978-0077733711 Chapter 51 Lecture Note Part 2

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Chapter 51 – Employment Law

3. Section 1981

a. The main things to emphasize here are: 1) that section 1981 frequently overlaps with

Title VII where it applies and Title VII plaintiffs often include a section 1981 count in

their complaints, 2) the advantages section 1981 sometimes gives plaintiffs as

compared with Title VII, 3) the groups probably protected by section 1981, and 4)

that some controversy over section 1981’s coverage has been resolved by the Civil

Rights Act of 1991. Now, section 1981 applies to most of the ways in which an

employer might discriminate against covered employees.

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Chapter 51 – Employment Law

4. The Age Discrimination in Employment Act

a. The ADEA protects people within the protected age group against age discrimination

favoring people both within and outside the protected group. In General Dynamics v.

Cline, the Supreme Court held that the ADEA does not apply when a younger

member of the protected age group is discriminated in favor of an older member of

the protected age group.

b. Arguably, there are more express age-based classifications than express

classifications based on the bases of discrimination forbidden by Title VII.

c. Gross and Smith, decisions by the Supreme Court dealing with proving disparate

treatment and disparate impact, respectively, under the ADEA, have succeeded in

largely disconnecting the ADEA and Title VII methods of proof. Most courts still

assume that McDonnell Douglas still applies to ADEA claims, but the Supreme Court

has never definitively ruled that it does.

c. In Trans World Airlines v. Thurston, 469 U.S. 111 (1985), the Supreme Court held

that, for an employer’s discrimination to be “willful” for liquidated damages

purposes: 1) the employer must have had actual knowledge that its behavior violated

the ADEA; or 2) the employer must have acted with reckless disregard as to whether

its conduct violated the ADEA. Mere carelessness seemingly was insufficient, as was

knowledge that the Act might apply or that it was “in the picture.”

5. The Americans with Disabilities Act

a. Use Figure 2 on page 1427, applying various fact situations to it.

b. Discuss the ADA Amendments Act of 2008 and explain how the act changes earlier

case law.

EEOC v. Ford Motor Company (p. 1429): Harris, the claimant, suffered from (irritable

bowel syndrome) IBS. She worked as a resale buyer for Ford. She often had trouble

reporting to work on time and often missed work because of her IBS. The case deals

analyzes the ADA accommodation requirement as it relates to physical attendance in the

workplace versus flexible work arrangements (including telecommuting). Harris

requested to telecommute on an as-needed basis when her IBS flare ups forced her to be

absent from work. Ford declined, finding Harris’s job was not compatible with

telecommuting. Ford offered to move her desk closer to the toilet facilities or moving her

to a position in which Ford would allow her to telecommute. Harris declined and filed a

charge of discrimination against Ford for failure to accommodate her disability. The

district court granted Ford’s motion for summary judgment. The EEOC appealed. The

appellate court found that Ford did not establish as a matter of law either that physical

presence in the workplace was an essential function of Harris’s job or that telecommuting

would cause Ford an undue hardship. (Take special note of the concluding editorial note

regarding the en banc appeal of this case.)

Points for Discussion:

a.) Ask students to address the preliminary issue of Harris’s disability. How does she

prove she is a disabled as defined by the ADA?

b.) The role of technological advancements in the past decade or so looms large in the

court’s analysis. Why? Why does the court draw the distinction between attendance on

the one hand and physical presence in the workplace on the other, when discussing the

issue of essential functions of Harris’s job? Generally courts are quite deferential to an

employer’s business judgment, refusing to act as a super-personnel department. Why

does the court not defer so easily in this case?

c.) With regard to the reasonable accommodation/undue burden portion of the analysis,

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Chapter 51 – Employment Law

why does the court’s distinction between presence and availability matter? It is

worthwhile to work through each of Ford’s arguments: (1) that it forced managers to

shift responsibilities to other workers; (2) that Harris’s work suffered from mistakes when

she was not present; (3) that Harris wanted to commute fro too great a portion of her

work time; (4) that Harris rejected other reasonable accommodations that Ford offered.

Explore with the students why the court rejected each of these arguments.

6. GINA is an example of how advancements in technological and scientific knowledge and

abilities can drive new laws and legal protections. Note how it covers insurance issues,

as well as employment. Its procedural and proof issues largely mimic Title VII and the

ADA.

7. IRCA is an important practical law for students to know about in terms of its requirement

that employers verify applicants’ identity and eligibility to work. Though its substantive

antidiscrimination requirement largely overlaps Title VII’s prohibition on national origin

discrimination, a claimant cannot pursue both claims. IRCA’s enforcement processes are

different as well, but a detailed description is probably beyond the scope of the book and

of a reasonable attempt to cover all of the topics in this chapter.

8. Ethics in Action (p. 1433): Among the concerns about the use of arbitration clauses in

employment contract is that they can be imposed on the employee rather than being the

product of free will and that the procedural deck can be stacked in favor of the employer.

Such a clause might be justified if: (1) the employee is fully apprised of its contents, and

(2) employer and employee deal on a relatively equal footing and (3) the arbitration

process is fair and the arbitrator is truly impartial. If such concerns for fairness are

satisfied, however, there are benefits to arbitration of employment disputes. Arbitration of

such cases can cut the transactional expenses of resolving employment disputes, however,

and can lead to disputes being resolved more quickly, cheaply, and privately.

9. As more and more servicemembers return from active duty in the past decade’s wars and

as the United States is more reliant on reserve units and the National Guard, USERRA

will continue to be an important and, at times, onerous law for employers, especially

small businesses. Be sure to highlight USERRA’s reemployment and reinstatement

requirements, paying special attention to the escalator principle.

Additional example: Problem Case #12.

10. Discuss Executive Order 11246 and state antidiscrimination laws.

11. Because the Supreme Court has shown an interest and commitment to protecting

employees of all stripes under all of the employment statutes (including FLSA and other

health and well-being statutes, as well as the equal opportunity legislation) from

retaliation, students need to be aware of the substantive prohibition against retaliation that

appears in nearly every federal and many state employment statues. Retaliation charges

are the fastest growing basis for complaint to the EEOC over the past several years. It is

a common trap for employers to react badly to a complaint or charge that may have little

or no merit and create a valid retaliation claim that subjects them to significant

inconvenience and liability. Moreover, managers simply need to respect the system

enough not to take negative actions against their employees who take advantage of it.

Additional Example: Problem Case #7.

F. Employee Privacy

1. Emphasize that this is a developing area to which many different legal rules are relevant.

Societal conceptions of privacy are changing. The advancement of technology and the

advent of social networking are driving new and different understandings of employee

privacy. Students may find particularly interesting the findings of a recent survey of

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Chapter 51 – Employment Law

undergraduate students and their expectations of privacy in relation to their employers

and online social network activities. See Patricia Sánchez Abril, Avner Levin, & Alissa

Del Riego, Blurred Boundaries: Social Media Privacy and the Twenty-First-Century

Employee, 49 AMERICAN BUSINESS LAW JOURNAL (forthcoming 2012).

2. Throughout many of the topics discussed in this section, keep two things in mind: 1) that

the state action requirement severely limits constitutional challenges to the activities of

private employers, and 2) the various intentional torts in chapter 6 that may bear upon

employee privacy.

3. Discuss the Polygraph Protection Act. See Dworkin, “Protecting Private Employees from

Enhanced Monitoring: Legislative Approaches,” 28 AMERICAN BUSINESS LAW JOURNAL

59 (1990).

4. Discuss drug and alcohol testing. You might bring in an example of a state statute that

covers drug testing in private sector employment.

5. Discuss employee searches and employee access to records and references.

6. Discuss the different ways in which technology has made it relatively easy and cheap to

monitor employees. Note the increasing adoption of internet and communications

policies by employers. Have students articulate the legitimate interests on the part of the

employer to know what its employees are doing at work, then ask the students what

interests employees have in having a zone of privacy, even at work. On balance, do

students think employees should have a legal interest in privacy in their workplace, and if

so, what should be its contours?

7. Ethics in Action (p. 1436): There are a number of legal and ethical concerns in this

scenario. First, this scenario may actually represent a violation of Facebook’s terms of

use (called the “Statement of Rights and Responsibilities”). One interesting strategy

might be to challenge students to locate the terms of use and determine if either Outten or

Samuel violated them. This scenario also provides an opportunity to discuss evolving

expectations of privacy and, even if the law would not provide it, whether those

expectations create ethical obligations. Moreover, Outten has induced Samuel to do

something arguably dishonest for her own purposes. As such, she’s using Samuel as a

means to an end. Students may vehemently disagree whether Samuel has done

something dishonest. Some may argue that Evans can have no reasonable expectation of

privacy in what he puts on Facebook and, thus, cannot be surprised by this type of

scenario. Others will argue that Evans has a clear expectation of privacy (i.e., the

“network privacy” notion described by Abril, et al.).

Additional example: Problem Case #11.

G. Common-Law Wrongful Discharge

1. Begin by stating the traditional employment-at-will doctrine and noting the ways that the

rules already discussed in the chapter have diluted its force. Nonetheless, the at-will rule

is constantly a background consideration and colors the way courts analyze employment

claims.

Nelson v. James H. Knight DDS, P.C. (p. 1437): The claim is of sex discrimination, but

the court’s analysis reveals that the employment-at-will rule looms large in the

background. Nelson was fired by Dr. Knight under circumstances clearly unfair to her,

because he believed he could not control himself from flirting with her, wanting to have

an affair with her, and undermining his (and her) marriage. He indicated that she was the

best hygienist he had ever employed.

Points for discussion: Where in the case do you see the court reasoning on the

“foundation” of the at-will rule. The court indicates that the dismissal was unjust, and yet

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Chapter 51 – Employment Law

affirms summary judgment on Nelson’s claim. Why? This case provides additional

avenues to discuss the potential shortcomings for sex discrimination and sexual

harassment law.

2. Despite the relatively strong commitment to employment-at-will in the United States,

note that the cause of action for unjust dismissal or wrongful discharge marks a reduction

in the sway of the employment-at-will doctrine. Not all states have accepted each of these

new causes of action and that some have explicitly rejected all of them. Also, emphasize

that courts generally find some way to accommodate the major policy behind the

employment-at-will doctrine: giving employers the flexibility to respond to changing

economic conditions by discharging employees whose services are no longer of benefit.

3. Ethics in Action (p. 1439): Pauline Kim’s research suggests that employers may be

relying (even encouraging) a misunderstanding of the employment-at-will doctrine. This

could raise ethical issues for an employer. Is it ethical to take advantage of or encourage a

counterparty’s misapprehension of the protections and rights he or she enjoys? Should

employers have a responsibility to correct the misunderstanding? What benefits might

come from ensuring a fully informed employee?

3. Describe the three basic theories employed in states that have recognized a claim for

wrongful discharge or unjust dismissal.

4. Note that the public policy theory is the most widely adopted of the common-law

wrongful discharge theories. Discuss the types of conduct that may constitute a violation

of public policy. Emphasize that the mere act of discharging an employee without good

cause, even when the discharge seems unfair, is not a public policy case. The public

policy theory can be used only where the discharge interferes with both the public interest

and the employee’s interest, and those are causally related.

5. Sporer v. UAL Corp. (p. 1441): The Sporer case involves issues of technology and

privacy, as well as claims of wrongful discharge. As such, it provides a nice vehicle to

discuss both privacy and employment at will. Sporer sent and received inappropriate e-

mails. Doing so violated United Airlines’ policies about appropriate e-mail usage and

harassment. He was terminated as a result. Sporer claimed that UAL invaded his privacy

by reading through his private e-mails (even though sent to and from his UAL account),

using that invasion as a basis to wrongfully terminate his employment. He also claimed

that UAL’s policies created an implied contract.

Points for discussion: Why does Sporer’s claim of invasion of privacy fail? What role

does a well-crafted and widely distributed policy play in making sure that employees

have no reasonable expectation of privacy in their work e-mail accounts? How does

UAL’s policy ensure that Sporer’s public policy claim fail? Sporer’s implied contract

claim provides a good example of how courts will not lightly modify the at-will rule,

particularly when an employee’s claim is based on supposed informal policies or

practices. Sporer’s employment agreement specifically stated that he was an at-will

employee. Short of a clear repudiation of that status (probably in writing), a court will is

really unlikely to find that an employer has agreed to limit its termination rights under the

at-will rule.

Additional Examples: Problem Cases #2, #6, and #8.

IV. RECOMMENDED REFERENCES:

A. M.A. PLAYER, Employment Discrimination Law (1988).

B. M.A. PLAYER, Federal Law of Employment Discrimination in a Nutshell (5th ed. 2004).

C. ABA SECTION OF EMPLOYMENT AND LABOR LAW, Employment Discrimination Law

(B. Lindemann & P. Grossman eds., 4th ed. 2009).

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Chapter 51 – Employment Law

D. J. HOOD, B. HARDY, H. LEWIS, WORKERS’ COMPENSATION AND EMPLOYEE

PROTECTION LAWS (4th ed. 2004).

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