Employment Law Jody Blanke Ernest. L. Baskin, Jr.

Employment Law Jody Blanke Ernest. L. Baskin, Jr.

Employment Law Jody Blanke Ernest. L. Baskin, Jr. Distinguished Professor of Computer Science and Law SSBE, Mercer University June 9 14, 2019 Employment Law Primarily state law varies from state to state A good bit of federal law, too mostly discrimination law

June 9 14, 2019 At-Will Employment Generally, an employee can be fired for good reason Youve been stealing from us. Youre fired! can be fired for no reason I dont like the color of your shoes. Youre fired! cannot be fired for bad reason Youre black. Youre fired! June 9 14, 2019

3 At-Will Employment Wrongful discharge exceptions vary greatly by state 1. Public policy exceptions e.g., whistleblower statutes recognized by 43 states 2. Implied contract exceptions e.g., employee handbooks recognized by 37 states June 9 14, 2019

At-Will Employment 3. Implied covenant of good faith and fair dealing exceptions recognized by 11 states Six states recognize all 3 exceptions Alaska, California, Idaho, Nevada, Utah, Wyoming Four states recognize none of the exceptions Florida, Georgia, Louisiana, Rhode Island June 9 14, 2019 Employment Discrimination Civil Rights Act of 1866 Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967 (ADEA) Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) June 9 14, 2019 6 Employment Discrimination Immigration Reform and Control Act of 1986 (IRCA) Americans with Disabilities Act of 1990 (ADA) Americans with Disabilities Amendments Act of 2008 (ADAAA) Genetic Information Nondiscrimination Act of

2008 (GINA) June 9 14, 2019 Title VII Prohibits discrimination on the basis of: Race Color Gender Religion National origin June 9 14, 2019 8

Title VII For purposes of making decisions regarding: Hiring Firing Training Discipline

Compensation Benefits Classification Other terms or conditions of employment June 9 14, 2019 9 Title VII Applies to all public (federal, state and local) and private employers with 15 or more employees Covers all levels of employees (managerial and hourly) Exemption - permits religious institutions and

associations to discriminate when performing their activities June 9 14, 2019 10 Hosanna-Tabor Church v. EEOC (2012)

The Supreme Court recognized a ministerial exception to employment discrimination laws A teacher taught mostly secular subjects, but also taught religion classes and attended chapel with class (about 45 minutes per day) The Establishment Clause prevents the government from appointing ministers and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own. Majority Roberts. The question whether an employee is a minister is itself religious in nature and should be left to the religious group. Concurrence Thomas. It would be a mistake to focus on the term minister because many religions do not use it. Rather, the exception should apply to any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. Concurrence Alito and Kagan.

June 9 14, 2019 Filing Claims under Title VII Employee files a claim with the EEOC EEOC notifies the employer Title VII includes anti-retaliatory provisions Mediation EEOC investigation No-Reasonable-Cause Finding EEOC issues employee a right-to-sue letter Exhaustion of administrative remedies Reasonable-Cause Finding

Conciliation Civil suit filed in federal district court June 9 14, 2019 12 Theoretical Bases for Title VII Lawsuits Disparate Treatment Disparate Impact June 9 14, 2019 13 Disparate Treatment

Employees Prima Facie Case: Employee is a member of the class of persons protected by Title VII, Employee applied for and was qualified for a job for which the employer was seeking applicants, That despite these qualifications, employee was rejected, and After this rejection, the position remained open and the employer continued to seek applicants with those same qualifications. June 9 14, 2019 14 Disparate Treatment

Employers Defense: Employer can defend by showing that it had a legitimate, nondiscriminatory reason for its decision. Employees Counter: Employee must prove that the grounds offered by the employer were merely a pretext for its actions and that discrimination was the real reason. e.g., McDonnell Douglas Corp. v. Green (1973) Black civil rights activist protested after being laid off and was not rehired when new position became available. Supreme Court remanded case to give Green a chance to prove pretext. Established the framework for employment discrimination cases June 9 14, 2019

15 Disparate Treatment Employer may defend by showing that there is a bona fide occupational qualification (BFOQ) Available only in cases involving gender, religion and national origin (not for race or color). Some circuits use a two-step test: Does the particular job require that the employee be of one gender only, and if so Is that requirement reasonably necessary to the essence of the employers business? e.g., flight attendants at Southwest Airline? No e.g., bunnies at Playboy Clubs? Yes e.g., servers at Hooters? No

June 9 14, 2019 16 Disparate Impact Discrimination can be established by proving that an employment practice, although neutral on its face, disproportionately affects a protected group in a negative way. Courts have determined the that the following screening devices have a disparate impact: Educational requirement race, e.g., Griggs v. Duke Power (1971) Credit status gender, race Height and weight requirements gender, national origin

June 9 14, 2019 17 Disparate Impact The Four-Fifths Rule is a rule of thumb that permits a 20% margin between the outcomes of the majority and the minority under a given screening device i.e., disparate impact is statistically demonstrated when the rate for a protected group is less than 80% (or four-fifths) of the higher scoring majority group

Employer can rebut the employees prima facie case by showing the existence of a business necessity e.g., requirement of credit history may result in fewer women hired, but handling large sums of money may warrant credit check Employee would then have to prove that there is a means of addressing the issue that has less of an adverse impact June 9 14, 2019 18

Sexual Harassment Quid Pro Quo Harassment Employee is required to engage in sexual activity in exchange for promotions, raises or continued employment Hostile Environment Harassment The harassment is unwelcome activity The harassment is based upon gender The harassment is sufficiently severe or pervasive to create an abusive working environment The harassment affects a term or condition of employment The employer had actual or constructive notice of the hostile environment and took no prompt or adequate remedial action June 9 14, 2019

19 Employer Liability Employers are vicariously liable under the doctrine of respondeat superior for all torts committed by employees acting within the scope of employment. Employers may also be liable for torts committed by employees not working within the scope of employment if the employer intended the conduct,

the employees high rank makes him the employers alter ego, the employer was negligent, or the employee was aided in accomplishing the tort by the existence of the agency relation. June 9 14, 2019 20 Employer Liability Employers are strictly liable for quid pro quo sexual harassment, i.e., when there are tangible employment actions taken. Employers are not strictly liable if there is no tangible employment action.

In these hostile environment cases, the employer can use the Faragher/Ellerth defense to show that it had a reasonable antidiscrimination policy in place, but that the harassed employee unreasonably failed to use it. June 9 14, 2019 21 Faragher v. Boca Raton (1998) Supreme Court found the city (employer) liable for the sexual harassment of its lifeguard supervisors. Court held that while the city had available to it an affirmative defense to show that it exercised reasonable care to prevent and correct promptly any

sexually harassing behavior, it had failed to do so as a matter of law. June 9 14, 2019 22 Burlington Ind. v. Ellerth (1998) Supreme Court held that employer might be liable for hostile work environment, but should have an opportunity to prove that employee unreasonably failed to take advantage of employers complaint procedure. Employee suffered no tangible employment action (and was even promoted during her employment).

Employee worked for employer for about 15 months, but didnt report the harassment until a few weeks after leaving. Her supervisor had made remarks about her breasts, had told her top loosen up and warned, you know, Kim, I could make your life very hard or very easy at Burlington. He told her she was not loose enough and reached over and rubbed her knee. He responded to a job-related question from her, I dont have time for you right now, Kim unless you want to tell me what youre wearing. A couple of days later, he again responded, are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier. June 9 14, 2019 23

Policies It is important to have a policy It is important to inform employees about the policy It is important to enforce the policy June 9 14, 2019 Other Harassment Hostile environment harassment claims under Title VII on the basis of race, color, national origin or religion are also evaluated by looking at the totality of the environment. June 9 14, 2019

25 Ricci v. Destefano (2009) The City of New Haven gave firefighter exams in 2003 Of the 77 candidates for lieutenant, 25 of the 43 white candidates, 6 of the 19 black candidates, and 3 of the 15 Hispanic candidates passed the exam. Of the 41 candidates for captain, 16 of the 25 white candidates, 3 of the 8 black candidates, and 3 of the 8 Hispanic candidates passed the exam. Applying the Citys rule of three, all of the top 10 candidates for lieutenant were white, and 7 of the top 9 candidates for captain were white, while the other 2 were Hispanic. The City decided not to certify the exam results.

June 9 14, 2019 Ricci v. Destefano (2009) Supreme Court held that New Haven engaged in express, race-based decisionmaking, i.e., disparate treatment, by failing to certify the exams. The Court stated that the Citys action might have been justified if there was a strong basis in evidence of a disparate impact, but that was lacking as there was no dispute that the exams were job-related and consistent with business necessity (nor was there presented a less discriminatory testing alternative). June 9 14, 2019

27 Age Discrimination Age Discrimination in Employment Act (ADEA) applies to all public and private employees with at least 20 employees covers employees aged 40 and above. While enforced by the EEOC, it differs from Title VII More lenient regarding adverse employment decisions employer can rebut a prima facie case by showing any reasonable factor other than age. An action is not barred if another protected member is treated better, e.g., an action by a 62-year old is not barred because the replacement was a 55-year old No protection form reverse discrimination for those under 40

June 9 14, 2019 28 Age Discrimination Prima facie case: Employee is in protected class Employee was terminated or demoted Employee was performing job well enough to meet employers expectations Others not in the protected class were treated more favorably. Employers Defense Bona Fide Occupational Qualification (BFOQ) Age limit is reasonable necessary to essence of employers business All or substantially all of the individuals over that age are unable to adequately perform the job requirements , or

Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age June 9 14, 2019 29 Disability Discrimination The Americans with Disability Act (ADA) prohibits employers from discriminating against a qualified individual with a disability with regard to application, hiring, advancement, discharge, compensation and training. The ADA applies to all private employers with 15 or more employees. The ADA requires employers to make reasonable accommodations for requesting employees who have a

physical or mental impairment that substantially limits a major life activity. June 9 14, 2019 30 Definition of Disability Very broad definition, but does not include Morbid obesity (unless the result of a physiological condition) Lack of an education

Having a prison record Specifically excluded under ADA: Homosexuality Bisexuality Sexual-behavior disorders Compulsive gambling Kleptomania Pyromania June 9 14, 2019 31 Reasonable Accommodation The ADA requires employers to make reasonable

accommodations as long as doing so does not cause the employer undue hardship. This includes: Making work facilities accessible Restructuring jobs or modifying work schedules Reassigning individuals to other jobs Acquiring or modifying equipment or devices Modifying examinations, training materials, or policies Providing qualified readers or interpreters

June 9 14, 2019 32 Employer Defenses Undue Hardship The ADA defines an undue hardship as an activity requiring significant difficulty or expense in light of a variety of financial, logistical and other factors. Business Necessity Tests and standards may be acceptable under the ADA if they are related to the job and consistent with business necessity. Permissible Exclusion

A disabled person may be excluded from an employment opportunity only if, by reason of the disability, he or she (with or without reasonable accommodation) cannot perform the essential functions of the job or if the individuals employment poses a significant risk to the health or safety of themselves or others. June 9 14, 2019 33 Employment Arbitration Agreements Arbitration agreements have become very common. Can preclude claims of discrimination by the employee against the employer, but the EEOC can still sue the company on employees behalf.

Cannot preclude class actions or joining together with others to pursue employment-related claims in court or arbitration. June 9 14, 2019 Covenants Not to Compete Non-employment related related to sale of business e.g., Joe the Baker Employment-related

June 9 14, 2019 Brenda Wood Brenda Wood agreed not to work as an onair news anchor in the Atlanta/Athens television market for 6 months. June 9 14, 2019 Covenants Not to Compete Scope agreement must specify what activity is to be limited Geography be careful of terms like Atlanta

Duration e.g., 6 months, 1 year, 2 years June 9 14, 2019 Laws Vary From State to State California will not enforce such an agreement as an illegal restraint of trade Georgia used to be very strict about enforcement of these covenants would not blue pencil such

an agreement June 9 14, 2019 Election Day 2010 Georgia Constitutional Amendment Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements? 68% said Yes June 9 14, 2019

O.C.G.A. 13-8-50 et seq. Courts may now blue pencil the agreement Two years is presumed reasonable Need not specify a geographic restriction Law targets key employees executive employees employees in possession of important confidential information, or employees with specialized skills, knowledge, or customer contacts or information June 9 14, 2019 Privacy in the Workplace Reasonable expectation of privacy

Your home is your castle Your workplace not so much Expectation of privacy -> approaching zero June 9 14, 2019 Federal Privacy Laws Apply only to federal agencies Freedom of Information Act (FOIA) (1966, re-titled in 1986) Privacy Act (1994) Very sectoral in approach Fair Credit Reporting Act (FCRA) (1970)

Fair and Accurate Credit Transactions Act (FACTA) (2003) Electronics Communications Privacy Act (ECPA) (1986) Video Privacy Protection Act (1988) revised in 2013 June 9 14, 2019 42 Federal Privacy Laws (cont.) Health Insurance Portability and Accountability Act (HIPAA) (1996) modified by the Health Information Technology for Economic and Clinical Health Act (HITECH) (2009)

Childrens Online Privacy Protection Act (COPPA) (1998) revised in 2013 Gramm-Leach-Bliley Act (GLB) (1999) Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) (2003) Genetic Information Nondiscrimination Act (GINA) 2008 June 9 14, 2019 43 Fair Information Privacy Practices (FIPPs)

Notice/Awareness Choice/Consent Access/Participation Integrity/Security Enforcement/Redress June 9 14, 2019 44 EU Data Protection

1995 Data Protection Directive 2018 General Data Protection Regulation May 26, 2018 Right to be Forgotten June 9 14, 2019 45 California Consumer Privacy Act Passed in 2018 under threat of stricter law by way of ballot initiative Will take effect in 2020 June 9 14, 2019

46 Privacy Policies Protect your privacy, right? Not so fast Our policy is to collect every little piece of information about you that we can get our hands on then and sell it to the highest bidder. June 9 14, 2019 47

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