Equality
• Canadian Charter of Rights
– Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of
the law without discrimination and, in particular,
without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
• US Constitution 14th Amendment
– No State shall . . . Deny to any person within its
jurisdiction the equal protection of the laws.
Equality
– Discrimination
• Means practices or attitudes that have, whether by
design or impact, the effect of limiting an
individual’s or a group’s right to the opportunities
generally available because of attributed rather than
actual characteristics
• It is not a question of whether this discrimination is
motivated by an intentional desire to obstruct
someone’s potential, or whether it is accidental
Employment Discrimination
• Title VII 1964-amended 1991
• Prima Facie Case
– Applied for position
– Qualified for position
– Rejected
• Burden shifts to employer after PF case
– Legitimate nondiscriminatory reason
Proving Discrimination
• Individual Disparate Treatment
– McDonnell Douglas 1973
– Burdine 1981
– Hicks 1993
• Abandon this structure?
• Disparate Impact
• Reasonable Accommodation
Price Waterhouse v. Hopkins
• Sex-Stereotyping case
• Congress responds to this case in the 1991
amendments
– Gender a motivating factor-mixed motives
– R’s burden to prove it would take the same step
in the absence of the illegal motive
– R is liable for an award that does not benefit the
individual plaintiff - even though it would have
taken the same action anyway
BFOQ Defense
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Age for airline pilots?
Lifting requirement for firemen?
Religion requirement for salespeople?
Protecting from harm?
– UAW v. Johnson Controls (1991)
Equality
• Identical treatment may frequently produce
serious inequality
– The goal is not to treat everyone the same, e.g. a
pregnant woman and a man
– The goal is to avoid imposing penalties on one person
or group obligations, penalties, or restrictive conditions
not imposed on other members of the community
Equality
• 31 million women work outside the home
– 78% dead-end jobs – clerical, service, factory,
sales
– 17% non-college teacher or nurse
– Less than 5% are “professional”, physician,
lawyer, engineer, scientist, college professor,
etc.
Equality
• Women and Men with genius IQ levels, >151
– 86% of men became professionals
– Less than 50% of the women ever worked
• Of those, 37% nurses, librarians, non-college teachers
• Only 11% were lawyers, drs, professors, scientists
• Being female uniquely qualifies you for domestic
work
– We can predict that women will spend the equivalent of
a full working day, 7.1 hours preparing meals, cleaning
house, laundering, mending, shopping
Reasonable Accommodation
Reasonable Accommodation
• Definition of disability:
– Physical or mental impairment
– That substantially limits
– Major life activities – walking, seeing, hearing,
speaking, breathing, learning, working (509)
Reasonable Accommodation
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Who should initiate the conversation?
Who should bear the cost?
Do the facilities need to be exactly equal
Working on Saturdays?
Pregnancy Discrimination
• Can a state go farther than the federal
government in protecting against
discrimination?
• 701(k) An employer must treat pregnancy
the same way they treat other types of
temporary disabilities.
• Fleming v. Ayers & Associates, 948 F.2d
993 (6th Cir. 1991)
Sexual Harassment
• Quid pro quo
• Hostile environment
Sexual Harassment
• Hostile Environments
– Discrimination based on sex creating a hostile
or abusive work environment
– A reasonable person subjected to the
discriminatory conduct would find that the
harassment so altered working conditions as to
make it more difficult to do the job
Sexual Harassment
• Can we transform Title VII into a general
civility code for the American workplace?
– Same sex harassment
– Sexual orientation harassment
• 13 states prohibit
– Racial harassment
– Physical appearance harassment
Age Discrimination
Affirmative Action
• The Nation was concerned about centuries of
racial injustice and intended to improve the lot of
those who had ‘been excluded from the American
dream for so long’
• The plan did not create an absolute bar to the
advancement of white employees
• Not a mandate to fire white employees
• A temporary measure
• Johnson v. Transportation, 1987
Affirmative Action
• Dissent: Racial or sexual discrimination is
permitted under Title VII when it is
intended to overcome the effect, not of the
employer’s own discrimination, but of
societal attitudes that have limited the entry
of certain races, or of a particular sex into
certain jobs
Affirmative Action
• Remedial purpose
• Diversity?
• Law school admissions
– At UCLA minorities accepted fell 80% between
1996 and 1997 104->21 8 enrolled
– Berkely 74->15 1 enrolled
• Symbolic importance
Duty of Loyalty and Trade
Secrets
• General or Specific job training
• Competitive market with many bidders
• Non-compete clause protects the investment and
employer makes in training an employee about
trade secrets
• Training creates an incentive for opportunistic
behavior
• The contract creates an incentive for employer to
behave opportunistically
Duty of Loyalty and Trade
Secrets
• Uniform Trade Secrets Act – 41 states
• California (again) is different
• Lawsuits are uncommon because they hurt
recruiting efforts
• High employee mobility, high information
spreading, low litigation and rapid
economic growth
Duty of Loyalty and TS
• No compensation for any period in which
you are breaching
• ABC reporters at Food Lion?
Enforcement of Noncompetition
Clauses
• Thirteenth Amendment problems
• Recruitment and initial training costs
– 1979 Survey $2K/office worker
– $3,500/production worker
– $10,000 for salary-exempt workers
Taking Customers and
Employees
• Misappropriation of TS
– Unjust enrichment by improper appropriation
– Use or disclosure of a TS
• Define TS – Customer database
• Take reasonable steps to protect
• Defense: Fair Competition
Trade Secrets in Information
• Remedy: Preliminary Injunction
• UTSA or common law
• Federal Trade Secret protection
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Broader definition
Up to $500,000 in fines
Up to 15 years in prison
Up to $10 million in fines for organizations
Additional charges? Wire, mail fraud
Enforcement of
Noncompetition Clauses
• General knowledge, skill acquired through
training or experience belong to the
employee.
• The risk of future competition falls upon the
employer
• An employer cannot by contract prevent the
employee upon termination of employment
from using their skills
Enforcement of
Noncompetition Clauses
• Employer must prove it is specific/ts/special
circumstances, not general knowledge
• Recouping costs of general training does
not justify a noncompete clause
• James Brown? Albert Einstein?
• Recover training expenses
• Oral promises admissible as evidence?
• Consideration problems?
Enforcement of
Noncompetition Clauses
• Karpinski v. Ingrasci NY 1971”never
practice dentistry and/or Oral Surgery in 5
counties except a) in association with the
plaintiff or b) the plaintiff terminates the
agreement and employs another oral
surgeon
• $40,000 note payable to plaintiff if he
violates the NC clause
Enforcement of
Noncompetition Clauses
• Public policy militates against the loss of a
person’s livelihood
• 5 small rural counties were ok, in a different
circumstance, 1 or 2 counties would not be
ok with the court
• Unlimited time is never allowed
• Dentistry/and or oral surgery?
Enforcement of
Noncompetition Clauses
• Lifetime Worldwide bans?
• Economics questions – do we prevent
resources from moving to where they would
be most valuable?
• Fact specific questions
• 3 answers: Rewrite, Blue Pencil, Strike
down
Enforcement of
Noncompetition Clauses