Chapter 42
EMPLOYMENT LAW
A. Labor Law
1. Norris-La Guardia Act
2. National Labor Relations Act
3. Labor-Management Relations Act
4. Labor-Management Reporting and
Disclosure Act
B. Employment Discrimination Law
1. Equal Pay Act
2. Civil Rights Act of 1964
a. Proving Discrimination
b. Defenses
c. Remedies
d. Reverse Discrimination
e. Sexual Harassment
f. Comparable Worth
3. Executive Order
4. Age Discrimination in Employment Act of 1967
5. Disability Law
C. Employee Protection
1. Employee Termination at Will
a. Statutory Limitations
b. Judicial Limitations
2. Occupational Safety and Health Act
3. Employee Privacy
a. Drug and Alcohol Testing
b. Lie Detector Tests
4. Worker’s Compensation
5. Social Security and Unemployment Insurance
6. Fair Labor Standards Act
7. Worker Adjustment & Retraining Notification Act
8. Family and Medical Leave Act
Cases in This Chapter
Burlington N.& S. F. R. Co. v. White
Vance v. Ball State University
Ricci v. Destefano
Faragher v. City of Boca Raton
Toyota Motor Mfg, Kentucky, Inc. v. Williams
Jasper v. H. Nizam, Inc.
Chapter Outcomes
After reading and studying this chapter, the student should be able to:
List and describe the major labor law statutes.
List and describe the major laws prohibiting employment discrimination.
Discuss the defenses available to employers under the various laws
prohibiting discrimination in employment.
Explain the doctrine of employment at will and the laws protecting
employee privacy.
Explain (a) the Occupational Safety and Health Administration (OSHA) and
the Occupational Safety and Health Act, (b) workers’ compensation, (c)
unemployment compensation, (d) social security, (e) the Fair Labor
Standards Act, (f) the Worker Adjustment and Retraining Noti*cation Act,
and (g) the Family and Medical Leave Act.
TEACHING NOTES
*** Chapter Outcomes***
List and describe the major labor law statutes.
List and describe the major laws prohibiting employment discrimination.
A. LABOR LAW
Historically, organized labor activities such as strikes, picketing, and refusals to
deal were considered to be criminal and tortious conduct. Eventually, public
pressure prompted Congress to intervene and establish laws to regulate labor
issues.
NOTE: See Figure 42-1: Unfair Labor Practices
Norris-LaGuardia Act
Enacted in 1932, it removed the Federal courts’ injunctive power in nonviolent
labor disputes. Labor dispute was defined as any controversy concerning terms
or conditions of employment or union representation. This act also gave workers
the right to form labor unions.
National Labor Relations Act (Also called the Wagner Act)
Enacted in 1935, it established the National Labor Relations Board to
administer employee rights. This act supported collective bargaining and
unionization and prohibited certain employer conduct as unfair labor practices
Labor-Management Relations Act
(Also called the Taft-Hartley Act). Enacted in 1947 following labor unrest and
increased union membership. Separates the NLRB’s prosecutorial and
adjudicative functions and prohibits certain unfair employee and union conduct
including: (1) coercing employees to join a union, (2) discrimination against a
non-union employee, (3) refusing to bargain in good faith, (4) excessive or
discriminatory dues or fees, (5) charging for work not performed
(“featherbedding”), (6) picketing for recognition of an uncerti*ed union, and (7)
engaging in secondary activities.
Labor-Management Reporting and Disclosure Act
(Also called the Landrum-Gri’n Act). Passed in 1959, it was intended to
eliminate corruption in labor unions. Established a union “bill of rights,” to
provide union members with the right to freely participate in union business and
meetings, including nominating candidates for o?ces and voting.
B. EMPLOYMENT DISCRIMINATION LAW
A number of federal statutes prohibit discrimination in employment on the basis
of race, sex, religion, national origin, age, and handicap. The cornerstone of
federal employment discrimination law is Title VII of the 1964 Civil Rights Act.
Other signiticant acts include the Civil Rights Act of 1991 and the Americans with
Disabilities Act of 1990.
*** Chapter Outcome***
Discuss the defenses available to an employer under the various laws
prohibiting discrimination in employment.
Equal Pay Act
Employers may not discriminate on the basis of sex by paying unequal
compensation for similar work.
The burden of proof is on the claimant. Once a prima facie case is demonstrated,
the burden then shifts to the employer to prove that the pay di7erential is based
Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 applies to employers having *fteen or
more employees and prohibits discrimination in hiring or promoting based on
race, color, sex, religion, or national origin. . The Act also covers Federal, State
and local governments as well as labor organizations with *fteen or more
CASE 42-1
BURLINGTON N. & S. F. R. CO. v. WHITE
Supreme Court of the United States, 2006
548 U.S. 53, 126 S. Ct. 2405, 165 L.Ed.2d 345
http://scholar.google.com/scholar_case?case=1191723910069445813&q=548+U.S.+53&hl=en&as_sdt=2,34
Breyer, J.
[Sheila White (White) was hired by Burlington Northern & Santa Fe Railway Company
(Burlington) in June 1997 as a “track laborer,” a job that involves removing and replacing track
components, transporting track material, cutting brush, and clearing litter and cargo spillage from
the right-of-way. White’s primary responsibility soon became operating a forklift; however, she
also performed some of the track laborer tasks. White was the only woman working in the
Maintenance of Way department. In September of 1997, White reported to Burlington officials
that Bill Joiner (Joiner), her immediate supervisor, had repeatedly told her that women should
tasks and completely removed her from forklift duty. Brown explained that the reassignment
reflected coworker’s complaints that, in fairness, a “more senior man” should have the “less
arduous and cleaner job” of forklift operator.
On October 10, White filed a complaint with the Equal Employment Opportunity
Commission (EEOC). She claimed that the reassignment of her duties amounted to unlawful
gender-based discrimination and retaliation for her having earlier complained about Joiner. In
early December, White filed a second retaliation charge with the Commission, claiming that
Brown had placed her under surveillance and was monitoring her daily activities. A few days
later, White and her immediate supervisor, Percy Sharkey, had a disagreement. Sharkey told
Brown that White had been insubordinate. Brown suspended White without pay prompting
White to initiate internal grievance procedures that eventually led Burlington to conclude White
had not been insubordinate. White was reinstated, with thirty-seven days’ back pay for the time
she was suspended. Based on the suspension she then filed another EEOC charge for retaliation.
White filed a Title VII action against Burlington in federal court. A jury found in White’s
favor awarding her $43,500 in damages for her claims of unlawful retaliation. Burlington
appealed arguing White did not suffer any harm from these acts of retaliation since she received
back pay. The Sixth Circuit affirmed the district court’s judgment for White. The U.S. Supreme
Court granted certiorari.]
But one cannot secure the second objective by focusing only upon employer actions and
harm that concern employment and the workplace. Were all such actions and harms eliminated,
the anti-retaliation provision’s objective would not be achieved. An employer can effectively
retaliate against an employee by taking actions not directly related to his employment or by
causing him harm outside the workplace. [Citations.] A provision limited to employment-related
actions would not deter the many forms that effective retaliation can take. Hence, such a limited
construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,”
* * *
* * * [W]e conclude that Title VII’s substantive provision and its anti-retaliation provision
are not coterminous. The scope of the anti-retaliation provision extends beyond
workplace-related or employment-related retaliatory acts and harm. * * *
The anti-retaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm. * * * In our view, 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.’” [Citation.]
* * * The anti-retaliation provision seeks to prevent employer interference with “unfettered
access” to Title VII’s remedial mechanisms. [Citation.] It does so by prohibiting employer
actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the
courts, and their employers. [Citation.] And normally petty slights, minor annoyances, and
* * *
Applying this standard to the facts of this case, we believe that there was a sufficient
evidentiary basis to support the jury’s verdict on White’s retaliation claim. [Citation.] The jury
found that two of Burlington’s actions amounted to retaliation: the reassignment of White from
forklift duty to standard track laborer tasks and the 37-day suspension without pay.
* * * Our holding today makes clear that the jury was not required to find that the challenged
actions were related to the terms or conditions of employment. And insofar as the jury also found
that the actions were “materially adverse,” its findings are adequately supported. * * *
To be sure, reassignment of job duties is not automatically actionable. Whether a particular
reassignment is materially adverse depends upon the circumstances of the particular case, and
“should be judged from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’” [Citation.] But here, the jury had before it considerable
evidence that the track labor duties were “by all accounts more arduous and dirtier”; that the
“forklift operator position required more qualifications, which is an indication of prestige”; and
reasonable employees would find a month without a paycheck to be a serious hardship. And
White described to the jury the physical and emotional hardship that 37 days of having “no
income, no money” in fact caused. [Citation.] Indeed, she obtained medical treatment for her
emotional distress. A reasonable employee facing the choice between retaining her job (and
paycheck) and filing a discrimination complaint might well choose the former. That is to say, an
CASE 42-2
VANCE v. BALL STATE UNIVERSITY
Supreme Court of the United States, 2013
570 U. S. ____, 2013 WL 3155228
http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf
Alito, J.
In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, [citation],
and Faragher v. Boca Raton, [citation, see Case 42-4], namely, who qualifies as a “supervisor” in
a case in which an employee asserts a Title VII claim for workplace harassment?
Under Title VII, an employer’s liability for such harassment may depend on the status of the
harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was
negligent in controlling working conditions. In cases in which the harasser is a “supervisor,”
however, different rules apply. If the supervisor’s harassment culminates in a tangible
I
Maetta Vance, an African-American woman, began working for Ball State University (BSU) in
1989 as a substitute server in the University Banquet and Catering division of Dining Services.
In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied
and was selected for a position as a full-time catering assistant. Over the course of her
employment with BSU, Vance lodged numerous complaints of racial discrimination and
retaliation, but most of those incidents are not at issue here. For present purposes, the only
relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis.
During the time in question, Davis, a white woman, was employed as a catering specialist in the
Banquet and Catering division. The parties vigorously dispute the precise nature and scope of
Vance’s workplace strife persisted despite BSU’s attempts to address the problem. As a
result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern
District of Indiana, claiming, among other things, that she had been subjected to a racially
hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was
her supervisor and that BSU was liable for Davis’ creation of a racially hostile work
environment. [Citation.]
Both parties moved for summary judgment, and the District Court entered summary
judgment in favor of BSU. The court explained that BSU could not be held vicariously liable for
Davis’ alleged racial harassment because Davis could not “‘hire, fire, demote, promote, transfer,
II
A
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an
employer . . . 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.” [Citation.] This provision obviously prohibits discrimination with respect to
employment decisions that have direct economic consequences, such as termination, demotion,
and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also
reaches the creation or perpetuation of a discriminatory work environment.
show that the work environment was so pervaded by discrimination that the terms and conditions
of employment were altered. [Citation.]
B
* * * we have held that an employer is directly liable for an employee’s unlawful harassment if
the employer was negligent with respect to the offensive behavior. [Citation.] Courts have
generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff.
In Ellerth and Faragher, however, we held that different rules apply where the harassing
employee is the plaintiff ’s “supervisor.” In those instances, an employer may be vicariously
liable for its employees’ creation of a hostile work environment. And in identifying the situations
in which such vicarious liability is appropriate, we looked to the Restatement of Agency for
guidance.
Adapting this concept to the Title VII context Ellerth and Faragher identified two situations
in which the aided in-the-accomplishment rule warrants employer liability even in the absence of
negligence, and both of these situations involve harassment by a “supervisor” as opposed to a
co-worker. First, the Court held that an employer is vicariously liable “when a supervisor takes a
tangible employment action,” Ellerth, [citation]; Faragher, [citation]—i.e., “a significant change
* * *
C
Under Ellerth and Faragher it is obviously important whether an alleged harasser is a
“supervisor” or merely a co-worker, and the lower courts have disagreed about the meaning of
the concept of a supervisor in this context. * * *
* * *
III
We hold that an employer may be vicariously liable for an employee’s unlawful harassment only
when the employer has empowered that employee to take tangible employment actions against
the victim, i.e., to effect a “significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” [Citation.] * * *
* * *
* * *
C
Although our holdings in Ellerth and Faragher do not resolve the question now before us, we
believe that the answer to that question is implicit in the characteristics of the framework that we
adopted.
To begin, there is no hint in either Ellerth and Faragher that the Court contemplated
anything other than a unitary category of supervisors, namely, those possessing the authority to
effect a tangible change in a victim’s terms or conditions of employment. The [citations]
framework draws a sharp line between co-workers and supervisors. Co-workers, the Court
noted, “can inflict psychological injuries” by creating a hostile work environment, but they
“cannot dock another’s pay, nor can one co-worker demote another.” [Citation.] Only a
supervisor has the power to cause “direct economic harm” by taking a tangible employment
The way in which we framed the question presented in Ellerth as supervisors supports this
understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which
an employer may be vicariously liable for a supervisor’s harassment. The first situation (which
results in strict liability) exists when a supervisor actually takes a tangible employment action
based on, for example, a subordinate’s refusal to accede to sexual demands. The second situation
(which results in vicarious liability if the employer cannot make out the requisite affirmative
defense) is present when no such tangible action is taken. * * * the Court couched the question at
issue in the following terms: “whether an employer has vicarious liability when a supervisor
creates a hostile work environment by making explicit threats to alter a subordinate’s terms or
* * *
Under the definition of “supervisor” that we adopt today, the question of supervisor status,
when contested, can very often be resolved as a matter of law before trial. The elimination of this
issue from the trial will focus the efforts of the parties, who will be able to present their cases in a
way that conforms to the framework that the jury will apply. The plaintiff will know whether he
or she must prove that the employer was negligent or whether the employer will have the burden
of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more
* * *
IV
* * *
In any event, the dissent is wrong in claiming that our holding would preclude employer
liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a
plaintiff could still prevail by showing that his or her employer was negligent in failing to
prevent harassment from taking place. Evidence that an employer did not monitor the workplace,
* * *
Turning to the “specific facts” of petitioner’s and Davis’ working relationship, there is simply
no evidence that Davis directed petitioner’s day-to-day activities. The record indicates that Bill
Kimes (the general manager of the Catering Division) and the chef assigned petitioner’s daily
tasks, which were given to her on “prep lists.” The fact that Davis sometimes may have handed
prep lists to petitioner, is insufficient to confer supervisor status, [citations].
* * *
Proving Discrimination — Each of the following constitutes discriminatory
conduct prohibited by the Civil Rights Act of 1964:
1. Disparate Treatment. Occurs when an employer uses a criterion such as race,
color, gender, national origin, or religion, in making an employment decision.
Exists if the plainti7 (a) is within a protected class, (b) applied for an open
position, (c) was qualified, (d) was denied, and (e) the employer continued to
recruit for the position. The employer must “articulate legitimate and
nondiscriminatory reasons for the plainti7’s rejection.”
Defenses — The act provides several defenses: (1) a bona *de seniority or
merit system, (2) a professionally developed ability test, (3) a compensation
system based on performance and (4) a bona *de occupational quali*cation
(BFOQ). The BFOQ defense does not apply to discrimination based on race. A