4. Is plaintiff a member of the class that the statute or regulation was
intended to protect?
b. Covered Employer – Employer is covered by OSHA and must comply with OSHA
regulations if it controls the workplace.
c. Employer’s Two Duties Under OSHA – Each employer:
(1) Shall furnish to each of his employees employment and a place of
employment that are free from recognized hazards that are causing or are likely
to cause death or serious physical harm to his employees; and
1. General Duty – Imposed on an employer to protect its employees from
hazards that are likely to cause death or serious bodily injury.
§ 654(a)(1).
2. Applies to Direct Employer.
3. “Intended by Congress to cover unanticipated hazards; Congress
recognized that it could not anticipate all of the potential hazards that
might affect adversely the safety of workers. Accordingly, it enacted the
general duty clause to cover serious hazards that were not otherwise
covered by specific regulations.”
4. “Pursuant to § 654(a)(1), every employer owes a duty of reasonable care
to protect his employees from recognized hazards that are likely to cause
death or serious bodily injury.”
5. “The protection from exposure to serious hazards is the primary purpose
of the general duty clause, and every employer owes this duty regardless
of whether it controls the workplace, whether it is responsible for the
hazard, or whether it has the best opportunity to abate the hazard.”
(2) Shall comply with Occupational Safety and Health standards promulgated
under this chapter.
6. Specific Duty – Imposed on employers to comply with the OSHA
regulations. § 654(a)(2).
7. Applies to covered employers, i.e., employer with control of the
workplace. (See above.)
8. “The class of employers who owe a duty to comply with the OSHA
regulations is defined with reference to control of the workplace and
opportunity to comply with the OSHA regulations. Accordingly, an
employer’s responsibilities under the Act depend upon which duty
provision the employer is accused of breaching. Similarly, the class of
persons for whom each of these duty provisions was enacted must be
determined with reference to the particular duty in dispute.”
9. Coverage for Independent Contractors – “If the special duty provision
is logically construed as imposing an obligation on the part of employers
to protect all of the employees who work at a particular job site, then the
employees of an independent contractor who work on the premises of
another employer must be considered members of the class that
§ 654(a)(2) was intended to protect. In other words, one cannot define
the scope of an employer’s obligation under § 654(a)(2) as including the
protection of another’s employees and, at the same time, claim that these
‘other’ employees are unintended beneficiaries.”
59
10. Specific Duty Covers Independent Contractors – “Congress enacted
§ 654(a)(2) for the special benefit of all employees, including the
employees of an independent contractor, who perform work at another
employer’s workplace.”
a. Consistent with broad, remedial nature of OSHA.
11. “Once an employer is deemed responsible for complying with OSHA
regulations, it is obligated to protect every employee who works at its
workplace.”
2. Negligence Per Se Rules
a. Minority Rule – Breach of OSHA regulation may prove negligence per se.
i. TN and about ¼ of states.
b. Majority Rule – OSHA regulation is “some evidence” of the standard of care.
c. Some Jurisdictions – OSHA regulations are inadmissible by statute or case law.
3. OSHA Non-Preemptive Clause – “Nothing in this chapter shall be construed to supersede or in
any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or liabilities of employers and
employees.” 29 U.S.C. § 653(b)(4).
a. OSHA does not create any causes of action.
b. Section 4(b)(4) of OSHA seems to be inconsistent with Teal, especially the “enlarging,
diminishing, affecting” language. This particular language would seem to preclude the
result in this case.
c. Notwithstanding § 4(b)(4), states may construct their own tort rules. Per se negligence
rules like Tennessee’s therefore will stand.
d. Johnson Controls – State could say that exposure to lead is subject to strict liability. But
such a law might be subject to preemption by Title VII.
DISCHARGE
Introduction
1. Justifiable Cause – Theft, dishonesty, falsification of records, fighting on company premises,
possession or use of alcohol or drugs while on duty, insubordination, use of profane or abusive
language to a supervisor, dangerous horseplay, sleeping on the job, refusal to accept a work
assignment, and disloyalty.
2. Mutuality of Employment-at-Will – Both employer and employee are free to terminate their
relationship at any time, without reason and without notice.
a. Common law, not statutory.
b. Strictly construed, the employment-at-will doctrine says that unless the legislature has
condemned some cause for discharge, then an employer is free to discharge an employee
for any reason whatsoever.
3. Three Main Exceptions to Employment-at-Will Doctrine
a. Explicit Contract – Setting forth term of employment. Contract also may provide other
reasons for discharge.
b. Implied Contract – Gleaned from statements, handbooks, practices, etc. Communicates
that employer will continue to employee an employee unless certain things happen.
c. Public Policy – Addresses discharges not expressly condemned by the legislature and
cases in which there is no express or implied contract. Courts invalidate discharges
because they do not like them. Usually, courts require there to be some well-defined
public policy offended.
60
Statutory Protection of Employees – Whistleblower Laws
1. Title VII is one statutory regulation of discharge.
2. Whistleblower Protection Act of 1989
a. Expanded protection for federal employees that expose violations of law, gross
mismanagement or waste of funds, abuse of authority, or substantial and specific danger
to public health or safety in government agencies.
b. Nearly all states have whistleblower laws too.
3. Categories of Whistleblower Statutes
a. Government v. In-House
i. Protect whistleblower only if she goes to the government to blow the whistle.
ii. Protect whistleblower if she blows the whistle to the government or in-house,
e.g., inside a corporation.
b. Specific v. General Violations
i. Protect the whistleblower only if she can point out the law that is being broken.
ii. Protect the whistleblower in a broader way, i.e., if she is complaining about a
vague matter like waste or harm to the public.
c. Writing v. Oral Complaint
i. Protect the whistleblower only if her complaint is in writing.
ii. Protect the whistleblower if her complaint is written or oral.
d. Reasonable Basis v. Accuracy
i. Protect the whistleblower only if she has a reasonable basis for believing that
there is wrongdoing afoot.
ii. Protect the whistleblower only if her allegations turn out to be correct. Very few
such statutes.
4. Bard v. Bath Iron Works Corp. (Me. 1991)
a. Whistleblower Protection Act – “Prohibits an employer from terminating an employee
for reporting illegal activities.
“Discrimination prohibited. No employer may discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s compensation, terms,
conditions, location, or privileges of employment because:
“A. The employee, acting in good faith, or a person acting on behalf of the
employee, reports orally or in writing to the employer or a public body what the
employee has reasonable cause to believe is a violation of a law or rule adopted
under the laws of this State, a political subdivision of this State, or the United
States.”
i. Maine state whistleblower law.
b. Prima Facie Case – Requires that an employee show that:
i. He engaged in an activity protected by the statute;
ii. He was the subject of adverse employment action; and
iii. There was a causal link between the protected activity and an adverse
employment action.
c. Sufficient Evidence to Support Belief Required – No protection for a whistleblower
unless she presents sufficient evidence to support her belief that wrongdoing was
occurring.
i. Mere suspicion is inadequate.
ii. Good-faith belief alone is insufficient.
5. Some courts refuse to recognize a cause of action for whistleblowing absent a statutorily
conferred right. See Hostettler (S.D. Ind. 1985).
61
6. Preemption – Some courts hold that the existence of statutory whistleblower remedies preempts
common law claims, including the public policy exception to employment-at-will. See Dudewicz
(Mich. 1993).
Contractual Exceptions to Employment-at-Will Employment – Breach of Contract
1. Breach of Contract
a. Employers and employees are free to contract around employment-at-will.
b. Issues
i. Mutuality of obligation.
ii. Consideration.
2. Gordon v. Matthew Bender & Co. (N.D. Ill. 1983) (WRITTEN CONTRACTS)
a. Implied Contract Case Hurdles
i. Existence of a contract.
ii. Breach of implied contract.
b. Employee’s Argument – “Letter created a contract for continuous employment
conditioned upon acceptable sales performance, which Matthew Bender breached by
firing him even though he met or exceeded the requirement of acceptable sales
performances.”
i. Letter arguably contained an implied promise creating the implied contract.
1.  IT DID NOT.
c. Employer’s Defenses
i. This was a contract terminable at will, and therefore Gordon’s discharge is not
actionable;
ii. The contract lacks mutuality and therefore is not actionable;
iii. The oral contract is unenforceable under the statute of frauds since it is for an
indefinite period.
d. “A contract that fails to specify the length of the term of employment, but that does set
conditions upon which termination may be based, is not terminable at will—it is
terminated upon the existence of those conditions.” Scaramuzzo.
e. “A satisfactory performance contract is terminable at will.”
i. “Satisfactory or acceptable performance language does not transform a contract
with no definite period—one at will—into a contract which cannot be terminated
by either party at any time for any reason.”
ii. If the promise is continued employment based on “satisfactory performance,”
this is not an implied promise capable of enforcement. Employment still is at
will, and employer could fire an employee even if a jury would find that her
employment indeed was satisfactory.
1. “Acceptable” Performance Is Subjective – “No discharge except ‘for
good cause’ (an objective criterion) has a different meaning, in this
employment context, from an employment which lasts as long as
performance is ‘acceptable’ (a subjective decision).”
a. “Good cause” would have been sufficient, but “acceptable
performance” is not.
2. Acceptable/Satisfactory/Etc. – These are all subjective concepts, and an
employer can define them however it wants. Datz does not think that
there is much “meat on the bones.” The parties cannot specify exactly
what “acceptable” means.
f. Reluctance to Abandon Employment-at-Will – “A condition of satisfactory or
acceptable performance theoretically could be implied in every employment contract.
62
Such an end-run around the at-will doctrine would eviscerate it altogether, and the Illinois
courts do not seem inclined to do so.”
3. Ross v. Garner Printing Co. (8th Cir. 2002) (DISCHARGE BEFORE EXPIRATION OF TERM)
a. Employment contract for definite term.
b. Employee may be discharge before expiration of the term only for breach of a contractual
provision or other good cause.
c. If employee alleges discharge without cause, burden shifts to employer to prove the
existence of good cause for the discharge.
4. Revisions to Employment-at-Will Relationship
a. E.g., change in salary.
b. Employee may accept the new conditions or resign.
c. If employee continues working with knowledge of the changes, then she has accepted the
changes as a matter of law.
Contracts Implied from Conduct
1. Pugh v. See’s Candies, Inc. (Cal. App. 1981)
a. Two Limitations on Employer’s Ability to Discharge
i. Public Policy – “The first limitation precludes dismissal when an employer’s
discharge of an employee violates fundamental principles of public policy;” and
ii. Traditional Contract Doctrine – “The second when the discharge is contrary to
the terms of the agreement, express or implied.”
b. Two Kinds of Non-at-Will Employment Contracts – “The presumption that an
employment contract is intended to be terminable at will is subject, like any presumption,
to contrary evidence.”
i. Fixed Term – “This may take the form of an agreement, express or implied, that
the relationship will continue for some fixed period of time.”
ii. Permanent Employment – “It may take the form of an agreement that the
employment relationship will continue indefinitely, pending the occurrence of
some event such as the employer’s dissatisfaction with the employee’s services
or the existence of some ‘cause’ for termination.”
1. “Plaintiff’s employment is to continue indefinitely, and until one or the
other of the parties wishes, for some good reason, to sever the relation.”
c. Limits on Employer’s Ability to Discharge Are Enforceable – “A contract which
limits the power of the employer with respect to the reasons for termination is no less
enforceable because it places no equivalent limits upon the power of the employee to quit
his employment. If the requirement of consideration is met, there is no additional
requirement of equivalence in the values exchanged, or mutuality of obligation.”
i. Only Requirement – Consideration.
ii. Consideration
1. Courts generally do not examine the adequacy of consideration.
2. Employee need not provide consideration independent of the services to
be rendered.
3. Single & Undivided Consideration – “A single and undivided
consideration may be bargained for and given as the agreed equivalent of
one promise or of two promises or of many promises. Thus there is no
analytical reason why an employee’s promise to render services, or his
actual rendition of services over time, may not support an employer’s
promise both to pay a particular wage, for example, and to refrain from
arbitrary dismissal.”
63
d. Factors for Discerning Implied-in-Fact Promise & Independent Consideration
i. The personnel policies or practices of the employer;
ii. The employee’s longevity of service;
iii. Actions or communications by the employer reflecting assurances of continued
employment; and
iv. The practices of the industry in which the employee is engaged.
e. Totality of Circumstances Test for Implied Contract – “While oblique language will
not, standing alone, be sufficient to establish agreement, it is appropriate to consider the
totality of the parties’ relationship. Agreement may be shown by the acts and conduct of
the parties, interpreted in the light of the subject matter and of the surrounding
circumstances.”
i. Oblique language alone is insufficient.
ii. Look at acts and conduct of the parties in light of surrounding circumstances.
f. Burden Shifting in Wrongful Termination Actions – “Where an employee has
demonstrated a prima facie case of wrongful termination in violation of his contract of
employment, the burden of coming forward with evidence as to the reason for the
employee’s termination now shifts to the employer. The employee may attack the
employer’s offered explanation, either on the ground that it is pretextual (and that the real
reason is one prohibited by contract or public policy) or on the ground that it is
insufficient to meet the employer’s obligations under contract or applicable legal
principles. The employer bears, however, the ultimate burden of proving that he was
terminated wrongfully.”
i. Definitions of Just Cause & Good Cause – “For purposes of a wrongful
termination in violation of a contract of employment case, the terms ‘just cause’
and ‘good cause,’ have been found to be difficult to define with precision and to
be largely relative in their connotation, depending upon the particular
circumstances of each case. Essentially, they connote a fair and honest cause or
reason, regulated by good faith on the part of the party exercising the power.”
g. Union Rules – “A union is privileged to induce a breach of contract between employer
and employee in the pursuit of a legitimate labor objective; alternatively, a union’s efforts
to cause termination of a supervisory employee for reasons bearing upon his relationship
to the union may constitute an unfair labor practice subject to the exclusive jurisdiction of
the NLRB.”
h. It seems that the court just found this termination to be unjust and it wanted to find a way
to condemn it. Its avenue for doing this was finding an implied contract through a
holistic inquiry.
Modification of Contracts – Employee Handbooks
1. Woolley v. Hoffman-La Roche, Inc. (N.J. 1985)
a. Facts – Contractual promise stated in employee handbook: “It is the policy of HoffmannLa Roche to retain to the extent consistent with company requirements, the services of all
employees who perform their duties efficiently and effectively.”
b. Holding – “Absent a clear and prominent disclaimer, an implied promise contained in an
employment manual that an employee will be fired only for cause may be enforceable
against an employer even when the employment is for an indefinite term and would
otherwise be terminable at will.”
i. Court is focused on fairness. Employer cannot appear to offer terms to
employees and then withdraw them.
c. Changes to Policies – Employer must notify employees of any changes for them to be
enforceable.
64
d. Employees’ Reasonable Expectations Determine Enforceability of Manual Terms –
“When an employer of a substantial number of employees circulates a manual that, when
fairly read, provides that certain benefits are an incident of the employment including,
especially, job security provisions, the judiciary, instead of grudgingly conceding the
enforceability of those provisions, should construe them in accordance with the
reasonable expectations of the employees.”
i. Must look at context in which manual was disseminated and used. How would
most employees understand it? As equivalent to company policy? As terms of
employment?
ii. “Unless the language contained in the manual were such that no one could
reasonably have thought it was intended to create legally binding obligations, the
termination provisions of the policy manual would have to be regarded as an
obligation undertaken by the employer.”
iii. Court does not want to allow an employer to offer attractive terms and withdraw
them at will, even if the employer never had intended them to be enforceable.
e. Job Security Provisions Are Enforceable – “Job security provisions contained in a
personnel policy manual widely distributed among a large workforce are supported by
consideration and may therefore be enforced as a binding commitment of the employer.”
f. Forms of Acceptance – “In order for an offer in the form of a promise to become
enforceable, it must be accepted. Acceptance will depend on what the promisor
bargained for: he may have bargained for a return promise that, if given, would result in a
bilateral contract, both promises becoming enforceable. Or he may have bargained for
some action or non-action that, if given or withheld, would render his promise
enforceable as a unilateral contract.”
i. Offer – Employee manual.
ii. Acceptance – Employees’ continued work.
iii.  Coming to work everyday is part of employees’ consideration.
iv.  Later, the court says that Woolley need not prove consideration.
1. This statement seems to be contrary to established contract law.
Consideration always is needed.
2. Shows that courts are flexible in these cases. They want to reach the
right, just, equitable result, even if they have to bend the law a little bit.
g. Indefiniteness
i. Case-by-case, term-by-term definiteness analysis.
ii. Some indefinite terms in an employee manual do not render termination terms,
which are definite, unenforceable.
iii. “If indefiniteness as to provisions is a problem, it is one of the employer’s own
making from which it should gain no advantage.”
iv. “Enforcing an employee handbook provision that prohibits termination except for
good cause is not so difficult as to warrant its invalidation on grounds of
indefiniteness.”
h. Preventing Manual from Being Binding
i. Employer’s Options
1. Be careful in the language that you use in the manual.
2. Include a prominent disclaimer in the manual, and in this way, you do
not need to be as careful in your language in the manual.
ii. Disclaimer – “All that need be done is the inclusion in a very prominent position
of an appropriate statement that there is no promise of any kind by the employer
contained in the manual; that regardless of what the manual says or provides, the
employer promises nothing and remains free to change wages and all other
working conditions without having to consult anyone and without anyone’s
65
agreement; and that the employer continues to have the absolute power to fire
anyone with or without good cause.”
1. Prominent statement.
2. Saying that manual contains no promises of any kind.
3. Employment-at-will remains the regime.
2. Mobil Coal Producing, Inc. v. Parks (Wyo. 1985)
a. Procedural Protection – Employee handbooks may provide procedural protection as
well as substantive protection.
3. Employers Requiring Arbitration
a. Such a policy could be described in an employee manual, and it would be binding. The
case for being bound to arbitration is even stronger if the employee signs something
assenting to mandatory arbitration.
4. If employee handbooks are contracts, they can bind both parties.
Overlapping & Conflicting Remedies
[EXAM NOTE – Look for cases in which collective-bargaining or employment agreements have waived
an employee’s right to bring state common law actions.]
1. Garmon (U.S. 1959)
a. NLRA Preemption – The NLRA would preempt state jurisdiction only if the
controversy presented in state court was identical to the one that was or could have been
presented to the NLRB.
2. Alexander v. Gardner-Denver Co. (U.S. 1974)
a. Parallel remedies approach to Title VII.
b. Plaintiff may file claims under both the grievance-arbitration provisions of a collectivebargaining agreement and Title VII.
c. “Title VII was designed to supplement, rather than supplant, existing laws and
institutions relating to employment discrimination.”
3. Lingle v. Norge Div. of Magic Chef, Inc. (U.S. 1988)
a. NLRA § 301(a) – “Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as defined in this
Act, or between any such labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the amount in
controversy or without regard to the citizenship of the parties.”
i.  On its face, § 301(a) is a jurisdictional provision, but courts have interpreted it
to mean much more. (See below.)
ii. Federal Jurisdiction & Federal Common Law – “Section 301(a) not only
provides federal court jurisdiction over controversies involving collectivebargaining agreements, but also authorizes federal courts to fashion a body of
federal law for the enforcement of these collective bargaining agreements.”
iii. Interests in Exclusive Federal Jurisdiction – “Section 301(a) mandates resort
to federal rules of law in order to ensure uniform interpretation of collectivebargaining agreements, and thus to promote the peaceable, consistent resolution
of labor-management disputes.”
iv. Preemption of State Law – “If the resolution of a state-law claim depends upon
the meaning of a collective-bargaining agreement, the application of state law
(which might lead to inconsistent results since there could be as many state-law
principles as there are states) is pre-empted and federal labor-law principles—
necessarily uniform throughout the Nation—must be employed to resolve the
dispute.”
66
b. Retaliatory Discharge – “To show retaliatory discharge, the plaintiff must set forth
sufficient facts from which it can be inferred that (1) he was discharged or threatened
with discharge and (2) the employer’s motive in discharging or threatening to discharge
him was to deter him from exercising his rights under the Workers’ Compensation Act or
to interfere with his exercise of those rights.”
i. Purely factual questions.
ii. Do not require interpretation of collective-bargaining agreement.
iii.  Employer’s Defense – “To defend against a retaliatory discharge claim, an
employer must show that it had a non-retaliatory reason for the discharge; this
purely factual inquiry likewise does not turn on the meaning of any provision of a
collective-bargaining agreement.”
iv.  Resolution of the retaliatory discharge claim is independent of the collectivebargaining agreement: “resolution of the state-law claim does not require
construing the collective-bargaining agreement.”
c. Restriction on State Courts Regarding § 301(a) – “Judges can determine questions of
state law involving labor-management relations only if such questions do not require
construing collective-bargaining agreements.”
d. Presumption Against Preemption of State Law – Labor law is within the traditional
police power of the State, and so preemption should not be lightly inferred. Fort Halifax
Packing Co. (U.S. 1987).
e. Same Facts, Different Liability – The same facts may give rise to different liability
under § 301(a) and state law.
4. Title VII Non-Preemptive Clause – “Nothing in this subchapter shall be deemed to exempt or
relieve any person from any liability, duty, penalty, or punishment provided by any present or
future law of any State or political subdivision of a State.” 42 U.S.C. § 2000e-7.
5. Workers’ Compensation Statutes – Most provide that workers’ compensation shall be the
exclusive remedy for injuries arising out of the course of employment.
6. Preemption of State Common Law
a. Some state statutes have been held to preempt common law causes of action.
b. Some state statutes have been held not to preempt breach of contract and IIED claims.
Constitutional Protections
1. For most employees, there are post-discharge procedures by which they can challenge the validity
of their terminations. There are similar procedures for public employees as well.
2. Board of Regents v. Roth (U.S. 1972) (CREATION OF PROPERTY INTEREST)
a. Facts – The respondent was hired in 1968 for his first teaching job as an assistant
professor at a state university for a fixed term of one academic year. The notice of his
faculty appointment so specified. He completed the academic year, but was informed
that he would not be rehired for the next academic year. Under university rules, the
respondent was given no reason for the decision not to rehire him, nor was he given any
opportunity to challenge the decision at any sort of hearing, because (1) he had acquired
no tenure rights to continued employment under state statutory law, such rights inuring to
the benefit of state university teachers only after 4 years of year-to-year employment, and
(2) absent tenure rights, he was entitled to nothing under state law beyond his one-year
appointment.
b. Creation of Property Interest – “To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to
it.”
67
i. “Property interests are not created by the Constitution. Rather, they are created
and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law—rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.”
c. Purpose of Pre-Discharge Hearing – “It is a purpose of the ancient institution of
property to protect those claims upon which people rely in their daily lives, reliance that
must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing
to provide an opportunity for a person to vindicate those claims.”
3. Perry v. Sindermann (U.S. 1972) (PROPERTY INTEREST & PRE-DISCHARGE HEARING)
a. Significance – Court first recognized a property interest in employment for government
employees sufficient to invoke the Due Process Clause of the 14th Amendment.
b. Facts – The respondent was employed as a college teacher in a state college system for
10 years at three different institutions. He had been employed at the last of the
institutions for 4 years as a professor under a series of one-year contracts, and at one time
had served as cochairman of his department. During the 1968-69 academic year, the
respondent had aligned himself with a group critical of the college governing board’s
position on certain issues, and when his teaching contract terminated at the end of the
year, the governing board voted not to offer him a new contract for the following year.
The teacher was provided with no reason for the nonrenewal of his contract, nor with an
opportunity to challenge any basis for the nonrenewal.
c. Holding – Employer had violated a property interest that employee had because of the
tenure system that the state college employed.
d. Nature of Property Interest & Due Process – “‘Property’ interests subject to
procedural due process protection are not limited by a few rigid, technical forms. Rather,
‘property’ denotes a broad range of interests that are secured by existing rules or
understandings. A person’s interest in a benefit is a ‘property’ interest for due process
purposes if there are such rules or mutually explicit understandings that support his claim
of entitlement to the benefit and that he may invoke at a hearing.”
i. Property interest may be implied in a contract, as an implied term. As such, a
property interest may be enforced.
1. Discerning whether a property interest is implied in a contract requires a
contextual analysis.
ii. One need not show all of the elements of contract in order to make a showing of
a constitutional violation.
1. Datz thinks that there is a somewhat lower threshold for showing a
property interest, i.e., it is not that hard to do.
2. Once one has made the showing of a property right, one is entitled to a
pre-discharge hearing.
e. Pre-Discharge Hearing Required Only When Property Interest Exists – “The U.S.
Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract, unless he can show that the decision not to rehire him
somehow deprived him of an interest in ‘liberty’ or that he had a ‘property’ interest in
continued employment, despite the lack of tenure or a formal contract.”
f.  No Property Interest for Unilateral Expectation – Both federal and state courts
have refused to find a protected property interest in cases where there was merely a
unilateral expectation on the employee’s part of continued employment. See Deen v.
Darosa (7th Cir. 2005).
g. Does having a property right in one’s job guarantee her a full pre-discharge hearing and
entitle her to full pay if she prevails?
68
i. If you fight a discharge after it has occurred, relief may be a long way off. A predischarge hearing makes some sense because it avoids letting you linger out on
the curb, i.e., interim suffering, while you are seeking relief.
h. Pre-Discharge Hearing
i. What does it entail? A: Opportunity to respond and be heard.
1. Datz does not think that there is much meat to the pre-discharge hearing.
It is not that robust.
ii. Is the employee entitled to call witnesses? A: Datz does not think that this is
guaranteed.
LEAVING A JOB
Breach of Implied Terms
1. Mercer Mgmt. Consulting, Inc. v. Wilde (D.D.C. 1996)
a. Officers’ & Agents’ Fiduciary Duties – “Corporate officers and directors owe an
undivided and unselfish loyalty to the corporation such that there shall be no conflict
between duty and self-interest. Unless otherwise agreed, an agent is subject to a duty to
his principal to act solely for the benefit of the principal in all matters connected with his
agency. Similarly, an agent is subject to a duty not to compete with the principal
concerning the subject matter of his agency. At the same time, however, the law is clear
that an agent can make arrangements or plans to go into competition with his principal
before terminating his agency, provided no unfair acts are committed or injury done his
principal.”
b. Officer’s Duty in No-Solicitation Agreement – “The right to make arrangements to
compete is by no means absolute and the exercise of the privilege may, in appropriate
circumstances, rise to the level of a breach of an employee’s fiduciary duty of loyalty.
The limitations of an officer’s preparatory activities have been described as follows: Prior
to termination of employment, an officer may not solicit for himself or herself business
which the position requires the employee to obtain for the employer. The officer must
refrain from actively and directly competing with the employer for customers and
employees, and must continue to exert his or her best efforts on behalf of the employer.”
i. Could amount to a breach of employee’s duty of loyalty.
c. Officer’s Duty in Preparing to Compete – “In preparing to compete, an employee may
not commit fraudulent, unfair, or wrongful acts, such as misuse of confidential
information, solicitation of the film’s customers, or solicitation leading to a mass
resignation of the firm’s employees. At the same time, failure to disclose plans to enter
into competition is not itself necessarily a breach of fiduciary duty. Thus, the ultimate
determination of whether an employee has breached his fiduciary duties to his employer
by preparing to engage in a competing enterprise must be grounded upon a
thoroughgoing examination of the facts and circumstances of the particular case.”
i. List of prohibited activities.
ii. Failure to disclose is not necessarily a breach of a fiduciary duty. No breach of
any duty in continuing to work for an employer while planning to set up a new
firm.
iii. Fact-specific inquiry.
iv. Employees’ letter to clients notifying them that they are branching off  If it
just is reporting facts, it most likely is permissible (even though it may be
intended to be a solicitation).
1. Same letter says that employees will be setting up a new firm  This
probably is not permissible. It is too close to a solicitation.
69
d. Rules of Contract Interpretation – “The basic rule of contract construction gives
priority to the intentions of the parties. In ascertaining the meaning and intent of contract
language, the starting point is obviously the language itself. A contract is construed as a
whole, giving effect to all of the contract’s provisions and avoiding a construction which
would render one of those provisions meaningless. While extrinsic evidence may be
considered when a contract is subject to a number of different interpretations, the greatest
weight should be given to the express language of the contract itself. Finally, in
determining intent, the overt acts and statements of the parties are examined through the
eyes of an objective observer.”
e. Restrictions on Non-Compete Agreements – “In order to be valid, covenants not to
compete [1] must protect some legitimate interest of the employer and [2] must be
reasonable in their scope. Restrictions are unreasonable if the restraint is greater than is
needed to protect the promisee’s legitimate interest, or the promisee’s need is outweighed
by the hardship to the promisor and the likely injury to the public. Significantly, a
restraint is easier to justify if the restraint is limited to the taking of his former employer’s
customers as contrasted with competition in general.”
i. Employer’s Legitimate Interests
1. Protecting the investment it made in its employees;
2. Preserving the confidentiality of information gleaned in the course of
employment; and
3. Protecting itself from its employees leaving and capitalizing on its client
base.
ii. Reasonable Scope
1. Certain provisions may offend the public interest to such an extent that a
court will not enforce them, i.e., restrictions on:
a. Time – Agreement should be time-limited, e.g., one year.
b. Geography
i. It is more reasonable if a no-compete agreement applies
to an employer’s clients—and not the world in general.
ii. Applying non-compete agreement to Washington, DC,
metro area probably is invalid. This would prevent
employees from establishing a new firm until the term
expired.
2. The more limited a no-compete agreement, the more reasonable it will
appear, and the more likely it will be that a court will uphold it.
f. Damages for Breach of Contract – “The damages recoverable in a breach of contract
action include those damages which arise directly from the breach itself, or could
reasonably have been in contemplation of both parties when they made the contract. It is
axiomatic that while a plaintiff need not prove damages with mathematical certainty, a
plaintiff must provide a reasonable basis upon which damages may be estimated. A
number of different methods are permissible for estimating lost profits, including
evidence of past performance by an established business, or profits made by others.”
g. Intentional Interference with Business Relationship – To sustain a claim of intentional
interference with business relationships, a plaintiff must establish:
i. The existence of a business relationship;
ii. Defendants’ knowledge of the business relationship;
iii. Intentional interference with the relationship by defendants; and
1. Defendants’ interference must be improper. Competitive activity does
not by itself constitute intentional interference with prospective business
advantage unless accomplished by wrongful or improper means, such as
fraud, violence, or civil suits.
70
iv. Resulting damages.
UNEMPLOYMENT
Plant Closings
1. Local 1330, United Steel Workers of America v. United States Steel Corp. (6th Cir. 1980)
a. Facts – Concerns the employment-at-will doctrine and exceptions to it.
i. Some courts bend over backwards to find enforceable employment contracts.
This court wants to be one of them but is not.
b. Implied Terms & Implied Contracts – Implied terms may give rise to contracts, but
they probably must be more clearly articulated than they were here.
c. Promissory Estoppel – “The doctrine of promissory estoppel recognizes the possibility
of the formation of a contract by action or forbearance on the part of a second party,
based upon a promise made by the first party under circumstances where the actions or
forbearance of the second party should reasonably have been expected to produce the
detrimental results to the second party which they did produce.”
i. Enforceable through the NLRA § 301.
ii. District Judge’s Three Grounds for Rejecting Promissory Estoppel
1. None of the statements made by officers and employees of the company
constituted a definite promise to continue operation of the plants if they
did become profitable.
2. The statements relied upon by plaintiffs were made by employees and
public relations officers of the company and not by company officers.
3. Based on a finding of fact that “The condition precedent of the alleged
contract and promise profitability of the Youngstown facilities was never
fulfilled, and the actions in contract and for detrimental reliance cannot
be found for plaintiffs.”
iii. No Implied Contract – There may have been an implied contract here, but the
court has a problem with the definition of “profitable” on which the plaintiffs
rely.
1. Insufficient evidence that U.S. Steel’s statements encouraged justifiable
reliance by the workers.
iv. Reasonable Expectability of Promise Detrimentally Relied Upon – “A
promise which the promisor should reasonably expect to induce action or
forbearance of a definite and substantial character on the part of the promisee and
which does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.”
d. Community Property Claim – Court ultimately rejects the community property claim.
i. The court recognized that there was a property right implicit in the employment
relationship between U.S. Steel and the Youngstown community.
ii. However, there was no legal basis for requiring U.S. Steel to keep its plants open
when they had decided to close them because of unprofitability.
e. Collective-Bargaining Agreements
i. Sometimes, unions bargained over plant closure. Under § 301 of the NLRA,
courts would enforce those clauses.
ii. Labor Law – Mandatory subjects of bargaining.
iii. Decision to be in business or not be in business, etc. – These need not be
subjected to the bargaining process. Subcontracting or location must be subject
to the bargaining process.
71
Hypothetical – Could the workers get damages if the plants were profitable and the
implied contract had been fulfilled, but the employers closed the plants anyway?
i. There would seem to be a breach of contract claim, and there would seem to be
damages. Datz thinks that the court would be reluctant to go this route even if
the contract was clear and it clearly had been broken by the employer.
2. ERISA & Contract Claims – Common law contract claims concerning pensions are preempted
by ERISA.
a. Under ERISA, only written plan documents have legal force.
3. Third-Party Beneficiaries of Collective-Bargaining Agreement – Singer Co. (D.N.J. 1982).
a. Serious doubts that residents of a community could be third-party beneficiaries of a
collective-bargaining agreement (and thus have a viable contract claim).
b. It is the prerogative of any company to go out of business when it so desires, and here,
the company did not promise to surrender that prerogative.
c. Court would not issue an injunction to keep the plant open.
f.
RETIREMENT
72