Slide 1Employment-at-WillEmployment-at-WillEmployment-at-WillEmployment-at-WillExceptionsStatutory ExceptionsWhistleblowersTitle VII of the Civil Rights Act of 1964 – DiscriminationProof of Discrimination – Disparate TreatmentProof of Discrimination – Disparate ImpactSexual HarassmentSexual HarassmentProcedureWrongful DischargeWrongful DischargeExamplesExampleFMLAEmployment-at-Will ExamplesEmployment-at-Will ExamplesEmployment-at-Will ExamplesEmployment-at-Will Alternatives?Other protectionsOther ProtectionEmployee PrivacyEmployee PrivacyEMPLOYMENT LAWChapter 18, 191/14/19 Dr. Gerlinde Berger-Walliser1Employment-at-Will“This person was dumber than we initially thought” should be a valid and legal reason to fire anybody.- From Ruminations.com by Aaron Karo True or False?Employment-at-WillCommon Law Employment-at-will doctrine:“All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).Employment-at-Will•Under U.S. common law an employer may dismiss an employee for cause, for no cause or for bad (immoral, unethical) cause•U.S. is the only industrialized Western Nation whose law recognizes employment – in the absence of a contract otherwise – to be employment-at-will•About 85% of all jobs in the US•Example: Fired for necktie: http://legalstudiesclassroom.blogspot.com/2011/01/employment-at-will-fired-for-choice-of.htmlEmployment-at-Will•To be EAW, employment must be of indefinite duration (most common type of employment)•indefinite duration: as long as you do a good job, as long as we stay in business, for life, etc.•definite duration: for 1 year, for the summer, until the next election, etc.•Football coach Paul Pasqualoni “fired” by UConn with 2 more years on his contract. Although fired, UConn must still honor his contract (buyout of $750,000)ExceptionsUnder U.S. common law - and unless his contracts states otherwise - an employee can be fired for NO cause, but can’t be fired for the following causes:Statutory Exceptions•NLRA – can’t be fired for union activities•Title VII of the Civil Rights Act of 1964 – Discrimination (race, color, religion, sex, national origin)•Pregnancy and parenthood•ADEA (age), ADA (disability)•Whistleblower protection (limited to specific statutory definitions)Whistleblowers•Somebody who discloses illegal (not unethical) behavior on the part of the employer•limited to specific statutory definitions and often narrowly interpreted•Violations of securities or commodities laws under the Dodd-Frank Act•Federal False Claims Act permits anybody to bring suit against someone who defrauds the government and protects employees who file such suit against retaliation •Federal Whistleblower Protection Enhancement Act (2012) protects federal employees who report waste fraud or abuse http://www.motherjones.com/mojo/2012/11/president-obama-signs-law-upgrading-whistleblower-protections •Otherwise common law, i.e. different from state to state and case by case•When a whistleblower is fired, he/she faces years of contentious, expensive, vicious litigation against a deep-pocketed foe.Title VII of the Civil Rights Act of 1964 – Discrimination •Title VII prohibits discrimination in the workplace•Discrimination based on sex, race, color, religion, national origin•Sexual harassment•Discrimination because of pregnancy•Applies to hiring, firing, promotion, wages, working conditions etc.•Two ways to prove discrimination under title VII•Disparate Treatment•Disparate ImpactProof of Discrimination – Disparate Treatment•Three step procedure shifting the burden of proof:•Plaintiff presents prima facie evidence that employer has discriminated against her because of the protected trait, i.e.:•1. claimant is a member of a protected class•2. claimant was qualified for and applied for the position in question•3. claimant was rejected•4. employer continued to consider other applicants or hired someone from outside the protected class.•Defendant must present evidence that decision was based on legitimate, nondiscriminatory reasons•Plaintiff must prove that the employer discriminated http://www.morelaw.com/verdicts/case.asp?n=3D08-3162&s=FL&d=40731 http://www.eeoc.gov/eeoc/newsroom/release/3-28-08.cfmProof of Discrimination – Disparate Impact•Treatment itself is not discriminatory but has a discriminatory effect•Three step procedure:•1. Claimant shows a job requirement that impacts a protected class to a greater degree (prima facie)•2. The employer presents evidence that the employment decision was based on job –related business necessity.•3. Claimant must then show that employer’s stated reasons were merely a pretext or that a less discriminatory rule would achieve the Employer’s goalsSexual Harassment•In addition to overt discrimination based on sex, Title VII includes sexual stereotyping, and sexual harassment•Remedies:•The employee who committed the sexual harassment is personally liable•The company is liable if •The sexual harassment has lead to a “tangible employment action (firing, demotion or reassignment)•Or in the event that it did not lead to a tangible action, it can prove that (1) it used reasonable care to prevent and correct sexual harassment; and (2) the employee unreasonably failed to take advantage of the company’s complaint procedureSexual Harassment•Sexual harassment involves unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature•Two major categories:•1. quid pro quo (this for that) •2. hostile work environment: “the workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”•Rule of thumb: What you do and how you conduct yourself in your own sphere does impact others, and may lead to legal liability. If an employee says he/she is offended, take it seriously. Err on the side of caution.•“Bullying”: http://www.youtube.com/watch?v=v5nD-PnKNfc •Sexual Harassment Training: http://www.youtube.com/watch?v=CgSeQP3hpSQ&feature=fvstProcedure•Before filing suit based on Title VII an employee must•File a