Employment Law

Employment Law Outline

I. Legal issues in connection with the hiring process

1. Discrimination in Hiring Practices

i. Race: Title VII of Civil Rights Act of 1964

a. Cannot refuse to hire someone based on race

b. Cannot ask questions that filter out people of one race

ii. Age: Age Discrimination in Employment Act of 1967 (ADEA)

a. Protects employees or applicants age 40 or older

b. Cannot be treated less favorably because of age

c. No policy or practice that negatively affects those age 40 and over

iii. Disability: Americans with Disability Act of 1990 (ADA)

a. Prior to offer—prohibits inquiries even if related to ability to perform job

b. Post-offer—allows inquiries even if not job-related, if required of all

c. During employment—only if related to job function

1. Roe v. Cheyenne Mountain Conference Resort, 920 F.Supp. 1153 (1996)

2. Testing

B. How HR practitioners would ensure compliance with the law

1. Focus interview questions on ability to perform the anticipated job function

2. Do not require unnecessary qualifications

II. Employment discrimination based on race, including affirmative action

1. Affirmative Action—Hiring Process

i. Laws: Title VII of Civil Rights Act of 1964, Section 717

ii. Laws: Executive Order 11246 (signed by LBJ on Sept. 24, 1965) – prohibits discrimination in employment decisions on basis of race,

iii. Rehabilitation Act of 1974, 29 USC §793

iv. Fourteenth Amendment—(Equal Protection) State and Federal Governments cannot discriminate against individual based on race

v. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) Incentives for minority contractors must fulfill “compelling government interest”; be narrowly tailored

2. Job Function

i. Employees protected from advancement decisions based on racial stereotypes

ii. Employees protected from being denied career advancement on the basis of race

3. Pay

i. No advancement decisions based on racial stereotypes

ii. Employees protected from receiving unequal pay on the basis of race

A. How HR practitioners would ensure compliance with the law

1. Avoid asking hiring questions directly related to race.

2. Avoid predicating advancement on attributes not necessary for performing job.

III. Employment discrimination based on sex, including sexual harassment

1. Hiring process -- Title VII of Civil Rights Act of 1964; Pregnancy Discrimination Act of 1978 (PDA), incorporated by amendment into Title VII

i. Cannot refuse to hire woman based on assumptions about women in general

ii. Cannot refuse to hire based on stereotypes of gender

iii. Cannot prevent application for pregnancy, childbirth, related medical conditions

2. Sexual Harassment -- Title VII of Civil Rights Act of 1964; 29 C.F.R. Part 1604.11

i. Unlawful to harass employee or applicant on basis of sex

ii. It does not have to be of a sexual nature

iii. A hostile work environment or adverse work decision

3.Pay -- Equal Pay Act of 1963; Corning Glass Works v. Brennan, 417 U.S. 188 (1974); Held that company had not given female employees same pay and opportunities as male employees

i. Women cannot be paid less for same job

ii. No separate lines of progression and seniority

4. Job Function

i. It cannot be prevented from applying for jobs based solely on gender

ii. Testing cannot be hidden discrimination against women

A. How HR practitioners would ensure compliance with the law

i. Do not ask gender-specific question during interview.

ii. Do not require testing that unfairly penalizes women.

iii. Develop harassment policies that explicitly state that the company will not tolerate sexual harassment of any type.

iv. Institute complaint procedure that allows victim several different options for reporting harassment.

IV. Wrongful discharge

1. Constructive discharge

i. Forced to quit because working conditions unbearable.

2. The doctrine of at-will employment –Common law

i. Employee can be discharged at any time (not for discriminatory reasons)

3. Most widely recognized exceptions to at-will employment

i. Public Policy—No adverse employment action that goes against public interest

1. Refusing to do something illegal

2. Reporting employer illegal acts

3. Engaging in behavior that is in the public interest (e.g., jury duty)

4. Exercising statutory right

ii. Implied Contract—Recognized in 41 states and District of Columbia

1.Oral assurances

2. Employer’s handbook, policies, may give rise to implied contract

iii. Implied Covenant of Good Faith and Fair Dealing—Minority of states

1. Some states require just cause for termination

2. Prohibition of terminations made in bad faith or out of malice

A. How HR practitioners would ensure compliance with the law

1.Constructive discharge

i. Difficult to prove, especially when at-will—Must be deliberate.

ii. Intolerable conditions – reasonable person test

iii. Review resignations to prevent claims

2.At-will employment

i. Disclaimers in handbook: policies and procedures do not create contractual rights

ii. Company reserves the right to change policies and procedures at any time

iii. Statute of frauds states: Contracts over one year must be in writing

3.Exceptions to at-will employment

i. Public policy—Be careful about terminating reporter of illegal activity.

ii. Implied contract—Don’t promise to only terminate employees for cause.

iii. Do not terminate employee after allegations of discrimination.

References

Heinsz, T. J. (1983). Assault on the employment at-will doctrine: Management considerations. Missouri Law Review, 48(4), 855-892.

Krieger, L. H., & Fiske, S. T. (2006). Behavioral realism in employment discrimination law: Implicit Bias and disparate treatment. California Law Review, 97(997), 1003-1005.

Muhl, C. J. (2001). The employment at-will doctrine: Three major exceptions. Monthly Labor Review, 124(1), 3-11.

Summers, C. W. (2000). Employment at will in the United States: The divine right of employers. U. Pa. Journal of Labor and Employment Law, 3(1), 65-86.

Walsh, D. J. (2013). Employment law for human resource practice, 4th Edition. Mason, OH: Cengage Learning.

Zimmer, M. (2000). Chaos or coherence: Individual disparate treatment discrimination and the ADEA. Mercer Law Review, 51, 693-719.

Case Law

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Corning Glass Works v. Brennan, 417 U.S. 188 (1974).

Roe v. Cheyenne Mountain Conference Resort, 920 F.Supp. 1153 (1996)

University of California Regents v. Bakke, 438 U.S. 265 (1978).

Statutes and Regulations

Age Discrimination in Employment Act of 1967 (ADEA)

Americans with Disability Act of 1990 (ADA)

Civil Rights Act of 1964, Title VII

Civil Rights Act of 1991

Equal Pay Act of 1963

Executive Order 11246

Pregnancy Discrimination Act of 1978 (PDA)

Rehabilitation Act of 1974, 29 USC §793