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Chapter 51 - Employment Law
a)
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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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© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Chapter 51 - Employment Law
D. J. HOOD, B. HARDY, H. LEWIS, WORKERS' COMPENSATION AND EMPLOYEE
PROTECTION LAWS (4th ed. 2004).
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
