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Chapter 51 - Employment Law
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4. The Age Discrimination in Employment Act
a. The ADEA protects people within the protected age group against age discrimination
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.
Court has never definitively ruled that it does.
c. In Trans World Airlines v. Thurston, 469 U.S. 111 (1985), the Supreme Court held
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.
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
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
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c.) With regard to the reasonable accommodation/undue burden portion of the analysis,
6. GINA is an example of how advancements in technological and scientific knowledge and
ADA.
7. IRCA is an important practical law for students to know about in terms of its requirement
different as well, but a detailed description is probably beyond the scope of the book and
8. Ethics in Action (p. 1433): Among the concerns about the use of arbitration clauses in
(2) employer and employee deal on a relatively equal footing and (3) the arbitration
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
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
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
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
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privacy. Students may find particularly interesting the findings of a recent survey of
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
employee privacy.
3. Discuss the Polygraph Protection Act. See Dworkin, "Protecting Private Employees from
59 (1990).
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
interests employees have in having a zone of privacy, even at work. On balance, do
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
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
“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
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
best hygienist he had ever employed.
Points for discussion: Where in the case do you see the court reasoning on the
Chapter 51 - Employment Law
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“foundation” of the at-will rule. The court indicates that the dismissal was unjust, and yet
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,
that courts generally find some way to accommodate the major policy behind the
3. Ethics in Action (p. 1439): Pauline Kim’s research suggests that employers may be
employers have a responsibility to correct the misunderstanding? What benefits might
come from ensuring a fully informed employee?
wrongful discharge or unjust dismissal.
4. Note that the public policy theory is the most widely adopted of the common-law
policy theory can be used only where the discharge interferes with both the public interest
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
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
at-will rule.
Additional Examples: Problem Cases #2, #6, and #8.
IV. RECOMMENDED REFERENCES:
A. M.A. PLAYER, Employment Discrimination Law (1988).
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(B. Lindemann & P. Grossman eds., 4th ed. 2009).
PROTECTION LAWS (4th ed. 2004).
V. ANSWERS TO PROBLEMS AND PROBLEM CASES:
court analogized the lab band surgery to any other surgical preparation, like the
administration of anesthesia. The court acknowledged that Childers's weight made him
"more susceptible to" an injury that would immobilize him; however, that did not transform a
work-related injury into one unrelated to his work. As a result, the court upheld the award of
the Worker’s Compensation Board, which required Boston’s Gourmet Pizza to provide
“standing alone, praise with respect to job performance and discussion of future career
was the sort of performance contemplated by the employer. Counts v. Kraton Polymers, U.S.,
LLC, 260 Fed. Appx. 825 (6th Cir. 2008).
4. No. The Supreme Court ruled that the BFOQ defense could not justify the defendant's policy
of excluding certain women from jobs that involve exposure to lead. It stated that Johnson
Controls’ stated concern about fetal health did not suffice to make female sterility a BFOQ.
Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).
resolution of the underlying legal questions. This problem case is based on Griffin v. City of
Portland, 2013 U.S. Dist. LEXIS 154204 (D. Or. Oct. 25, 2013).
6. Perhaps. Feliciano’s suit was removed to federal court. The U.S. District Court for the
Northern District of West Virginia then certified the following question to the West Virginia
Chapter 51 - Employment Law
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the at-will employment doctrine, which provides the basis for a wrongful discharge action?"
The Supreme Court held that the common law of West Virginia “clearly demonstrates” a
substantial public policy in favor of an individual’s right to defend himself, including
numerous civil and criminal defenses based on that right. The Supreme Court further
explained that, even when the employee can make a prima facie case of wrongful discharge,
right to self-defense. The Court did not explicitly address this argument, however, because
answering the certified question did not require it to do so. Feliciano v. 7-Eleven, Inc., 559
S.E.2d 713 (W. Va. 2001).
7. No. The Supreme Court clarified in this case who is considered to be a supervisor for
thus, vicarious liability could not lie against Ball State. Vance v. Ball State University, 133 S.
Ct. 2434 (2013).
8. Yes. Though the at-will doctrine is the default rule for employment relationships in Missouri,
donation. Delaney v. Signature Health Care Foundation, 376 S.W. 3d 55 (Mo. App. 2012).
Inventory Specialists, Inc., 2005 U.S. App. LEXIS 13663 (6th Cir. July 7, 2005).
10. This problem case is based on a lawsuit that Edward Graning filed against the Capital Area
The term “religion” as used in Title VII includes a requirement that employers accommodate
employees’ religious practices and observances, unless to do so would cause an undue
hardship on the employer’s business. The EEOC and most courts have interpreted the bounds
of what constitutes a sincere religious belief, practice, or observance very broadly. In this
accommodated Graning without undue hardship. Additional facts that were not available in
the media coverage of the case would help make this determination. If Graning was the only
driver available at the time, if he was the only driver in that particular region, or if so few
drivers were available that the women would face a long wait and the System would be more
Chapter 51 - Employment Law
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minimal delay and inconvenience, then it is perhaps likely that the System could have
concern would likely be unavailing.
offensive to the reasonably person. Smyth v. The Pillsbury Co., 914 F. Supp. 97 (E.D. Pa.
1996).
position. That the police department has its own internal return-to-work process was no
defense to the USERRA reinstatement requirement. Petty v. Metropolitan Gov’t of Nashville
& Davidson Cty, 538 F. 3d 431 (6th Cir. 2008).
