Chapter 42 EMPLOYMENT LAW Labor Law [42-1] Norris-La Guardia Act [42-1a] National Labor Relations Act [42-1b] Labor-Management Relations Act [42-1c] Labor-Management Reporting and Disclosure Act [42-1d] Employment Discrimination Law [42-2] Equal Pay Act [42-2a] Civil Rights Act of 1964 [42-2b] Proving Discrimination Defenses Remedies Reverse Discrimination Sexual Harassment Comparable Worth Executive Order [42-2c] Age Discrimination in Employment Act [42-2d] Disability Law [42-2e] Genetic Information Discrimination [42-2f] Employee Protection [42-3] Employee Termination at Will [42-3a] Statutory Limitations Judicial Limitations Occupational Safety and Health Act [42-3b] Employee Privacy [42-3c] Drug and Alcohol Testing Lie Detector Tests Worker's Compensation [42-3d] Social Security and Unemployment Insurance [42-3e] Fair Labor Standards Act [42-3f] Worker Adjustment and Retraining Notification Act [42-3g] Family and Medical Leave Act [42-3h] 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 Young v. United Parcel Service, Inc. 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 (1) the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Act, (2) worker’s compensation, (3) unemployment compensation, (4) social security, (5) the Fair Labor Standards Act, and (6) the Family Medical Leave Act, and (7) 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. 42-1 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 42-1a Norris-LaGuardia Act Enacted in 1932, the Norris-LaGuardia Act 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. 42-1b National Labor Relations Act Enacted in 1935, the NLRA (Also called the Wagner Act) 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 (ULP). Employer ULPs include: a) interference with unionization or bargaining effort, b) union domination, c) discrimination against union members, d) discrimination against an employee for filing charges or testifying under the NLRB, and e) refusal to bargain in good faith. 42-1c 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 uncertified union, and (7) engaging in secondary activities. Prohibits the closed shop (hiring only union members), although it permits union shops (new employees must join union), unless union shops are prohibited by a state right-to-work law. Reinstates the availability of civil injunctions in order to prevent an unfair labor practice, and empowers the president of the United States to obtain an injunction for an eighty-day cooling-off period for a strike that is likely to endanger the national health or safety. 42-1d Labor-Management Reporting and Disclosure Act (Also called the Landrum-Griffin 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 offices and voting. 42-2 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 significant 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. 42-2a 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 differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production, or (4) any factor except sex. Remedies include awarding back pay and enjoining the employer from further unlawful conduct. 42-2b Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 applies to employers having fifteen 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 fifteen or more members. Enforcement is by the Equal Employment Opportunity Commission. When Congress passed the Pregnancy Discrimination Act, it extended the benefits of Title VII to pregnant women. The Civil Rights Act of 1991 places the burden of proof on the employer. 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 not be working in the Maintenance of Way department and also had made insulting and inappropriate remarks to her in front of other colleagues. After Burlington conducted an internal investigation, Joiner was suspended for ten days and required to attend sexual-harassment training. Marvin Brown, a Burlington manager, then reassigned White to standard track laborer 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.] The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. [Citation.] The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” [citation], would be achieved were all employment-related discrimination miraculously eliminated. 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,” namely, “[m]aintaining unfettered access to statutory remedial mechanisms.” [Citation.] Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. [Citation.] * * * * * * [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 simple lack of good manners will not create such deterrence. [Citation.] We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings. * * * We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. * * * * * * 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 that “the forklift operator position was objectively considered a better job and the male employees resented White for occupying it.” [Citation.] Based on this record, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee. * * * * * * White did receive backpay. But White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many 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 indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. [Citation.] Thus, the jury’s conclusion that the 37-day suspension without pay was materially adverse was a reasonable one. 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 employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. [Citation.] Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker. We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit. 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 Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. * * * In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. [Citation.] Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” She alleged that she was “left alone in the kitchen with Davis, who smiled at her”; that Davis “blocked” her on an elevator and “stood there with her cart smiling”; and that Davis often gave her “weird” looks. [Citation.] 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, or discipline’” Vance and, as a result, was not Vance’s supervisor under the Seventh Circuit’s interpretation of that concept. [Citation.] The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. [Citation.] The Seventh Circuit affirmed. * * * 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. * * * the lower courts generally held that an employer was liable for a racially hostile work environment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. [Citation.] When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. [Citation.] In such cases, we have held, the plaintiff must 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. Under the Restatement, “masters” are generally not liable for the torts of their “servants” when the torts are committed outside the scope of the servants’ employment. [Citation.] And because racial and sexual harassment are unlikely to fall within the scope of a servant’s duties, application of this rule would generally preclude employer liability for employee harassment. [Citations.] But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was “aided in accomplishing the tort by the existence of the agency relation.” [Citation.] 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 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.] *** Second, Ellerth and Faragher held that, even when a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense. [See Case 42-4.] *** * * * 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.] * * * * * * * * * “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted. * * * [In those cases] this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor. * * * * * * 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 action. [Citation.] “Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” [Citation.] The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors. 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 conditions of employment, based on sex, but does not fulfill the threat.” [Citation.] This statement plainly ties the second situation to a supervisor’s authority to inflict direct economic injury. It is because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability (subject to the affirmative defense) is justified. * * * 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 important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is relatively straightforward. * * * 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, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ. [Citation.] * * * 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]. * * * We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. 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 plaintiff (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 plaintiff’s rejection.” If the employer’s decision was based on a “mixed motive” (the employer used both lawful and unlawful reasons) the courts employ a shifting burden of proof standard. First, the plaintiff must prove by a preponderance of the evidence that the employer used the protected characteristic as a motivating factor. The defendant, however, can limit the remedies available to the plaintiff by proving by a preponderance of the evidence that the defendant would have made the same decision even without the forbidden motivating factor. If the defendant sustains its burden of proof, under the Civil Rights Act of 1991 the remedies are limited to declaratory relief, certain types of injunctive relief, and attorney’s fees and costs. 2. Present Effects of Past Discrimination. Occurs when an employer engages in conduct that on its face is “neutral,” but that actually perpetuates past discriminatory practices. 3. Disparate Impact. Occurs when an employer adopts “neutral” rules that adversely affect a protected class and that are not justified as being necessary to the business. NOTE: See Figure 42-2: Charges Filed with the EEOC. Defenses — The act provides several defenses: (1) a bona fide seniority or merit system, (2) a professionally developed ability test, (3) a compensation system based on performance and (4) a bona fide occupational qualification (BFOQ). The BFOQ defense does not apply to discrimination based on race. A fifth defense, business necessity, is available in a disparate impact case. In addition, a defendant can reduce damages in a “mixed motive” case by showing that it would have discharged the plaintiff for legal reasons. CASE 42-3 RICCI v. DESTEFANO Supreme Court of the United States, 2009 567 U.S. 557, 129 S. Ct. 2658, 174 L.Ed.2d 490 http://scholar.google.com/scholar_case?case=8509283780298736470&q=557+U.S.+.557&hl=en&as_sdt=2,34 Kennedy. J. In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations. Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. * * * The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, [citation], and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for the defendants, and the Court of Appeals affirmed. We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. * * * * * * Title VII of the Civil Rights Act of 1964, [citation], prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”). As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. It makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise 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.] Disparate-treatment cases present “the most easily understood type of discrimination,” [citation] and occur where an employer has “treated [a] particular person less favorably than others because of” a protected trait. [Citation.] A disparate-treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. [Citation.] The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co., [citation], the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” [Citation.] The Griggs Court stated that the “touchstone” for disparate impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.” [Citations.] Twenty years after Griggs, the Civil Rights Act of 1991, [citation], was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. * * * Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” [Citation.] An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” [Citation.] Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. [Citation.] * * * We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity. * * * [This] Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “‘strong basis in evidence’” that the remedial actions were necessary. [Citations.] * * * Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs, [citation.]. But it has also prohibited employers from taking adverse employment actions “because of” race. [Citation.] Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. [Citation.] And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation. Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. [Citation.] Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics. If an employer cannot rescore a test based on the candidates’ race, [citation], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. [Citations.] For the foregoing reasons, we adopt the strong-basis-in evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. * * * We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. Remedies — Remedies include enjoining the employer from engaging in the unlawful behavior, appropriate affirmative action, reinstating employees and awarding back pay. Damages for all victims, except those subject to racial discrimination, are capped or limited depending upon the company’s number of employees. Either party in all instances may demand a jury trial. Reverse Discrimination — a claim, typically by a white male, that affirmative action programs (which take race or sex into account when hiring or promoting in order to remedy under-representation of that race or sex) violate his civil rights. Different standards of review are applicable depending upon whether the affirmative action plan is maintained by a private employer, a state or local government employer, or the federal government. A 1995 ruling placed new constraints on the federal government in programs that favor minorities. Sexual Harassment — Constitutes a violation of Title VII when it creates an offensive working environment or is the basis for employment decisions. Employers may become liable for the sexual harassment committed by their agents despite lack of knowledge. In 1998, the Supreme Court ruled that sex discrimination in same-sex harassment is actionable under Title VII. CASE 42-4 FARAGHER v. CITY OF BOCA RATON Supreme Court of the United States, 1998 524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed.2d 662 http://scholar.google.com/scholar_case?case=15103611360542350644&q=524+U.S.+775&hl=en&as_sdt=2,22 Souter, J. This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act of 1964, [citation], for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of a plaintiff victim. I Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher’s immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. * * * In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Manager addressed to all employees. [Citation.] In May 1990, the City revised the policy and reissued a statement of it. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it. [Citation.] From time to time over the course of Faragher’s tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women. During that 5-year period, Terry repeatedly touched the bodies of female employees without invitation, [citation], would put his arm around Faragher, with his hand on her buttocks, [citation], and once made contact with another female lifeguard in a motion of sexual simulation, [citation]. He made crudely demeaning references to women generally, and once commented disparagingly on Faragher’s shape, [citation]. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same. [Citation.] Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her. [Citation.] Another time, he pantomimed an act of oral sex. [Citation.] Within ear-shot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them. [Citation.] Faragher did not complain to higher management about Terry or Silverman. Although she spoke of their behavior to Gordon, she did not regard these discussions as formal complaints to a supervisor but as conversations with a person she held in high esteem. [Citation.] Other female lifeguards had similarly informal talks with Gordon, but because Gordon did not feel that it was his place to do so, he did not report these complaints to Terry, his own supervisor, or to any other city official. [Citation.] Gordon responded to the complaints of one lifeguard by saying that “the City just [doesn’t] care.” [Citation.] In April 1990, however, two months before Faragher’s resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City’s Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without pay or the forfeiture of annual leave. [Citation.] On the basis of these findings, the District Court concluded that the conduct of Terry and Silverman was discriminatory harassment sufficiently serious to alter the conditions of Faragher’s employment and constitute an abusive working environment. [Citation.] The District Court then ruled that there were three justifications for holding the City liable for the harassment of its supervisory employees. First, the court noted that the harassment was pervasive enough to support an inference that the City had “knowledge, or constructive knowledge” of it. [Citation.] Next, it ruled that the City was liable under traditional agency principles because Terry and Silverman were acting as its agents when they committed the harassing acts. [Citation.] Finally, the court observed that Gordon’s knowledge of the harassment, combined with his inaction, “provides a further basis for imputing liability on [sic] the City.” [Citation.] The District Court then awarded Faragher one dollar in nominal damages on her Title VII claim. [Citation.] A panel of the Court of Appeals for the Eleventh Circuit reversed the judgment against the City. [Citation.] Although the panel had “no trouble concluding that Terry’s and Silverman’s conduct * * * was severe and pervasive enough to create an objectively abusive work environment,” [citation], it overturned the District Court’s conclusion that the City was liable. The panel ruled that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassment, that they were not aided in their actions by the agency relationship, [citation], and that the City had no constructive knowledge of the harassment by virtue of its pervasiveness or Gordon’s actual knowledge, [citation]. In a 7-to-5 decision, the full Court of Appeals, sitting en banc, adopted the panel’s conclusion. [Citation.] * * * II A Thus, in Meritor we held that sexual harassment so “severe or pervasive” as to “alter the conditions of [the victim’s] employment and create an abusive working environment” violates Title VII. [Citation.] * * * So, in Harris, we explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. [Citation.] We directed courts to determine whether an environment is sufficiently hostile or abusive by “looking at all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [Citation.] Most recently, we explained that Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Oncale, [citation]. A recurring point in these opinions is that “simple teasing,” [citation], “off hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.” These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” [Citation.] Properly applied, they will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” [Citations.] While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive. * * * There have, for example, been myriad cases in which District Courts and Courts of Appeals have held employers liable on account of actual knowledge by the employer, or high-echelon officials of an employer organization, of sufficiently harassing action by subordinates, which the employer or its informed officers have done nothing to stop. * * * * * * B * * * In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, [citation], also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see [citation]. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. [Citation.] Applying these rules here, we believe that the judgment of the Court of Appeals must be reversed. The District Court found that the degree of hostility in the work environment rose to the actionable level and was attributable to Silverman and Terry. It is undisputed that these supervisors “were granted virtually unchecked authority” over their subordinates, “directly controlling] and supervising] all aspects of [Faragher’s] day-to-day activities.” [Citation.] It is also clear that Faragher and her colleagues were “completely isolated from the City’s higher management.” [Citation.] The City did not seek review of these findings. While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The District Court found that the City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The record also makes clear that the City’s policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. Under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct. Unlike the employer of a small workforce, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. III The Court of Appeals also rejected the possibility that it could hold the City liable for the reason that it knew of the harassment vicariously through the knowledge of its supervisors. We have no occasion to consider whether this was error, however. We are satisfied that liability on the ground of vicarious knowledge could not be determined without further factfinding on remand, whereas the reversal necessary on the theory of supervisory harassment renders any remand for consideration of imputed knowledge entirely unjustifiable (as would be any consideration of negligence as an alternative to a theory of vicarious liability here). IV The judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for reinstatement of the judgment of the District Court. Comparable Worth — Statistics indicate that working women earn about 70% as much as working men. The Equal Pay Act does not address a remedy for women whose traditional jobs (secretaries, nurses) have been systematically undervalued and underpaid. The comparable worth concept advocates development of relative bias-free values based on factors such as skill, effort, working conditions, responsibility, and mental demands for different jobs. 42-2c Executive Order Issued by President Johnson in 1965, it prohibits discrimination by Federal contractors based on race, color, sex, religion, or national origin. It also requires affirmative action in recruiting. It applies to: • all contractors who enter into a Federal contract to be performed in the US • all subcontractors to be paid more than $10,000 All nonconstruction employers with 50 or more employees who have more than $50,000 in contracts must have a written affirmative action plan. 42-2d Age Discrimination in Employment Act of 1967 Applies to private employers having twenty or more employees and to all governmental units, regardless of size. Also prohibits mandatory retirement for most employees, no matter what their age, unless the retirement is justified by a suitable defense. Three major defenses: bona fide occupational qualification, bona fide seniority system, and any other reasonable action. In 2004 the United States Supreme Court held that the ADEA does not prevent an employer from favoring an older employee over a younger employee. 42-2e Disability Law The Rehabilitation Act of 1973 assists the handicapped in obtaining rehabilitation training, access to public facilities, and employment and requires Federal agencies and contractors to take affirmative action to hire qualified handicapped persons. The Americans with Disabilities Act of 1990 requires, among other things, employers with 15 or more employees to exclude a person’s handicap from any hiring decision. The Vietnam Veterans Readjustment Act of 1974 requires firms having $10,000 or more in federal contracts to engage in affirmative action for disabled veterans and Vietnam-era veterans. NOTE: See Figure 42-3: Federal Employment Discrimination Laws On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA). This gave broader protections for disabled workers and "turn[ed] back the clock" on court rulings which Congress deemed too restrictive. The ADAAA includes a list of major life activities, including "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified "major bodily functions." The ADAAA overturned a 1999 U.S. Supreme Court case that held that an employee was not disabled if the impairment could be corrected by mitigating measures; the ADAAA specifically provides that such impairment must be determined without considering such ameliorative measures. Another judicially imposed restriction overturned by the ADAAA is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability. 42-2f Genetic Information Discrimination The Genetic Information Nondiscrimination Act of 2008 (GINA) forbids discrimination on the basis of genetic information with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.. CASE 42-5 TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS Supreme Court of the United States, 2002 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 http://scholar.google.com/scholar_case?case=3382304874478067867&q=534+U.S.+184&hl=en&as_sdt=2,34 O’Connor, J. YOUNG v. UNITED PARCEL SERVICE, INC. Supreme Court of the United States, 2015 575 U.S._____, 135 S.Ct. 1338, 191 L.Ed.2d 279 Breyer, J., The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy. It also says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” [Citation.] We must decide how this latter provision applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. In our view, the Act requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work. And here—as in all cases in which an individual plaintiff seeks to show disparate treatment through indirect evidence—it requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment. [Citation.] Ultimately the court must determine whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination. The Court of Appeals here affirmed a grant of summary judgment in favor of the employer. *** We begin with a summary of the facts. The petitioner, Peggy Young, worked as a part-time driver for the respondent, United Parcel Service (UPS). Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage. Young subsequently brought this federal lawsuit. We focus here on her claim that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young said that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were “similar in their . . . inability to work.” She accordingly concluded that UPS must accommodate her as well. UPS responded that the “other persons” whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA), [citation.] UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all “other” relevant “persons.” Title VII of the Civil Rights Act of 1964 forbids a covered employer to “discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual’s . . . sex.” [Citation.] In 1978, Congress enacted the Pregnancy Discrimination Act, [citation], which added new language to Title VII’s definitions subsection. The first clause of the 1978 Act specifies that Title VII’s “ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.” [Citation.] The second clause says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .” [Citation.] This case requires us to consider the application of the second clause to a “disparate-treatment” claim—a claim that an employer intentionally treated a complainant less favorably than employees with the “complainant’s qualifications” but outside the complainant’s protected class. [Citation.]. We have said that “[l]iability in a disparate-treatment case depends on whether the protected trait actually motivated the employer’s decision.” [Citation.] We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework [Citation.]. In McDonnell Douglas, we considered a claim of discriminatory hiring. We said that, to prove disparate treatment, an individual plaintiff must “carry the initial burden” of “establishing a prima facie case” of discrimination by showing “(i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” [Citation.] If a plaintiff makes this showing, then the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason for” treating employees outside the protected class better than employees within the protected class. [Citation.] If the employer articulates such a reason, the plaintiff then has “an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant [i.e., the employer] were not its true reasons, but were a pretext for discrimination.” [Citation.]. We note that employment discrimination law also creates what is called a “disparate-impact” claim. In evaluating a disparate-impact claim, courts focus on the effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent. [Citation.] But Young has not alleged a disparate-impact claim. *** The [UPS] manager *** determined that Young did not qualify for a temporary alternative work assignment. [Citation.] *** When Young later asked UPS’ Capital Division Manager to accommodate her disability, he replied that, while she was pregnant, she was “too much of a liability” and could “not come back” until she “ ‘was no longer pregnant.’ ” [Citation.] *** Young returned to work as a driver in June 2007, about two months after her baby was born. [Citation.] As direct evidence of intentional discrimination, Young relied, in significant part, on the statement of the Capital Division Manager *** . As evidence that she had made out a prima facie case under McDonnell Douglas, Young relied, in significant part, on evidence showing that UPS would accommodate workers injured on the job, those suffering from ADA disabilities, and those who had lost their DOT certifications. That evidence, she said, showed that UPS had a light-duty-for-injury policy with respect to numerous “other persons,” but not with respect to pregnant workers. Young introduced further evidence indicating that UPS had accommodated several individuals when they suffered disabilities that created work restrictions similar to hers. *** We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008. As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. *** The parties disagree about the interpretation of the Pregnancy Discrimination Act’s second clause *** [T]he meaning of the second clause is less clear; it adds: “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” [Citation.] Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant “other persons” are, may consider other similarities and differences as well? If so, which ones? *** *** disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so[Citation.]There is no reason to believe Congress intended its language in the Pregnancy Discrimination Act to embody a significant deviation from this approach. *** Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance stating that “[d]isabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities” and that “the availability of . . . benefits and privileges . . . shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.” [Citation.] Indeed, as early as 1972, EEOC guidelines provided: “Disabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment.” [Citation.]*** More recently—in July 2014—the EEOC promulgated an additional guideline apparently designed to address this ambiguity. That guideline says that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” [Citation.] The EEOC also provided an example of disparate treatment that would violate the Act: “An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20–pound lifting restriction related to her pregnancy. The employer denies the light duty request.” The EEOC further added that “an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.” *** *** The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. *** Without further explanation, we cannot rely significantly on the EEOC’s determination. *** In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination. But it is “not intended to be an inflexible rule.” [Citation.] Rather, an individual plaintiff may establish a prima facie case by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under” Title VII. [Citation.] In particular, making this showing is not as burdensome as succeeding on “an ultimate finding of fact as to” a discriminatory employment action. [Citation.] Neither does it require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways. [Citation.] Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. [Citation.] But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates. *** If the employer offers an apparently “legitimate, non-discriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. *** Under this interpretation of the Act, the judgment of the Fourth Circuit must be vacated. A party is entitled to summary judgment if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” [Citation.] We have already outlined the evidence Young introduced. [Citation.]. Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis. *** We do not determine whether Young created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than it treated these other nonpregnant employees were pretextual. We leave a final determination of that question for the Fourth Circuit to make on remand, in light of the interpretation of the Pregnancy Discrimination Act that we have set out above. *** For the reasons above, we vacate the judgment of the Fourth Circuit and remand the case for further proceedings consistent with this opinion. *** Chapter Outcome*** Explain the doctrine of employment at will and the laws protecting employee privacy. 42-3 EMPLOYEE PROTECTION 42-3a Employee Termination-at-Will At common law an employment contract not for a definite term could be terminated by either party. Statutory Limitations — This rule has been somewhat restricted by a number of statutes which protect certain employees (1) from discriminatory discharge, (2) in their exercise of statutory rights, and (3) from discharge without cause. Many states also protect workers from discriminatory discharge for filing workers’ compensation claims. Judicial Limitations — Courts have also intervened by creating exceptions to this rule primarily under implied contract theories. These cases have found that employment contracts contain an implied promise to deal in good faith and a duty to terminate in good faith and for just cause. A majority of States now consider a discharge as wrongful if it violates a statutory or other established public policy. In general, this public policy exception renders a discharge wrongful if it involves a dismissal for (1) refusing to violate a statute, (2) exercising a statutory right, (3) performing a statutory obligation, or (4) reporting an alleged violation of a statute that is of public interest (“whistle-blowing”). CASE 42-6 JASPER v. H. NIZAM, INC. Supreme Court of Iowa, 2009 764 N.W.2d 751 http://scholar.google.com/scholar_case?case=2832611353601787809&hl=en&as_sdt=2&as_vis=1 &oi=scholarr Cady, J. This case arose when Kimberly Jasper was terminated from her employment as the director of a child care facility in Johnston, Iowa, called Kid University. The center was owned by H. Nizam, Inc. Mohsin Hussain was the president of the corporation. , Zakia Hussain was the vice president. The Hussains were married. Mohsin Hussain was a special education teacher for the Des Moines School District and was not involved in the day-to-day operation of the center. Jasper began her employment as director of the center in late August 2003. She was paid an hourly wage. There was no specific term of employment. A few weeks after Jasper started her employment, she and her husband agreed to rent a home owned by the Hussains. The Jaspers had moved to Des Moines from Arizona and were looking for housing at the time. Jasper learned the Hussain house was available to rent when she and Hussain went to the house to retrieve some equipment to use at the day care center that was stored in the house. The house had four bedrooms and two bathrooms, but had sustained substantial water damage and was in a general state of disrepair. The agreed monthly rent was $10, plus utilities, and the Jaspers were required to make all repairs to the house at their own expense. Within a short time after Jasper started her employment, Hussain told her the center was not making enough money to justify the size of the staff. He also encouraged Jasper to attract more children to the center. Jasper responded by telling Hussain that any staff cuts would place the center in jeopardy of violating state regulations governing the minimum ratios between staff and children. [Citation.] Hussain was generally aware of the staffing requirements imposed by state regulations through his contact with a consultant and compliance official from the Iowa Department of Human Services. The consultant dealt with licensing and regulatory compliance of child care facilities. She would periodically stop by the center to determine if the facility was being operated in compliance with all regulations. Hussain had also hired a private consultant prior to employing Jasper. The private consultant also informed Hussain of the necessity to comply with the state ratio requirements. Within a month after Jasper started her employment, Hussain was again told of the staffing ratios at a meeting with both consultants and Jasper. The staff-to-child ratio became a frequent subject of conversation, and friction, between Hussain and Jasper. Hussain was persistent in his desire to reduce staff to decrease expenses, and Jasper was adamant that the current staff was necessary to meet the minimum staffing ratios under the state regulations. During one meeting with the Hussains and Jasper in early November, staff reductions were again discussed. Jasper claimed Zakia Hussain said, “What [the department of human services consultant] doesn’t know won’t hurt her.” Hussain made no response to the statement. In fact, Hussain never specifically told Jasper to violate or ignore the staffing regulations. At a meeting between Hussain and Jasper later in November, Hussain proposed that Jasper and her assistant director begin to work as staff in the classrooms occupied by the children as a means to cut staff and reduce expenses. Jasper objected to the plan as unreasonable. She believed it would prevent her from performing her duties as director of the center and risk placing the center in violation of the ratio regulations. On December 1, 2003, Hussain terminated Jasper from her employment with Kid University shortly after she arrived for work at the center in the morning. She was handed a written letter listing the reasons for the termination and was escorted outside the building. A confrontation followed after she was told she could not return to the building to remove her children from the day-care center, and police were called. Hussain also brought a forcible entry and detainer action against the Jaspers for failing to pay the December rent. Jasper and her family subsequently moved from the house, and she obtained new employment with another child care facility in April 2004. Jasper brought a wrongful discharge action against the corporation and Hussain individually. She claimed Hus-sain terminated her employment because she refused to violate the staff-to-child ratios, in violation of public policy of this state. She sought damages for lost earnings, emotional pain and suffering, and punitive damages. She also sought damages relating to the termination of the rental agreement and for unreimbursed expenses relating to improvements made to the center. At trial, Jasper presented testimony that the center violated the staff-to-child ratios shortly after she was terminated. This violation occurred when one staff member was left in a classroom to supervise five or more children between the ages of one and two years old. The regulations promulgated by the department of human services required one staff member for every four children under the age of two. However, the district court refused to permit Jasper to present evidence that a second day care facility owned by Hussain had been cited by the state for violating the staff-to-child ratios. * * * The jury returned a verdict for Jasper against the corporation and Hussain individually, based solely on the tort of wrongful discharge in violation of public policy. The jury awarded Jasper lost wages of $26,915 and past pain and suffering of $100,000. It awarded her $39,507.25 for expenses relating to the house and additional services and expenses. The district court refused to submit the punitive-damage claim to the jury. * * * Jasper appealed, * * *. The court of appeals determined a clear public policy existed in Iowa that child care centers be adequately staffed. It also found Jasper presented substantial evidence to support a finding that she refused to reduce staff below the minimum ratios and that this conduct was the cause of her termination. The court of appeals then determined the district court did not err in finding the $100,000 award for emotional distress was excessive and in setting aside the award of $39,507.25 for additional services and housing expenses. * * * We adhere to the common-law employment-at-will doctrine in Iowa. [Citation.] However, we joined the parade of other states twenty years ago in adopting the public-policy exception to the employment-at-will doctrine. [Citation.] In doing so, we recognized a cause of action in Iowa for wrongful discharge from employment when the reasons for the discharge contravene public policy. [Citation.] Since the adoption of this exception, we have identified and explained the elements of the cause of action. [Citation.] These elements are: (1) existence of a clearly defined public policy that protects employee activity; (2) the public policy would be jeopardized by the discharge from employment; (3) the employee engaged in the protected activity, and this conduct was the reason for the employee’s discharge; and (4) there was no overriding business justification for the termination. [Citation.] This case primarily focuses on the public-policy element of the tort and ultimately requires us to decide if the source of public policy can be derived from administrative regulations. Yet, the case also requires us to consider the parameters of the public-policy element and to dig into the element to unearth and identify the often difficult distinction between a claim based on public policy and a claim based on a private dispute between an employer and employee. In this way, we must also consider the element of the tort that requires the employee to establish that the discharge was caused by the employee’s participation in an activity protected by public policy. Sources of Public Policy. The concept of public policy generally captures the communal conscience and common sense of our state in matters of public health, safety, morals, and general welfare. [Citation.] Although public policy can be an elusive concept, once recognized, it becomes a benchmark in the application of our legal principles. [Citation.] * * * Thus, the public-policy exception to the employment-at-will doctrine carries forward a hallmark concept of this state; that the rights of each individual in a civilized society are ultimately “limited by the rights of others and of the public at large” and that the delicate balance between these rights is what helps hold us together as a society. [Citations.] When a contract violates public policy, including a contract of employment, the entire community is damaged. In each case we have decided since adopting the public-policy exception to the employment-at-will doctrine, we have relied on a statute as a source of public policy to support the tort. * * * In fact, consistent with other states, our wrongful-discharge cases that have found a violation of public policy can generally be aligned into four categories of statutorily protected activities: (1) exercising a statutory right or privilege, [citations]; (2) refusing to commit an unlawful act, [citations]; (3) performing a statutory obligation [citation]; and (4) reporting a statutory violation, [citations]. Our adherence in our prior cases to identifying statutes as a source of public policy is consistent with our earlier pronouncement that the tort of wrongful discharge should exist in Iowa only as a narrow exception to the employment-at-will doctrine. [Citations.] The use of statutes as a source of public policy also helps provide the essential notice to employers and employees of conduct that can lead to dismissal, as well as conduct that can lead to tort liability. [Citation.] The public-policy exception was adopted merely to place a limitation on an employer’s discretion to discharge an employee when the public policy is so clear and well-defined that it should be understood and accepted in our society as a benchmark. [Citation.] * * * While we have justifiably relied on statutes, we have not closed the door to using other sources as a means to derive public policy to support the tort. We have repeatedly observed that our constitution is a proper source of public policy. [Citation.] Moreover, we have recognized that other jurisdictions have used administrative regulations as a source of public policy, yet we have not had the occasion to decide the issue until today. [Citations.] * * * In deciding whether administrative regulations may be used as an additional source of public policy to support the tort of wrongful discharge, we generally observe a strong fundamental congruence between statutes and administrative regulations. Administrative agencies have become an important component of our modern world of governance as a means for our legislature to better deal with the array of complex and technical problems it faces. [Citation.] Thus, our legislature often delegates its rule-making authority to administrative agencies as a means to better accomplish its objectives in dealing with these problems. [Citation.] The administrative regulations ultimately adopted are necessarily tied to the broad directives of the legislature and effectuate the intent of the enabling legislation. [Citation.] Administrative regulations have the force and effect of a statute. [Citation.] Moreover, the regulations are required to be consistent with the underlying broader statutory enactment. [Citation.] These observations reveal that administrative regulations can be an important part of a broader statutory scheme to advance legislative goals. They can reflect the objectives and goals of the legislature in the same way as a statute. Consequently, the justification for relying on statutes as a source of public policy can equally apply to administrative regulations. * * * Consequently, we are satisfied that administrative regulations can be used as a source of public policy to support the tort of wrongful discharge when adopted pursuant to a delegation of authority in a statute that seeks to further a public policy. We also recognize this position is consistent with most jurisdictions that have considered the question. [Citations.] * * * Public Policy Derived From Administrative Rules Governing Staff Ratios of Child Care Facilities. Our legislature has chosen to regulate child care facilities under chapter 237A of the Code. The regulatory agency is the department of human services. [Citation.] Specifically, this statute authorizes the department to “adopt rules setting minimum standards to provide quality child care in the operation and maintenance” of child care facilities. [Citation.] The legislature specifically authorized the department to adopt rules regulating “[t]he number ... of personnel necessary to assure the health, safety, and welfare of children in the facilities.” [Citation.] * * * From the beginning of our adoption of the public-policy exception, we have emphasized that the public policy must be both well recognized and clearly expressed. * * * * * * In this case, the legislature clearly delegated authority to the department of human services to promulgate specific rules concerning the proper staff-to-child ratios as a means “to assure the health, safety, and welfare of children” in child care facilities. [Citation.] Without question, the protection of children is a matter of fundamental public interest. [Citations.] These factors satisfy the goal that the regulation affect the public interest. * * * We conclude the particular administrative rule at issue in this case supports a clear and well-defined public policy that gives rise to the tort of wrongful discharge. The ratios were implemented at the specific direction of the legislature to protect the health, safety, and welfare of those children in Iowa who attend day care facilities. Additionally, the legislature intended for the ratios to be an important component of the larger public policy to protect children and, in turn, established a basic, important component of the operation of a day care center in Iowa. These factors transform the ratios into a public policy and satisfy the element of the tort that a clear and well-defined public policy that relates to public health, safety, or welfare be identified. Employee Participation in the Protected Activity as a Cause of the Discharge. In addition to the existence of a public policy to create a protected activity, the tort of wrongful discharge requires proof that the discharge was a result of the employee’s participation in the protected activity. * * * * * * We readily recognize the tort of wrongful discharge is not intended to interfere with legitimate business decisions of an employer. Yet, staffing a child care facility below the minimum requirements established by an administrative rule is not a legitimate business concern. In this case, there was sufficient circumstantial evidence that Kid University wanted Jasper to reduce staff below the minimum state requirements. * * * This same evidence supports a finding by the jury that Jasper was discharged because she refused to violate the state requirements. * * * We affirm the district court in part and reverse in part. We remand for a new trial in accordance with this opinion. *** Chapter Outcome*** Explain (1) the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Act, (2) worker’s compensation, (3) unemployment compensation, (4) social security, (5) the Fair Labor Standards Act, and (6) the Family Medical Leave Act, and (7) the Family and Medical Leave Act.. 42-3b Occupational Safety and Health Act Enacted in 1970, this act requires employers to provide a safe work environment. The Occupational Safety and Health Administration (OSHA) develops standards, conducts inspections, monitors compliance, and institutes enforcement actions. Employers may not discharge or otherwise discriminate against employees who exercise their rights under this act. 42-3c Employee Privacy Protection from unwanted searches, electronic monitoring and other forms of surveillance, and disclosure of confidential records are safeguarded by the tort of invasion of privacy. Drug and Alcohol Testing — A number of States have legislation prohibiting such tests or providing certain scientific and procedural standards. The NLRB has held such testing in a union setting is a mandatory subject of collective bargaining. Based on Supreme Court and lower court decisions, the government may use (1) random or universal testing where the public health or safety or national security is involved, and (2) selective drug testing for those employees believed to have a drug problem. Lie Detector Tests— The Federal Employee Polygraph Protection Act of 1988 prohibits private employers from requiring employees from undergoing a lie detector test. The act exempts government employers and certain others. 42-3d Workers’ Compensation State statutes established boards to determine what compensation an injured employee should receive. The amounts are fixed by statute and are not affected by the common law defenses of contributory negligence and voluntary assumption of the risk. The only requirement is that the employee be injured and that the injury arise out of and in the course of his employment. 42-3e Social Security and Unemployment Insurance Enacted in 1935, the federal Social Security system has expanded to cover almost all employees, and contains four major benefit programs: (1) Old-Age and Survivors Insurance (OASI) (providing retirement and survivor benefits), (2) Disability Insurance (DI), (3) Hospitalization Insurance (Medicare), and (4) Supplemental Security Income (SSI). The system is financed by taxes paid by employers, employees, and self-employed individuals. Benefits vary greatly depending on the particular program and how much the individual has paid into the program. The OASI benefits are tax-free unless recipient has income in excess of a specified amount. The federal unemployment insurance system was created by Title IX of the Social Security Act of 1935, to provide unemployment compensation to workers who have lost their jobs. Federal law provides the general guidelines, standards, and requirements, while the states administer the program through their own employment laws. The system is funded by employer taxes: federal taxes generally pay the program’s administrative costs, and state contributions pay for the actual benefits. Payments, generally made weekly, are based on a particular state’s formula. 42-3f Fair Labor Standards Act The Fair Labor Standards Act (FLSA) regulates the employment of child labor outside of agriculture (no employees under age 14, except in newspaper delivery and acting; 14 and 15-year-olds can work limited hours in nonhazardous jobs; 16 and 17-year-olds may work in any nonhazardous job, while persons 18 years old or older may work in any job, whether it is hazardous or not.) In addition, the act provides for a minimum hourly wage and overtime pay of time-and-a-half for hours worked in excess of forty hours per week. 42-3g Worker Adjustment and Retraining Notification Act The Worker Adjustment and Retraining Notification Act (WARN) requires sixty days advance notice of a plant closing or mass layoff (either 500 employees or for at least 1/3 of the employees at that site, if 1/3 equals or exceeds 50 employees). WARN requires the notification be given to specified State and local officials as well as to the affected employees or their union representatives. The act reduces the notification period for failing companies and emergency situations. 42-3h Family and Medical Leave Act The Family and Medical Leave Act provides that employers with 50 or more employees as well as Federal, State, and local governments, must grant employees as much as twelve weeks of leave during any twelve month period for the birth of a child; the adoption or gaining foster care of a child; or a serious health condition of a spouse, child, or parent. Employees are eligible for the leave if they have been employed by their employer for at least 12 months, and have worked at least 1,250 hours for their employer during the last 12 months preceding the leave request. The requested leave may be paid, unpaid, or a combination of both. Instructor Manual for Smith and Robersons Business Law Richard A. Mann, Barry S. Roberts 9781337094757, 9780357364000, 9780538473637
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