Chapter 51 – Employment Law
51-1
CHAPTER 51
EMPLOYMENT LAW
I. OBJECTIVES
This chapter discusses the most important legal topics that deserve to be considered part of
employment law. Although the chapter’s scope is broad, its emphasis is selective. That is, the
chapter concentrates its efforts on the employment-related topics that hopefully are of the greatest
current interest: employment discrimination, employee privacy, and common-law suits for
wrongful discharge. Such selectivity is required by the general nature of this text. Even so, this
is a very long chapter. Thus, instructors may want to use its materials selectively. The material
on employment discrimination can be taught as a self-contained unit, as can the material on the
recent erosion of employment at will.
Depending of the portions of the chapter upon which the instructor focuses, after reading the
elements of a work-related injury.
B. Identify and describe legislation that protects workers’ safety, health, and well-being; that
regulates employees’ wages and hours, pensions and benefits, and income security; and
that governs unionized workforces.
C. Analyze and apply the appropriate legislation for a workplace scenario for potential
potential defenses.
D. Distinguish the relative privacy rights of private-sector and public-sector employees.
E. Describe the employment-at–will doctrine and its major exceptions.
II. ANSWER TO INTRODUCTORY PROBLEM
questions.
A. Possibly. Jackson was subject to a racially hostile work environment. The comments from
held liable for the harassing behavior of its employees. Though the chapter’s discussion
B. If Wheatfield attempted to justify its actions based on the residents’ preferences, such an
Chapter 51 – Employment Law
51-2
VII for same-race health providers. Moreover, in general, the BFOQ defense is usually
privacy interest.
D. As described on pages 1350-1354, Jackson is entitled to workers’ compensation benefits for
work-related injury.
1376.
F. Mandatory drug testing by a private, nongovernmental employer is generally permissible.
in drug and alcohol testing.
G. Yes. As explained in page 1356, unemployment compensation protects employees after their
employment ends. Though employees who voluntarily quit or who are fired for bad conduct
H. Yes, as long as the state in which these events occurred has adopted the public policy
exception to employment at will. Page 1381 describes this exception.
III. SUGGESTIONS FOR LECTURE PREPARATION
A. Discuss how the field of employment law has grown and expanded in a relatively short time.
B. Legislation Protecting Employee Health, Safety, and Well-being
1. Workers’ Compensation. The main things to stress here are:
a. That workers’ compensation is an employee’s sole recovery for covered injuries
against covered employers; that this recovery is based on strict liability; and that
workers’ compensation eliminates the three traditional defenses of assumption of
risk, contributory negligence, and the fellow-servant rule.
the text’s main vehicle for developing the different tests used to determine whether
the injury arose out of the employment. In addition to the increased risk and
positional risk tests discussed in that case, some states have used a test intermediate
between the two: the actual risk test. Under this test, the injury is compensable if the
Chapter 51 – Employment Law
51-3
allow recovery for frostbite if the nature of the employment actually exposed the
d. Darco Transportation v. Dulen (p. 1408) discusses and applies the two major tests
for workers’ compensation liability in the context of alleged employee horseplay.
Points for Discussion: What arising-out-of-the-employment test does Oklahoma
appear to have adopted? (Positional-risk). What result in this case under the
(1) viewing this case as in essence a contributory fault case, and (2) expunging any
hint of contributory fault from Oklahoma workers’ compensation law.)
Additional Example: Problem Case #1.
2. Discuss the general provisions of OSHA, comparing its purpose with that of workers’
occurred).
3. Discuss the provisions of the Family and Medical Leave Act.
military family amendment to FMLA.
covered leave.
C. Legislation Protecting Wages, Pensions, and Benefits
2. With regards to ERISA:
b. You might mention that ERISA is a very complicated statute in which individual
capacity on behalf of a party whose interests are adverse to the interest of the plan.
3. Discuss the Fair Labor Standards Act and identify some very familiar features of our
D. Collective Bargaining and Union Activity
1. Note that this brief text coverage of collective bargaining and union activity is primarily
an historical overview of the topic.
Chapter 51 – Employment Law
51-4
E. Equal Opportunity Legislation
1. The Equal Pay Act
a. Emphasize how limited a provision the EPA is: it applies only to sex discrimination
regarding pay.
the jobs with respect to these variables, job descriptions are probably important, but
what the employees actually do is also quite significant. Remember that the skill in
c. In the interest of not providing too much detail, the text does not address the issues
raised in the 2007 Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Co.
statutory interpretation, which is especially active in this area of the law.
2. Title VII
a. By way of introduction, note that Title VII is the employment discrimination
b. When discussing Title VII‘s coverage, it is easy to set up hypotheticals regarding
employment agencies. Suppose for example that an agency with 10 employees
practices laws can apply to employers as well, even in some cases in which an
employer’s workforce is too small for Title VII to apply.
c. Overview the complicated procedure and short statute of limitations of Title VII.
d. Regarding the methods of proving a Title VII case:
1) Stress the importance of the subject. If Title VII only covered situations where
an employer uses express classifications or where direct evidence of
2) Following amendment to Title VII in the 1991 Civil Rights Act and, particularly,
the Supreme Court’s 2009 decision in Gross v. FBL Financial Svcs., Inc., the
Chapter 51 – Employment Law
51-5
the motivating factor standard for mixed-motives claims in addition to the more
dominant (though not necessarily more important) McDonnell Douglas
paradigm.
3) Two other Title VII proof methods probably deserve some attention, especially
on the heels of the 2011 Supreme Court opinion in Wal-Mart Stores, Inc. v.
have increased in importance. Proof of a pattern or practice of discrimination
usually takes place by statistics to show that discrimination in the defendant’s
standard operating procedure, rather than isolated instances. The statistics may
be supplemented by specific evidence of discrimination. If such proof is
abandons explicit discrimination but adopts a rule saying that new members must
be related to, or recommended by, existing members. Hulteen, however,
restricted the operation of this theory by holding that an employer was not liable
for the ongoing disadvantage that was created by a service credit rule that was
disparate treatment based on religion. Gaskell was clearly the most experienced
applicant to direct UK’s new astronomical observatory. But some members of the
search committee were worried about his scientific beliefs and his ability to interface
with important constituencies, such as other departments. These concerns were
evidence of discrimination (i.e., is religious discrimination the only possible
interpretation of the statements and e-mails the court quotes)? How is it that the
court finds direct evidence of discrimination, but does not grant Gaskell’s motion for
summary judgment? Here is a good opportunity to remind students of the procedural
Chapter 51 – Employment Law
51-6
© 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.
case to launch a discussion of Title VII’s prohibition on religious discrimination, as
discussed on page 1367. In particular, it illustrates the sometimes messy interplay
between religious beliefs and nonreligious scientific, cultural, or political viewpoints.
f. Discuss Title VII’s defenses, especially the same-decision defense and the BFOQ
defense. You might want to introduce students to the BFOQ by discussing the
infamous “Hooters Case,” which many students have heard about. Some details
about the case are available at the following websites:
http://blogs.findlaw.com/free_enterprise/2009/04/can-men-be-hooters-girls-when-
can-businesses-hire-only-women.html (providing an overview of the issues);
http://www.originalhooters.com/saga/the-90s/ (providing Hooters’ own description of
the case).
women. Milwaukee County defended the policy by arguing it was a BFOQ.
Points for Discussion: This case is a strong illustration of how courts are skeptical of
BFOQ claims and have been careful to interpret the defense quite narrowly. Though
courts tend to give wide latitude in personnel matters to administrators of correctional
provide sufficient evidence to support its claimed BFOQ for the sex-restrictive
assignment policy, you could generate discussion with students by posing the
following question: “What evidence could a correctional facility present that might
be sufficient to justify as a BFOQ a discriminatory policy like Milwaukee County’s?”
g. Regarding the prohibited bases of discrimination:
on an adverse impact argument. The EEOC has guidelines on these situations.
3) Note the wide sweep of Title VII‘s ban on religious discrimination. Emphasize
that the ban extends to religious observances or practices, and note that the
employer has an “undue hardship” defense. It may be worthwhile to remind
preferred accommodation.
Chapter 51 – Employment Law
51-7
h. Regarding sex discrimination:
1) Note that voluntary reverse discrimination in favor of women is treated under
tests like those used in similar situations involving minority preferences. Such
practical edge in obtaining promotions.
to liability for harassing behavior. The goal is to focus students on what they
should be doing to avoid, prevent, and correct harassment in their current or
Chapter 51 – Employment Law
51-8
© 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.
retained an attorney and the attorney threatened legal action did the employer fire
Fye. The case illustrates a case of supervisory harassment without a tangible job
action (i.e., a supervisory hostile environment theory). It also illustrates the
application of the Ellerth/Faragher affirmative defense.
Points for discussion:
a) It is worthwhile to draw out the point that sexual harassment cases do not
require that the perpetrator is, in fact, sexually attracted to the victim. In this
case, it did not matter whether Fye was gay or bisexual, but rather only
mattered that he targeted Ashmore and Green because they were men.
sex).
b) The case also provides a vivid example of the fact that Title VII is not a
“general civility code” for the workplace. Note that the court had to take
seriously arguments about whether Fye’s clearly inappropriate conduct was
sufficiently severe or pervasive to create a hostile and abusive environment.
c) The court’s holdings regarding the vicarious liability standard and the
Ellerth/Faragher affirmative defense should provide excellent fodder for
class discussion, particularly if you ask students to put themselves in the
shoes of Ashmore and Green. Note that Ashmore and Green endured more
Green, ‘We recognize that you endured terrible behavior, but your employer
did everything we can expect of it to protect you,’ even though it did nothing
effective for more than a month?” The court also finds that Ashmore and
Green unreasonably delayed in notifying their employer about the
3. Section 1981
compared with Title VII, 3) the groups probably protected by section 1981, and 4)
employer might discriminate against covered employees.