Employment Law Outline
Professor Howard Datz – Spring 2013
WORK & LAW
Work & Society
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.
Bammert v. Don’s Super Value, Inc.
 Karen Bammbert worked for Don’s Super value, was fired when her husband, a police sergeant,
arrested Nona Williams, and subsequently Karen was fired.
 No good-faith in at-will employment according to Brockmeyer.
 There is a narrow public policy exception to this which must be evidenced by a constitution or
statutory provision.
 Discharge “clearly contravenes the public welfare and gravely violates paramount requirements
of public interest.” This case did not fall into this exception, see Gardner v. Loomis Armored Inc.
to see a case that does meet the requirement (p.71).
DEVELOPMENT OF EMPLOYMENT LAW
Sources of Modern Employment Law
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.
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.
vi. Recurring Themes – (1) Preemption and (2) election of remedies.
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Civil Service/Public Employment
Different Roles for Government – Distinction between
(1) government as employer and (2) government as regulator of society.
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.
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.
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.
Current Law
a. Somewhere between McAuliffe and Rutan.
b. Overall Trend – Greater constitutional and statutory protection.
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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 courtimposed 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 self-organization 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
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.
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Overlapping & Conflicting Remedies
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.
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.
ii. No preclusive effect, substantively or procedurally.
iii. Neither an employee nor a union can waive the right to bring an action in court.
iv. “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.
c. Parallel remedies approach to Title VII.
d. Plaintiff may file claims under both the grievance-arbitration provisions of a collectivebargaining agreement and Title VII.
e. “Title VII was designed to supplement, rather than supplant, existing laws and institutions
relating to employment discrimination.”
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 v. Gardner-Denver Co.
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.
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HIRING PROCESS
Two Kinds of Discrimination Under Title VII
1. 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.
a. Employer’s Defenses
i. No intentional discrimination.
ii. BFOQ – E.g., hiring only a male to play Hamlet.
2. Disparate Impact – Plaintiff is not alleging a bad motive but is alleging a bad practice—appears
benign on its face but has a disparate impact against some particular group.
a. Employer’s Defenses
i. Employer must show that the requirement is (1) job-related and (2) consistent with
business necessity.
ii. BFOQ
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.”
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Labor Pool: Undocumented Aliens
Aramark v. SEIU
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Social Security agency sent 48 no match letters to Amarack, Amarack gave 3 days for employers
to get do documents to Amarack, 33 did not comply and were terminated.
Labor union (SEIU) filed a grievance according to arbitration agreement. Arbiter ruled in favor of
employees and requested reinstatement and backpay finding no evidence of any of the employees
being undocumented.
Did the no match letters give constructive notice that Amarack was employing undocumented
workers? If so arbiter’s award would violate federal law.
Court deferred to the arbiter’s factual findings. The employee’s failure to meet the deadline is
simply not probative enough of their immigration status to indicate that public policy would be
violated if they were reinstated with backpay.
Immigration Reform and Control Act of 1986
Applies to all employers, regardless of size or industry.
Prohibits employers from hiring undocumented workers.
Employer is not required to check the authenticity of employees’ documents.
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 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.
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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.
Greenwalt v. Indiana Department of Corrections

2 years after being hired by Indiana Dept. of Corrections, was required to submit to a
psychological exam in order to keep her job. Brought suit against the Department and two of
its officials, her supervisor and supervisor requiring her to take the exam. She claimed that
being required to take the exam was an invasion of her privacy and deliberately inflicted
emotional distress on her and brought a suit in Indiana for common law tort. Trial judge
dismissed because those named did not qualify as “persons” under section 1983. Only
prevents damages, not injuctive relief so 7th Cir. took the case.
 Psychological exam does not fall under 4th Amendment search no matter how personal the
questions are.
Medical Screening/Disability
Americans with Disabilities Act (ADA) – 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.
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.”
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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 nondisabled 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.”
Current Law: Whether nondisabled plaintiff can state a claim under § 12112(d)(2) remains unsettled
Drug Testing
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 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.
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f.
Marshall, Dissenting
i. 4th Amendment searches require PC.
ii. Balancing of interests is 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!”
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Skinner v. Railway Labor Executives’ Ass’n (U.S. 1989)
Holding – Upheld post-accident drug-testing requirement for railroads because of the unique
history of drug-using railroad employees.
Private-Sector Drug Testing – Challenges based on state constitutional rights to privacy have been
unsuccessful.
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.)
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Negligent Hiring
Malorney v. B&L Motor Freight, Inc. (Ill. App. 1986)
1. 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”?
2. Duty in Negligence Action
a. Existence – “The existence of a duty is a question of law to be determined by the court,
rather than by the factfinder.”
1. Foreseeablitity is Not a dispositive factor.
2. “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.”
3. 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.”
 Includes consideration of public policy and social requirements.
b. 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”
3. Two Duties of Employer
a. “The degree of care which an owner should exercise in selecting a driver is that which a
reasonable person would exercise under the circumstances.”
b. “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.”
4. 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.”
a. 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.”
b. 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” for 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.
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DISCRIMINATION
Discrimination Based on Race or Sex
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:
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.
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. Congress shall have power to enforce, by appropriate legislation, the provisions of this article
Two Types of Discrimination Claims Under Title VII
a. Disparate Treatment – Deliberate differential treatment.
i. Defenses:
1. No intentional discrimination.
2. BFOQ – Bona Fide Occupational Qualification
a. Section 703(e)(1).
b. Extremely narrow.
1) Does the particular job under consideration require that the
worker be of one sex [or whatever protected discriminatory act]
only, if so
2) Is that requirement reasonably necessary to the “essence” of the
employer’s business.
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BFOQ - does not obtain with respect to race and color, but does to other
categories. Almost the same as business necessity but it tends to be
higher to meet than business necessity:
 To recognize BFOQ for jobs requiring multiple abilities, some
sex-linked and some sex-neutral, the sex-linked aspect of the job
must predominate.
 If an employer is acting pursuant to law of another country, and
they are working in the foreign jurisdiction then they may be
saved, if it’s just foreign custom, you are hosed.
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.
3. Merely pointing to disparate results is insufficient.
iii. Defenses
4. (1) Job-related and (2) consistent with business necessity.
5. 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).
McDonnell 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) despite his qualifications, he was rejected; and
(iv) 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].”
v. 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.”
13
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
i. Burden shifts back to plaintiff to prove by preponderance of the evidence has to
prove legitimate reason was not why they were not hired and prove by
preponderance of the evidence that the discrimination was the reason.
ii. If plaintiff knocks down the defendant’s reason, the jury is FREE to find that it
was not the prima fascia case. The employer could avoid equitable relief if they
could show with a preponderance of the evidence that that it would have done the
same thing absent the discrimination.
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.
6. 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 by a preponderance of the evidence.
Preston v. Wisconsin
 Dentist sued former employer-health fund, fund's chief executive officer (CEO), and female who
replaced dentist as director for fund's dental clinic, alleging sex discrimination in violation of
Title VII and tortious interference with contract. Male CEO was romantically involved with a
female. CEO fired Preston and then hired to be the Fund’s director in his place. Female was less
qualified than Preston. “A male executive's romantically motivated favoritism toward a female
subordinate is not sex discrimination even when it disadvantages a male competitor of the
woman.” Preston tried to help his case by pointing out that 5 women were given raises to 2 men.
This is insufficient, need to know make up of work place, if men and women held comparable
jobs, if women were promoted to new jobs and if men had same opportunities.
 “must present some evidence beyond the bare fact that a woman got a job that a man wanted to
get or keep. A gross disparity in qualifications might be such evidence”
 Holds: Fund did not engage in sex discrimination, in violation of Title VII, when it replaced
dentist as director of Fund's dental clinic with allegedly less qualified female for no
discriminatory reasons, and alleged actions of CEO and female replacement did not support claim
for tortious interference with contract.
14
Back v. Hastings
 Plaintiff–Appellant Elana Back was hired as a school psychologist at the Hillside Elementary
School (“Hillside”) on a three-year tenure track. At the end of that period, when Back came up
for review, she was denied tenure and her probationary period was terminated. Back subsequently
brought this lawsuit, seeking damages and injunctive relief under 42 U.S.C. § 1983 (2000)
alleging termination in violation of constitutional equal protection of the law. Defendants
claimed it was due to lack of organizational and interpersonal skills.
 The question was “stereotyping about the qualities of mothers is a form of gender discrimination,
and whether this can be determined in the absence of evidence about how the employer in
question treated fathers” Numerous comments were allegedly made by supervisors regarding
Back being able to do her job while being a mother.
 “”sex plus” discrimination is certainly actionable in a § 1983 case. The Equal Protection Clause
{ "pageset": "Se5
forbids sex discrimination no matter
how it is labeled. The relevant issue is not
whether a claim is characterized as “sex plus” or “gender plus,” but rather, whether the plaintiff
provides evidence of purposefully sex-discriminatory acts.”
 Defendants also fail in their claim that they are immune from Back’s allegations simply because,
in the year that Back was hired, 85% of the teachers employed at Hillside were women, and 71%
of these women had children. As Brown indicates, although the jury is surely allowed to consider
such comparative evidence, what matters is how Back was treated.
Holds: 1. sex plus” or “gender plus” discrimination is actionable in § 1983 case;
2. stereotyped remarks can be evidence that gender played part in adverse employment decision;
3. psychologist was not required to adduce evidence that defendants treated similarly situated male
employees differently;
4. factual issues precluded summary judgment for principal and director on equal protection claim;
5. superintendent did not violate psychologist's equal protection rights;
6. school district was not liable for equal protection violation under § 1983; and
7. principal and director not shielded by qualified immunity from § 1983 liability to psychologist.
15
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 are sufficient to make a prima facie case.
ii. May use direct or circumstantial evidence.
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.”
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, not clear and convincing.
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 (Not law)– “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.”
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/back pay because the π would have been fired anyway
iv. Also made compensatory and punitive damages available for cases of intentional
discrimination, subject to caps based on the size of the workforce.
16
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 others
ii. Not to guarantee a job to every person regardless of qualifications.
iii. Congress proscribed only discriminatory preference for groups, 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.
2. 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.
Bona Fide Occupational Qualification (BFOQ) Defense
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, 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 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-
17
f.
related and (2) consistent with business necessity—not necessarily necessary for
normal business operations, as with a BFOQ.
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. Refusal to hire a woman because of her sex based on assumptions of the comparative
employment characteristics of women in general.
b. The refusal to hire an individual based on stereotyped characterizations of the sexes. The
principle of nondiscrimination requires that individuals be considered on the basis of
individual capacities and not on the basis of characteristics generally attributed to the group.
c. Refusal to hire because of 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.
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?
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 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 business?
1. “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.”
2. 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 doesn’t become BFOQ merely
because an employer exploits female sexuality as a marketing tool or 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 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 - case would have come out the same even if discriminating were the only means
Southwest could have succeeded. If your business is successful only through
discrimination, 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. In a foreign country, can follow laws but not custom.
18
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.
2. Superseding Intervening Cause – Will negate proximate cause of supervisor’s
discriminatorily motivated action if.
a. Independent Investigation by Decision Maker – Intervening cause. No
proximate cause.
i. If top supervisor did an independent inquiry and come to an independent
conclusion also is a question of fact and is relevant to proximate cause.
b. 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.
Gross v. FBL Financial Services, Inc. (U.S. 2009)
a. Rule – Mixed-motive theory does not apply to claims brought under ADEA, even though
the statutory language is the same as 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.
19
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.
iii. Burden framework is the opposite of Title VII.
iv. Strict but-for requirement at odds with Price Waterhouse.
Ricci v. DeStefano (U.S. 2009)
1. Disparate Treatment Case
a. Express race-based decision making. City set aside test for racial reasons.
b. Placed great weight upon, the white firefighters’ “legitimate expectations” that the test
result would be honored, language is from the Court’s affirmative action jurisprudence.
2. 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.
3. Resolving Tension Between Disparate Treatment & Disparate Impact Claims
a. 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 race-conscious, discriminatory action.”
i. 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.
ii. 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.
iii. Statistically Significant Disparity – Alone not enough to meet heightened standard.
1. But see Lewis v. Chicago (U.S. 2010) (holding that statistical evidence could
support a cognizable disparate-impact claim).
iv. 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.
v.  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 strong basis in evidence for concluding that the tests were
deficient on either of these grounds.
b. Employer wanted to settle because he had a good-faith belief that he would lose a
disparate-impact case.
i. 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 disparateimpact liability.
ii. 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.
4. Scalia, Concurring
a. “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
20
question: Whether, or to what extent, are the disparate-impact 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.”
i. Court did not rule on equal-protection question.
ii. Scalia thinks that the disparate-impact doctrine is unconstitutional under the
Equal Protection Clause.
5. Ginsburg, Dissenting
a. 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.
b. 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.
c. 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.”
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.
Kern v. Dynalectron Corp. (N.D. Tex. 1983)
a. Religion BFOQ – “Dynalectron has proven a factual basis for believing that all non-Muslims
would be unable to perform this job safely. Specifically, non-Muslims flying into Mecca are,
if caught, beheaded. . . . Thus, the essence of Dynalectron’s business would be undermined
by the beheading of all the non-Muslim pilots based in Jeddah (Saudi Arabia).”
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.
Ledbetter v Goodyear Tire & Rubber Co., Inc. (U.S. 2007) (STATUTE OF LIMITATIONS)
a. OVERTURNED BY STATUTE.
b. Charging Period of EEOC Claim (i.e., Statute of Limitation for Title VII Claim)
i.
If past discrimination has continuing effect into the statutory period, 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
21
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 sex-based 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 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.
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.
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
22
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).
Burlington No. & Santa Fe Ry. Co. v. White (U.S. 2006)
1. Summaries of Rules
a. 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 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.
b. “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.”
2. 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).
a. Anti-retaliation provision is NOT limited to discriminatory actions that affect the terms
and conditions of employment.
b. “Protects an individual not from all retaliation, but from retaliation that produces an
injury or harm.”
c. 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.”
i. Objective Standard – “Reasonable worker.”
ii. 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.”
d. 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).
3. Retaliation Outside Employment – “An employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing him
23
harm outside the workplace. A provision limited to employment-related actions would not
deter the many forms that effective retaliation can take.”
a. Covers effects inside and outside the workplace.
b. 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.
c. Title VII does not protect against petty slights or minor annoyances in the workplace.
d. Broad meaning of “adverse action.”
Gomez-Perez v. Potter (U.S. 2008)
1. 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).
2. 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.
Crawford v. Metropolitan Government of Nashville (U.S. 2009)
1. 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’.”
2. 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. Kasten v. Saint-Gobain Performance Plastics Corp.
(U.S. 2011) – “Filed” can include an oral complaint.
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. Court does not resolve plaintiff’s claim under Participation Clause.
3. 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;
24
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 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.
4. “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
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 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.
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.”
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.”
25

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. Employer then has obligation to respond by proposing 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. (Not sure where Datz comes down on this question, need more facts)
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?
No 1st Amendment or Title VII violation when an employer restricts an employee from
practicing her religion in view of clients at the workplace.
National Origin
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.
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.”
26
1.
2.
3.
4.
5.
6.
7.
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 (ADA)
a. Based on the Rehabilitation Act of 1973.
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.
27
2. State Law
a. May cover private employers with fewer than 15 employees.
b. May cover a broader range of disabilities.
Sutton v. United Air Lines, Inc. (U.S. 1999) - OVERTURNED BY STATUTE.
a. 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 – This is the part that was overturned,
(other than glasses) “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.”
b. 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).”
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.)
c. 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?
28
d. 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.
e. 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.
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.
ADA Amendments Act of 2008 (ADAAA)
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.
1. Employer need not accommodate if the accommodation poses an undue hardship.
2. NO ACCOMMODATION for people “regarded as” having a disability.
29
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.
30
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.
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.
31
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 with criminal fines.
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.
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:
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.
 No factor is dispositive; must examine “circumstances of the whole activity;”
holistic, balancing inquiry.
 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.”
32
3. Reflects some of the social values entailed in the test.
 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.
IBP v. Alvarez
 Employees of meat processing plant brought class action against their employer under the Fair
Labor Standards Act (FLSA), alleging that employer was required to compensate them for time it
took to change into required specialized protective clothing &safety gear.
 Held: Time spent walking to production area after donning protective gear was covered by FLSA
because this is necessary condition to complete the job. Time spent waiting to don gear was not
covered by FLSA.
 Because donning and doffing gear that is “integral and indispensable” to employees' work is a
“principal activity” under the statute, the continuous workday rule mandates that the time the
{ "pageset": "S9a
petitioners
spend walking to and from the production floor after donning and
before doffing, as well as the time spent waiting to doff, are not affected by the Portal-to-Portal
Act, and are instead covered by the FLSA
Prisoners – May be FLSA employees.
a. Working under prison programs  Not covered by FLSA. See McMaster (8th Cir. 1994).
b. Working for private employers  Covered by FLSA. See Henthorn (D.C. Cir. 1994).
Undocumented Aliens
a. Covered by FLSA. See Patel (11th Cir. 1988).
b. Covered by Title VII.
Migrant Farmworkers – Probably covered by FLSA.
33
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
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
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.”
34
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
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.
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
35
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.
Ensley-Gaines v. Runyon (6th Cir. 1996)
a. Rule – Employers are not required to provide pregnant employees with light-duty work.
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
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.
b. 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).
c. 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 gender-neutral.”
36
d. 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.”
e. 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
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.
Sexual Orientation
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
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”?
37
c.
d.
e.
f.
i. Essentially, the court is resolving an apparent conflict between the Marriage
Amendment and the Equal Protection Clause of the Alaska Constitution.
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.”
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 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.”
Remedy – No remedy issued at this time.
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.
38
Ragsdale v. Wolverine



The Family and Medical Leave Act of 1993 (FMLA or Act) guarantees qualifying employees 12
weeks of unpaid leave each year and encourages businesses to adopt more generous policies.
Respondent Wolverine World Wide, Inc., granted petitioner Ragsdale 30 weeks of medical leave
under its more generous policy in 1996. It refused her request for additional leave or permission
to work part time and terminated her when she did not return to work. She filed suit, alleging that
29 CFR § 825.700(a), a Labor Department regulation, required Wolverine to grant her 12
additional weeks of leave because it had not informed her that the 30–week absence would count
against her FMLA entitlement. The District Court granted Wolverine summary judgment, finding
that the regulation was in conflict with the statute and invalid because it required Wolverine to
grant Ragsdale more than 12 weeks of FMLA-compliant leave in one year. The Eighth Circuit
agreed.
Held: Section 825.700(a) is contrary to the Act and beyond the Secretary of Labor's authority
Family Medical Leave Act of 1993 (FMLA) – must be granted 12 weeks of
unpaid/uncompensable leave under certain circumstances and gives guarantee a similar position
(not necessarily the same position) for when they return. If an employer’s policy is more liberal
(gives more time) the two run at the same time if the employer notifies the employee that they are
running concurrently because of the EEOC. If violated, you can get a decree that they have to tell
people in the future but not an extra 12 weeks.
39
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
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.
2. 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).
40
3. 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.
4. 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.
 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.”
 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 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.
41
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.
5. “Essence of Business” Defense – Requiring women to wear provocative 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.
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.
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
42
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. (Compensatory and punitive for purposeful disc.)
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.
a. Amounts to an official act of the company.
3. 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.
4. 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
“(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
43
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.”
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.
- 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.
2. 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.
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.”
3. 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).
4. 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.
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.
44
b.
c.
d.
e.
f.
i. 4th Amendment protections safeguard individuals not only against the
government qua law enforcer but also qua employer.
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.
Lesser Expectation of Privacy in Business Premises – Generally, business premises
invite lesser privacy expectations than do residences.
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.
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.
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
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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
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
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.
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).
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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.”
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.
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
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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.”
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 duties he
should be protected.
2. 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.
i. Exception – Confidential or policymaking positions.
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c. Statements 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).
Collective Bargaining
NLRB v. Washington Alum. Co. (U.S. 1962)
1. National Labor Relations Act
a. 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 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.
i. NLRA protects concerted employee activity, union or not. This may include
group protests.
ii. 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.”
1. 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.
iii. Good Faith of Employees – Relevant to whether their concerted activity is
protected. See NLRB v. Modern Carpet Indus., Inc. (10th Cir. 1979).
iv. 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).
v. Unprotected Concerted Activities – Those that are unlawful, violent, or in
breach of contract.
b. 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.
c. 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.
i. 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.”
1. Cause – Violence, threats, insubordination, and disloyalty. Vague
standards; require case-by-case analysis.
2. Definition of Labor Dispute – “Labor dispute” is defined by § 2(9) of the NLRA as any
controversy concerning terms, tenure or conditions of employment.”
a. 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.”
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i. No need to ask whether a walkout is reasonable. Employees have a statutory
right to engage in concerted group activity.
ii. Lack of reasonableness requirement shows why it was immaterial that employer
was trying to remedy the situation as the walkout happened.
Lifestyle
Chambers v. Omaha Girls Club, Inc. (8th Cir. 1987)
1. Disparate impact case.
2. 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:
a. Teenage pregnancy is contrary to the club’s purpose and philosophy;
b. Its purpose is to expose the girls to the greatest number of available positive options; and
c. Permitting an unmarried pregnant staff member would convey the impression that the
Girls Club condoned pregnancy without marriage.
3. Disparate-Impact Procedure
a. 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.”
b. 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.”
c. 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.”
4. 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.”
a. Standard of Review – Clearly erroneous.
b. Although validation studies can be helpful in evaluating such questions, they are not
required to maintain a successful business necessity defense.
5. BFOQ Defense to Disparate Treatment Claim
a. Extremely narrow exception to general prohibition of discrimination on the basis of sex.
b. “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.”
6. 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.”
 A weight loss center may refuse to hire an obese person.
 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).
 Employers Imposing Sexual Mores on Employees
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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.
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OCCUPATIONAL SAFETY & HEALTH
Jurisdiction
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).
Frank Diehl Farms v. Secretary of Labor (11th Cir. 1983)
a. ANALYSIS  Look at Condition of Employment Test and the court’s glosses on it.
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 Rejected – “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
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
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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.”
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.
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.”
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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.
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.
Exceptions to Warrant Requirement Under OSHA – Camera (U.S. 1967); See (U.S. 1967).
a. Consent;
b. Open view; and
c. Emergency.
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Possible Interpretations of Scope of OSHA Warrant
a. Narrow – Limited to working conditions of complaining employee.
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).
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.
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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.
56
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.
2. 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.
3. PDA does not require employers to provide reasonable accommodations to pregnant employees.
See Urbano (5th Cir. 1988).
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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.
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.”
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
58
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.”
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.
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.
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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
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
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. Plaintiff member of the class that the statute/regulation 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.”
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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.
1. Specific Duty – Imposed on employers to comply with the OSHA
regulations. § 654(a)(2).
2. Applies to covered employers, i.e., employer with control of the workplace.
(See above.)
3. “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.”
4. 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.”
5. 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.
6. “Once an employer is deemed responsible for complying with OSHA
regulations, it is obligated to protect every employee who works at its
workplace.”
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.
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.
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DISCHARGE
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.
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.
A prima facia case of reprisal for whistleblowing requires that the employee show:
1) He engaged in activity protected by the statute
2) He was the subject of adverse employment action, and
3) There was a causal link between the protected activity and the adverse employment action.
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.
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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.
 Some courts refuse to recognize a cause of action for whistleblowing absent a statutorily
conferred right. See Hostettler (S.D. Ind. 1985).
 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.
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.
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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.
Such an end-run around the at-will doctrine would eviscerate it altogether, and the Illinois
courts do not seem inclined to do so.”
2. 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
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
64
d.
e.
f.
g.
h.
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.”
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.
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.
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 employee 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.”
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.”
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.
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Modification of Contracts – Employee Handbooks
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.
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.
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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
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. 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.
3. 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.]
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.
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
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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.”
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.
2. 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.
3. Workers’ Compensation Statutes – Most provide that workers’ compensation shall be the
exclusive remedy for injuries arising out of the course of employment.
4. 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.
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.
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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?
i.
If you fight a discharge after it has occurred, relief may be a long way off. A
pre-discharge 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.
Fortune v. Nat'l Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977)
 Former salesman brought action against former employer to recover bonuses allegedly due to him
for sales made while he was employed by the former employer. The Superior entered judgment
on verdict in favor of former salesman and former employer appealed. The Appeals Court
reversed. The Supreme Judicial Court held that: (1) even though salesman's contract was
terminable at will, there was an implied covenant of good faith in the contract, and (2) evidence
sustained determination that employer had discharged the salesman in order to avoid paying
certain bonuses to the salesman.
 Is bad faith a jury issue in at-will employment contract? Fortune argues that, in spite of the literal
wording of the contract, he is entitled to a jury determination on NCR's motives in terminating his
services under the contract and in finally discharging him. We agree. We hold that NCR's written
contract contains an implied covenant of good faith and fair dealing, and a termination not made
in good faith constitutes a breach of the contract.
 Where the principal seeks to deprive the agent of all compensation by terminating the contractual
relationship when the agent is on the brink of successfully completing the sale, the principal has
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acted in bad faith and the ensuing transaction between the principal and the buyer is to be
regarded as having been accomplished by the agent.
- Can’t fire someone so as not to pay them all/part of a commission or other compensation.
Gardner v. Loomis Armored Inc., 128 Wash. 2d 931, 913 P.2d 377 (1996)
 Former employee brought action against former employer, making multiple claims,
including claim that he was wrongfully discharged in violation of public policy.
On certification from the United States District Court for the Eastern District of
Washington, the Supreme Court, held, as apparent matter of first impression, that
former employer violated public policy in discharging former employee for violating
company rule in order to save woman from life-threatening hostage situation.
 There was a clear rule, “Do not leave truck” which Gardner violated to help afemale
victim in a hostage situation. Policy to save human lives can override these rules.
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LEAVING A JOB
Breach of Implied Terms
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.
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
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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.
iv. Resulting damages.
Handicapped Children’s Board
 A health danger can excuse nonperformance, but if it was foreseeable or self inflicted it will not
excuse performance.
 If you breach the contract, and a replacement has to be hired but is more expensive, you will be
held liable for the difference.
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UNEMPLOYMENT
Plant Closings
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.
f. 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.
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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
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.
Jaime v. Director
If someone resigns with good cause attributable to the employer, they will be granted unemployment
benefits.
 Spanish speaking employee’s employer moved 16 miles away. She did not possess a car, but got
a ride with a coworker to work for a month. The coworker then quit and she had no way of
getting to work so she quit. She applied for unemployment insurance benefits.
 Unemployment act is “intended to benefit only those person who become unemployed through no
fault of their own.”
 Miniat (her employer) moving away and her not having any transportation was considered good
cause attributable to the employing unit.
 A “substantial, unilateral change in employment which renders the job unsuitable” may prevent
disqualification on voluntarily leaving one’s employment.
 Catching rides with her coworker was employee’s best attempt to continue working but the
burden otherwise would have been too great on the employee to continue to use public or other
transportation methods to get to work after the unilateral action by the employer.
 Good cause: real and substantial presume to terminate employment and which under the
circumstances would compel a reasonable person to act in the same manner.
 Can’t be an unwillingness to work. that would not be good cause.
 Attributable to the employer is one which is produced, caused created or is the result of the
actions of the employer and also includes inaction by the employer.
 A substantial unilateral change in employment which renders the job unsuitable may prevent
disqualification based on voluntarily leaving one’s employment.
Price v. Board
Even if fired you may still be able to collect unemployment insurance. To lose unemployment insurance,
there must be “misconduct connected with the work.”
 Misconduct is willful or wanton disregard on an employer’s interests as is found in deliberate
violations or disregard of standards of behavior which the employer had the right to expect of his
employee, or in carelessness or negligence of such degree or recurrence as to manifest equal
culpability, wrongful intent or evil design or to show an intentional and substantial disregard of
the employer’s interests or of the employee’s duties and obligations to his employer.
 Misconduct and good cause are not equivalent. Just/good cause can get you fired, but can receive
unemployment compensation.
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RETIREMENT
L.A. v. Manhart
 It is unlawful “to discriminate against any individual with respect to his compensation, terms,
conditions, terms, conditions, or privileges of employment because of such individual’s race,
color, religion, sex or national origin.”
 Even if as a class women do live longer, it is measured as each individual woman’s lifespan so
therefore cannot charge women more to pay into retirement/life insurance than men. These
classification based on sex are unlawful.
 Court must focus on fairness to individuals than classes.
Fleming v. Nestor
 Action to review decision of Secretary of Health, Education and Welfare terminating old-age
insurance benefits to which plaintiff had become eligible under the Social Security Act. The
United States District Court for DC, rendered summary judgment for plaintiff, and defendant
appealed. The Supreme Court held that history and scope of Social Security Act provision for
termination of benefits of aliens who are deported on certain grounds did not disclose such
unmistakable evidence of legislative intent to impose punishment for the grounds of deportation
as to constitute punishment without judicial trial, punishment by legislative act, or punishment for
past conduct not unlawful when engaged in.
 Want to keep social benefits for Americans in America.
Califano v. Goldfarb
 Social Security Act that required widower’s to be receiving 50% or more of support from former
wife was struck down as violating due process of law and equal protection since it treated men
and women differently since widows were not under same requirement to be receiving support
from their former spouse.
Vallone v. CNA.
 Healthcare benefits do not vest under ERISA, they are for healthcare not retirement.
 Ordinarily, a denial of ERISA benefits will be reviewed de novo unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan; if the plan's language indicates with the requisite if minimum
clarity that a discretionary determination is envisaged, then a denial of benefits will be reviewed
under an arbitrary and capricious standard.
 Employers are generally free under ERISA, for any reason at any time, to adopt, modify, or
terminate welfare plans; if ERISA welfare benefits vest at all, they do so under the terms of a
particular contract.
 Benefits for life does not necessarily mean for the rest of your life when there is a reservation of
rights clause in the contract.
 Vesting must be in writing, oral is not sufficient.
Larue v. De Wolff
 Under ERISA, cannot sue for damages but can sue for the money you are owed from your
retirement account if an investor screws up the investments/fails to take actions with investments.
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