Chapter 2Chapter 2The Employment Law The Employment Law Toolkit: Resources for Toolkit: Resources for

Understanding the Law Understanding the Law and Recurring Legal and Recurring Legal

ConceptsConcepts

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

2-2-22

Learning ObjectivesLearning Objectives Understand how to read and digest legal cases

and citations

Explain and distinguish the concepts of stare decisis and precedent

Evaluate whether an employee is an at-will employee

2-2-33

Learning ObjectivesLearning Objectives Determine if an at-will employee has sufficient

basis for wrongful discharge

Recite and explain at least three exceptions to employment-at-will.

Distinguish between disparate impact and disparate treatment discrimination claims

2-2-44

Learning ObjectivesLearning Objectives Provide several bases for employer defenses to

employment discrimination claims

Determine if there is sufficient basis for a retaliation claim by an employee

Identify sources for further legal information and resources

2-2-55

Stare Decisis Stare Decisis and Precedentand Precedent Stare decisis

A system of using legal precedent

Federal court system

U.S. Court decisions applicable in all jurisdictions

Circuit court decisions applicable only in that particular circuit

District court decisions applicable only in that particular district

2-2-66

Stare Decisis Stare Decisis and Precedentand Precedent State court system

Trial court intermediate court of appeals state supreme court

State supreme court decisions can be appealed to the U.S. Supreme Court

U.S. Supreme Court decisions are final

2-2-77

Understanding the Case InformationUnderstanding the Case Information

Key Terms

Meaning

Plaintiff One who brings a civil action in court

Defendant One against whom a case is brought

Appellant One who brings an appeal

Appellee One against whom an appeal is brought

Petitioner One who appeals a case to the Supreme Court

Respondent

One against whom a case is appealed at the Supreme Court

2-2-88

Understanding the Case InformationUnderstanding the Case Information

Key Terms

Meaning

Case citation

The several number and a few letter under the case name

Motion to dismiss

Request by defendant for court to dismiss plaintiff’s case

Motion for summary judgment

Defendant’s request for the court to rule on plaintiff’s case based on the documents

submitted, alleging there are no tribal issues of fact to be decided

Per curium A brief decision made by the court

2-2-99

Prima Facie Prima Facie CaseCase Cause of action: Right provided by law for a

party to sue for remedies when that right is violated

Prima facie case: Presenting evidence that fits each requirement of a cause of action

2-2-1010

Employment-at-Will ConceptsEmployment-at-Will Concepts At-will employment: Employment relationship

where there is no contractual obligation to remain in the relationship

Exclusions

Government employees

Employees under a collective bargaining agreement

Employees under individual contract with employer

2-2-1111

Employment-at-Will ConceptsEmployment-at-Will Concepts Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act

Americans with Disabilities Act

Wrongful termination

Employees may seek reinstatement or compensatory and punitive damages for the any losses suffered

2-2-1212

Exceptions to the At-Will DoctrineExceptions to the At-Will Doctrine Bad faith, malicious, or retaliatory termination

may serve as a violation of public policy

Termination in breach of the implied covenant of good faith and fair dealing

Termination in breach of some other implied contract term

Termination in violation of the doctrine of promissory estoppel

2-2-1313

Violation of Public PolicyViolation of Public Policy Public policy: Legal concept intended to ensure

that no individual lawfully do that which has a tendency to be injurious to the public or against the public good

Whistle-blowing

Federal Whistleblower Statute

Whistleblowers Protection Act

State protection

2-2-1414

Retaliatory DischargeRetaliatory Discharge Terminations in response to an employee

exercising rights provided by law

Constitutional protections

An employer is prohibited from terminating a worker or taking other adverse employment action against a worker on the basis of the worker’s engaging in constitutionally protected activities

Applies only where the employer is a public entity

2-2-1515

Retaliatory Discharge: Retaliatory Discharge: Prima Facie Prima Facie CaseCase

Burlington Northern & Santa Fe Railway Co. v. White

2-2-1616

Breach of Implied Covenant of Good Breach of Implied Covenant of Good Faith and Fair DealingFaith and Fair Dealing

Covenant of good faith and fair dealing: Implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties

A breach of implied covenant of good faith looks to the actions between the parties to ascertain whether there were any violations of public policy

2-2-1717

Breach of Implied ContractBreach of Implied Contract Implied contract: An unexpressed contract that

is created by words or conduct of the parties involved

Melott v. ACC Operations, Inc.

2-2-1818

Promissory EstoppelPromissory Estoppel: : Prima Facie Prima Facie CaseCase

Exceptions to at-will doctrine based on promissory estoppel

Statutory Exceptions to employment at-will

Occupational Safety and Health Act

Fair Labor Standards Act

Pregnancy Discrimination Act

2-2-1919

Constructive DischargeConstructive Discharge Constructive discharge: Occurs when the

employee is given no reasonable alternative but to end the employment relationship

Considered an involuntary act on the part of the employee

Paloni v. City of Albuquerque Police Department

Nassar v. Univ. of Texas Southwestern Medica Center at Dallas

2-2-2020

Other Exceptions to At-Will DoctrineOther Exceptions to At-Will Doctrine

The Worker Adjustment and Retraining Notification Act (WARN)

Requires that employers with over 100 employees must give 60 days’ advance notice of a plant closing or mass layoff to affected employees

2-2-2121

Other Exceptions to At-Will DoctrineOther Exceptions to At-Will Doctrine

Wrongful Discharge Based on Other Tort Liability

Tort of outrageous conduct

Tort claim for emotional distress

Tort action of defamation

Wrongful invasion of privacy

2-2-2222

Disparate Treatment Discrimination: Disparate Treatment Discrimination: Prima Facie Prima Facie CaseCase

2-2-2323

Disparate treatment: Treating similarly situated employee differently because of prohibited Title VII factors.

Employment Discrimination Concepts: Employment Discrimination Concepts: Disparate TreatmentDisparate Treatment

2-2-2424

Employment Discrimination Concepts: Employment Discrimination Concepts: Disparate TreatmentDisparate Treatment

Employer’s defense

Legitimate, Nondiscriminatory Reason Defense

Employee’s counter – legitimate, nondiscriminatory reason is a mere pretext for the employer to discriminate.

The Bona Fide Occupational Qualification Defense: Permissible discrimination if legally necessary for employer’s particular business

Wilson v. Southwest Airlines Company

2-2-2525

Employment Discrimination Concepts: Employment Discrimination Concepts: Disparate ImpactDisparate Impact

Disparate impact: Deleterious effect of a facially neutral policy on a Title VII group

Facially neutral policy: Workplace policy that applies equally to all appropriate employees

Griggs v. Duke Power Co.

Wards Cove Packing Co. v. Atonio

2-2-2626

Employment Discrimination Concepts: Employment Discrimination Concepts: Disparate ImpactDisparate Impact

Screening device: Factor used to weed out applicants from the pool of candidates

Four-fifths rule: Minority must do at least 80 percent (four-fifths) as well as majority on screening device or presumption of disparate impact arises

Device must be shown to be a legitimate business necessity

Subjective and objective criteria

2-2-2727

Employment Discrimination Concepts:Employment Discrimination Concepts:Disparate ImpactDisparate Impact

Pre-employment interviews

Employment applications

The business necessity defense: Defense to a disparate impact case based on the employer’s need for the policy as a legitimate requirement for the job

2-2-2828

Other Defenses to Employment Other Defenses to Employment Discrimination ClaimsDiscrimination Claims

The employee’s evidence is not true

The employer’s “bottom line” comes out correctly

Connecticut v. Teal

2-2-2929

AccommodationAccommodation Religious discrimination under Title VII

Americans With Disabilities Act (ADA)

Conditions for religious accommodation and accommodation of those with disabilities differ

Exhaustion of Administrative Remedies: Going through the EEOC administrative procedure before being permitted to seek judicial review of an agency decision

2-2-3030

Exhibit 2.9 - Employment Discrimination Exhibit 2.9 - Employment Discrimination RemediesRemedies

2-2-3131

Employment Discrimination RemediesEmployment Discrimination Remedies

Key Terms

Meaning

Back pay Money awarded for time employee was not working because of illegal discrimination

Front pay Equitable remedy of money awarded to claimant when reinstatement is not possible

or feasible

Retroactive seniority

Seniority that dates back to the time the claimant was treated illegally

2-2-3232

Employment Discrimination RemediesEmployment Discrimination Remedies

Key Terms

Meaning

Make-whole relief

Attempt to put the claimant in position he or she would have been in had there been no

discrimination

Compensatory

damages

Money awarded to compensate the injured party for direct losses

Punitive damages

Money over and above compensatory damages

2-2-3333

Legal ResourcesLegal Resources Law libraries

Law reporters

Law journals

Legal treaties

Books and other legal resources

The Internet

2-2-3434

Management TipsManagement Tips Employers are always allowed to hire the best

person for a job

Policies and procedures must have space for employees to voice their concerns and complaints

Firing must not be due to specific reasons prohibited by law

Employees reporting wrongdoings must not face retaliation from their employers

2-2-3535

Management TipsManagement Tips Termination decisions should undergo internal

review

Employees belonging to a protected must be made aware of their rights

Employees pursuing legally protected rights must not face retaliation

Certain protected categories must be accommodated