Labor and Employment Law Exam 2

Equal Pay Act

Prohibits pay discrimination based on sex. Employers are prohibited from paying a person of one sex at a lower rate of pay than a person of another sex for performing the same work at the same establishment, unless the pay difference is accounted for by a factor “other than sex"

Equal Pay Act Prima Facie Case

The Equal Pay Act requires one or more comparators (people of the opposite sex doing the same work in the same establishment), and that the comparator has higher pay.

Four Compensable Factors (How to evaluate job equality for Prima Facie Case)

Similar Skill, Effort, Responsibility, Working Conditions

Prima Facie Case → Burden of Employer

The employer must then prove that the differential in pay is explained by one of the following factors: seniority, merit, quality/quantity of production, some other factor than sex

What factors other than sex can justify pay discrepancies?

Differences in education (i.e. bachelor’s vs master’s), experience level (in a relevant profession), part-time vs. full-time, geographic location

What is pay transparency?

Laws requiring requiring employers to include salary ranges in job postings

What problems exist with prior salary knowledge as a “factor other than sex?”

Prior salary knowledge as a factor in a pay discrimination case can often perpetuate pay discrepancies based on sex indirectly

McDonell Douglas Burden Shifting

1. Establish Prima Facie

   1. Belong to Protected Class

   2. Qualified (Both Objective and Subjective)

   3. Experienced adverse employment action

   4. Similarly situated employees outside of their protected class were treated more favorably (Comparators)

2. Burden Shifts to Employer for Non-Discriminatory Reason

3. Burden Shifts to Plaintiff to Show that the Reason is a Pretext for Discrimination

   1. Discriminatory Intent

   2. Types of Disparate Treatment/Pretext Cases

EEO Protected Classes

Race, Ancestry, Religion, Sex (“Gender” discrimination also includes sexual orientation/sexual identity discrimination), Age (40+), Disability (physical or mental condition that must affect a “major life activity”), Genetic Info

Bona Fide Occupational Qualification

High Bar Exception for EEO Facial Discrimination Cases restricted to gender or religion for the most part - CANNOT BE USED FOR RACE

In what types of cases do you show that a BFOQ is necessary?

Facial discrimination cases where an employer needs to show that specific characteristic is essential for the job

Disparate Treatment

Unequal treatment with discriminatory intent based on one or more protected class characteristics that results in the limitation/denial of employment opportunity in term/conditions of employment- not necessary that the decision maker understood their actions to be unlawful/intended to hurt anyone

Terms and Conditions of Employment

Hiring, Pay, Assignment, Location, Promotion, Termination

Disparate Impact

Seemingly neutral qualification/policy that negatively impacts (whether intentionally/unintentionally) an EEO protected class

Disparate Treatment Prima Facie Case

People need to show that the employee belongs to some EEO protected class, met their employer's legitimate expectations, suffered an adverse employment action, and were treated differently than similarly situated individuals outside the protected class

Types of Evidence in Disparate Treatment

Direct Evidence, Circumstantial Evidence, Comparative Evidence

Direct Evidence

Any verbalization or writing of discriminatory motives - “I’ve been told not to hire too many Asian people”

Circumstantial Evidence

Often ambiguous statements that suggest bias and a discriminatory motive - prior mistreatment, track record in compliance with anti-discrimination law, statistics showing discriminatory patterns

Comparative Evidence

Evidence that the employer has treated plaintiffs differently given the same circumstances, with only difference in protected characteristic - especially powerful, common

Disparate Treatment vs. Disparate Impact

Disparate Treatment is different treatment based on the fact of their EEO protected class. Disparate Impact is a qualification that negatively impacts (whether intentionally/unintentionally) the employment of an EEO protected class

Types of Disparate Treatment Cases

Facially discriminatory policies/practices, reverse discrimination, pretext, mixed motives, pattern or practice, and harassment

Facially Discriminatory Policies/Practices

Case where employer openly admits to using protected class characteristics as a basis for making employment decisions, but says there is a business reason for doing so (EX: Southwest Airlines - customers prefer women flight attendants)

Reverse Discrimination

Employer with an affirmative action plan hires a person of marginalized group (usually race or sex), white male then sues - hinges on legality of the affirmative action plan

Pretext

Denied an employment opportunity of any kind, and the decision was based on some lawful factor but the employee believes that it was due to discrimination

Mixed Motives

Pretext case but possible denial of employment opportunity for both discriminatory and lawful reasons - not available for age, disability, or retaliation

Price Waterhouse v. Hopkins

Hopkins was a woman who was nominated for partner at Price Waterhouse, but multiple reasons she was denied: only woman applying, and was noted to have masculinity/lack of femininity - told that she should act more feminine, however was noted to be a bad collaborator and had poor interpersonal skills

What can an employer do in a “mixed motives” case?

The employer is guilty in this case, but if they can prove that the lawful motive would’ve been enough for the employment decision, then they can minimize the plaintiff award

Pattern or Practice

For more systemic discriminatory policies/practices - employer practices that have the effect of segregating certain groups or limiting advancement of certain groups

Harassment

When employees are subjected to inferior working conditions or lose employment opportunities because of their protected characteristic

Robertson v. Riverstone Communities

Robertson was a well-performing area manager, but was subjected to poor performance reviews for some time before being fired. Her superiors Scott and Loeffelbein, had made some racist remarks towards black people. However, since none of the remarks/decisions were pertinent in her employment situation, the court ruled in favor of the employer

Harassment under Title VII

Must be related to a protected class (much of the time, sex), reporting suspected harassment is protected from retaliation

Harassment for Employer Policy

Virtually all employers must have a harassment policy addressing the protection of reports of harassment

Harassment Claim

Must show: subject to harassment based on protected class characteristic; harassment resulted in tangible employment action OR was severe/pervasive enough to alter working conditions and create a hostile environment; harassment was unwelcome; employer should’ve known + done something about it

Workplace Bullying

Not a legal claim recognized by courts

Workplace Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, other verbal/physical conduct of a sexual nature … when

1. Submission to conduct is explicitly/implicitly a term or condition of an individual’s employment (TEA)

2. Submission to or rejection of the conduct is the basis for employment decisions affecting the individual (TEA)

3. The conduct has the purpose of interfering with work performance/creating a hostile working environment (HWE)

Tangible Employment Action Harassment

Harassment that results in changes of employment status (EX: Quid Pro Quo) - Harasser must possess sufficient authority to influence employment outcomes - however, if a supervisor just threatens an employment consequence and doesn’t do anything when the employee refuses sexual conduct, there’s no tangible employment action

Quid Pro Quo Sexual Harassment

Type of harassment that results in tangible employment action - involves sexual advance/demand for sexual favors that are traded for an employment outcome

Automatic Liability to the Employer for QPQ

Automatic liability to the employer IF:

• the plaintiff submits to the sexual conduct and proves it was unwelcome

• OR the plaintiff says “no” and suffers a tangible, negative employment action

Hostile Work Environment Harassment

Has to be based in a protected characteristic: results from wide range of verbal/online conduct: insults/jokes, stalking/assault, displays of images, inappropriate emails, websites, messages; Can also be created by coworkers and third-parties (customers & clients)

Conditions for Hostile Work Environment

Severe - WAY over the line (EX: Touching, racial/gender slurs) or/and Pervasive - Happens so much that the employee can’t escape it; it must also be unwelcome

Circumstances for Unwelcomeness of Conduct

When the person complaining of the conduct did not solicit/provoke it, and the person regarded the conduct as offensive and unwanted

Point of Concern for Unwelcomeness of Conduct

When the employee fails to tell the harasser/employer that the conduct is offensive, it could pose an obstacle but many reasons for it - but some sort of indicator of unwelcomeness is important

Executive Liability for Harassment (Both HWE and QPQ)

If the conduct is by a top level executive, there is automatic vicarious liability if the harassment is proven

Co-Worker Liability for HWE Harassmnet

Can possibly be held personally liable for contributing to HWE, however employer is liable if they knew/should’ve known about the harassment, in some states, individual coworkers can be sued under anti-discrimination laws

Supervisor/Manager Liability for Harassment

For Tangible Employment Action, supervisors and managers are vicariously liable but have defenses for HWE

Means for Supervisors + Managers to Avoid Liability

1. Took reasonable care to prevent workplace harassment (Sensitivity training + seminars)

2. Took reasonable care to respond to allegations of harassment (Investigation by a 3rd party, care to make sure it doesn’t recur, database for employee records regarding workplace actions)

3. Showed that plaintiff didn’t take advantage in corrective opportunities (dialogue)

Additional Burdens of Proof for Third Party HWE Situation

If the conduct is by any third party, the plaintiff (with 4 points for hostile work environment proven) cannot hold employer liable unless the plaintiff can prove that the employer knew/should’ve known about the harassment conduct AND that the employer didn’t take prompt, corrective action

Wyatt v. Nissan

Wyatt was a project manager at Nissan and had two superiors: Davis (Supervisor) and Mullen (Manager). Mullen made inappropriate comments towards Wyatt and sexually harassed and assaulted her. Wyatt confronted Mullen and made him apologize - and he subsequently asked Davis to remove her from the project due to unsatisfactory performance. She eventually went to HR and he was fired, but in 2016, Davis attempted to put her on PIP after the situation.

Retaliation

To prove retaliation for a protected act:

1. Show you engaged in a protected act

2. That you suffered an adverse employment action

3. That there was a causal link

Wyatt v. Nissan Retaliation Takeaway - Causal Link

Management removed Wyatt from a project shortly after she rejected Mullen’s advances, received her first negative performance review after reporting the harassment

Disability Consideration

To be considered a disability, a physical or mental impairment must substantially limit an individual in the performance of one or more major life activities

Reasonable Accommodation

Reasonable exceptions to company policy, adaptations the workplace - if an otherwise qualified employee needs the accommodation in order to perform the essential functions of the job

Undue Hardship

Allows employers to deny disability or religious accommodations if they can prove a significant difficulty or expense

Reasonable Accommodation - Disability

Extremely facts-oriented - need all the facts of the specific condition and of the accommodations made

Failure to Accommodate

Factors:

1. Employee has a disability or sincerely held religious belief; the individual is qualified for the position (meets objective + subjective requirements)

2. Employer knew or should’ve known that the employee needed accommodation in order to do the job

3. Doesn’t engage in an interactive dialogue to explore possible accommodations

4. One or more accommodations exist that are reasonable and would allow the employee to perform essential job functions

Failure to Accommodate Shifting Burden of Proof

If the plaintiff can prove all of this, then the employer’s only defense is to prove that the proposed accommodation is:

1. Undue hardship on the company

2. That it poses a direct threat to the employee or others

“At Will” in Terms of Termination

Typically there are good reasons for firing, and they should be shared and take place - if you don’t tell someone why they are being fired, they tend to point to the worst reasons

Common Reasons for “At Will” Termination

Performance (Errors, Timeliness, Production), Misconduct (Violation of Policy, Off-the-job Considerations)

Termination + Specific Contracts

Can be individual or collectively bargained for (unions), but spell out grounds for termination or “just cause” - factors for just cause:

1. Was there a rule for it?

2. Was it communicated?

3. Has it been consistently enforced?

4. What proof is there?

Prima Facie Case (Termination based on Discrimination)

1. Protected class

2. was meeting performance expectations and then terminated

3. hired replacement who wasn’t in protected class OR was similarly situated to someone not in protected class who engaged in same behavior and was not terminated

Burden Shifted Towards Employer for Above

Needs to show non-discriminatory reason, plaintiff then can try to show pretext

Constructive Discharge

(DOESN’T HAVE TO PROTECTED CLASS) When an employee is subject to severe/pervasive harassment and quits, it is treated as a “termination” rather than a voluntary quit, only deemed a tangible employment action if an official act such as a demotion/pay cut prompts the quit; NOT A WRONGFUL DISCHARGE in and of itself, just allows them to bring case forward

Working Conditions for Constructive Discharge

Reassignment to menial/humiliating work, Demotion, Humiliation, HWE

Layoff

Job Elimination with Financial/Business Reason

1. Could turn to outsourcing

2. Consolidation of Duties

3. Duplication of Roles (M&A)

Layoff Conditions

1. Should be eliminated, not refilled: if it’s “refilled” there’s no strict timeline, but needs to be a good reason for the change

2. Usually not for single employees, could raise suspicions (exception might be smaller companies)

WARN Act

In the case of a mass layoff/plant closure, employers with 100+ employees have to issue a WARN (Worker Adjustment and Retraining Notification) if they lay off more than 50 full time employees; give 60 day notice + add-ons depending on state

Reduction in Force (Multiple Layoffs)

Positions selected: if there’s more than one possible candidate, should have reason why

1. Performance

2. Seniority

3. Relevant Skills

4. Location

Need business reason for RIF

If two candidates in question have satisfactory ratings and there’s a managerial preference, need to give some sort of quantitative metric by which they are a better performer

Severance

Given money not owed, companies often have people sign a release (says they won’t sue company for termination) in exchange

OWBPA

Under OWBPA, when asking employees who are 40 or older to sign a release:

• Must provide minimum of 21 days to review release

• 7 days to revoke

Adverse Impact Analysis

Non-Compete

1. California won’t enforce

2. Some states will enforce but only for certain types of employees (will allow for exempt, but not non-exempt)

3. Some states also give judges the right to change the provisions (for example, shorten the length of the non-compete)

Non-Compete Factors

1. Is it necessary for the company's business interests?

2. Reasonable time limitation?

3. Limited to specific geographic locations?

   • Is the non-compete supported by some “consideration?” (basically necessary)

4. new job (promotion - very common consideration)

5. more compensation

6. stock options

Non-Solicitation

1. For many states who prohibit non-competes

2. Maintain right for worker to have options available, but prevents them from utilizing info on behalf of the competitor

Confidentiality Agreement

1. Maintaining company’s proprietary and confidential information

   • No time limit, only when info becomes public