Threshold Issues:
At-Will v. Contractual
At-Will EE’s not covered unless “wrongful termination”
“Termination” – applies only to discharges (ER’s can do whatever they want in choosing/promoting
“Wrongful” – can’t be fired for refusing to obey illegal rule, Whistle blowing, etc.
Modern Contract Doctrines are applied to “at-will” employment
Often times, courts will find an ER-EE relationship even if ER says it’s “at-will”
ER really has to be clear that the employment is “at-will” or else courts will consider them ER’s, subjecting them to the discrimination statutes
Number of employees:
Title VII, ADA: ER = 15+
ADEA: ER = 20+
Independent contractors, shareholders, managing partners, and corporate directors are not counted
In many states, small employers can discriminate all they want!
c. Scope
i. The statutes reach:
1. Failure to hire
2. Discharge
3. Discriminating “against any individual with respect to compensation, terms, conditions or privileges of employment.”
a. Statutory language “not limited to economic or tangible discrimination, but strikes at the entire spectrum of disparate treatment.” Meritor Savings Bank v. Vinson.
ii. Statute does not reach:
1. Actions taken by ER not directed towards employment, such as investment decisions, treatment of shareholders, plant location, and product marketing.
2. Independent contractors (but if ER has high level of control over contractor, could be considered EE)
iii. The statutes do NOT:
1. Require employers to act fairly or rationally. No matter how arbitrary or mistaken a decision, the law does not interfere unless the action is “because of”: 1) race; 2) color; 3) religion; 4) sex; 5) national origin; 6) age; or 7) disability.
2. Prohibit transferring EE to different location if salary, benefits, etc. are the same.
3. Prohibit granting unfavorable evaluations if they don’t result in any tangible action based thereon.
Constitutionality
11th amendment – Can’t sue a state for employment discrimination unless for race, national origin, and sex
Supremacy Clause – no issue when states raise the minimum standards that the Federal Government requires
1st Amendment
Freedom of religion
Religious institutions can discriminate based on religion
Secular ER may not use his personal religion as basis
Freedom of association
State could not compel Boy Scouts to accept homosexual because it violates the organization’s 1st Amendment right to “expressive association.”
Civil Rights act of 1964
Title VII is the employment section
“Discrimination Because of:” Basic Models of Proof
Facial Classifications
Equal Treatment Principle
Individual v. Class
Defendant’s motive is KEY
Focus is on treatment of the individual.
Paying a woman less, even though it is because they’re taking out more from her pension because she’s likely to live longer, is still disparate treatment, even though the impact is the same.
Sex/Race + Legitimate Factor is still discrimination
Good Cause – Title VII implicitly allows employer to discharge/discipline for good cause, but the ER must apply it equally to all EE’s. Differences in punishment cannot be based on race/sex
Good Faith – even if discriminatory action done in good faith, a violation has nonetheless occurred.
Defenses
BFOQ
Generally: Title VII [42 USCA 2000e-2(e)] says not unlawful to hire on basis of religion, sex, or national origin when it is a BFOQ reasonably necessary to the normal operation of that particular business/enterprise
“sex” includes pregnancy/childbirth
Defendant has burden of establishing elements
It is narrow and strictly construed
Elements:
“Business”: BFOQ only allows use of sex, national origin, religious or age qualifications that affect an employee’s ability to do the job. The defense cannot be invoked to justify broader societal goals, such as protecting the health of unborn children. UAW v. Johnson Controls.
“Essential”: “all or reasonably all” members of the excluded class cannot safely and effectively perform job duties “essential” for the safe and effective operation of the ER’s business. An inability of the excluded class to perform peripheral, or non-essential, duties does not meet statutory standard.
e.g., “a soothing atmosphere” is tangential to the primary duty of flight attendants
Other considerations:
“Costs”: F
That it is impracticable to reduce this risk to acceptable levels through individual evaluations of fitness. Western Air Lines v. Criswell.
Affirmative Action
“Voluntary Affirmative Action”: to prevail, Plaintiff must prove that plan does not meet Weber standards:
Justification: private ER’s may adopt AA plans only to remedy “conspicuous imbalances in traditionally segregated job categories.” “Imbalance must be based on a documented comparison of workers in relevant job categories of ER to % of minorities/women in the area work force qualified to hold the jobs.
Reasonableness: plan must be fixed, detailed, and should be written.
Must be more than ER’s general desire to increase diversity.
Plans must set a goal in terms of % where ER’s workforce would roughly equal racial/gender make-up of qualified population.
Goal that exceeds % of qualified women and minorities in surrounding workforce area is unreasonable.
Plan directing decision-makers to consider race/sex of applicant in under-represented group as a “plus” factor in selecting between qualified applicants UPHELD. Johnson v. Transportation Agency.
Unreasonable if hires minority applicants who can’t perform job duties.
Temporary: because it is remedial in nature, it must necessarily be temporary. Continued use will create an improper quota. Johnson v. Transportation Agency.
Government ER’s: subject to Title VII AND Constitutional Equal Protection.
