Jody Blanke, Professor
Computer Information Systems and Law
Mercer University, Atlanta
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Employment Law
 Primarily state law
 varies from state to state
 A good bit of federal law, too
 mostly discrimination law
At-Will Employment
 Generally, an employee
 can be fired for good reason

“You’ve been stealing from us. You’re fired!”
 can be fired for “no” reason

“I don’t like the color of your shoes. You’re fired!”
 cannot be fired for bad reason

“You’re black. You’re fired!”
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At-Will Employment
 Wrongful discharge exceptions
 vary greatly by state
 1. Public policy exceptions


e.g., whistleblower statutes
recognized by 43 states
 2. Implied contract exceptions


e.g., employee handbooks
recognized by 37 states
At-Will Employment
• 3. Implied covenant of good faith and fair dealing
exceptions

recognized by 11 states
 Six states recognize all 3 exceptions

Alaska, California, Idaho, Nevada, Utah, Wyoming
 Four states recognize none of the exceptions

Florida, Georgia, Louisiana, Rhode Island
Employment Discrimination
 Civil Rights Act of 1866
 Title VII of the Civil Rights Act of 1964
 Age Discrimination in Employment Act of 1967
(ADEA)
 Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA)
 Immigration Reform and Control Act of 1986 (IRCA)
 Americans with Disabilities Act of 1990 (ADA)
 Genetic Information Nondiscrimination Act of 2008
(GINA)
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Title VII
 Prohibits discrimination on the basis of:
 Race
 Color
 Gender
 Religion
 National origin
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Title VII
 For purposes of making decisions regarding:
 Hiring
 Firing
 Training
 Discipline
 Compensation
 Benefits
 Classification
 Other terms or conditions of employment
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Title VII
 Applies to all public (federal, state and local) and
private employers with 15 or more employees
 Covers all levels of employees (managerial and hourly)
 Exemption - permits religious institutions and
associations to discriminate when performing their
activities
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Hosanna-Tabor Church v. EEOC (2012)
 The Supreme Court recognized a “ministerial exception” to employment
discrimination laws
 A teacher taught mostly secular subjects, but also taught religion classes and
attended chapel with class (about 45 minutes per day)
 “The Establishment Clause prevents the government from appointing ministers
and the Free Exercise Clause prevents it from interfering with the freedom of
religious groups to select their own.” Majority – Roberts.
 “The question whether an employee is a minister is itself religious in nature”
and should be left to the religious group. Concurrence – Thomas.
 It would be a mistake to focus on the term “minister” because many religions do
not use it. Rather, the exception “should apply to any ‘employee’ who leads a
religious organization, conducts worship services or important religious
ceremonies or rituals, or serves as a messenger or teacher of its faith.”
Concurrence – Alito and Kagan.
Filing Claims under Title VII
 Employee files a claim with the EEOC
 EEOC notifies the employer
 Title VII includes antiretaliatory provisions
 Mediation
 EEOC investigation
 No-Reasonable-Cause Finding
EEOC issues employee a right-to-sue letter
 Exhaustion of administrative remedies
 Reasonable-Cause Finding
 Conciliation
 Civil suit filed in federal district court

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Theoretical Bases for Title VII
Lawsuits
 Disparate Treatment
 Disparate Impact
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Disparate Treatment
 Employee’s Prima Facie Case:
 Employee is a member of the class of persons protected
by Title VII,
 Employee applied for and was qualified for a job for
which the employer was seeking applicants,
 That despite these qualifications, employee was rejected,
and
 After this rejection, the position remained open and the
employer continued to seek applicants with those same
qualifications.
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Disparate Treatment
 Employer’s Defense:
 Employer can defend by showing that it had a
legitimate, nondiscriminatory reason for its decision.
 Employee’s Counter:
 Employee must prove that the grounds offered by the
employer were merely a pretext for its actions and that
discrimination was the real reason.

e.g., McDonnell Douglas Corp. v. Green (1973)
 Black civil rights activist protested after being laid off and was
not rehired when new position became available. Supreme
Court remanded case to give Green a chance to prove pretext.
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Disparate Treatment
 Employer may defend by showing that there is a bona
fide occupational qualification (BFOQ)
 Available only in cases involving gender, religion and
national origin (not for race or color).
 Some circuits use a two-step test:


Does the particular job require that the employee be of one
gender only, and if so
Is that requirement reasonably necessary to the “essence” of the
employer’s business?
 e.g., flight attendants at Southwest Airline? No
 e.g., bunnies at Playboy Clubs? Yes
 e.g., servers at Hooters? No
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Disparate Impact
 Discrimination can be established by proving that an
employment practice, although neutral on its face,
disproportionately affects a protected group in a negative
way.
 Courts have determined the that the following screening
devices have a disparate impact:
 Educational requirement – race, e.g., Griggs v. Duke Power (1971)
 Credit status – gender, race
 Arrest record – race
 Unwed pregnancy – gender, race
 Height and weight requirements – gender, national origin
 Marital status – gender
 Conviction of crime unrelated to job performance - race
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Disparate Impact
 The Four-Fifths Rule is a rule of thumb that permits a 20%
margin between the outcomes of the majority and the
minority under a given screening device
 i.e., disparate impact is statistically demonstrated when the rate for
a protected group is less than 80% (or four-fifths) of the higher
scoring majority group
 Employer can rebut the employee’s prima facie case by
showing the existence of a business necessity
 e.g., requirement of credit history may result in fewer women hired,
but handling large sums of money may warrant credit check
 Employee would then have to prove that there is a means of
addressing the issue that has less of an adverse impact
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Sexual Harassment
 Quid Pro Quo Harassment
 Employee is required to engage in sexual activity in
exchange for promotions, raises or continued
employment
 Hostile Environment Harassment
 The harassment is unwelcome activity
 The harassment is based upon gender
 The harassment is sufficiently severe or pervasive to create an
abusive working environment
 The harassment affects a term or condition of employment
 The employer had actual or constructive notice of the hostile
environment and took no prompt or adequate remedial action
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Employer Liability
 Employers are vicariously liable under the doctrine of
respondeat superior for all torts committed by
employees acting within the scope of employment.
 Employers may also be liable for torts committee by
employees not working within the scope of
employment if
 the employer intended the conduct,
 the employee’s high rank makes him the employer’s alter ego,
 the employer was negligent, or
 the employee was aided in accomplishing the tort by the existence
of the agency relation.
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Employer Liability
 Employers are strictly liable for quid pro quo sexual
harassment, i.e., when there are tangible employment
actions taken.
 Employers are not strictly liable if there is no tangible
employment action.
 In these hostile environment cases, the employer can
use the Faragher/Ellerth defense to show that it had a
reasonable antidiscrimination policy in place, but that
the harassed employee unreasonably failed to use it.
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Faragher v. Boca Raton (1998)
 Supreme Court found the city (employer) liable for the
sexual harassment of its lifeguard supervisors.
 Court held that while the city had available to it an
affirmative defense to show that it exercised
reasonable care to prevent and correct promptly any
sexually harassing behavior, it had failed to do so as a
matter of law.
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Burlington Ind. v. Ellerth (1998)
 Supreme Court held that employer might be liable for hostile work
environment, but should have an opportunity to prove that employee
unreasonably failed to take advantage of employer’s complaint
procedure.
 Employee suffered no tangible employment action (and was even promoted
during her employment).
 Employee worked for employer for about 15 months, but didn’t report the
harassment until a few weeks after leaving.



Her supervisor had made remarks about her breasts, had told her top “loosen up”
and warned, “you know, Kim, I could make your life very hard or very easy at
Burlington.”
He told her she was not “loose enough” and reached over and rubbed her knee.
He responded to a job-related question from her, “I don’t have time for you right
now, Kim – unless you want to tell me what you’re wearing.” A couple of days
later, he again responded, “are you wearing shorter skirts yet, Kim, because it
would make your job a whole heck of a lot easier.”
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Policies
 It is important to have a policy
 It is important to inform employees
about the policy
 It is important to enforce the policy
Ricci v. Destefano (2009)
 The City of New Haven gave firefighter exams in 2003
 Of the 77 candidates for lieutenant, 25 of the 43 white
candidates, 6 of the 19 black candidates, and 3 of the 15
Hispanic candidates passed the exam.
 Of the 41 candidates for captain, 16 of the 25 white
candidates, 3 of the 8 black candidates, and 3 of the 8
Hispanic candidates passed the exam.
 Applying the City’s “rule of three,” all of the top 10
candidates for lieutenant were white, and 7 of the top 9
candidates for captain were white, while the other 2 were
Hispanic.
 The City decided not to certify the exam results.
Ricci v. Destefano (2009)
 Supreme Court held that New Haven engaged in “express,
race-based decisionmaking,” i.e., disparate treatment, by
failing to certify the exams.
 The Court stated that the City’s action might have been
justified if there was a strong basis in evidence of a
disparate impact, but that was lacking as there was no
dispute that the exams were job-related and consistent with
business necessity (nor was there presented a less
discriminatory testing alternative).
 The Court did not address the Equal Protection claims.
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Other Harassment
 Hostile environment harassment claims under Title
VII on the basis of race, color, national origin or
religion are also evaluated by looking at the totality of
the environment.
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Age Discrimination
 Age Discrimination in Employment Act (ADEA)
 applies to all public and private employees with at least
20 employees
 covers employees aged 40 and above.
 While enforced by the EEOC, it differs from Title VII
 More lenient regarding adverse employment decisions – employer
can rebut a prima facie case by showing any “reasonable factor other
than age.”
 An action is not barred if another protected member is treated
better, e.g., an action by a 62-year old is not barred because the
replacement was a 55-year old
 No protection form “reverse discrimination” for those under 40
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Age Discrimination
 Prima facie case:
 Employee is in protected class
 Employee was terminated or demoted
 Employee was performing job well enough to meet employer’s
expectations
 Others not in the protected class were treated more favorably.
 Employer’s Defense – Bona Fide Occupational
Qualification (BFOQ)
 Age limit is reasonable necessary to essence of employer’s business
 All or substantially all of the individuals over that age are unable to
adequately perform the job requirements , or
 Some of the individuals over that age possess a disqualifying trait
that cannot be ascertained except by reference to age
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Disability Discrimination
 The Americans with Disability Act (ADA) prohibits
employers from discriminating against a qualified
individual with a disability with regard to application,
hiring, advancement, discharge, compensation and
training.
 The ADA requires employers to make “reasonable
accommodations” for requesting employees who have
a “physical or mental impairment that substantially
limits a major life activity.”
 The ADA applies to all private employers with 15 or
more employees.
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Definition of Disability
 Very broad definition, but does not include
 Morbid obesity (unless the result of a physiological condition)
 Lack of an education
 Having a prison record
 Specifically excluded under ADA:






Homosexuality
Bisexuality
Sexual-behavior disorders
Compulsive gambling
Kleptomania
Pyromania
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Reasonable Accommodation
 The ADA requires employers to make reasonable
accommodations as long as doing so does not cause
the employer “undue hardship.” This includes:
 Making work facilities accessible
 Restructuring jobs or modifying work schedules
 Reassigning individuals to other jobs
 Acquiring or modifying equipment or devices
 Modifying examinations, training materials, or policies
 Providing qualified readers or interpreters
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Employer Defenses
 Undue Hardship
 The ADA defines an undue hardship as an activity requiring
significant difficulty or expense in light of a variety of financial,
logistical and other factors.
 Business Necessity
 Tests and standards may be acceptable under the ADA if they are
related to the job and consistent with business necessity.
 Permissible Exclusion
 A disabled person may be excluded from an employment
opportunity only if, by reason of the disability, he or she (with or
without reasonable accommodation) cannot perform the essential
functions of the job or if the individual’s employment poses a
significant risk to the health or safety of themselves or others.
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Equal Protection
 Can a state ever pass a law that treats black people
differently than white people?
Rational Basis Test
Intermediate Scrutiny
Strict Scrutiny Test
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Equal Protection
 Rational Basis Test
 applies if no suspect class or fundamental liberty interest
is involved
 i.e., a good reason
 State v. Ri-Mel (1987)

Minnesota required all for-profit health clubs to post a bond –
no such requirement for not-for-profit health clubs
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Equal Protection
 Strict Scrutiny Test
 applies if a suspect class or fundamental liberty interest is
involved, e.g., race or religion
 there must be a “compelling state interest”
 i.e., a very, very, very good reason
 Affirmative action
 Grutter v. Bollinger (2003) – U. Mich. Law School
 Gratz v. Bollinger (2003) – undergraduate
 Fisher v. University of Texas (2013) (see below)
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Equal Protection
 Intermediate Level Scrutiny
 applies to protected class, i.e., not quite a suspect class, e.g.,
gender or age
 classification must be “reasonably related” to legitimate
government purpose
 i.e., a very, very good reason
 Craig v. Boren (1976)
 Oklahoma law prohibited the sale of 3.2% beer to males under
21 and females under 18
 .18% of females and 2% of 18-20-year olds were arrested for
DUI
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Fisher v. Univ. of Texas (2013)
 7-1 majority remanded the case for further review
under a more demanding standard that will require
colleges and universities to demonstrate that
“available, workable race-neutral alternatives do not
suffice” before taking account of race in admissions
decisions.
Fisher v. Univ. of Texas (2013)
 Justice Kennedy’s majority oopinion:
 “Strict scrutiny does not permit a court to accept a
school’s assertion that its admissions process uses race
in a permissible way without a court giving close analysis
to the evidence of how the process works in practice.”
Fisher v. Univ. of Texas (2013)
 Justice Thomas’s concurring opinion:
 “Grutter was a radical departure from our strict-scrutiny precedents. In
Grutter, the University of Michigan Law School (Law School) claimed that
it had a compelling reason to discriminate based on race. The reason it
advanced did not concern protecting national security or remedying its
own past discrimination.”
 “Contrary to the very meaning of strict scrutiny, the Court deferred to the
Law School’s determination that this interest was sufficiently compelling to
justify racial discrimination.”
 “I would overrule Grutter and hold that the University’s admissions
program violates the Equal Protection Clause because the University has
not put forward a compelling interest that could possibly justify racial
discrimination.”
Fisher v. Univ. of Texas (2013)
 Justice Ginsburg’s dissenting opinion:
 “The Court rightly declines to cast off the equal protection
framework settled in Grutter. Yet it stops short of reaching the
conclusion that framework warrants. Instead, the Court vacates the
Court of Appeals’ judgment and remands for the Court of Appeals
to ‘assess whether the University has offered sufficient evidence [to]
prove that its admissions program is narrowly tailored to obtain the
educational benefits of diversity.’ As I see it, the Court of Appeals
has already completed that inquiry. . . . For the reasons stated, I
would affirm the judgment of the Court of Appeals.”
Schuette v. Coalition to Defend
Affirmative Action (2014)
 In a 6-2 decision the Supreme Court upheld
Michigan’s constitutional ban (approved by 58% of the
voters in 2006) prohibiting discrimination or
preferential treatment in public education,
government contracting and public employment.
Justice Kennedy (joined by Justices Roberts and Alito)
wrote “There is no authority in the Constitution of the
United States or in this court’s precedents for the
judiciary to set aside Michigan laws that commit this
policy determination to the voters.”
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Schuette v. Coalition to Defend
Affirmative Action (2014)
 Justice Breyer (concurring) wrote “I continue to believe
that the Constitution permits, though it does not
require, the use of the kind of race-conscious
programs that are now barred by the Michigan
Constitution.”
 Justice Sotomayor (with Justice Ginsburg) dissented,
“The way to stop discrimination on the basis of race is
to speak openly and candidly on the subject of race,
and to apply the Constitution with eyes open to the
unfortunate effects of centuries of racial
discrimination.”
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