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Employment Discrimination
Temple University School of Law
Duru, N. Jeremi

Closed Book Exam – 3 hours – 2 questions – look at comments on blackboard

I. Employment Law in the US
· No pervasive scheme for regulating employment law at state or federal level
· Most work is at-will (fire for no reason or any reason)
People have very few job rights – yet work is extremely important – identity shaping & source of livelihood

· Restrictions on at-will employment
1) Employment K (usually only upper level white collar executives)?
a) Terms of K à breach?
2) Covered by union K?
a) Usually provides for no unjust dismissal + procedure for challenging dismissal — final step = binding arbitration by a neutral arbiter
3) Public or private employer?
a) Public Employer
Statutory Protections
1. State civil service laws
Constitutional Protections
1. Due process: notice and hearing
2. Equal protection
3. 1st A freedoms of expression and association
4. 4th A unreasonable search and seizures
Case Law
1. Potential property right in your job
2. Possible liberty interest in not having false statements made by your employer in connection with your discharge
b) Private Employer
i. Statutory Protections limiting the employer’s freedom to fire
2. Whistleblower laws
3. Anti-Discrimination
a. Title VII – race, color, religion, sex and national origin
b. ADA – disability
c. ADEA – age
d. PDA – pregnancy
e. Some state statutes – Marital status and sexual orientation
4. OSHA – Occupational Safety and Health Administration – Enforces rules for workplace safety and health (preventative measure)
ii. Employment policies – announced orally or in a handbook/manual
1. May function as an implied K
iii. Judicial limitations on employment at will
1. Public policy exception – where termination offends some public policy (e.g. for refusing to break the law)
a. Does not apply to discharges for conduct outside the employment relationship by someone else (see Bammert – employee fired in retaliation for husband’s participation in owner’s wife’s arrest)
2. Breach of the implied covenant of good faith and fair dealing

· Causes of Action

Breach of K: Limited to K damages
Tort*: Punitive, pain and suffering, and emotional distress damages available

Invasion of Privacy & IIED – Take a lot to make out
Defamation (libel/slander), negligent hiring, supervision or retention – Good ones
Assault, battery (in sexual harassment cases)

Criminal – Violation of criminal code

· 3 Major Points in the Employment Process

Hiring – least protection (you have no stake in your job yet)
On the Job – includes promotion, transfer and recall (more like hiring or firing?; Rutan – Brennan argues firing)
Firing – gets the most protection of the 3 areas – there is a lot more at stake in losing a job than getting hired

Exception: Civil Rights Laws – the same law applies whether you’re talking about hiring, on the job or firing

II. The Development of Employment Law

· Employment At Will – Introduced by Wood’s 19th Century Hornbook (even though he misstated the law)
An employment agreement of unspecified duration is presumed to be terminable without penalty or notice by either party for any or no reason; employers must take their jobs on the terms, which are offered them
No statutory paid holidays or vacations
No statutory severance pay or sick Pay
No mandatory medical insurance
These things are commonplace in other industrialized countries
Trend toward employer dominance – Courts have cut back on exceptions to employment at will

· Shift from common law àstatutory law over the years
1935: Wagner Act (NLRA) – Right to unionize and collectively bargain (wages, hours, terms, employment conditions)
1938: Fair Labor Standards Act – Set minimum wage, required higher pay for overtime and prohibited child labor (but there are exclusions)
1947: Taft-Hartley – Pro-Management – Gave employees the right to refrain from union activities
1964: Civil Rights Act (Title VII) – Prohibits discrimination in employment
1970: OSHA – Enforces safety and health regulations on the job to prevent work related injuries, illnesses and deaths
1974: ERISA – Establishes minimum standards for pension plans and protects employee benefit plans by requiring

· Employees v. Independent Contractors (IC’s)
Generally, employees are subject to the employer’s control, whereas independent contractors operate independently
There is no exact definition of employer – a lot of statutes use circular definitions
Employers will push to make people either employees or IC’s, depending on which is better for them, where there are differences:
Injury on the job – Employees limited to worker’s comp; IC’s can sue in tort
Benefits – Employees are eligible; IC’s are not
Torts – Employers are vicariously liable for the torts of their employees, but not those of IC’s

µ Lemmerman v. A.T. Williams (1986)
Facts: Slip and fall case where a boy regularly did odd jobs at a grocery store; employer wants him to be an employee, so that he’s covered by Worker’s Comp; kid wants to be an IC to sue in tort.
Holding: Court finds that he’s an employee.
Rationale: Boy expected payment for his work AND his supervisor had the authority to hire and fire him – but Boy was illegally hired – this ruling does nothing to further the goals of workers comp or deterring child labor – the employer gets off cheap.
Notes: Mixed case law on whether illegally employed minors should be limited to worker’s comp or able to receive damages.

B. Sources of Employment Law
1. Civil Service/Public Employment
µ McAuliffe v. Mayor & City of New Bedford (1892) – At-will doctrine applied to public employment
Facts: Cop removed from office as a policeman b/c he served on a political committee in violation of police rules sued under the 1st A (violation of his freedoms of speech and association)
Holding: The mayor had authority to fire P for violation of this rule.
You may have a 1st A right as a citizen to discuss politics, but you’ve got no right to be a cop
P took the employment on the terms offered, and the city can impose reasonable conditions on employment (including EE’s speech).

· Civil Service Laws – Controls on selection procedures for government jobs – Reaction to the patronage system under which a newly elected official could dole out positions to his political supporters
Merit selection – Employer wants to choose best employee for job
For what job is the employer hiring?
What skills, training, education, aptitude needed?
Which person best exemplifies required skills?
Political neutrality
Government efficiency
Job security (more than private sector)
Prohibit discrimination

µ Rutan v. Republican Party (1990, Brennan)
Facts: P filed suit against Governor of IL for putting a freeze on hiring public employees but routinely authorized hiring exceptions for the benefit of his party.
Holding: Promotion, transfer, recall and hiring of low-level public employees may not be constitutionally based on party affiliation and support.
Patronage practices are against the 1stA unless they are narrowly tailored to further vital government interests (e.g. limited to certain high level positions).
This decision extended Elrod and Burns, which held that 1st A prohibits firing based on party affiliation, to promotions, transfers, etc. – Brennan argued that deciding these things based on political party is just as bad.
Reasoning: There are less restrictive means of ensuring that the government has effective and efficient employees than using the patronage system.
Dissent: Patronage preserves democratic process and the 2-party system by getting support for party thru appointments; decision is too drastic; promotion, transfer, recall and hiring should be treated differently from firing.

2. Collective Bargaining
· Bargaining between the employer and employee about decisions concerning wages, hours, and work conditions
Takes place in bargaining units comprised of employees at a single plant with similar wage scales, hours, job responsibilities and working conditions (e.g. all the secretaries in an organization)
A majority (more than 50%) of the workers in a unit must decide they want a labor union
If 30% of the employees in a bargaining unit sign cards authorizing a particular union to represent them, the NLRB will conduct a representation election
If the union loses, another election cannot be held for 1 year; if t

State Laws – Almost every state has enacted some form of statutory protection for whistleblowers
Different statutory schemes:
Employee must either 1) have reasonably believed that something the employer told him to do was illegal, 2) be right that it was illegal or 3) have acted in good faith
Some states are very stingy with definitions of employee at will and the reading of their whistleblower statute.

2. Constitutional Protections (usually only apply to public employers)
· 14th A Due Process Clause – If a person has a protected liberty or property interest it cannot be taken away absent due process.
· 7 states recognize a constitutional Right of Privacy, which could be violated by public and private employers – but we don’t know whether this theory will be accepted in a wrongful discharge case.

µ Goetz v. Windsor School District (1983)
Facts: A cleaner for the school district was fired w/o an opportunity to be heard after being charged w/ burglary for stealing from the school; D claims he has deprived of liberty and property interests w/o due process.
No property interest in the job from the Constitution – must be created by law or agreement (express or implied) with the employer
Liberty interest = right to engage in common occupations of life and to enjoy privileges as recognized as essential to the orderly pursuit of happiness (e.g. in one’s good reputation and freedom to work)
Usually recognized in
Protected in the form of notice and opportunity to be heard (prior to termination)
D claims he was deprived of his liberty interest in his good reputation when the employer created and disseminated false statements; further he was denied a name-clearing hearing
Case is remanded to determine whether D stole and whether the employer disseminated false info.
Roth – Sup. Ct. recognized a property interest in employment for government employees sufficient to invoke the DPC where contractual or statutory provisions guarantee continued employment absent “sufficient cause for discharge.
Sinderman – A de facto system of tenure is sufficient to create a property interest in the job.
However, a unilateral expectation of continued employment on the employee’s part does not create a property interest.

3. Statutory Contracts – The Montana Exception
· Montana = Only state with a comprehensive Wrongful Discharge Act
Prohibits employers from firing employees without “good cause” (legitimate business reason) or in violation of a public policy or express provision of the employer’s own written personnel policy
You can get up to 4 years’ lost wages & benefits + punitive damages in some cases (cap on damages)
Enforcement Problem: Only minimal provisions requiring payment for the attorney – If the amount of money a successful P will get is minimal, they won’t be able to find a lawyer to take the case

µ MARCY V. DELTA AIRLINES (1999) – Employee made a mistake on her time cards and got $250 more than she should have; employer made an example out of her and fired her.
Holding:Montana Wrongful Discharge Act provides a cause of action for an employee discharged based on mistaken facts, but in good faith.
The employer’s legitimate business reason for firing the employee has to be right, or the employee has a cause of action (scary standard for employer)
Here there is a genuine issue of fact on whether Marcy acted intentionally.