Transcript Litigation - Mercer University

Jody Blanke, Professor
Computer Information Systems and Law
Mercer University, Atlanta
1
Employment Law
 Primarily state law
 varies from state to state
 A good bit of federal law, too
 mostly discrimination law
At-Will Employment
 Generally, an employee
 can be fired for good reason

“You’ve been stealing from us. You’re fired!”
 can be fired for “no” reason

“I don’t like the color of your shoes. You’re fired!”
 cannot be fired for bad reason

“You’re black. You’re fired!”
3
At-Will Employment
 Wrongful discharge exceptions
 vary greatly by state
 1. Public policy exceptions


e.g., whistleblower statutes
recognized by 43 states
 2. Implied contract exceptions


e.g., employee handbooks
recognized by 37 states
At-Will Employment
• 3. Implied covenant of good faith and fair dealing
exceptions

recognized by 11 states
 Six states recognize all 3 exceptions

Alaska, California, Idaho, Nevada, Utah, Wyoming
 Four states recognize none of the exceptions

Florida, Georgia, Louisiana, Rhode Island
Employment Discrimination
 Civil Rights Act of 1866
 Title VII of the Civil Rights Act of 1964
 Age Discrimination in Employment Act of 1967
(ADEA)
 Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA)
 Immigration Reform and Control Act of 1986 (IRCA)
 Americans with Disabilities Act of 1990 (ADA)
 Genetic Information Nondiscrimination Act of 2008
(GINA)
6
Title VII
 Prohibits discrimination on the basis of:
 Race
 Color
 Gender
 Religion
 National origin
7
Title VII
 For purposes of making decisions regarding:
 Hiring
 Firing
 Training
 Discipline
 Compensation
 Benefits
 Classification
 Other terms or conditions of employment
8
Title VII
 Applies to all public (federal, state and local) and
private employers with 15 or more employees
 Covers all levels of employees (managerial and hourly)
 Exemption - permits religious institutions and
associations to discriminate when performing their
activities
9
Hosanna-Tabor Church v. EEOC (2012)
 The Supreme Court recognized a “ministerial exception” to employment
discrimination laws
 A teacher taught mostly secular subjects, but also taught religion classes and
attended chapel with class (about 45 minutes per day)
 “The Establishment Clause prevents the government from appointing ministers
and the Free Exercise Clause prevents it from interfering with the freedom of
religious groups to select their own.” Majority – Roberts.
 “The question whether an employee is a minister is itself religious in nature”
and should be left to the religious group. Concurrence – Thomas.
 It would be a mistake to focus on the term “minister” because many religions do
not use it. Rather, the exception “should apply to any ‘employee’ who leads a
religious organization, conducts worship services or important religious
ceremonies or rituals, or serves as a messenger or teacher of its faith.”
Concurrence – Alito and Kagan.
Filing Claims under Title VII
 Employee files a claim with the EEOC
 EEOC notifies the employer
 Title VII includes antiretaliatory provisions
 Mediation
 EEOC investigation
 No-Reasonable-Cause Finding
EEOC issues employee a right-to-sue letter
 Exhaustion of administrative remedies
 Reasonable-Cause Finding
 Conciliation
 Civil suit filed in federal district court

11
Theoretical Bases for Title VII
Lawsuits
 Disparate Treatment
 Disparate Impact
12
Disparate Treatment
 Employee’s Prima Facie Case:
 Employee is a member of the class of persons protected
by Title VII,
 Employee applied for and was qualified for a job for
which the employer was seeking applicants,
 That despite these qualifications, employee was rejected,
and
 After this rejection, the position remained open and the
employer continued to seek applicants with those same
qualifications.
13
Disparate Treatment
 Employer’s Defense:
 Employer can defend by showing that it had a
legitimate, nondiscriminatory reason for its decision.
 Employee’s Counter:
 Employee must prove that the grounds offered by the
employer were merely a pretext for its actions and that
discrimination was the real reason.

e.g., McDonnell Douglas Corp. v. Green (1973)
 Black civil rights activist protested after being laid off and was
not rehired when new position became available. Supreme
Court remanded case to give Green a chance to prove pretext.
14
Disparate Treatment
 Employer may defend by showing that there is a bona
fide occupational qualification (BFOQ)
 Available only in cases involving gender, religion and
national origin (not for race or color).
 Some circuits use a two-step test:


Does the particular job require that the employee be of one
gender only, and if so
Is that requirement reasonably necessary to the “essence” of the
employer’s business?
 e.g., flight attendants at Southwest Airline? No
 e.g., bunnies at Playboy Clubs? Yes
 e.g., servers at Hooters? No
15
Disparate Impact
 Discrimination can be established by proving that an
employment practice, although neutral on its face,
disproportionately affects a protected group in a negative
way.
 Courts have determined the that the following screening
devices have a disparate impact:
 Educational requirement – race, e.g., Griggs v. Duke Power (1971)
 Credit status – gender, race
 Arrest record – race
 Unwed pregnancy – gender, race
 Height and weight requirements – gender, national origin
 Marital status – gender
 Conviction of crime unrelated to job performance - race
16
Disparate Impact
 The Four-Fifths Rule is a rule of thumb that permits a 20%
margin between the outcomes of the majority and the
minority under a given screening device
 i.e., disparate impact is statistically demonstrated when the rate for
a protected group is less than 80% (or four-fifths) of the higher
scoring majority group
 Employer can rebut the employee’s prima facie case by
showing the existence of a business necessity
 e.g., requirement of credit history may result in fewer women hired,
but handling large sums of money may warrant credit check
 Employee would then have to prove that there is a means of
addressing the issue that has less of an adverse impact
17