5


Employment Law I Outline
Overarching Theme:  Private Ordering versus Public Mandates // Introduction
I. This class focuses on the Common Law protections for employees in the United States.  Employment Law II focuses on the Federal Statutory Protections.
II. Part of the function of employment lawyers is to AVOID ever ending up in court over an employment law issue.
III. The theme of Employment Law is “Private Ordering” versus “Public Mandates”
A. Private Ordering = Meaning the rules the parties of employer and employee agree to govern their relationship through contract.  Most workers are “at will” as based on the employment contract they have (if they have one);  termination for almost any reason is valid as long as it doesn’t go against public policy (as expressed in the common law or state statutes);
1. This is contrary to what exists in the European systems which have “just cause” systems; in other words, once an employee is hired, getting rid of them requires a showing of just cause.  This is to avoid the social harms of unemployment on society.
2. In the U.S., private ordering favors employers over employees;
B. Public Mandates = Government regulations & procedural mechanisms like Collective Bargaining Agreements;
1. Flat command examples are like the minimum wage, family leave, federal holidays, etc. that govern even in the light of a private agreement between the parties;  statute trumping private law.
2. Note:  True governmental mandates granting employee(s) substantive rights, cannot be waived by the employee.
C. No one, employer or employee side, is happy with the state of employment laws in the United States.
IV. Policy Issues:  
A. Worker’s Compensation Schemes:  Often Workers Compensation schemes provide an incentive for employers to claim workers are their employees because the scheme is the ONLY statutory method of compensation for employee injuries (it bars tort claims against employers for injuries).  The payouts are less (typically capped), but broader ensuring more workers are compensated for injury.
B. Employment Statutes:  Remedial statutes are always interpreted broadly to give the greatest effect to the largest number of possible injured plaintiffs (FLSA, FMLA, FSLA, ADA, et al.);
C. Legal Advantages of Common Law “Employee” Status: Only “employees” are protected under Federal wage, hour, and benefit protections.  
D. Key Reason Employers will choose an Employee over an Independent Contractor:  To exercise greater control over worker activities.
E. Trend:  The trend in American society is away from the traditional employer-employee model where the employer exerts exclusive control over the worker’s day-to-day activities that was prevalent through most of the 20th Century.
1. “Contingent” workers are increasingly prevalent;
a. Temporary workers, often working for labor companies; (leading to “joint employer” issues);
b. Outsourced workers;
c. Independent contractors, et al.
d. This trend makes legal issues around who is and who is not an employee, employer, and independent contractor more difficult to determine.

I. To Whom Employment Law Applies
A. The Employee (∑) = Servant
1. Definition:
a. R.2d of Agency, §2(2):  An employee or servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
B. Independent Contractor
1. Definition:
a. R.2d of Agency, §2(3):  Someone who contracts with another to do something for him but who is NOT controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.
C. Employer (Œ) = Master
1. Definition:
a. R.2d of Agency, §2(1):  A master or employer is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
2. Who is assigned Employer Status?
a. Individuals (Sole Proprietors) who:
(1) Have overall operational control of the business;
(2) Possess and ownership interest in the business;
(3) Determines employees’ salaries and makes hiring decisions;
(4) Have direct control over their workers;
b. Business Entities are Employers:
(1) Partnerships, Corporations, or Government Agencies;
(2) Manager-owners, supervisors, or other employees within the entity are NOT considered “employers” - the entity is;
(a) Unless:  There is a statute which permits supervisory liability (usually around discrimination);
(b) Reason for non-liablity for Supervisors:
I. To avoid deterring people from becoming supervisors;
II. Because companies are more likely to be able to pay a judgment whereas an individual supervisor may not be;
(3) Firm Owners, that are not sole proprietors, are rarely “employers” for liability purposes unless they sufficiently control workers as noted above under Sole Proprietors.
3. Employers & Joint Employers
a. An employee that is “controlled” by more than one employer can exist; (this is added to the Right to Control test);
b. Employees being controlled by more than one employer for the purpose of an enterprise are considered “Joint Employers”; (example Labor Broker hired by a Supermarket for delivery drivers);
4. Employers who are also Employees
a. Some federal statutes (like ERISA - Social Security Statute) make clear that owners/employers can also qualify as employees for specific purposes like retirement plans; (Yates)
b. There may be some fact patterns whereby a common law test will find an Employer to be an Œ and ∑;
c. To make this determination, if an Œ is also an ∑, look to the statutory language first, then the common law tests of Control and Economic Reality;
5. Litigation Issue - Businesses Contracting with Third-Parties for Labor:
a. When can “employer” status be extended to a business who contracts with a third-party for labor?
(1) Issue is key to legal responsibility/liability where the third-party may be engaging in illegal labor practices and the contracting business benefits from this third party’s noncompliance with employment law.
(2) Suits arise on this issue, typically under the FLSA (Fair Labor and Standards Act):
(a) Sets minimum wage, overtime pay over 40 hours, bans child labor, bans sex discrimination, classifies “nonexempt” and “exempt” employees.
(b) FLSA Definitions are to be Broadly Applied:  “The terms employee and employer are to be broadly defined under the FLSA (”striking breadth“) to cover parties who might not qualify under a strict application of traditional agency principles.
D. Employee or Independent Contractor?
1. Right to Control Test: (R. 2d, § 220 - Factors for Determining Employee/Servant Status)
a. A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control;
b. How much control does the Principal exercise over the Agent? To determine whether someone is an employee/servant the following matters of fact (among others) are considered:
(1) The extent of control, by the agreement, the master may exercise over the details of the work;
(2) Whether or not the person employed is engaged in a distinct occupation or business;
(3) Is the kind of work done usually done under the direction of the employer or by a specialist without supervision;
(4) The skill required in the particular occupation;
(5) Whether the employer or the workman supplies the instrumentalities, tools, and place of work for the person doing the work;
(6) The length of time for which the person is employed;
(7) The method of payment, whether by time or by the job;
(8) Whether or not the work is a part of the regular business of the employer;
(9) Whether the parties believe they are creating the relation of mater and servant;
(10) Whether the principal (master) is or is not in business.
c. The role of CONTROL IS CENTRAL to ALL the tests for determining who is an employee or not;
(1) An employee can have “Joint Employers” (Ansoumana);
d. Where this test is not fully revealing, the Economic Reality Test is used to clarify;
2. Economic Realities Test:  (No single element is dispositive.) // This test also applies to determination of the Œ.
a. Control over a worker’s duties; < this is the KEY factor >
b. Payment of wages (and/or who pays worker’s payroll taxes);
c. Does the worker have opportunity for profit or loss and an investment in the business (if yes, probably NOT an employee);
d. The right to hire and fire and the right to discipline; (if yes, then probably an employer)
e. Permanence or duration of working relationship;
f. The performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal.
3. Employee or Independent Contractor Status Consequences:
a. Independent Contractors CAN be fired for any reason including race, gender, sexual orientation, etc.
b. Being an independent contractor takes off the table most common law and statutory protections;
c. Duration of employment can change the nature of an employee’s status for protection rights, but it’s only one factor;
II. At-Will Employment:  The Default Rule
A. Essential Meaning:
1. No Remedy:  At its most basic, At-Will Employment means:  No Remedy.
B. Operation:
1. The Ω:  Œ and ∑ may terminate the relationship at any time, for any reason;
a. Unless there is some special exception; (like a Contract or Anti-Discrimination Statute)
(1) These Promises are Not Consideration Creating a K:  Indefinite time periods in promises of “lifetime employment” or “long-term employment” are treated by courts as nothing more than the At-Will default rule; (Hanson)
(2) Additional Consideration can Create a K:  If something other than the employee’s services is given as “additional consideration” for a promise of long-term or permanent employment, a K MAY be found by a court in light of all the circumstances;
(a) Note:  In K law, a single performance can serve as consideration for one or twenty promises; not in this context, however.
b. Employers will rarely bind themselves to terminate an employee only for cause except with individual high-level employees or collectively-bargained agreements;
2. At-Will Employment as Unilateral Contract:
a. This theory is that an Employer’s offer of a wage in exchange for work performed is a unilateral contract; subsequent performance by the employee provides consideration for the contract;
(1) Thus before performance is rendered the offer can be modified by the employer’s unilateral withdrawal of the older offer and substitution of a new one; (Demasse; in next section)
3. Policy Reasons for At-Will Employment:
a. Procedural:  If there was no such rule, any dismissed employee could file suit on an alleged oral contract;
b. Employees suing employers are more likely to recover damages for breach of K suits; employers are not likely to recover;  the At-Will default rule addresses this unequal treatment;
4. Policy Issues:
a. The reality of the power this default rule gives employers, particularly when employees have large credit debt (like college loans), makes the “freedom” to work for an employer less consensual and more dependent.
b. In addition, given what employees commit to for their jobs, should’t they have some legal entitlements or protections beyond At-Will Employment?  They don’t (typically), but this is a valid question.
III. Exceptions to the At-Will Rule
A. Contract Exceptions
1. Oral & Implied Contract Rights to Job Security
a. Reliance on Offers of Employment:
(1) Promissory Estoppel:  A Promise + Detrimental Reliance without Consideration (Not a Contract, but potentially enforceable promise which becomes a K after a ruling.)  Promise is usually Gratuitous.
(2) A cause of action for Promissory Estoppel is based upon a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee which does in fact induce such an action or forbearance;
(a) Some jurisdictions will permit this cause of action as an exception to the At-Will Employment default rule;  such actions are only successful about 4% of the time;
(b) Damages:  Under this cause of action, damages are almost always based on the π’s prior employment and duration is for what is reasonable;
(3) Courts that reject Promissory Estoppel often do so on the grounds that the reliance is not reasonable if the offer is for At-Will Employment;
b. Assurances of Continued Employment
(1) Assurances of continued employment (which are not “lifetime” employment promises) which induce an employee to forgo employment elsewhere can rise to the level of mutual exchange of promises (consideration) and thus create a binding employment contract for which there are breach of contract remedies;
(2) Employees that can successfully demonstrate that an “implied-in-fact contract” existed at the time of termination, must also then demonstrate that the employer is in breach of contract (i.e., the termination was unjustified or wrongful);
(a) Implied-in-Fact Contract:  One in which an agreement to be legally bound is implied from the circumstances.  E.G., Riding a bus:  when you step aboard, you agree to pay the fare, the the driver agrees to take you to your stop, although none of this is stated.
I. These are rarely found now as employers have largely rewritten employee manuals such that implied-in-fact contracts can rarely be found;
(b) Implied-in-Fact contracts can be shown to exist, in part, by demonstrating:
I. Policies and practices;
II. Written employee-manuals;
III. Written employment procedures for hiring, dismissal, etc.;
A. Written materials are approached by courts in two ways:
1. As employment contracts;
2. As evidence of an implied-in-fact contract;
(3) General Ω:  Contractual rights in the absence of a written agreement are determined by an examination of the factual circumstances (Pugh, Guz)
c. Written Employment Manuals and Employee Contract Rights (Still within the rubric of “implied promises”)
(1) Written Documents prepared by an employer, distributed in the workplace can be:
(a) A source of employee rights and claims in court (an implied-in-fact contract); OR
(b) A source of employer protection from liability and a reinforcement of the At-Will default rule;
I. Bilateral K:  Once an employer document becomes a K, then the promises found to be contractually binding must be honored and any changes must be bilaterally agreed to (as opposed to the Unilateral Contract nature of At-Will Employment);
(2) Progressive Discipline Policies:
(a) Can be used to illustrate a promise which leads to contractual liability; (Connor)
I. Disclaimers may not nullify such liability (see disclaimers below);
II. Effective method of having a Progressive Discipline Policy (which is a good idea, typically):
A. Assert that it is an optional policy at the discretion of the employer;
B. Provide an non-exhaustive list of examples of behavior subject to the policy;
C. Include a clause that allows the employer to abandon the policy in “extreme” circumstances (like the employee assaults or murders another employee);
(3) Key Principle:  Employment Manuals and other written policies CAN be contractually binding;
(a) Because an employee handbook may create a contract (by making promises which can constitute an offer and “additional consideration”), the issue of the existence of an employment contract is proper for a jury when its existence is questioned and the evidence is conflicting or admits more than one inference; (Connor)
(4) Disclaiming Existence of Employment Promises or Contract in Manuals:
(a) Disclaimers stating that the manual contains no employment promises or contracts and the employee remains at will are generally sufficient to nullify the manual as having contractual effect; (Woolley)
I. Exception:  Disclaimers that contain both a disclaimer AND promises is an issue of fact for the jury to determine whether a contract exists or not, and whether the disclaimer is enforceable or not; (this exception is rarely found to exist) (Connor)
(5) Modification of Contracts:  Handbooks that are considered Implied-in-Fact Contracts or Express Contracts cannot be modified unilaterally; (Demasse)
(a) To effectively modify a Contract, there must be:
I. An offer to modify;
II. Assent to or acceptance of that offer;
III. Consideration;
2. Written Contracts (Express Agreements / Explicit Promises / Negotiated Agreements)
a. Identifying and Interpreting Job Security Terms
(1) Reasons for written employment contracts (which are very rare):
(a) Employers:
I. Desirable to avoid the uncertainty of implied-contract theory;
II. To make clear the employment relationship is “at-will”;
(b) Employees:
I. To lock in employment and its benefits;
II. Employment contracts are rare; typically only employees with sufficient bargaining power can obtain one;
A. Collective Bargaining Agreements with Unions;
B. Executives and high-level employees;
C. Sales people (mostly to document the terms of their pay based on complex commission structures);
(c) Note:  Employment “contracts” can often define terms of employment WITHOUT altering the At-Will nature of the relationship; even terms that define pay, length of employment, et al.; (see Cave Hill as an example)
I. The At-Will Default Rule is “always in the rear-view mirror” when you negotiate an agreement; if negotiated without explicit language to change the at-will relationship, then the default rule is in effect (see Cave Hill)
(d) Note:  This section on express agreements deviates very little from traditional contract law.
(2) Orally Negotiated Terms:
(a) Even though orally negotiated terms may not change the at-will relationship, they may still bind the employer;
(3) Parol Evidence Rule:
(a) Evidence of prior oral negotiations are generally inadmissible to alter, contradict, or explain the terms of a written agreement provided the agreement is complete, unambiguous, and unconditional.
I. Fully Integrated Agreement: No Parol Evidence admitted;
II. Partially Integrated Agreement: Parol evidence admitted ONLY to supplement agreement;
A. Partially Integrated = A summary or incomplete writing that has missing or ambiguous terms.
III. Parol evidence may NEVER be admitted to contradict the written terms.
(4) Notice Provisions:
(a) Agreements that contain notice provisions do not always change the at-will default rule (notice provisions that require the employer &/or employee to notify the other thirty days prior to their final termination date); they merely make the final period a definite period;
(b) Remedy:  Failure to give notice of termination by the employer typically results in damages equivalent to what would have been paid to the employee during the notice period.
b. Defining “Just Cause” to Terminate
(1) Just Cause Common Law Ω: When employment is for a definite period of time (as outlined, for example, in an employment contract), and employee may only be terminated for “just cause”;  stated another way, did the employer breach the job security provision of the contract?
(a) Just Cause Defined = A sufficient reason to terminate an employment contract immediately and for which, no notice or severance pay is due to the employee; regulated by good faith;
(b) Just Cause In Function = Employer may terminate an employee only for a fair and honest cause or reason, regulated by good faith (as opposed to at-will, which permits termination for any reason or no reason);
I. Note: This escape clause for employers with employment contracts is pretty easy for an employer to utilize and get back to the at-will presumption.  Submitting any justifiable reason for termination will usually suffice to allow the employer to terminate, unless:
A. The Just Cause provision is so specifically written as to limit the employer’s ability to terminate for a specifically listed reason;
(c) When there is a conflict in the evidence about the terms of an employment contract, the question of whether the employment is at will or for a definite term is a fact for the jury to determine.
(d) General Ω for Just Cause: An employee may be terminated at ANY time (even in the presence of a contract) if there is “just cause.”
(e) General Ω For Fixed-Term Clauses:  Courts generally find that a “fixed term” clause is trumped by a “termination at-will” clause in contracts or agreements found to be binding;
(2) Just Cause Defined in K or not in a Contract by the Parties:
(a) Defined:  If Just Cause is defined in the contract, then it’s a matter of interpretation whether the behavior of the employee meet the definition of just cause in their agreement?
I. Motive:  When the motive of firing is at issue, it is typically the burden of the π to prove the motive fit or did not fit the defined Just Cause reason for firing which enables their claim to go forward;
(b) Not Defined:  If Just Cause is NOT defined (more often the case), OR the behavior does not fall within an agreed to definition, the resolution by the courts is on a case-by-case basis, typically using the common law definition.  There is not a consistent rule for this in the law, at present.
I. Common Law definition of “Just Cause”:
A. Just cause terminations are permitted only for a fair and honest cause or reason, regulated by good faith as opposed to one that is trivial, capricious, unrelated to business needs or goals. (Uintah)
B. Court balancing:  In deciding whether just cause exists, courts must balance the employer’s interest in operating its business efficiently and profitably and the employee’s interest in continued employment. (Uintah)
C. The Balanced Approach for a Court to Find Just Cause: An employer can justify a termination for just cause by showing an objective good faith reason supported by facts reasonably believed to be true by the employer. (Uintah)
B. Tort Exceptions (Public Policy Exceptions)
1. Common Law Public Policy Exception aka “Wrongful Discharge”
a. Wrongful Discharge: Discharging an employee for a reason that offends public policy constitutes at tort;
(1) There are a number of statutes that codify this idea to protect employees from Wrongful Discharge;
(a) Civil Rights Act provisions against discrimination;
(b) Whistleblower provisions in various statutes;
(2) Rationale: It is appropriate to constrain employers when their actions taken against employees have effects on third parties (& public policy);
(3) Limitation: The “Public Policy” tort is ONLY available in the absence of a statutory cause of action;
b. Wrongful Discharge Elements:  π Asserting Wrongful Discharge must show: (Fitzgerald)
(1) π Engaged in a protected activity (public policy);
(a) The scope of the public policy exception must be kept narrow to avoid unreasonably eliminating employer discretion in discharging employees; (Rackley)
(2) Discharge (termination);
(3) A causal connection between the conduct and the discharge;
(a) The dismissal must have a “chilling effect” upon the public policy implicated (undermining public policy);
c. Typical reason for Wrongful Discharge: Employee claims termination was for engaging in conduct that has been mandated, or at least encouraged, by some public policy not directly connected with employment;
(1) Example:  Employee truthfully testifies before a court and is fired for testimony because it hurt the company;
(2) Example:  Employee terminated for jury duty;
d. Employer Discipline in Violation of Public Policy - Protected Activities: (§4.02 R.3d Employment Law)
(1) An employer is subject to tort liability for disciplining an employee who:
(a) Refuses to commit an act that violates the law or violates a professional code protective of the public interest;
(b) Performs a public obligation the employee reasonably believes is imposed by law; (e.g. refusing to commit perjury)
(c) Files a charge or claims a benefit in good faith under the procedures of an employment statute; (sometimes called “Exercise of a Public Right”;
(d) Refuses to waive a nonwaivable right or agree to an employment condition that would violate public policy;
(e) Inquires about or reports employer conduct the employee reasonably believes violates the law or violates a code of professional conduct protective of the public interest; (this is Whistleblowing);
(f) Engages in other activity directly furthering substantial public policy. (the Catchall; used often to sue for public policy reasons not in the other categories that the π wishes the law to create a recognition for);
e. Limitation on Wrongful Discharge:
(1) Only protects the “public”, the “public interest”, and “public policy”;
(2) Does not protect employees who report or act for the internal benefit of the company;
(a) Example:  Employee that reports on another employee who’s being investigated for embezzlement and gets fired.  Public policy is NOT implicated; the company can fire as it wishes.
2. Statutes Creating Public Policy Causes of Tort Action
a. Federal:  There is no comprehensive statute at the federal level creating a Public Policy tort;
(1) Limited Protection:  Sarbanes-Oxley Act does provide protection for employees of publicly traded companies who report financial misreporting;
b. State: Some states have enacted Public Policy tort statutes (typically whistleblower statutes);
C. Antidiscrimination
1. Policy Bases for Antidiscrimination Law:
a. Scope of Federal Antidiscrimination Statutes:
(1) race;
(2) sex;
(3) religion;
(4) national origin;
(5) age;
(6) disability;
b. Added State protections in some jurisdictions:
(1) marital status;
(2) political affiliation;
(3) sexual orientation;
c. General Ω of Antidiscrimination Statutes:
(1) Employers are prohibited from basing employment decisions (hiring, firing, et al.) on protected group membership; employee qualifications or some other neutral factor must be the basis;
(a) Unless:  reliance on neutral factors which disadvantage protected groups is sometimes prohibited as discrimination unless the neutral factor is job related;
(2) Just-Cause Note:  Antidiscrimination laws make it wise for employers to have a good reason for firing their workers; in a sense, antidiscrimination statutes tend to push firings toward a just-cause rule since everyone under the law is free to challenge their termination on discrimination grounds.
(3) Why does McDonnell Douglas does not apply in sexual harassment?
(a) Because the type of harassment is functionally different and it proven differently;
d. Primary Policy Reasons for Antidiscrimination Laws:
(1) Unfairness:  It’s unfair to discriminate based on characteristics that are beyond an individual’s control; (color, sex, etc.);
(2) Dignity:  Characteristics within an individuals control, like religion or political affiliation, are prohibited based on deep-rooted concerns about human autonomy and fundamental rights;
(3) Socioeconomic Harm:  Age and disability discrimination seeks to ensure the contributions of older or disabled workers is not lost because of discrimination;
e. Lecture:  Why antidiscrimination laws need revision
(1) The protected classes are not the only ways in which employees can be disadvantaged by discrimination;
(a) e.g. racism that put black children in substandard schools, automatically disadvantages them as adults; (structural disadvantages);
(2) Our employment law is only about nondiscrimination; it does not approach structural discrimination, only prohibits active discrimination;
(a) current law is about the “state of mind” of the employer when discrimination is alleged; this is very hard to prove;
(b) “intent” in employment discrimination means “because of”; “because of a person’s membership in a protected class they were discriminated against”;
(3) current law no longer fits the actual way in which discrimination actually occurs; it’s rarely intentional and direct, but is found in studies as “outcomes” or “effects”;
2. Individual Disparate Treatment Discrimination:  (McDonnell Douglas Test is here)
a. Federal Laws passed to address employment discrimination:
(1) Title VII of the Civil Rights Act of 1964;
(a) 42 USC 2000e:  Applies to almost all employers in the U.S.:
I. “It is an unlawful employment practice 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.”
(2) Civil War Reconstruction Statutes, esp. 42 USC § 1981;
(a) Originally written to protect ex-slaves, but have been amended to apply to most all employees;
(3) Age Discrimination in Employment Act of 1967 (AEDA), 29 USC §§631-34;
(a) Applies to employers with 20+ workers:
I. adds to the Title VII prohibition by using the same language with the added “because of such an individual’s age”;
II. Only protects those at least 40 years old and up;
III. Workers under age 40 CAN be discriminated against based on age; in fact, workers over 40 can be preferences over younger workers, but the opposite cannot be true;
(4) Rehabilitation Act of 1973;
(5) Americans with Disabilities Act of 1973 (ADA);
b. “Disparate Treatment”:
(1) Term originated under Title VII of the Civil Rights Act;
(2) Two Kinds:
(a) Individual Disparate Treatment;
I. Disparate Effects:  Can sometimes be actionable; when rules for a job disproportionately affect a protected class;
A. e.g. a rule requiring workers to have college-level English skills; in some cases this will be a valid work rule depending on the job; in others, it will not be and may affect Latinos, for example, and will be actionable;
II. Intent:  Racial animus or hatred is not necessary to make a claim; only that the π was disparately treated and it was “because of” the π’s membership in a protected class;
III. Comparators:  Individuals used to be compared to the individual being discriminated against to prove discrimination - factors:
A. position/title;
B. seniority;
C. race;
D. same supervisor; et al.
c. Proving Discrimination:  The Traditional Framework of McDonnell Douglas
(1) Plaintiff’s Prima Facie Case
(a) Source: Title VII of the Civil Rights Acts of 1964, 42 U.S.C.A. § 2000e-2(a) (1982);
I. Can’t just sue under Title VII:  Have to file an intent to sue with the EEOC and then the EEOC has to grant (or deny) a “right to sue” letter, granting the right to sue;
(b) Prima Facie Framework (π Burden of Presentment):  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) analysis: (question of law)
I. the plaintiff belongs to a class protected by Title VII;
A. π has the ultimate burden of proof on all elements of a discrimination claim;
II. the plaintiff applied and was qualified for a job for which the employer was seeking applicants; the plaintiff was qualified for his position;
III. the plaintiff, despite being qualified, was rejected; plaintiff experienced an adverse employment action;
A. Adverse Employment actions affect the “compensation, terms, conditions, or privileges of employment”
IV. after the plaintiff’s rejection, the position remained open and the employer continued to seek applications from persons of comparable qualifications;  similarly situated individuals outside his protected class were treated more 
favorably, or other circumstances surrounding the adverse employment 
action give rise to an inference of discrimination;
A. Exception:  a plaintiff can also establish a prima facie case of disparate treatment without satisfying the McDonnell test if the plaintiff provides evidence suggesting that the “employment decision was based on a discriminatory criterion illegal under the [Civil Rights] Act.”  International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977);
V. Consequences:  If prima facie case is established, a presumption of discrimination is established;
A. Establishing the prima facie case is called the π Burden of Presentment;
(c) Burden Shifting:
I. Legitimate Nondiscriminatory Reason (∆):  If prima facie case is established, burden shifts to defendant to show a legitimate nondiscriminatory reason for its employment decision;  (this is easily done);
A. Called the ∆ Burden of Production; (question of law)
II. Pretext:  Then the π must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory; this is called the π Burden of Persuasion; (question of fact - the only question which goes to the jury);
A. Note:  This is the phase where it is most common for a π to show “disparate treatment” (although it can also be shown in making the prima facie case);
B. Typically, this is additional evidence of discrimination which is beyond the prima facie case;
C. This is a “but-for” causation analysis;
d. Proving Discrimination:  Mixed Motive Analysis (question of law - for the judge to determine ONLY)
(1) When there are two plausible reasons for dismissing an employee, one legitimate and one discriminatory:
(a) the ∆ may avoid a finding of liability by merely proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the π’s (sex/gender/religion/et al.) into account; (Price Waterhouse v. Hopkins)
I. Causation under Price Waterhouse is but-for (this is changed by CRA 1991, below);
(b) Trial Strategy:  No plaintiff will ever alleged mixed motives; the legitimate motive gets supplied by the defendant and therefore you end up in a mixed-motive analysis in most cases;
I. Still use the McDonnell framework;
(c) When applied: Judge will decide if a mixed motive is present at the end of trial and if so, then a mixed-motive instruction will be given to the jury;
(2) Civil Rights Act of 1991:
(a) Changes But-For Causation to Motivating Factor for the challenged Adverse Employment Action;
(b) In large part a response to the decision in Price Waterhouse;  considered to apply ONLY in the mixed motive context and influences McDonnell Douglas’ framework only in that context;
(c) “an unlawful employment practice is established when the π demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice”;
I. Direct Evidence: Evidence which proves the fact at issue without need to draw any inferences;
A. This is not required to prove the discriminatory intent of an employment decision; (Desert Palace v. Costa)
II. Discriminatory Motive = Liability:  Once the employee demonstrates that an employer had a discriminatory motive, even if the employer can prove that it would have made the adverse employment decision against the π even without the discriminatory motive, because a discriminatory motive was proved by the π they are still liable; (add this to the McDonnell framework);
(d) Damages Limited if Mixed Motive Shown:
I. If ∆ can demonstrate that it would have taken the same action in the absence of the impermissible motiving factor the court:
A. Remedies: may grand declaratory relief, injunctive relief, and attorneys fees and costs;
B. Limitation: shall NOT award damages or issue an order requiring in any admission, reinstatement, hiring, promotion, or payment;
3. Sexual, Religious, and Other Discriminatory Harassment:
a. Statutory Cause of Action: Employees have a cause of action for harassment when such harassment is based on membership in a protected group under:
(1) Title VII of the Civil Rights Act of 1964;
(2) ADEA;
(3) ADA;
b. Difference with regular discrimination:
(1) Typically, does not result in economic impact/harm to the victim;
(2) The test for violation of the antidiscrimination statutes is not “an adverse employment action” as it is in the McDonnell test for protected-class discrimination;
(3) Often sexual harassment is in violation of company policy - which raises the question of whether the employer can be held liable for supervisory conduct in violation of company policy;
c. Establishing a claim of Sexual Harassment, under the holding of Meritor Savings Bank v. Vinson:
(1) Plaintiff may establish a violation of Title VII by proving that discrimination because of sex has created a hostile or abusive work environment;
(a) To qualify as harassment:  Workplace conduct must affect a term, condition, or privilege of employment;
I. Most clear harassment is quid pro quo harassment:  Where unwelcome sexual advanced are made and the employee’s refusal to engage in sex results in an adverse employment action;
(b) To be actionable:  The harassment must be severe and pervasive;
I. Typically, this means ongoing, commonplace, and continuing over a long period of time;
II. “Because of sex” means sexual harassment of any kind, including:  (Oncale)
A. opposite-sex;
B. same-sex;
C. gender stereotyping (expectation of males or females to act a certain way -- falls short of sexual orientation discrimination);
1. Harassing someone because they’re gay = not actionable / not protected at federal level;
a. Because the definition of “sex” in the federal statutes have explicitly excluded sexual orientation;
2. Harassing someone because they act feminine = actionable / protected;
D. or other forms of sexual harassment;
(c) Nonactionable:
I. Verbal or physical harassment which does not rise to the level of discrimination because of sex which alters the conditions of employment & create a hostile work environment;
d. Hostile Work Environment elements: (can be coworker-coworker or Œ-to-∑) - same as elements in religious harassment:
(1) Unwelcome, harassing conduct;
(2) Because of protected status;
(3) Severe and pervasive;
(4) Imputable to the Employer;
(a) Note: A claim for “constructive discharge” cannot be established just by establishing a hostile work environment;
e. Establishing a Claim of Religious Harassment:
(1) To prove an employee suffered from a discriminatorily hostile or abusive work environment, employee must demonstrate that the harassment was:
(a) Unwelcome;
(b) Because of religion;
(c) Sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment;
I. Subjective Element:  Must show that the π subjectively perceived the environment abusive;
II. Objective Element:  π must show that the conduct  was such that a reasonable person in the π’s position would find the environment was objectively hostile or abusive;
A. Note:  This is a very fact-dependent analysis.  Look to severity, who’s doing the conduct, and who knew about it, whether it’s physically threatening or humiliating, and whether the conduct reasonably interferes with the employee’s ability to do their job, etc.
(d) imputable to the employer;
4. Retaliation:
a. Retaliation is prohibited under Title VII, § 1981 and the ADEA;
(1) This is largely a variation of the Public Policy Tort cause of action, simply codified in statute;
b. Defined:  Retaliation is conduct that discriminates against an employee for opposing any practice made an unlawful by the statute under which the remedy is sought;
c. Prima Facie case of Retaliation:  (Shelton v. Trustees of Columbia University)
(1) Plaintiff was engaged in a protected activity;
(2) the institution was aware of that activity;
(3) plaintiff suffered an adverse employment action;
(a) this is much broader under retaliation;
(b) Adverse Employment Action here means:  anything that would actually deter a reasonable employee from opposing unlawful conduct or participating in a proceeding;
(4) there was a causal connection between the protected activity and the adverse action;
(a) If π can establish a prima facie case, the burden of production shifts to the ∆ employer who must supply a non retaliatory reason for its action;
(b) π can prevail by proving that the reason supplied is merely pretext for retaliation;
5. Disability Discrimination:
a. General Rules:
(1) Required Treatment - Duty to Accommodate: Based on the ADA, employers must treat individuals with disabilities equally or differently depending on the employment circumstances:
(a) Equal Treatment:
I. If they are qualified disabled persons must be treated equally IF their disabilities not require accomodation;
(b) Discrimination Allowed:
I. Employers can discriminate against disabled persons if their disabilities cannot be accommodated;
(c) Favored Treatment:
I. Employers are required to treat disabled persons better than other workers if reasonable accommodations are necessary to ensure equal employment opportunity and benefits;
(2) Defense/Exception:
(a) Undue Hardship Defense:  Cost to implement accommodation is a valid defense under the ADA;
b. Disability Analysis in a Nutshell:
(1) Disability?
(a) Qualified Disability?
I. Requested Accommodation:
A. Reasonable in the ordinary run of cases?
B. Reasonable in this particular case?
1. Undue Hardship on the employer?
c. The Meaning of “Disability” (under the ADA)
(1) Three definitions of disability:
(a) A physical or mental impairment that substantially limits one or more of the major life activities of an individual;
I. Physical or Mental Impairment:
A. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:  neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
B. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities;
II. Major Life Activities:
A. caring for oneself, eating sleeping, performing manual tasks, hearing, seeing, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, communicating, and working;  also includes, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, and respiratory functions, et al.
III. Intermittent/Episodic or In-Remission Disabilities:  Under the statute, an impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active.  So diseases like MS qualify as a disability;
A. Excluded:  Temporary disorders such as colds, flus, broken bones;
(b) a record of such an impairment; or
(c) being regarded as having such an impairment;
I. This means that the employer takes a prohibited action based on knowledge of an impairment that is prohibited;