Employment Law

Teaching

area where on both sides you don't want at will. Schools don't want you to suddenly leave.

Cases in which violations of public policy are found generally fall into 4 categories:

1. refusing to violate a statute. 2. performing a statutory obligation 3. exercising a statutory right or privilege and 4. reporting an alleged violation of a statute of public importance

Public policy of foreign country

A new Jersey employee was permitted to allege that he was discharged in retaliation for objecting to excessive levels of benzene in gasoline produced and sold by the employer's subsidiary in Japan and in violation of Japanese law.

Unequal burdens

Where grooming and appearance policies are reasonable and are imposed in an even handed manner on all employee's, slight differences in requirements for men and women have only a negligible effect on employment. Thus, when an employer's grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate T7.

Woolley issue

Whether certain terms in a company's employment manual may contractually bind the company? YES!

Acceptable performance

court doesn't like this because theoretically it can be implied with any employment contract.

pay gap

some think discrimination explains. no logical factor explains. disparity less in unionized jobs with set pay scales.

Dissent would say

still anti LGBT animus not anti sex animus. Dissent anti LGBT animus different from discrimination because she is a woman.

equal pay act

strict liability regime. dont have to worry about intent. just facial scenario. are men being paid more.

Locher

struck down NY statute saying no employee shall be required or permitted to work more than 10 hours per day. Violated liberty protected by 14th amendment. Locher- rationale most frequently cited for government interference with the employment relationship was public health.

Ginsburg

suggested legislature correct in her dissent

Even though Hoffman LaRoche seems to set a variety of different standards

at the end of the day its just cause

Law denoting Missouri as show me state

Fundamental but may not be protective of public good

BFOQ

Puts a little more burden on employer to come up with something.

McDonnell Douglas issues and answers

Question (1) Is a complainant in an employment discrimination suit limited to those charges for which the Equal Employment Opportunity Commission found reasonable cause? (2) If so, must the complainant present a prima facie case for racial discrimination? Question (1) Is a complainant in an employment discrimination suit limited to those charges for which the Equal Employment Opportunity Commission found reasonable cause? (2) If so, must the complainant present a prima facie case for racial discrimination?

Back to Suders

Quitting can be a reasonable response. Constructive discharge.

Whats missing?

Race and disability. There is not a BFOQ for disability. However, tactic acceptance of race as BFOQ in jobs where authenticity of actor in a role is central. I.e. Hollywood.

Yanowitz v. L'Oreal

Refusal To Terminate An Employee Based On Her Looks Supports Retaliation Claim Under California Law On August 11, 2005, the California Supreme Court ruled that an employee could state a claim for retaliation under the Fair Employment Housing Act ("FEHA") based on the employee's refusal to comply with a supervisor's order that she fire a subordinate for allegedly being unattractive. Yanowitz v. L'Oreal USA, Inc., 32 Cal. Rptr.3d 436 (2005). In so ruling, the Court clarified the standard as to what constitutes protected opposition to unlawful conduct under the FEHA and resolved a conflict among lower courts about the definition of an "adverse employment action." The plaintiff, Yanowitz, was a Regional Sales Manager employed by L'Oreal USA, Inc., a national cosmetics and fragrance company. Yanowitz alleged that a male supervisor ordered her to terminate a female sales associate who, according to the male supervisor, was not "hot." Yanowitz refused to comply with his order because she felt it was sex discrimination in that she had never been ordered to terminate an unattractive male employee. However, Yanowitz admitted that she never told her superior or anyone else at L'Oreal about her belief that the order was discriminatory.

If arguing bad faith

employer breach at will agreement

Customer or co- employee harassment

employer liable only if it knows or should have known of the conduct and failed to take advantage of a preventative or corrective opportunity.

As we saw in Bedner

employer's announcement of discharge standard even if oral will transform at will contract to just cause.

more common hook

equal pay act

1963 passed year before title vii

equal pay for equal work

Equal pay

equal work on the job "the performance of which requires equal skill, effort, and responsibility and which are performed under similar workin conditions."

What is P's claim in Harrah's

essentially, you have a rule which is based on a stereotype of how women should act at work. I refuse to follow it and you fired me. You fired me based on a rule which is based on a stereotype.

Sometimes though

evidence is evidence as easterbrook decided in Ortiz case. mosaic. simplifies.

Good faith and fair dealing

extended to employment contracts, but note has not received widespread acceptance as some other developments in wrongful discharge (one can argue that the at will doctrine is inherently inconsistent with good faith and fair dealing). Agency principles. Where the principle 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 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.

Good cause/just cause defined in See's

fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.

Famous state

women get 79 cents for every 1 dollar

Maternity leave

you can lose seniority

Age discrimination in employment

1967

Title VII

Applies only to employees not independent contractors.

Just cause/ good cause

Magic words!

How to get rid of at will employment

You can contract around. Union setting.

Direct vs circumstantial evidence

"Direct" evidence is evidence that establishes a particular fact without the need to make an inference in order to connect the evidence to the fact. Direct Evidence Direct evidence proves or disproves a fact directly. Perhaps the most commonly-known type of direct evidence is eyewitness testimony, where a witness describes exactly what she saw, heard, or experienced. For instance, in a personal injury case, suppose that the injured plaintiff was crossing the street when the defendant hit her with his car. One type of direct evidence the plaintiff might use to prove that the defendant was the one driving might be the testimony of a bystander who saw the defendant clearly as his car hit the plaintiff. Exhibits and other pieces of real or documentary evidence may also provide direct evidence. For instance, in a breach of contract case, the contract itself is direct evidence of the existence of the contract. A products liability case may bring the actual defective product into court to show the judge or jury that the product did in fact break in the way that witnesses say it did. Circumstantial Evidence Circumstantial evidence, by contrast, is evidence that does not point directly to a fact. Instead, an inference must be made that links the circumstantial evidence to the fact the party using it is trying to prove. For example, suppose that in the car accident described above, the injured plaintiff offers into evidence a photograph of the defendant's car, taken at the accident scene. The front of the car is crumpled. The plaintiff offers the photo to prove that the defendant hit her with the car. Unlike the plaintiff's direct testimony that "the defendant hit me with his car," the photograph is circumstantial evidence. It demonstrates that the defendant's car was at the accident scene at some point, and that it had a damaged front end while it was there. In order to "connect the dots" between the damaged car and the accident that hurt the plaintiff, however, the jury or judge must infer that the damage occurred when the car hit the plaintiff. This isn't necessarily the case. For instance, if the defendant testifies that the damage to the car was caused when he hit a deer the week before, the inference link between the circumstantial evidence of the photograph and the fact "the defendant hit the plaintiff with his car" may be broken. Despite requiring an extra "step" in thinking, circumstantial evidence can, in some cases, be even more powerful than direct evidence. For instance, many criminal cases use evidence that the defendant's fingerprints were found at the crime scene or on a stolen object, getaway car, or murder weapon in order to prove that the defendant was the one who committed the crime. Fingerprints, however, are circumstantial evidence. In order to get from "his fingerprints were on the getaway car" to "he drove the getaway car in the robbery," the jury must infer that the fingerprints got on the car as the defendant was driving it away from the robbery scene. This may not be true - the defendant's fingerprints may have gotten on the car in a totally innocent way - but the fact that the fingerprints are there will likely weigh heavily in the minds of the jury. Part of a jury's job in evaluating circumstantial evidence is deciding whether the inferences the parties are asking the jurors to make are reasonable. For instance, suppose that in the car accident case, the plaintiff submits the photo of the defendant's damaged car and asks the jury to infer that the damage resulted from the car hitting her. The defendant, however, asks the jury to infer that the damage was from a deer he hit the week before, and that he didn't really hit the plaintiff at all. Using the other evidence offered in the case, the jury is responsible for deciding whether it believes the plaintiff's or defendant's version of events is more likely.

Complexities arise when

"pool" of candidates is not equal to start. Ex: Its North Dakota and African Americans make up only 2 percent of the population. Its a nanny agency and a man only applies once every 5 years.

Tipped employees

$2.13 an hour if employers claim a tip credit against minimum wage obligation. If tips combined with employer's cash wage of $2.13 don't equal minimum hourly wage, ER must make up the difference.

Complainant in Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.

(1) P belongs to a protected class (usually automatic can even include atheists or white people) (low burden) (2) P applied for, and was qualified for the job. (low burden) (3) Despite qualifications, P was rejected. (low burden. (4) After P was rejected, the employer continued to look for applicants with the same qualifications. Burden must then shift to employer to articulate some legitimate non discriminatory reason for employee's rejection. 1) also low burden (a burden of production!) 2) here, hows the employer's reason? pretty damn strong. vii. Back to the P for pretext a. prove reason is false b. come up with so much discriminatory animus that its clear the legitimate non discriminatory reason is a smoke screen. i. SCOTUS gets pretty specific on ways to do that. 1.) Most important: similarly situation employees who were not punished in the same way as P. 2.) Here, Green obviously can't show that the stall in reason was a lie (or it would be difficult considering he did it) Ultimately it all goes to a jury: Did the P show by a preponderance of evidence that Green's race was the but for cause of his not being fired? 1.) But for my race, I would have been rehired vs. Even if you were white, you still would not have been rehired.

Quid pro quo elements

(1) You, the employee, are a member of a protected class; (2) You were subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) The harassment complained of was based on sex; (4) Your submission to unwelcome advances was an express or implied condition for receiving job benefits, or that your refusal to submit to a supervisor's sexual demands resulted in tangible job detriment; and (5) There is some basis for holding the employer liable.

The following situations do NOT warrant application of BFOQ-

(1) refusal to hire a woman is based on the assumption of employment characteristics of women in general (e.g. turnover rate higher among women); (2) refusal to hire is based on sex stereotypes (e.g. women cannot be aggressive salespersons); (3) refusal to hire is based on the preferences of coworkers, clients, customers, or employer and (4) fact that ER may have to provide separate facilities.

703 exceptions (discrimination permitted where)

(1) religion, sex, or national origin (but not race) is a bonafide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business. (2)the employer acts pursuant to a bonafide seniority or merit system, or measures earning by quantity or quality of production; (3) the employer acts on the results of a professionally developed ability test that "is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin." (4) differences in pay based upon sex are authorized by the Equal Pay Act of 1963.

703 (h) Bennett Amendment (Title 7)

(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [section 6(d) of the Labor Standards Act of 1938, as amended].

Why shouldn't it cover them?

1) if you separate act from person doesn't cover. 2) Congress should make new category. Title 8 is just to stop sex discrimination.

Arguments from NCR

1) no evidence of bad faith. Has to prove bad motive. No evidence of why they did. Circumstantial. Express at will k. Not just cause. 2.) no right to be sales person. (Unfortunately here evidence sustained a determination that NCR discharged Fortune in order to avoid paying certain bonuses to him).m

Why title 7 should cover gays?

1) they are not conforming to gender stereotypes, therefore discriminated against because of their gender. 2) if she was a man married to a woman would have been treated differently.

Applying test for Uber.

1) you drive your own car, you supply supplies. 2) Uber doesn't set schedule. But Uber has requirements for car. Professor thinks Uber would have stronger argument if they allow any car. Star system big. Rating driver. You can be fired if star rating low.

Price Waterhouse framework

1. P has burden to prove characteristic was a "motivating factor" in the employment decision by a preponderance. 2. If so, the burden shifts to the employer to prove [by a preponderance] that it would have made the same decision if it had NOT relied on the protected characteristic at all. i. The burden shift is an effectively affirmative defense. ii. If the employer meets the burden, there is no Title 7 liability, but the employer will be liable for attorneys fees, injunctive, and declaratory relief] -This is the real burden shift. Here whole case shifts unlike McDD.

In most cases:

1. P proves the prima facie case. 2. Weakens the legitimate non discriminatory reason 3. Comes up with some evidence of racism, sexism, bigotry, etc. 4. And the judge throws up her hands and sends to the jury. However, because the causation standard is "but for," it is hard for the jury to find for P if the legitimate non discriminatory reason is still floating in the air. How can the P say, "but for my race, I would have been hired," when the employer's reason still has some weight behind it.

Threshold issues law has to deal with

1. how bad does harassment have to be? b. agency or vicarious liability i. In general- ERs strictly liable for conduct of their supervisors. Here though only strictly liable is supervisor's harassment results in a "tangible employment action such as discharge, demotion, undesirable reassignment, or a change in benefits. If so, ER loses case assuming the unwelcomeness and severe and pervasive elements also met.

Two ways to get just cause

1.) Objective standard 2.) Definite term somewhere in K. Forever or permanent is a definite term. Most common way to end up with definite term of time, if employer explicitly states. You can also have implicit, as in See's. Totality up circumstances adds up to implied promise. Was it conveying an implied promise? If somebody employed a long time, did they have a sense they could be fired but they would have to do something extremely wrong?

age they can work during school hours

16. dropouts can work.

Fair Labor Standards Act

1938- prohibited child labor and established a federal minimum wage and premiums pay for overtime.

Americans with disabilities act

1990

Primary beneficiary test

2nd circuit used this test. Also from DOL's website. Don't pay your intern when the tangible and intangible benefits provided to the intern are GREATER than the intern's contributions to the employer's operation. -claimed to better reflect the economic realties of the situation. What does it mean by that? -claimed to be "more flexible" than the DOL test (surely true and assisted by non exhaustive factors... factors have nothing to do with school credit. 1. payment expectations 2. training similar to an educational environment 3. school credit 4. classes accommodated 5. duration limited to a training period 6. complements, but not not displace, paid employees 7. understanding of no paid job at the end

USA minimum wage

7.25 per hour. Also as of August 2015, 27 states have higher minimum wages than that required by the federal law.

Section 7/03

703 (a) It shall be an unlawful employment practice for any 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

Title VII's proscription against discrimination applies broadly to all aspects of employment.

703 most important section 703 (a) It shall be an unlawful employment practice for any 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.

Woolley rule

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.

Overtime

Act doesn't limit number of hours employee may work, but requires overtime pay after a certain number of hours.

McDonnell Douglas notes

African American, applied for position. Was qualified. It was his old job. Why not send to a jury? Proving intent is difficult. Cases have disputed facts. Narrowing down evidence through a process of elimination. Maybe you can bring general evidence that employer is doing bad stuff. Animus- trying to show employer doesn't like your protected class. But for is usually defined as the only reason. Is the predominant reason/only reason the person was fired is because of their race? Employee will only win if they can obliterate employer's reason. Everything comes down to pretext. Ideally, O will try to show its a lie. Hence, McDonnell Douglas is not true burden shift. Burden always on P. If P proves prima facie case, prima facie case is weak. Burden always on p.

Not all courts comfortable with Pugh v. See's analysis

Another CA case Miller v. Pepsi granted summary judgment for employer where only evidence of an implied K was employee's longevity of service, regular salary increases, and promotions. The court in Miller stated that these factors should not change the status of an at will employee to one that is dischargeable only for cause.

Affirmativ defense

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct.

Criminal past

At will regime may help you. Less risk. Employers can take risks. They may not want to take risk on employee with criminal background if they know they can't fire them.

BFOQ

Bonafide occupational qualification

Reasons that can justify an employer in terminating a fixed-term contract Restatement Third of Employment Law

BROADEST CATEGORIES- PROFESSOR ADDS INSUBORDINATION- misconduct, other malfeasance, or other material breach of agreement, such as persistent neglect of duties, gross negligence, or failure to perform the duties of the position due to a permanent disability. On the other hand, an agreement for an indefinite term can also be terminated because of a significant change in the employer's economic circumstances,

How does court say violation of the public policy is demonstrated?

By proving P was fired for refusing to violate statute or constitutional provision.

Majority opinion in Bammert

Court's prior holdings have limited the public policy exception to cases where the public policy directly involved the employee

Gantt RULE (CA)

Courts in wrongful discharge actions may not declare public policy without a basis in either the constitution or statutory provisions.

Bottom line

Direct evidence: do not start with McDD. Circumstantial: start with McDD and switch to PW, or argue PW in the alternative. When to use PW- If can't show pretext or pretext evidence is weak. Ex. If ER has strong reasons like EE got into fist fight. Note: ERs don't want to ask for mixed motive instructions because admits they had a bad motive.

Rogers v. AA

District court was dismissive of her. P only wants to wear braids because watched movie they said. This case is still cited.

Quid pro quo

Do this or else. This= sex act. Harvey Weinstein scenario. Where employee implicitly or explicitly knows they have to do something. Doesn't have to be punishment (firing). Can be benefit (movie role).

Alternative set of facts that would have worked for Bammert

Don tells her get drunk with me at the bar and drive back to the hardware store. This would work more. For family, divorce your husband or you are fired.

Interns

FLSA no internship exception. also no student or volunteer or trainee exception.

Appearance code cases

EMPLOYEES GENERALLY LOSE! SO sorry!

Is constructive discharge the same as being fired?

Employee has acted in some way. Still may be case that employer isn't aware of conduct because not necessarily an official action. All the same, different because employer gets the benefit of an affirmative defense in a constructive discharge case.

Why not evolving as a legal movement?

Employees still usually lose. As P, you have to prove you didn't like. Before mid 80s when SCOTUS allowed sex harassment suits, was not talked about in T7.

What if employer wants to make changes to handbook?

Employer can make changes as many times as they want, bu in all jurisdictions if employer changes handbook they have to give reasonable notice. Restatement- handbooks can be changed anytime, but employees need reasonable notice. Some evidence there has been some notice. Really make sure some notice because if you make change and don't tell employees even if strong disclaimer, employee can make argument disclaimer does not apply to change such as new wage scale. Some courts (growing smaller minority) if employer changes handbook to employee's detriment (makes things worse), employer has to add additional consideration which is positive for employees (i.e. $25). Restatement moving away from this because it doesn't make sense.

Rise of employment fissuring

Employer that has many people working for them and non are employees. Massive employer with no employees. 1980s- companies needed to shed all employees to focus on core competencies. End of vertical integration.

Appearance

Employers do not have to have same styles for women. Grooming and appearances policies when reasonable. Slight differences don't matter. Has to be SIGNIFICANT DIFFERENT BURDEN. When it does not unreasonably burden one gender over the other will not violate title 7.

Title VII of the Civil Rights Act

Enacted to eliminate discrimination in employment on the basis of race, color, religion, sex or national origin.

Title VI

Entities receiving federal funds

Fair Labor Standards Act

Establishes minimum age applicable to all employees of covered employers and provides for mandatory overtime payment for covered employees who work more than 40 hours per week.

Sexual harassment: cultural vs. legal

Evolving as a cultural movement (i.e. Me too, Times Up), but not as a legal movement.

if at least 16

FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old.

Second hurdle in EPA cases

FOTS a. First 3= seniority system; merit system; production incentive system i. all need to be clearly communicated and applied even handedly and consistently b. FOTS: pay differential based on any other factor other than sex. i. Read literally, a HUGE catch all.

Price Water house

Facts of the case Ann Hopkins worked at Price Waterhouse for five years before being proposed for partnership. Although Hopkins secured a $25 million government contract that year, the board decided to put her proposal on hold for the following year. The next year, when Price Waterhouse refused to re-propose her for partnership, she sued under Title VII for sex discrimination. Of 622 partners at Price Waterhouse, 7 were women. The partnership selection process relied on recommendations by other partners, some of whom openly opposed women in advanced positions, but Hopkins also had problems with being overly aggressive and not getting along with office staff. The district court held that Price Waterhouse had discriminated, but Hopkins was not entitled to full damages because her poor interpersonal skills also contributed to the board's decision. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, but held that the employer is not liable if it can show by clear and convincing evidence that it would have made the same employment decision in the absence of discrimination. Question Did the Court of Appeals err in requiring the employer to prove it would have made the same employment decision in the absence of discrimination by clear and convincing evidence? Conclusion Yes in part. In a 6-3 decision, Justice William J. Brennan wrote the plurality opinion reversing the lower court and remanding. The Supreme Court held that the court of appeals applied the right test, but should have placed the burden at "preponderance of the evidence" not "clear and convincing evidence". On remand, Price Waterhouse would escape liability if it shows it would have denied Hopkins partnership even if she were not a woman. Justice Byron R. White wrote a concurrence, stating that there was no requirement for the employer to submit objective evidence. The employer's credible testimony alone was enough. Justice Sandra Day O'Connor wrote a concurrence, expressing that the Court's opinion was only a supplement to McDonnell Douglas. Justice Anthony Kennedy wrote a dissent, stating that he would stick with the evidentiary standards from McDonnell Douglas. Chief Justice William H. Rehnquist and Justice Antonin Scalia joined in the dissent.

Pennsylvania State Police vs. Suders

Facts of the case Nancy Drew Suders quit her job as a dispatcher for the Pennsylvania State Police in August 1998. She claimed that she had been sexually harassed by her supervisors since she got the job in March of that year, and that she had finally decided to quit after she was accused of theft, handcuffed, photographed and questioned. Two days before quitting, she had contacted the state police equal opportunity officer about the harassment, but did not file a report because, Suders claimed, the woman was unhelpful and unsympathetic. Suders then filed suit in federal district court, charging that the harassment had forced her to quit. The district court judge, however, granted summary judgment to the state police before the case went to trial. He found that Suders had failed to use the internal procedures set up by the state police to deal with sexual harassment, and that she therefore could not bring suit unless the police had taken a "tangible employment action" that substantially changed her employment status. On appeal, a Third Circuit Court of Appeals panel overturned the district judge's decision, ruling that the harassment had been so bad that Suders had no choice but to quit. While the police had not fired Suders, they had been directly responsible for her resignation and therefore could not use her failure to file a report as a defense. Question When a supervisor makes a workplace environment so hostile (through sexual harassment) that an employee has no choice but to quit, may the employee bring suit even if she did not use the internal procedures established by the employer to report sexual harassment claims? Conclusion Yes. In an 8-to-1 decision written by Justice Ruth Bader Ginsburg, the Court ruled that an employee faced with a situation in which a "reasonable person ... would have felt compelled to resign" could bring suit even if she had not filed a report with the employer before resigning. Her employer, however, could use her failure to file a report, along with evidence of the safeguards it had in place to prevent harassment, in its defense. If it could prove that she had not attempted to prevent the harassment, and that the safeguards in place would have prevented it if she had, the employer would not be liable.

Burlington Northern & Santa Fe Railway Co. v. White

Facts of the case Sheila White was the only woman working in the Maintenance of Way Department of the Burlington Northern Santa Fe Railroad's Tennessee Yard. After she complained of harassment by her supervisor, White was moved from duties as a forklift operator to less desirable duties as a track laborer, though her job classification remained the same. She was also suspended for 37 days without pay, but was eventually reinstated and given full back pay. White filed suit in federal court, where a jury rejected her claims of sex discrimination but awarded her damages of $43,000 after finding that she had been retaliated against for her complaints, in violation of Title VII of the Civil Rights Act of 1964. On appeal, Burlington Northern argued that White had not suffered "adverse employment action," and therefore could not bring the suit, because she had not been fired, demoted, denied a promotion, or denied wages. The Sixth Circuit Court of Appeals disagreed, finding that the suspension without pay - even if back pay was eventually awarded - was an "adverse employment action," as was the change of responsibilities within the same job category. Question Did Sheila White suffer retaliatory discrimination for which her employer may be held liable under Title VII of the Civil Rights Act of 1964? Yes. The Supreme Court unanimously agreed that White suffered retaliatory discrimination when she was reassigned to less desirable duties and suspended without pay. Though the duties were within the same classification and the pay was eventually reinstated, the action was nevertheless sufficiently harsh to constitute retaliatory discrimination. In a decision authored by Justice Stephen Breyer and joined by Chief Justice Roberts and six other justices, the Court held that in order to prevail on a claim of retaliatory discrimination, "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." (internal citations omitted) Justice Samuel Alito wrote separately, agreeing with the result but arguing that the test adopted by the other members of the Court would eventually prove problematic.

Griggs v. Duke Power

Facts of the case Willie Griggs filed a class action, on behalf of several fellow African- American employees, against his employer Duke Power Company . Griggs challenged Duke's "inside" transfer policy, requiring employees who want to work in all but the company's lowest paying Labor Department to register a minimum score on two separate aptitude tests in addition to having a high school education. Griggs claimed that Duke's policy discriminated against African-American employees in violation of Title VII of the 1964 Civil Rights Act. On appeal from a district court's dismissal of the claim, the Court of Appeals found no discriminatory practices. The Supreme Court granted certiorari. Question Did Duke Power Company's intradepartmental transfer policy, requiring a high school education and the achievement of minimum scores on two separate aptitude tests, violate Title VII of the 1964 Civil Rights Act? Yes. After noting that Title VII of the Act intended to achieve equality of employment opportunities, the Court held that Duke's standardized testing requirement prevented a disproportionate number of African-American employees from being hired by, and advancing to higher-paying departments within, the company. Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee's ability to learn or perform a particular job or category of jobs within the company. The Court concluded that the subtle, illegal, purpose of these requirements was to safeguard Duke's long-standing policy of giving job preferences to its white employees.

Classic case of ER liable for supervisor conduct

Famous Dave's Procedural Posture Plaintiff former employee appealed from a judgment of the United States District Court for the Southern District of Iowa which granted summary judgment to defendants, former employer and supervisor, on the employee's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code § 216.1 et seq. Overview The court found that the district court did not err in finding that the employee established a prima facie case against the supervisor. The court reasoned that the supervisor's conduct started within the first two weeks of her employment at the employer and persisted throughout her entire employment, including offensive touching and humiliating comments. The court also found that the employee was not constructively discharged. The court reasoned that a reasonable person in her position would not have found the working conditions so intolerable that she was compelled to resign. The employer was investigating, proposing solutions (a new schedule or relocation), and continuing to invite the employee back after she resigned. Next, the court found that the employer demonstrated that it exercised reasonable care to prevent sexual harassment. It had a facially valid anti-harassment policy, with a non-retaliation provision and a flexible reporting procedure, listing four individuals who may be contacted in the case of harassment. Finally, the court found that the employee could not make a prima facie case of retaliation because she was not constructively discharged.

To argue not equal work (ER's argument)

First argument- they are not performing equal work. Second half- even if you prove Ps doing same work as men, employers get an affirmative defense. First barrier- Employer argues different work. For equal pay can only be equal work for equal pay. Argue not equal work. Similar working conditions (i.e. doing nude scenes, Marky Mark had more lines. Golden opportunity for employers to say NOT equal work. Extra responsibilities) Note movement to get out of equal to similar*** Equal tends to mean identical. Affirmative defenses 2) O.K. to have pay gap if bonafide seniority system. Objectively straight forward seniority system. Merit system awarding employees for exceptional performance. 3) Production incentives- we pay workers based on work they do. (i.e. men produce more items. This was more common argument when factory work was still common in USA). P can defeat affirmative defenses if not doling out evenly. 4) all marbles here- ER argues pay differential based on any other factor other than sex. Catch up.

Rizo case

Fresno County of Education. See handout from Professor $50,000 as teacher as teacher. 1200 stipend. Now hired as educational consultant. 12000. Raise. 62000.

Price v. Waterhouse whats good and bad about Ann

Good- secured 25 million k with department of state. Most successful candidate. Bad- Hard to work with. interpersonal skills with internal staff.

Good and bad about gig economy

Good-To be an employee you have to provide a service on behalf of entity you say is employer. Bad- Not all protections for employees

Pugh v. Sees

He is suddenly fired after 32 years of employment in which he moved up corporate ladder. Not giving any reason for firing, told to look deep within himself. Although Pugh didn't have any express written agreement that continued employment, pretty much every president that see's had while pugh was there had a practice of not terminating administrative personnel except for good cause, and one even told him that his future was secure as long as he remained loyal.

Pugh

Here there were facts in evidence from which the jury could determine the existence of an implied promise 1. the duration of Pugh's employment 2. the commendations and promotions he received 3. the apparent lack of any direct criticism of his work 4. the assurances he was given 5. the employer's acknowledged policies

Title IV

Higher Education

Other major question in these cases

How much of an impact is too much? How big does the spread have to be to be legally actionable?

How joint employer ship defined?

If you are independent contractor- employer not controlling you much. Employers want to have their cake and eat it too. They want independent contractors, but also want to control them. How much control is too much control? Classic example of independent contractor- you hire painter. Who controls color and brand of paint- You. Who controls when painter shows up? Depends, but usually painter. Who decides technique used? Painter.

Pugh v. Sees rule

In determining whether there exists an implied in fact promise, courts have used a totality of circumstances approach

National Cash reasoning

In every K there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the K which means that in every K there exists an implied covenant of good faith and fair dealing.

More info

In most places- prohibited to talk about pay. ERs having rule barring talking about pay is illegal. For federal government pay scale= GS SCALE. When transparency increased may lead to more litigation. Transparency may also lead to ERs being more scared to give unequal pay. Stepping lane system- in public sector how a lot of workers get paid. Advantage of step system- come up with factor. 10th and 11th circuits- you can use prior salary as defense but only mix with other factors. 2nd circuit- allows prior salary but must say why important. 7th circuit- prior salary always good. What does prior salary mean- gender neutral. Why is prior salary weak- wage gap existed at last job. Prior salary just allows wage gap to be perpetuated over and over again. Highlight- essentially way P wins here-prior salary- based on sex. Sex infused in prior salary. p. 14 See In light of the clear intent and purpose of the Equal Pay Act, it is equally clear that we cannot construe the catchall exception as justifying setting employees' starting salaries on the basis of their prior pay. At the time of the passage of the Act, an employee's prior pay would have reflected a discriminatory marketplace that valued the equal work of one sex over the other. Congress simply could not have intended to allow employers to rely on these discriminatory wages as a justification for continuing to perpetuate wage differentials.

Bigger question

Is it fair to hold employers liable for discrimination that is unintentional?

National cash issues holding

Issues: Does a "bad faith" termination constitute a breach of an employment at will contract? Holding/Rule: A "bad faith" termination does constitute a breach of an employment at will contract.

Does white collar exemption still make sense?

It arose in 30s and 40s when jobs were more prestigious. Today, they share more in common with blue collared workers. Also, today many even earn less than unionized blue collar employees.

Hostile work environment

Jokes touching. i. Should courts take "workplace culture" into account in determining whether a HWE exists? Prove conduct unwelcome. 1. Conduct is harassing only if "unwelcome" [unwelcome is different than "consent"] ii. Real sticking points for severe or pervasive 1. a very high bar 2. theoretically, courts do consider some factors here are key ones: a. whether conduct is physically threatening or humiliating (and not a mere offensive utterance) b. whether the conduct unreasonably interferes with the employee's job performance. 3. Severe, in practice- really really bad. a. sexual assault b. consent daily touchings 4. Pervasive, in practice. a. weeks, months, years. over and over again. (One bad touching will not be severe and pervasive. Standard: not consent)

Gardner

Judge decided public policy! Gardner was guard of armored truck, saw woman getting robbed went out to save her. Company policy against leaving truck unattended under any circumstance. Gardner was fired for violating public policy then sued for wrongful discharge in violation of public policy.

Not at will employment

Just cause- Union contracts will usually have just cause clause.

Just cause or good cause

Just good faith idea you were stealing. They don't have to prove you were stealing. Lower bar for employer than you can imagine.

Helpful evidence

Language in statute that sets in moral terms. If statute language says exactly public policy of state. If state adopted official song. Still probably won't work as its not telling anyone to engage in conduct or not engage in conduct- Facts to persuade judge should be enshrined in case law. Employee cannot be fired for refusing to violate statute or constitution. W/ Justin Bieber thing, maybe something that says everybody must go to Justin Bieber concert. Employer says don't go to show. This is pressing employee to violate public policy.

Traditionally

Law considered to be a private contract between employer and employee

Courts often like to leave up to legislature

Legislature better suited for coming up with public policies- greater resources and procedural means.

Why does CA want to limit statutes and constitution and not ethics opinions?

Legislature can control. Legislature elected by public.

Why do companies do this?

Liability and money. If janitor being sexually harassed, employer can say we are third party. If relationship one of general contractor- federal law doesn't apply.

Creative alternatives to at will

Life cycle rule- at will employment for first 3 years then switch to another regime

Why does Ct say this isn't like Price Waterhouse?

Makeup doesn't affect woman's ability to go up in the ranks. No blind here. In PW- if she acted like a woman she wouldn't be promoted, but they also didn't want her to act like a man. Ct here is taking narrow interpretation of PW. Only actionable part in PW are cases where double blind hiring.

Large segments of workforce

Managers, executives, and agricultural workers are exempted from many laws.

AFSCME v. Washington (comparative worth theory)

Market is sexist. What we should care about is not market wages, but the value of each job to the employer. Jobs of comparable worth should be paid the same. "Sex based wage discrimination exists if employees in job classifications occupied primarily by women are paid less than employees in job classifications filled primarily by men, if the jobs are of equal value to the employer, though otherwise dissimilar. So P's hire expert to compare intrinsic worth of jobs. Often rely on effort, responsibility, training, and tasks. Then EPA claim: Look these are equal jobs in the way that matters-> value to company. Discriminatory treatment- you know these jobs are equally important to you, you're just relying on market as pretext. discriminatory impact- you may not know the jobs are of equal value, but they are and your practices are creating a disparate impact. ER repose= we are just paying what market requires. You could argue intent because sophisticated people know market includes discriminatory wages. Ct said market has no intent though. Neither law nor logic deem free market suspect enterprise.

All the money in the world

Michelle Williams and Marky Mark called into do reshoots. Kevin Spacey fired for harassment in middle of filming. Michelle Williams took union rate. Wahlberg got 1 and a half million. Assuming Michelle Williams did sue- has to say equal work as Marky Mark. Significant difference.

What could be done to improve it?

Most often workers sue it!

Is reason she wasn't chosen BS?

NO, trial judge said it was legit. PW barely mentioned personal skills.

Equal Pay Act

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

Alabama

No minimum wage law. They only have to comply w/ federal minimum wage.

O.K. but there is a million public policies

No, only fundamental and well defined public policies are actionable.

Fortune v. National Cash Register

Not a just cause case. His at will relationship is not being transformed like in other cases. The argument is that NCR breached an at will k.

What does t7 have to do with sexual harassment?

Not talked about until SCOTUS allowed. You could not sue for sex harassment in 60s.

Result in See's

Not that they can't fire Wayne Pugh, but they just have to come up with an honest and good reason to do it!

back to 703 (a)

Not unlawful for an employer to differentiate in hiring "in those certain instances where religion, sex, or national origin is a BFOQ reasonably necessary to the normal operation" of business.

Lilly Ledbetter fair pay act

Obama passed law that 180 days restarts with every discriminatory paycheck received. Old law was that 180 days begins on date ER makes initial discriminatory wage decision not at date most recent paycheck received.

Hively v. Ivy Tech

On April 4, 2017, the en banc Seventh Circuit Court of Appeals overruled its own precedent and became the first Circuit to hold that discrimination on the basis of sexual orientation can constitute unlawful sex discrimination under Title VII. See Hively v. Ivy Tech. Cmty. College of Indiana, II, 853 F.3d 339, 351 (7th Cir. 2017) (overruling Hively v. Ivy Tech. Cmty. College of Indiana, I 830 F.3d 698, 709 (7th Cir. July 28, 2016).). All other Circuits that have addressed the issue have held sexual orientation is not protected under Title VII. Although Ivy Tech Community College of Indiana ("Ivy Tech") has indicated that it does not plan to petition the Supreme Court for certiorari, employers should pay close attention to this issue. The EEOC had previously adopted the position in 2015 now taken by the Seventh Circuit. The Supreme Court and the Circuit Courts have held that Title VII protects employees who are discriminated against because they do not conform to the stereotype for their gender and this often may overlap with sexual orientation. Some states and local governments prohibit discrimination on the basis of sexual orientation. Furthermore, many employees likely believe that discrimination on the basis of sexual orientation is wrong or unjust. Therefore, employers should be prepared to defend against claims of sexual orientation discrimination even if there is not yet a definitive ruling from the Supreme Court on whether sexual orientation discrimination qualifies as unlawful sex discrimination under Title VII.

Peterman v. Teamsters Local 396

One of the first wrongful discharge cases recognized by Restatement of Employment Law Third. P refused to commit perjury as instructed by employer. "The public policy of this state as reflected in the Penal Code Sections referred to above would be seriously impaired if it were to be held that one could be discharged by reason of his refusal to commit perjury." Public policy was found in state's penal code. Gradually other states began to recognize limited public policy.

Title II

Public accommodations provision

Few more points of See's

Over course of 32 years, implied promise of employment. Doesn't mean they can't fire, but burden shifts to employer to come up with good reasons. In practice, employee will attack employer's reason.

Lola v. Skadden Arps

Overview HOLDINGS: [1]-A lawyer, who performed document review on a contract basis for a law firm, sufficiently asserted an FLSA overtime wage claim because the allegations of the complaint asserted that, under North Carolina law, N.C. Gen. Stat. §§ 84-2.1 and 84-4, he was not engaged in the practice of law for purposes of the FLSA overtime exemption for attorneys, 29 C.F.R. § 541.304(a)(1); [2]-The complaint sufficiently alleged that the attorney's document review work was devoid of legal judgment because the lawyer asserted that he used criteria developed by others to simply sort documents into different categories, which the complaint asserted was a task that could otherwise be performed entirely by a machine. Outcome Decision vacated and case remanded. -the place of "doc review" in lawyer culture -but what is it exactly? how do "contract" attorneys get involved why? -the exemption you think applies here doesn't.

Hivley v. Ivy Tech

Overview HOLDINGS: [1]-A policy that discriminated on the basis of sexual orientation did not affect every woman, or every man, but it was based on assumptions about the proper behavior for someone of a given sex. Therefore, it fell within the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964, if it affected employment in one of the specified ways; [2]-To the extent that the Title VII of the Civil Rights Act of 1964 prohibited discrimination on the basis of the race of someone with whom the plaintiff associated, it also prohibited discrimination on the basis of the national origin, or the color, or the religion, or the sex of the associate; [3]-Fed. R. Civ. P. Rule 12(b)(6) dismissal was error because plaintiff's claim that she was discriminated against based on her sexual orientation put forth a case of sex discrimination for purposes of Title VII.

Glatt vs. Fox Searchlight

Overview HOLDINGS: [1]-In determining whether unpaid interns were entitled to compensation as employees under the FLSA, the proper question was whether the intern or the employer was the primary beneficiary of the relationship; [2]-Because the district court granted summary judgment to two interns based only on the factors on the DOL's Intern Fact Sheet, remand was required; [3]-The district court erred in certifying a class. Generalized evidence that the employers sometimes used unpaid interns in place of paid employees was insufficient to establish employment status under the primary beneficiary test; [4]-An FLSA collective under 29 U.S.C.S. § 216(b) was not properly conditionally certified, as the plaintiffs in the proposed collective were not similarly situated.

Rizo case. Fresno County of Education

Overview ISSUE: Whether, as a matter of law under the Equal Pay Act (EPA), 29 U.S.C.S. § 206(d), an employer subject to the EPA could rely on prior salary alone when setting an employee's starting salary. HOLDINGS: [1]-Prior salary, alone or in combination with other factors, could not justify a wage differential because to hold otherwise would be contrary to the text and history of the EPA, and it would vitiate the very purpose for which the EPA stood; [2]- Because Kouba v. Allstate Insurance Co., was inconsistent with this rule, it was overruled; [3]-Under the EPA, a factor other than sex had to be one that was job related, and it was impermissible to rely on prior salary to set initial wages, alone or in conjunction with less invidious factors, because reliance on past wage simply perpetuated the pervasive gender discrimination that the EPA sought to eradicate.

In practice as of a few years ago

P gets to choose whether to proceed under McDD or PW! But for test will always fail when two causative factors. McDD is but for test-Imagine she was a man. Under PW, but advantage of affirmative defense- employer doesn't pay damages. P can get injunctive and declaratory relief.

Why McDonnell Douglas analysis is not true burden shifting

P has ultimate burden of persuasion- and never ever shifts to the Employer. The prima facie case is not worth much. That alone (even if the employer produces no evidence) is not enough to get past summer judgment. The prima facie case plus proving the employer is a liar should theoretically get a P to a jury, but in many courts it does not. Some evidence of animus is still required.

To summarize

P must prove 1) unwelcomeness 2.) severe or pervasive i. because of a protected characteristic [this is important-> bullying, not because of a protected characteristic is not actionable under T7] If P succeeds we ask whether the harassment culminated in a "tangible" employment action. a. if yes, ER loses. b. if no ER gets AD. i. was the ER's anti harassment policy "reasonable" in that it... ii. was the employee's response to the anti-harassment policy reasonable. 1. ER must prove both 2. Quitting can be a reasonable employee response, but only if the working conditions are so "intolerable that a reasonable person in the EE's position would have felt compelled to resign." 3. "Quitting" is not considered a "tangible employment action," so the ER gets the benefit of the AD in such cases.

Old days

P only entitled to PW instruction if she brought forth direct evidence. McDD as way of proving discrimination w/ indirect proof.

Fortune v. National Cash Register facts

P was employed as a salesman for D for 25 years on an at-will contract. P was paid salary and commission based on what he sold and who he sold it to. D introduced a new cash register and wanted to sell it to P's customer First National. P helped with the transaction and was awarded commission on the eventual sale. The day after the order from First National was placed, a termination notice was written to P. He did not receive the notice until a month later. P's boss told him that P was indeed fired but asked P to stay on to help smooth out the operation of the sale with First National. P received 75% commission while he stayed on. When P inquired about receiving 100%, he was told to forget about it. P was asked to retire; P refused and was fired. P did not receive any bonus payments on machines delivered to First National after that date.

Why did court determine P's argument of strong evidence of skew between men and women not enough?

Paying market rates is not actually an employment practice, but invisible hand.

How does employer ensure that the disclaimer is actionable?

Put in legalize. Helps you. Put in at will.

McDonnell Douglas v. Green (Facts)

Percy Green, a black civil rights activist, was a mechanic working for the McDonnell Douglas Corporation, a St. Louis-based aerospace and aircraft manufacturer, from 1956 until August 28, 1964, when he was laid off. Green protested his discharge by saying that the company's hiring and firing practices were racially motivated. As part of his protest, he and other members of the Congress on Racial Equality illegally parked their cars to block the main roads to the plant during the morning shift change. On July 2, 1965, there was a lock-in, in which workers were unable to leave, though the extent of Green's involvement in this incident was unclear. On July 25, 1965, McDonnell Douglas Corporation advertised for qualified mechanics and Green reapplied, only to be turned down due to his involvement in the protests. Green filed a petition with the Equal Employment Opportunity Commission (EEOC) and alleged that he was denied his position because of his race and civil rights activism. The Commission did not make any finding on the racial bias charge, but did conclude that Green was denied his job upon reapplication due to his involvement in civil rights protests. When the situation could not be resolved outside the courts, Green sued McDonnell Douglas Corporation. The district court dismissed the racial discrimination charge and held that the McDonnell Douglas Corporation refused to rehire Green because of his participation in illegal demonstrations rather than legitimate civil rights issues. The U.S. Court of Appeals for the Eighth Circuit affirmed the holding that illegal protests were not protected activities but remanded the case to reconsider the racial discrimination charge.

General rule appearance code

Policies that don't overburden one sex over the other are generally ok.

Who does act apply to?

Private employers with 15 or more employees. Also applies to federal, state, and local government employers. All employees of a covered employer are protected, regardless of their status (i.e. management personnel, professional). Exclusions from the Act's coverage include: (1) educational institutions owned or supported by a religious organization and employing members of that religion; (2) businesses operating on or near an indian reservation and giving preferential treatment to Indians; and (3) members of the Communist party

AFSCME v. Washington

Procedural Posture Appellant state challenged the decision of the United States District Court for the Western District of Washington, which found that appellant discriminated against appellees, female employees, on the basis of sex in violation of § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000 e-2(a), by compensating employees in jobs where females predominated at lower rates than employees in jobs where males predominated. Overview The court reversed the trial court's finding that appellant state discriminated against appellees, female employees, on the basis of sex in violation of § 703(a) of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000 e-2(a), by compensating employees in jobs where females predominated at lower rates than employees in jobs where males predominated. The court concluded that a violation of Title VII was not established because appellees failed to prove liability under disparate impact or disparate treatment theories. The court rejected appellees' disparate impact argument because the case did not involve an employment practice that yielded to disparate impact analysis but revolved around a compensation system which resulted from surveys, agency hearings, administrative recommendations, budget proposals, executive actions, and legislative enactments. The court concluded that appellees failed to prove a prima facie case of sex discrimination by a preponderance of the evidence, and they failed to establish the requisite element of intent by either circumstantial or direct evidence. Outcome The court reversed the trial court's finding that appellant state discriminated against appellees, female employees, on the basis of sex because appellees failed to prove liability under the disparate impact or disparate treatment theories. The court concluded that it should not interfere in the market-based system for the compensation employees absent a showing of discriminatory motive.

Yanowitz

Procedural Posture Defendant employer appealed a decision from the Court of Appeal, First Appellate District, Division Five (California), which, in a retaliation action brought by plaintiff employee under Cal. Gov't Code § 12940(h), reversed the trial court's grant of summary judgment in favor of the employer. Overview The employee, who was a sales manager, presented evidence that a supervisor directed her to fire a female sales associate because the associate was insufficiently attractive. The employee further stated that, after she refused to do so and repeatedly asked for adequate justification, she was often criticized in front of her subordinates and received negative performance evaluations. The court, in affirming, concluded that a trier of fact could find that the supervisor knew that the employee's refusal to comply was based on the employee's belief that the order constituted discrimination on the basis of sex, even though the employee did not explicitly say so. The court held that the proper standard for defining an adverse employment action was whether the action materially affected the terms and conditions of employment. The continuing violation doctrine was applicable. Because the employee showed that the incidents of criticism occurred with sufficient frequency to constitute a continuous and temporally related course of conduct and placed her career in jeopardy, she presented sufficient prima facie evidence of an adverse employment action. Evidence of pretext was sufficient. Outcome The court affirmed the decision of the court of appeal.

Jespersen v. Harrah's

Procedural Posture Plaintiff employee appealed a judgment of the United States District Court for the District of Nevada granting defendant employer summary judgment in the employee's sex discrimination action filed under Title VII of the Civil Rights Act of 1964. Overview The employer terminated the female employee, a bartender at a casino, for refusing to comply with the employer's grooming policy, which required women to wear some facial makeup. On appeal of the district court's judgment, the court held that the employer was properly granted summary judgment because the employee failed to show that the grooming policy imposed an unequal burden on women. The employer's policy contained sex-differentiated requirements regarding each employee's hair, hands, and face. While those individual requirements differed according to gender, none on its face placed a greater burden on one gender than the other. The employee also failed to show that the grooming policy was part of a policy motivated by sex stereotyping. There was no evidence that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. The record contained nothing to suggest that the grooming standards would objectively inhibit a woman's ability to do the job. Outcome The judgment granting the employer summary judgment in the employee's sex discrimination action was affirmed.

Wilson v. SW

Procedural Posture Plaintiff, a class of male job applicants, filed suit against defendant employer alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq., in the employer's refusal to hire males as flight attendants and ticket agents. Overview A class of male job applicants challenged the employer's policy against hiring male flight attendants and ticket agents. The employer contended that their discrimination fell within the bona fide occupational qualification exception found in § 703(e) of Title VII, 42 U.S.C.S. § 2000e-2(e). The court evaluated the case under the test of whether a single sex requirement was necessary to the performance of the job and if that requirement was reasonably necessary to the essence of the employer's business. The court held that being female was not a qualification to perform successfully the jobs of flight attendants and ticket agents. Although the employer marketed its business using the female allure and sex appeal of its employees, those non-mechanical, sex-linked job functions were only tangential to ticket agents' and flight attendants' primary business function of assisting the transportation of passengers, and the employer's desire to continue that marketing campaign did not rise to the level of business necessity. Outcome The court entered judgment in favor of the class of male job applicants and against the employer.

FLSA test- is employee economically dependent on employer?

Professor doesn't think judges place importance on this test unless extreme leftist judge.

Wilson v. SW airlines Facts

Ps are 100 male job applicants. They want to be flight attendants and ticket takers.

If transperson fire- not adhering to stereotype of what a man or woman is?

Ps often have to play up stereotypes to win cases.

Shouldn't court have at least accepted that P's satisfied the low bar of a Prima Facie case

Ps women, Ps performing satisfactorily in their jobs, Ps paid too little under circumstances giving rise to inference of discrimination. Here, Ps "inference" is based on comparative worth and use of market to wages in the different professions.

Torts

Remember= all these things in sexual harassment can be torts. Torts is moving towards single intent. Don't touch in Torts.

Rogers v. American Airlines

Renee Rogers, a black American woman and flight attendant, sued her employer, American Airlines, for whom she worked for 11 years, when it demanded that she not wear her hair in a cornrow style, and instead asked her to style her hair in a bun.[2] American Airlines based their hair change requirement on their grooming policy.[3] Renee's argument was that the policy banning her from wearing braids at work was discriminatory based on race and sex.[4] The trial court quickly dismissed Renee's argument of sex discrimination because the grooming policy at issue applies to both men and women, in that a man with longer hair would also not be permitted to wear an all-braided hairstyle.[5] Additionally, Renee argued that the policy was discriminatory on the basis of race because cornrows have a special significance for black American women in that they have been "historically, a fashion and style adopted by Black American women, reflective of cultural, historical essence of the Black women in American society."[6] But the court did not agree with Renee's argument (that cornrows should be protected under Title VII of the Civil Rights Act because the grooming policy discriminated against her as a black woman[BJE(1] ), saying that she was not entitled to relief because the cornrow style was an "'easily changed characteristic,' and even if socioculturally associated with a particular race or nationality, is not an impermissible basis for distinctions in the application of employment practices by an employer."[7] The court bolstered their conclusion by saying that American Airlines did not even significantly ask her to change her hair, instead suggesting that she put her hair into a bun or add a hair piece around the ponytail,[8] and reminded Renee that she is free to do what she wants on her own time with her hair.[9]

How fo the basic contract principles of mutuality of consideration and the statute of frauds work when the employer gives up at will for just cause?

SOF- only applies to contracts that could not possibly be completed in under a year, theoretically, just cause always can. mutuality/consideration- how possible that employer can't fire, but employee leaves when they want? What does employee give up? Look to peppercorn case. Consideration can be a peppercorn. Court doesn't read into value of consideration. Of course employee gives up something, they don't work for another corporation. Employer will say, but not new consideration. Court will say no we will not look into too deeply. Still consideration.

Gordon v. Bedner

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.

test court used from scouts 1947 case (intern always wins)

Six factors which must be satisfied to not pay your intern. Intern never loses this test. 1. similar training to an educational environment. 2. Experience for the intern's benefit. 3. Intern doesn't displace regular employees but work under close supervision. 4. employer derives "no immediate advantage" from the intern and on occasion its operations may actually be impeded. 5. intern isn't necessarily entitled to a job at the end. 6. parties understand that wages are not part of internship. (District court used this test)

Appearance rules sort of like code switching

Sometimes an enforced code switch can raise a T7 issue, if the "code" is impacting sex, religion, or race differently. Yet as we'll see, employers usually win.

Nowadays why might P proceed under McDD instead of PW

States have different rules. Usually P states in complaint. Makes easier to have them proceed under one. McDD- only if indirect evidence. If really juicy facts- proceed under PW. Also, if your client has done some bad things... If you think your client is an angel go under McDD because you don't have to worry about affirmative defense taking away money. Engine of McDD- destroy employer's reason. Under PW if no evidence of animus- you are screwed. As soon as you are in world of PW, you may not make any money. If client is not perfect go under PW. Most cases in modern era proceed under PW.

Basic idea

T7 protects workers from retaliation if they "make a charge, testify, assist or participate in any T7 proceeding or investigation." BUT ALSO if workers oppose any practice made unlawful by T7.

Code switching

Talking to people in different ways.

McDonnell Douglas test

The McDonnell Douglas burden-shifting analysis is applied when a plaintiff lacks direct evidence of discrimination. It takes its name from the US Supreme Court decision that created the framework, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Traditional McDonnell Douglas burden-shifting operates as follows: The plaintiff makes out a prima facie case, which means demonstrating that: he is a member of a protected class; he was qualified for and applied for an available position; despite being qualified, he was rejected for the position; and the position remained available after the plaintiff's rejection, and the defendant employer continued to seek applicants from persons of plaintiff's qualifications. The burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the employment action. The plaintiff must then demonstrate that the employer's reason was pretext for discrimination

Just cause/ good cause

These mean something. Anything else- may not!

At- will employment as contractual fiction

They are actually treated as contractual. Contract, but anybody can pull out at anytime. Advantage of at will- can be contracted around anytime. New contract every morning. Ultimate flexibility.

Hivley v. Ivy Tech facts

This lawsuit arose from Kimberly Hively's multiple attempts to obtain a full-time teaching position at Ivy Tech. Ms. Hively was a part-time adjunct professor at Ivy Tech. She was also openly gay. Between 2009 and 2014, she applied for at least six full-time positions at Ivy Tech but was never selected. Additionally, in July of 2014, Ivy Tech refused to renew her part-time contract.

Animus

Title 7 at the end of the day cares about animus. (animus- hostility or ill feeling. "the author's animus toward her" 2. motivation to do something.)

Pugh v. Sees

Under Bedner he would not win

How does this fit into traditional contract theory?

Unilateral contract. what type of consideration do you give up? every minute you spend in cubical. giving up opportunity to work somewhere else.

2013

Unionized employees are only 6.6 percent of private sector workforce

Hostile work environment (elements)

Unwelcome/unwanted; Conduct of a sexual nature that is; Severe or pervasive to alter the conditions of the victim's employment; Create an abusive environment; Was the conduct verbal or physical, or both; How frequently did such occur; Was it hostile and patently offensive; Was the alleged harasser a co-worker or supervisor; Did others join in perpetuating the harassment; Was the harassment directed at more than one person.

Note 4 p. 137

Use of word "boy." Hard to get proof in these contexts. Court of appeals- use of word boy alone is not evidence of discrimination. SCOTUS- Although it is true the disputed word will not always be evidence of racial animus, it does not follow that terms standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. On remand, 11th circuit resolved and found that even if the term were somehow construed as racial, we conclude that the comments were ambiguous stray remarks not uttered in the context of the employment decisions at issue.

Leaning outcome

VII. THE FAIR LABOR STANDARDS ACT Learning Outcome: To understand the function, applicability, and legal contours of the Fair Labor Standards Act and its enforcement. To see the relevance of "employee" and "non-exempt" status under the FLSA.

Gardner v. Loomis

Was Gardner discharged in violation of public policy? Yes. Society values and encourages voluntary rescuers when a life is in danger.

Pugh v. Sees (CAL)

Was there enough to find an implied in fact promise for continued employment? Yes. In determining whether there exists an implied in fact promise, courts have used a totality- of the circumstances approach and considered a variety of factors: 1. the personnel policies or practices of the employer; 2. The employee's longevity of services; 3. Actions or communications by the employer reflecting assurances of continued employment; and 4. The practices of the industry in which the employee is engaged.

Wooley v. Hoffman-La Roche facts

Whoolley was hired in 1969 no employment K. When he was fired in 1978 he sued for breach of K based on employment manual.

Lilly Ledbetter

Women traditionally make 77 cents to every dollar a man makes. Lilly made 60 cents. Goodyear Tires. Alabama. Lilly won jury verdict, but award reduced then court of appeals ruled in Goodyear's favor that she missed filing deadline w/in 180 days. Alito agreed w/ goodyear, EEOC charge must be filed from when discriminatory action begins.

Constructive discharge

Working conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign.

If somebody had asked Ivy Tech the reason

Would have probably said sexual orientation not sex

What about cases with black hair (i.e. no braids)?

You can say part of motivation for this rule is racial animus. In terms of unequal burden- for some people to not have braided hair is a burden. What ends up happening in these case- courts look at this and say braided hair is a mutable characteristic. Its changeable, hence something employees have to deal with. Applies equally to men and women.

about the prima facie case

a. 2 and 3 for employee are often collapsed. b. This is a low burden. Maybe you end up with a fight over qualifications. c. Note general framework can be altered for any number of employment situations, from promotion to discipline to anything else that might happen at the job.

FLSA test to see if independent contractor or employee: Economic Realities

a. Employer's right to control the manner of work performed. i. most important b. Alleged opportunity for profit or loss. i. A true independent contractor is like a small business person. Power in the marketplace. c. Allege employee's investment in equipment, materials, or assistants d. Whether the work requires a special skill i. IC's ar assumed to have a marketable skill; the less skilled work, the more that the employer must have oversight over the work is assumed. e. Permanence of the relationship. i. Your painter is time-limited; not on-going f. Whether services rendered are an integral part of the employer's business. i. Employers are most likely to hire EEs for key aspects of their operation; most likely to hire employees for key aspects of their operation; most likely to hire an independent contractor for fixing the plumbing. Ultimately, a factor test where no factor is dispositive. A true totality of the circumstances.

Trickier situation- where its a time frame thats not infinite

a. Haley's Comet- This is another problem with these cases. You don't know if a joke or not. b. Bears win Super Bowl.

how it works

a. Providing service to employer vs. we're just sitting here. i. persuasive? a. A gig company might have a better case.

If you are using a test, requirement, or other employment practice that unintentionally blocks certain groups from your company or certain jobs, you must show:

a. The practice is a "business necessity." b. The practice is "job related" i. The ER's burden, not the P's burden

Is Pugh at will? So what are his options?

a. for cause statement; objective standard b. find a term i. explicit: don't think so forever/permanent/always/infinity statements -> considered by the restatement a definite term. A good cause standard will be inserted. If they use this language for a term. I.e. Bob you are a permanent fixture around here. Anything that connotes forever.

Salary limit test 3 part test

a. must make more than $23,660 per year. Potentially exempt if you make more than this. Anybody who makes below this, automatically entitled to overtime no matter what because you won't have satisfied first part of 3 tests. Current limit. Obama had raised. Second part of test- employer has to pay by salary not by hour. b. salary basis test- must be paid by salary (set amount no matter how many hours you worked) check you receive on a regular basis. paid regardless of number of hours you work. c. duties test- three major categories. Worker in question claiming overtime, employer has to argue fits into one of the exemptions. 1. executive exemptions- primary duty- managing a department or subdivision of a department. -key powers: hire/fire 2. administrative exemption- Primary duty- office or non manual work related to management priorities. -key powers- use of discretion or independent judgment for matters of significance. Not just following orders. 3. Professional Exemption [2 categories] i. learned professional-primary duty- advanced knowledge, predominantly intellectual and consistent exercise of discretion and judgement instead of routine and manual work. Requires a prolonged course of study. Lawyers, doctors, etc. Not just a college degree. ii. Creative professional-primary duty- invention, imagination, originality, or talent in a recognized field of artistic endeavor.

Retaliation

about as many discrimination suits are filed as retaliation. growing area.

Rule retaliation

actions that a "reasonable employee would have found materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

Title VII Equal pay

also has a remedy for the wage gap. Advantage: No Equal work requirement. Disadvantage: Intent (discriminatory intent hard to prove) -also at some point, Ps are still going to have to come up with some sort of male comparator, even if the male does not have to be doing "equal work." This is because the prima facie case in the "compensation" context generally requires an "inference" of discrimination at least.

summarized

applies to state and local employees, 15 employee minimum, covers all employees including supervisors, managers, and CEOs.

Why its citing constitutional law cases when discussing title 7?

being disadvantaged because of characteristic of person you associate with means you are being discriminated against for your traits. Drawing from general principle of Loving. Strongest textual argument of majority- comparative method. If she was a man married to a woman. Comparative gains traction. If you were a man dating a woman, you wouldn't be fired so you are being fired for being a woman.

EEOC enforces

but also a private right of action once the EEOC grants you a "right to sue" letter

other exemptions

camp counselors, saturday night baby sitters professional crabbers, journalists on local newspapers with circulation less than 4,000, taxi drivers, employees at movie theatres, radio or television news announcers, local agricultural workers, and a variety of employees engaged in transportation. others partially exempt- retail employees paid commission, private hospital and nursing home employees, law enforcement and fire fighters. But most significant for executive, administrative and professional employees! see above!

Commission

cant be touched if duly earned. cant deduct for returns.

violation of FLSA

coffee break deductions

Compensable

coffee breaks, waiting, staff meetings, fire drills, grievance adjustment during working hours.

Title VII (compensation)

compensation one of listed terms and conditions

Woolley

court puts themselves into shoes of employee. we conclude that when an employer of a substantial number of employees circulates a manual, that when fairly read provides 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. manual constituted an offer not expression of company's philosophy.

Note

courts have not yet applied doctrines of unconscionability, adhesion, standard forms, or illegality of provision to wrongful discharge cases brought in K. '

Theme

courts uncomfortable with mechanisms that don't seem to have anything to do with the job or business! i. Touchstone is business necessity

States

different rules about what to proceed under.

Title VII covers two types of discrimination

disparate treatment: intent! [think: want, desire, hope, goal] disparate impact: neutral practices with a disparate effect. ex: high minimum

LOL

does a taxi driver need an IQ test? Taxi Company preferred unemployed PHds to have intellectual conversations with drivers. *** When two candidates meet minimum requirements (i.e. high school diploma) Title VII does not prevent employer from preferring candidate whose education surpasses minimum requirements.

FLSA

does not require vacation, holiday severance, sick pay, meal, or rest periods; premium pay for weekend or holiday work; pay raises or fringe benefits; and a discharge notice, for reason for discharge, or immediate payment of final wages.

Discrimination

doesn't necessarily require "intent." Can also be proved through neutral practices that nevertheless have a negative impact on certain groups. FACIALLY NEUTRAL PRACTICES. Employer threatening to do right thing, but imposing standard for business. Not difficult to come up with examples of facially neutral practices. Employer attempting to do right thing, but imposing standard for business. Examples: Must be able to lift 55 pounds. Must be able to work Wednesday nights.

McDonalds question

food has to be offered at wholesale price not retail. Ask if doing for employee's benefit or employer's benefit. Never what you charge public. Violates FLSA if offering at retail price. Lunch has to be non retail. Suspenders- voluntary not violation. Just swag here like mcdonald's souvenir.

Children under 14

forbidden from working. Special exceptions Certain types of agricultural work, baby sitting, and other chores, employment in parent's business, and for actors and performers.

Yanowitz's life after refusing to fire

getting called back to NYC, having her travel audited, getting screamed at in front of staff, memos about how terrible she is at job, travel restrictions. Not just insubordination.

Good sexual harassment policy

give number somebody can call and staffed at all time. have quiz or test on Title 9. -Why is it not cool to have employee go to HR? Question as to how independent HR is... Who is HR's boss? Employer. Who is more intimidating to HR? CEO or random employee? CEO.

If employer has you sign manual

good evidence for employee

Last section on discharge

good faith and fair dealing National Cash Register

Pugh

he can't point to express K, but there is implied. Question whether there exists an implied in fact promise for some form of continued employment. Factors: i. personnel policies or practices of the employer ii. employee's longevity of service iii. actions or communications by the employer reflecting assurance of continued employment iv. practices in the industry

Most sex harassment cases involve hostile environment

hostile environment harder to prove than quid pro quo sexual harassment claim because the plaintiff has the burden of proving that the action was severe or pervasive enough to create a hostile work environment, which altered the conditions of the victim's employment

BFOQ test again

i. Does the particular job under consideration require that the worker be of one sex only? I.e. only a woman can do this job? ii. Is the requirement necessary to the essence of the employer's business? Will it undermine? Will what SW does collapse?

The Rule BFOQ (bonafide occupational qualification)

i. Does the particular job under consideration require that the worker be of one sex only? I.e. only a woman can do this job? ii. Is the requirement necessary to the essence of the employer's business? Will it undermine? Will what SW does collapse?

Why might SCOTUS want to do something about a situation where it appears that a protected group is being harmed but under the existing interpretation of T7 there is no cause of action? Why shouldn't Ps lose here.

i. T7 purpose ii. T7 language "because of" remember 703 (703 (a) It shall be an unlawful employment practice for any 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.) iii. Practices could be a sham! 1. Here, for example, do the requirements seem necessary? a. Wonderlic? b. Incumbents? c. Help in Iding good applicants? iv. Check on administrators run amok.

Whats tricky

in practice judge hears all of this to start and must determine summary J. It turns out that whether judges should send a case to a jury is a very complex and troubled area. Basic problem- Courts do not agree on what it means if P proves that employer's non discriminatory reason is a lie and nothing else. Is the fact that the employer is a liar enough to get a case to a jury? Or is some evidence of animus still needed?

disparity less

in unionized jobs w/ set pay scales.

Supreme ct in CA

interpreted K to continue indefinitely "A contract for permanent employment means that P's employment was to continue indefinitely, and until one or the other parties with for some good reason, to sever the relationship.

Sex Amendment (Start section on Disparate treatment)

introduced by Smith. One word "sex" added to Title VII. February 8, 1964. Added as a prank so bill wouldn't pass, but it backfired.

McDD

is but for test! Under McDD, Ann will lose.

Harrah case

it was clear workin at Harrah's caused more burden on women. Stereotype- whats she saying? You fired me because...

Dissent here

its a stereotype and there is real harm here.

If your client reacts badly to even a frivolous claim

its going to have problems

whats equal work?

key language- performance of which requires skill, effort, and responsibility and which are performed under similar working conditions.

Woolley reasoning

manual was carefully prepared and distributed. reasonable employee will read manual and take note of important policies. unfair to allow employer to distribute manual that makes promises and then allow employer to renege on those promises. EMPLOYER MUST BE FAIR!

Not everyone is entitled to overtime.

many workers are exempt.

Comparative worth claims

markets hesitant to accept

People paid a salary

may be eligible for overtime

not compensable

meal periods longer than 30 min, scheduled maintenance shut downs, union meetings for internal union affairs, voting time (unless compensation required by state law), and absences for illness, holiday, or vacation.

Equal pay act [enacted year before title 7]

men and women should receive equal pay for equal work regardless of sex. strict liability no intent needed. if its equal work, gotta have equal pay between the sexes.

Baseball

minor leaguers not entitled to overtime.

Benefit of torts

money

Just cause

not a high standard

2010 panel

not paying people is bad

Bonuses

not wages

title vii terms and conditions

one is compensation

Rule

only need to reasonably and in good faith think that the practice you're opposing is illegal, even if its not.

Yanowitz

opposing any practice even including to follow an order seems to violate t7 even if it may not and even if the employee doesn't say why she is opposing it. Yanowitz never admitted she believed firing "unattractive" girl was discriminatory.

If you compare women with degrees and men with degrees (i.e. male doctors and female doctors)

pay gap

State licensing rules

purely hygienic. Dentists don't want hygienists doing certain things. Purely economic protectionists. Doctors dont want nurses doing certain things too. If computer can do it not practice of law. Punchline from case- document view not practicing law.

Two types of sexual harassment

quid pro and hostile work environment

What is title vii trying to do?

remedy discrimination: where is the but for test? remedy discrimination where it played ANY part in a decision. Remember torts had to come up with solution to problem where two fires combine to destroy a house.

Gig economy

see below

Pay inequality

see below

Disparate impact/adverse impact

see below. To gain a basic grasp of unintentional discrimination and Title VII'S main procedural mechanisms for identifying it. To understand and recognize the applicability of the BFOQ defense to discrimination.

Price waterhouse

set up expectations and assumptions based about how someone should or does not act based on a stereotyped characteristic. Court thinks Ann faces a "catch 22" bc/ she will not get promotion because not ladylike, but to be partner you have to be aggressive and assertive. Court thinks evidence of stereotype at play can help P's case, but the P needs evidence the stereotype was relied upon. Regardless, the stereotype evidence doesn't rebut the legitimate non-discriminatory reason. Reality is sometimes we deal with MIXED MOTIVES.

But if the supervisor's harassment doesn't result in tangible adverse employment action (i.e. pay cut, demotion, firing)

then the employer gets an adverse defense 1. the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior. a. AND 2. The employee reasonably failed to take advantage of the preventative or corrective opportunities provided by the employer or to otherwise avoid the harm. a. Employer's burden to prove both prongs

Downside to independent contractors

they may be crappy. if employer cares about brand, may not be a good idea.

SW argument

they may discriminate against males because they are men. Straight up intentional discrimination. Also height weight requirements. They concede point of requirements to exclude men. In 71- SW doing terrible. They were about to fail as a business so they started sexy marketing campaign. High boots, hot pants.

States are free

to enact stronger provisions, but Title VII acts as a floor. Title VII more important than the other federal civil rights actions, which require state action.

If you sue for appearance code-

two burdens- unequal burden and gender stereotyping

Types of disparate impact

unlawful discrimination by employers; practices that constitute deliberate differential, or disparate, treatment; and 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. Cases in this second category are labeled adverse impact or disparate impact. Adverse impact- declare discriminatory consequence of an employer's facially neutral practice is unlawful discrimination. Disparate impact- focuses on intent rather than effects, such as when an employer refuses to hire women or people with a particular disability or of a particular age.

Rule

unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under T7 or because the person has filed a complaint, etc. [Note CA law in Yanowitz follows T7 essentially]

4/5 rule

upshot: the selection or pass rate for any subgroup should be at least 80 percent of other group. If 100 percent men are hired, you want at least 80 percent women hired.

woman working at daycare for last 15 min of lunch break.

violation. she has to be paid for 15 min.

Advantage of Civil Rights act

was almost all for not. Bc/ a provision of it says Not unlawful for ER to differentiate based on sex if differentiation is authorized by Equal Pay Act. But Washington v. Gunther clarified 703 (h) only applies to EPA's affirmative defenses. So if an EPA affirmative defense is valid, the Title VII CASE must fail but still no equal work requirement. Majority in Washington v. Gunther were concerned Title 7's protections against compensation discrimination would be cancelled.

Point

we sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman. see top of p. 143 for more

This section addresses question

when do these disparate impacts violate Title 7? a. How much is too much? b. When is neutral practice ties so closely to the business and the job that the impact should not be illegal?

When lawyers not eligible for overtime

when practicing law

Hansen v. America Online

AOL has gun policy. Employers caught on camera removing guns from car and putting into one man's vehicle to go to gun range after work.

Argument AOL's property rights not as strong

AOL has right to exclude renters, but they are only renting. See lease for owner of parking lot. Guns were inside vehicle. UPS case note 1. here employees win because vehicle parked in public area. Why different? Employer's rights do not extend to public parking lot.

Public policy exception as a tort

Gantt

Slippery slope argument

Police officers different. Hands on interaction with people. Bringing law and rules of society into life.

What does the PP majority identify?

They want people to be encouraged to perform heroin conduct.

Unique about employment law

Very little unifying. No all encompassing U.S. law about employment law. Not labor law. Employment law is all over the place. Title VII, big civil rights act. FMLA, federal pregnancy discrimination laws, etc.

Not all states

have endorsed public policy exceptions to at will rule. New York in Murphy case said legislature has infinitely greater resources and procedural means to examine the variety of pertinent considerations, to elicit the views of various segments of the community that would be directly affected and in ay event critically interested and to investigate and anticipate the impact of the imposition of such liability.

Tangible benefits from jobs in USA

health care from employers, 401 k

Statute

lifeline for court here. Much too difficult to balance two random interests against each other.

Just cause

means legitimate reason. usually will go to arbitration. No call, no show is usually just cause. Insubordination is just cause.

Random point

never under an obligation to tell somebody why they are fired.

Contractual exceptions to at-will employment

new section

Employee getting fired

p. 652 probably legal unless more facts. If retaliation usually illegal.

California

says anything that breaks statute or constitution. helping person being sexually harassed is not helping public good.

At will

technically a contract. At will is seen as having contractual relationship with employer.

Confusion may arise

when large business operating in multiple states

Elements to argue public policy exception

1. P identifies a "fundamental and well defined" state public policy in a statute or constitutional provision. 2. P demonstrates that the firing violated the policy [as stated here, by proving that the P was fired for refusing to violate the constitution or statute] 3. If P is successful in proving then burden shifts to D to show "just cause" for termination. I.e. employer says I didn't fire you from going to Bieber concert. I fired you because the days absent. (For exam, identify public policy and see if facts fit)

Social Security Act

1935- Congress enacted to establish a federal administered retirement system with benefits extended to permanently disabled workers in 1956

Equal Pay Act

1963- unlawful for employers to discriminate between men and women with respect to wages.

Title VII of Civil Rights Act

1964-prohibited all discrimination in employment on the basis of race, color, religion, sex, or national origin.

Age Discrimination in Employment Act

1967- prohibited discrimination on the basis of age

Occupational Safety and Health Act of 1970 along with the Mine Safety Health Act

1970-Established minimum health and safety standards for the workplace.

Rehabilitation Act

1973- Employment rights for the disabled were originally enacted here.

Employee Retirement Income Security Act

1974-to protect pension and other benefit entitlements.

2014

63 percent of working age population employed, 139 million employed, 9.5 million unemployed and would have worked if they could have found jobs.

Gantt v. Sentry

Added extra element- protect public good Bammert has well defined, fundamental. Hit all of these if you want to argue public policy. Public policy not a precise definition.

Hansen v. America Online

Affirmed. The appellate court's task was to determine whether the right to keep and bear arms in Utah was a public policy which was so clear and substantial as to supersede an employer's attempt to restrict weapons in the workplace by contract. However, public policy does nor implicate an employer's right to restrict firearms in a parking lot leased by the employer and to terminate an at will employee for violating that prohibition.

Hansen v. America Online (Utah)

Balancing of policies. Though in general, its always fair to defend against a court's finding of a public policy by pointing out a competing policy.

Why real facts in Bammert didn't work

Because it wasn't her who was applying the law. It was her husband. She did nothing. She was not asked to violate statute. She was essentially fired for husband's enforcement. Wisconsin wants to see courageous employee who refuses to violate what employer wants her to do! Even if hardware worker told her husband dont arrest my wife, still not enough.

Some states can create law not to comply with federal law

California- only state you can't have a non competition agreement.

Drawback to public policy tort

Can be subject to competing claims in states that follow category 3 (exercising a statutory right or privilege).

Why are category 3 cases the toughest?

Categories 1, 2, and 4 are about employer coercing you to violate law. 1, 2, and 4 are about employer's coercive power over employees and "serve no legitimate economic objective and corrode civil society." Category 3 balance competing legitimate interests.

Category 3

Employee asserts interest in public policy or constitution. Employer can assert a public policy too. But its even easier for them, since employers have inherent interests that courts recognize and do not need to rise to the level of something "fundamental" "well-defined" and "protecting the public." MAKE SURE YOU KNOW SOME OF THESE INHERENT EMPLOYER INTERESTS.

Cases employees lost for PP

Employee fired for giving racist comments to news paper, employee saying she needed to consult with attorney before signing warning, p fired 9 months after successful personal injury lawsuit court told him right to file lawsuits against employer not supported by public policy, leaving work 15 minutes early to go vote

Employer argues

Employee's assertion of a public policy interest is not "fundamental" or "well defined" enough because it clashes with another interest.

employer's argument

Fundamental- No. Policy meant to protect drivers. Fundamental right to protect employees. Not fundamental because conflicting employer right is safety. Safety of driver rubs up against as equally important. Not fundamental because we already pay people to be policy officers. No duty to act. Torts. This is an area that is technically a tort. No duty to act in torts. Well-defined- NO-Perception of another's life in danger, perception of dangerous situation. Sometimes nobody's life is in danger. You can be on movie set and not realize it. How about a run of the mill fight and neither person has a weapon. Then Loomis driver jumps in. Protective of public good- No, public policy not furthered by encouraging citizens to jump into criminal acts. Citizens not trained. Citizen involvement can create additional risks.

employee's argument

Fundamental- yes, preservation of human life, safety, value public good of intervention when somebody needs aid. If writing brief, you can even cite religious texts important to the state. Part of human nature to act. Fundamental to human nature, compelled to do this... Society is obsessed with heroes. We revere heroic conduct. Well defined- Yes, limited to imminent and life threatening situations. If he reasonably believed his intervention was necessary to save her life, intervention was necessary. Protection of public good- yes, swift action, accountable society, promote good conscience.

Non-statutory policies (public policy exceptions to at-will employment)

Gardner v. Loomis

If under just cause regime

Has to be legitimate reason. I.e. insubordination, no call no show, being rude to customers.

Many state legislatures

Have enacted their own versions of federal legislation, in some cases providing greater protection than federal law.

Gantt

He was pressured to retract his claim and demoted after helping a coworker who was being sexually harassed. Issue- whether an employee who was terminated in retaliation for supporting a coworker's claim of sexual harassment may state a cause of action for tortious discharge against public policy. YES.

How could you have argued for Bammert?

Identify public policy- sober driving in DWI statute. State wants people to drive unintoxicated. Marriage and families. Ct agreed with her these things were fundamental, but P has to show set of facts. Public policy violated in way state wants.

Dissent's point

If no way to protect Karen, any police officer will have to worry about family member being retaliated against. Dissent identifies state policy of vigorous enforcement of law. Says its violated by retaliating against police officers for enforcing the law by firing their spouses. NOTE: Judges often want legislatures to take care of this.

KEY QUESTION

Is it fundamental? Is it well defined? Does it protect the public good?

Gordon v. Bender

employer says you won't be fired as long as you do a good job

Bammert v. Don's Super Valu, Inc. (Menahmeha, Wisconsin)

Karen worked for 26 years at store. Karen got fired because her husband who was a cop pulled over owner of store Dan's wife. Here, it is undisputed why Karen was fired. In at will world, Don can say he fired her because her husband arrested his wife. the Wisconsin Supreme Court was faced with "a single question of first-impression: can the public policy exception to the employment-at-will doctrine be invoked when an at-will employee is fired in retaliation for the actions of his or her non-employee spouse?" The court answered this question in the negative. he state supreme court held that the public policy exception to the employment-at-will doctrine could not be invoked when an at-will employee was fired in retaliation for the actions of his or her non-employee spouse. The case was properly dismissed for failure to state a claim. Reasoning[edit] Wisconsin's public-policy exception to the employment-at-will doctrine is narrow. First, the court reiterated the state's public policy exception to the employment at will doctrine : ordinarily, an employer may discharge an at-will employee " 'for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of wrongdoing"; however, a suit for wrongful discharge is available "when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law." It also reiterated the Brockmeyer court's characterization of the narrowness of this exception: public policy did not entail a "broad implied duty of good faith [termination]", since such a duty "would unduly restrict an employer's discretion in managing the work force" and " 'subject each discharge to judicial incursions into the amorphous concept of bad faith.' " Rather, the public policy exception is 'narrow," i.e. applicable only where the discharge "clearly contravenes the public welfare and gravely violates paramount requirements of public interest." And since the action is predicated on "the breach of an implied provision that an employer will not discharge an employee for refusing to perform an act that violates a clear mandate of public policy," in sounds in contract not tort.

Whats tricky about federal laws?

Many only apply to certain size employers. I.E. Law that protects against religious discrimination only applies to 15 employees.

Public policy exception to at will employment (CL exception)

Narrow exception- exception is like outer bounds to discharge protection. When something happens at work and court finds to be distasteful, this is against public policy of state and we will not allow. Under the public policy exception to at will, an employee is wrongfully discharged when the termination violates an explicit, well-established public policy of the state.

Federal Laws

Often floors that apply to businesses of various sizes

Gordon v. Bedner

Received a letter placing him on probationary status after not meeting goals. If he met his goals he would be restored to "acceptable sales performance." He was fired anyway. He tried to rely on Scarmuzzo where P alleged employer told him he would only be fired for good cause and he would retain all corporate responsibilities assigned to him as long as he competently executed such responsibilities. This case is different because no discharge for good case (objective criterion) has a different meaning from an employment which lasts as long as performance is acceptable (subjective decision).

Despite explosion of legislation

Right to be fired only for cause is not addressed by virtually any legislation

Why is rule so important to Loomis?

Safety. Employer interest always important in category 3 case. (3. exercising a statutory right or privilege)Safety inherent employer interest.

What do Fed Ex and UPS do around holidays?

Seasonal employees

How just cause may arise even if you didn't contract for it

Simplest way to be just cause employee- negotiate. Doesn't really happen. Easiest way for just cause to be implied in employment relationship. Ways it can be implied- if you are supposed to be employed for a certain period of time. If K of employment for definite term. Classic example- teachers. Doesn't have to say firing. Its just there,

Examples of violations of state public policy

Some common examples are terminations based on the employee filing a worker's compensation claim or an employee's refusal to engage in illegal conduct for the employer. Public policy is typically determined by the state's constitutions, statutes, or administrative rules.

Where may public policy be found?

State constitution, statute, administrative rule, or other state policy. Cite public policy thats violated, statutes, constitutional provisions.

Characteristics of a statute that brings about a fundamental right

State passes resolution honoring Justin Bieber. Employee fired for attending Justin Bieber concert. You have to argue boss has violated fundamental and well defined state policy.

State laws

State sets standards above the federal level or not at all (Leaving federal law as the only law), or where the feds have done nothing at all and the state steps in.

Gardner rule

Termination for violating company rule in order to save someone from a life-threatening situation can violate public policy.

Problem with contract law

With doctrines of mutuality of obligation and consideration was not historically sympathetic to the individual who had made a bad bargain, unless fraud, duress, or coercion could be shown and none of these applied in the typical employment relationship. But facts of these cases cried out for a judicial remedy. Judicial activism first encouraged by employment discrimination laws ultimately spilled over into other aspects of employment. Discharges in violation of public policy soon became a recognized tort. Principle justification for this public policy cause of action is that certain discharged that contravene established norms of public policy harm not only the specific employee but also the interests of the parties and society as a whole.

Unilateral K Employment law

You start working at Chipotle. They pay $9.50 an hour. Even if they don't put in writing, still an agreement. Has Chipolte breached K if they say today you are working for $8.50? No. Classic example of how employment law is different world than contracts. You are the employee are accepting new contractual terms every moment you are working. If you opt not to leave, you have accepted terms. True unilateral K.

Anytime the court makes up a policy not based on a statute or constitutional provision

You're probably in category 3

Since mid 1980s

a. Worker Adjustment Training and Notification Act b. Employee Polygraph Protection Act (1988) c. Americans with Disabilities Act, the Civil Rights Act of 1991 d. Family Medical Leave Act 1993 e. Genetic Information Nondiscrimination Act f. Patient Protection and Affordable Care Act (2010)- more comprehensive federal regulation of employment based health coverage.

States care

about state law! Federal laws are not justification for a state policy nor is U.S. Constitution. PENNSYLVANIA- Retaliatory termination in violation of OSHA is not a clear and substantial public policy of this commonwealth.

U.S. Employment Law as a patchwork

as opposed to labor law

On exam

be creative about why statute is fundamental and well defined and embodies the public good. Nurse working at spine center. Doctor sexually harasses her. Wants her to leave husband for him. She is fired. Lawyer found statute against adultery. He must argue this statute is fundamental, well defined public policy which protects the public good. Federal law doesn't matter with these cases. Focus on state law. Category 4 cases where somebody is fired, employees often lose.

Each state

different definitions

The Employees Case

i. Do they have a statute or constitutional provision? ii. What public policy do they think it embodies? iii. What sinks their Element 1 case? 1. Legislative history 2. Text of the statute itself iv. Is there an argument that, actually, the employer's property rights here are not that great?

Employee's argument

i. What policy? Where is it located? ii. What category are we under? 1. refusing to violate a statute. 2. performing a statutory obligation 3. exercising a statutory right or privilege and 4. reporting an alleged violation of a statute of public importance

General rule regarding written contracts

if contract is for a definite term the employee may be discharged before the expiration date only for breach of a contractual provision or other "good cause." When the employee establishes that he or she was discharged in violation of an employment contract, the burden shifts to the employer to prove the existence of good cause for the discharge.

Littering law

protect public good, but perhaps not fundamental

Confusion of laws

reason for the growth of the HR industry