Employment Law Jody Blanke Ernest L Baskin Jr

Employment Law Jody Blanke Ernest. L. Baskin, Jr. Distinguished Professor of Computer Science and Law SSBE, Mercer University June 9 – 14, 2019

Employment Law • Primarily state law – varies from state to state • A good bit of federal law, too – mostly discrimination law June 9 – 14, 2019

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!” June 9 – 14, 2019 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 June 9 – 14, 2019

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 June 9 – 14, 2019

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) June 9 – 14, 2019 6

Employment Discrimination • Immigration Reform and Control Act of 1986 (IRCA) • Americans with Disabilities Act of 1990 (ADA) • Americans with Disabilities Amendments Act of 2008 (ADAAA) • Genetic Information Nondiscrimination Act of 2008 (GINA) June 9 – 14, 2019

Title VII • Prohibits discrimination on the basis of: – Race – Color – Gender – Religion – National origin June 9 – 14, 2019 8

Title VII • For purposes of making decisions regarding: – – – – Hiring Firing Training Discipline Compensation Benefits Classification Other terms or conditions of employment June 9 – 14, 2019 9

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 June 9 – 14, 2019 10

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. June 9 – 14, 2019

Filing Claims under Title VII • Employee files a claim with the EEOC • EEOC notifies the employer – Title VII includes anti-retaliatory 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 June 9 – 14, 2019 12

Theoretical Bases for Title VII Lawsuits • Disparate Treatment • Disparate Impact June 9 – 14, 2019 13

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. June 9 – 14, 2019 14

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. , Mc. Donnell 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. – Established the framework for employment discrimination cases June 9 – 14, 2019 15

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 June 9 – 14, 2019 16

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 – Height and weight requirements – gender, national origin June 9 – 14, 2019 17

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 June 9 – 14, 2019 18

Sexual Harassment • Quid Pro Quo Harassment – Employee is required to engage in sexual activity in exchange for promotions, raises or continued employment • Hostile Environment Harassment – The harassment is unwelcome activity – The harassment is based upon gender – The harassment is sufficiently severe or pervasive to create an abusive working environment – The harassment affects a term or condition of employment – The employer had actual or constructive notice of the hostile environment and took no prompt or adequate remedial action June 9 – 14, 2019 19

Employer Liability • Employers are vicariously liable under the doctrine of respondeat superior for all torts committed by employees acting within the scope of employment. • Employers may also be liable for torts committed by employees not working within the scope of employment if – – the employer intended the conduct, the employee’s high rank makes him the employer’s alter ego, the employer was negligent, or the employee was aided in accomplishing the tort by the existence of the agency relation. June 9 – 14, 2019 20

Employer Liability • Employers are strictly liable for quid pro quo sexual harassment, i. e. , when there are tangible employment actions taken. • Employers are not strictly liable if there is no tangible employment action. – In these hostile environment cases, the employer can use the Faragher/Ellerth defense to show that it had a reasonable antidiscrimination policy in place, but that the harassed employee unreasonably failed to use it. June 9 – 14, 2019 21

Faragher v. Boca Raton (1998) • Supreme Court found the city (employer) liable for the sexual harassment of its lifeguard supervisors. • Court held that while the city had available to it an affirmative defense to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, it had failed to do so as a matter of law. June 9 – 14, 2019 22

Burlington Ind. v. Ellerth (1998) • Supreme Court held that employer might be liable for hostile work environment, but should have an opportunity to prove that employee unreasonably failed to take advantage of employer’s complaint procedure. – Employee suffered no tangible employment action (and was even promoted during her employment). – Employee worked for employer for about 15 months, but didn’t report the harassment until a few weeks after leaving. • Her supervisor had made remarks about her breasts, had told her top “loosen up” and warned, “you know, Kim, I could make your life very hard or very easy at Burlington. ” • He told her she was not “loose enough” and reached over and rubbed her knee. • He responded to a job-related question from her, “I don’t have time for you right now, Kim – unless you want to tell me what you’re wearing. ” A couple of days later, he again responded, “are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier. ” June 9 – 14, 2019 23

Policies • It is important to have a policy • It is important to inform employees about the policy • It is important to enforce the policy June 9 – 14, 2019

Other Harassment • Hostile environment harassment claims under Title VII on the basis of race, color, national origin or religion are also evaluated by looking at the totality of the environment. June 9 – 14, 2019 25

Ricci v. Destefano (2009) • The City of New Haven gave firefighter exams in 2003 • Of the 77 candidates for lieutenant, 25 of the 43 white candidates, 6 of the 19 black candidates, and 3 of the 15 Hispanic candidates passed the exam. • Of the 41 candidates for captain, 16 of the 25 white candidates, 3 of the 8 black candidates, and 3 of the 8 Hispanic candidates passed the exam. • Applying the City’s “rule of three, ” all of the top 10 candidates for lieutenant were white, and 7 of the top 9 candidates for captain were white, while the other 2 were Hispanic. • The City decided not to certify the exam results. June 9 – 14, 2019

Ricci v. Destefano (2009) • Supreme Court held that New Haven engaged in “express, race -based decisionmaking, ” i. e. , disparate treatment, by failing to certify the exams. • The Court stated that the City’s action might have been justified if there was a strong basis in evidence of a disparate impact, but that was lacking as there was no dispute that the exams were job-related and consistent with business necessity (nor was there presented a less discriminatory testing alternative). June 9 – 14, 2019 27

Age Discrimination • Age Discrimination in Employment Act (ADEA) – applies to all public and private employees with at least 20 employees – covers employees aged 40 and above. • While enforced by the EEOC, it differs from Title VII – More lenient regarding adverse employment decisions – employer can rebut a prima facie case by showing any “reasonable factor other than age. ” – An action is not barred if another protected member is treated better, e. g. , an action by a 62 -year old is not barred because the replacement was a 55 -year old – No protection form “reverse discrimination” for those under 40 June 9 – 14, 2019 28

Age Discrimination • Prima facie case: – Employee is in protected class – Employee was terminated or demoted – Employee was performing job well enough to meet employer’s expectations – Others not in the protected class were treated more favorably. • Employer’s Defense – Bona Fide Occupational Qualification (BFOQ) – Age limit is reasonable necessary to essence of employer’s business – All or substantially all of the individuals over that age are unable to adequately perform the job requirements , or – Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age June 9 – 14, 2019 29

Disability Discrimination • The Americans with Disability Act (ADA) prohibits employers from discriminating against a qualified individual with a disability with regard to application, hiring, advancement, discharge, compensation and training. • The ADA applies to all private employers with 15 or more employees. • The ADA requires employers to make “reasonable accommodations” for requesting employees who have a “physical or mental impairment that substantially limits a major life activity. ” June 9 – 14, 2019 30

Definition of Disability • Very broad definition, but does not include – – Morbid obesity (unless the result of a physiological condition) Lack of an education Having a prison record Specifically excluded under ADA: • Homosexuality • Bisexuality • Sexual-behavior disorders • Compulsive gambling • Kleptomania • Pyromania June 9 – 14, 2019 31

Reasonable Accommodation • The ADA requires employers to make reasonable accommodations as long as doing so does not cause the employer “undue hardship. ” This includes: – – – Making work facilities accessible Restructuring jobs or modifying work schedules Reassigning individuals to other jobs Acquiring or modifying equipment or devices Modifying examinations, training materials, or policies Providing qualified readers or interpreters June 9 – 14, 2019 32

Employer Defenses • Undue Hardship – The ADA defines an undue hardship as an activity requiring significant difficulty or expense in light of a variety of financial, logistical and other factors. • Business Necessity – Tests and standards may be acceptable under the ADA if they are related to the job and consistent with business necessity. • Permissible Exclusion – A disabled person may be excluded from an employment opportunity only if, by reason of the disability, he or she (with or without reasonable accommodation) cannot perform the essential functions of the job or if the individual’s employment poses a significant risk to the health or safety of themselves or others. June 9 – 14, 2019 33

Employment Arbitration Agreements • Arbitration agreements have become very common. • Can preclude claims of discrimination by the employee against the employer, but the EEOC can still sue the company on employee’s behalf. • Cannot preclude class actions or joining together with others to pursue employment-related claims in court or arbitration. June 9 – 14, 2019

Covenants Not to Compete • Non-employment related – related to sale of business • e. g. , Joe the Baker �Employment-related June 9 – 14, 2019

Brenda Wood – Brenda Wood agreed not to work as an onair news anchor in the Atlanta/Athens television market for 6 months. June 9 – 14, 2019

Covenants Not to Compete • Scope – agreement must specify what activity is to be limited • Geography – be careful of terms like Atlanta • Duration – e. g. , 6 months, 1 year, 2 years June 9 – 14, 2019

Laws Vary From State to State • California will not enforce such an agreement as an illegal restraint of trade �Georgia used to be very strict about enforcement of these covenants �would not “blue pencil” such an agreement June 9 – 14, 2019

Election Day 2010 • Georgia Constitutional Amendment – “Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements? ” • 68% said “Yes” June 9 – 14, 2019

O. C. G. A. § 13 -8 -50 et seq. �Courts may now “blue pencil” the agreement �Two years is presumed reasonable �Need not specify a geographic restriction �Law targets “key employees” �executive employees �employees in possession of important confidential information, or �employees with specialized skills, knowledge, or customer contacts or information June 9 – 14, 2019

Privacy in the Workplace • “Reasonable expectation of privacy” – “Your home is your castle” – Your workplace – not so much • Expectation of privacy -> approaching zero June 9 – 14, 2019

Federal Privacy Laws • Apply only to federal agencies – Freedom of Information Act (FOIA) (1966, re-titled in 1986) – Privacy Act (1994) • Very sectoral in approach – Fair Credit Reporting Act (FCRA) (1970) • Fair and Accurate Credit Transactions Act (FACTA) (2003) – Electronics Communications Privacy Act (ECPA) (1986) – Video Privacy Protection Act (1988) • revised in 2013 June 9 – 14, 2019 42

Federal Privacy Laws (cont. ) – Health Insurance Portability and Accountability Act (HIPAA) (1996) • modified by the Health Information Technology for Economic and Clinical Health Act (HITECH) (2009) – Children’s Online Privacy Protection Act (COPPA) (1998) • revised in 2013 – Gramm-Leach-Bliley Act (GLB) (1999) – Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) (2003) – Genetic Information Nondiscrimination Act (GINA) 2008 June 9 – 14, 2019 43

Fair Information Privacy Practices (FIPPs) • • • Notice/Awareness Choice/Consent Access/Participation Integrity/Security Enforcement/Redress June 9 – 14, 2019 44

EU Data Protection • 1995 Data Protection Directive • 2018 General Data Protection Regulation – May 26, 2018 – Right to be Forgotten June 9 – 14, 2019 45

California Consumer Privacy Act • Passed in 2018 under threat of stricter law by way of ballot initiative • Will take effect in 2020 June 9 – 14, 2019 46

Privacy Policies • Protect your privacy, right? • Not so fast – “Our policy is to collect every little piece of information about you that we can get our hands on – then and sell it to the highest bidder. ” June 9 – 14, 2019 47