HRLR 868 Exam 1

Where do potential employment law rights and obligations come from?

1. agreed to contractual rights and obligations

2. those imposed by law: constitution, statutes/legislation, executive orders, regulations/guidelines/administrative decisions, the common law, treaties

Common Law

also known as “case law” or “judge made law,” this is the system of deciding cases that are based on precedent (legal principles developed in earlier case law) instead of statutory laws

Legal Requirements vs Litigation Risk

Legal requirement: clear and specific, no requirements, or vague/uncertain requirements

Litigation risk (always present): the immediate or salient risk, or net litigation risk

Primary factors contributing to legal-centric decision making

1. cognitive limits (mental biases) of decision makers: availability bias, loss aversion, attribution biases

2. decision maker pursuit of self-interest

3. the biased perspective and dominant role of lawyers: legal training, lawyer self interest and susceptibility to cognitive biases 

Keys to the organizationally sensible approach to employment decisions:

1. Explicitly identify the goals that are relevant to the employment-related decision in question (all applicable legal requirements, promote business strategy and values, attraction and retention of talent, diversity, minimize litigation-related costs)

2. Determine whether the decision involves clear and specific legal requirements (ask the right questions)

3. If the matter involves clear and specific legal requirements, defer to competent legal counsel

4. if the employment decision does not involve clear and specific legal requirements, then:

   1. involve multiple perspectives in the assessment of net litigation risk

   2. conduct a systematic HR led assessment of relevant non-legal factors

   3. assess “bottom line” net impact of various alternatives 

Factors viewed as relevant to determining employment status:

1. the extent of control that the employer has over the work (arguable key factor)

2. whether the worker is engaged in a distinct occupation or business

3. whether the work is usually done under the direction of the employer or without supervision 

4. the skill required in the particular occupation

5. whether the employer or the worker supplies the instrumentalities, tools, and the place of work

6. the length of time for which the worker is employed 

7. whether the worker is compensated by time worked (paid by hour) or by the job performed 

8. whether the work is a part of the regular business of the employer

9. whether the parties believe they are creating an employer-employee relationship 

Joint employer rule adopted by the NLRB (and DOL)

Two or more employers would be considered joint employers if they share or codetermine one or more of the employees’ “essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment of duties, and work rules (exercising significant control over the terms and conditions of the employees’ work)

To constitute illegal employment discrimination, the discriminatory action(s) complained of must:

1. have resulted in a limitation or denial of an employment opportunity

2. be based on the victim’s membership in a legally recognized “protected class” 

3. Not justifiable or “defensible” by the employer

Additional protected classes under Michigan’s law

height, weight, and marital status

Relevant defenses for disparate treatment

legitimate non-discriminatory reason, BFOQ

Relevant defense for disparate impact

the job-related defense

Relevant defense for failure to accommodate

undue hardship defense

General steps in establishing and defending a disparate treatment claim:

1. Plaintiff Prima Facie: the plaintiff must establish a case of disparate treatment discrimination (direct and/or circumstantial evidence)

2. Employer potential primary defenses: if prima facie is established, the defendant is required to produce evidence of a lawful motive for the employment decision (legitimate reason or BFOQ)

3. Plaintiff Pretext: if the defendant proves a legitimate reason defense and provides evidence of a lawful motive, the plaintiff must rebut the defense by producing evidence that the motive offered is merely pretext (needs to be reasonable doubt, not absolute proof)

Primary defenses for disparate treatment claims

Legitimate non-discriminatory reason: if a protected characteristic was used in the decision is still in dispute, involves articulating a lawful motive - not a high burden

• lawful reason for the employer’s alleged discriminatory action, clear and reasonably specific (and lawful)

BFOQ reason: the use of protected characteristic in the decision is NOT in dispute (admitted to) - extremely high standard/difficult to establish 

• a direct relationship exists between the protected characteristic and the employee’s ability to perform the job (such that substantially all members of excluded groups cannot perform the duties, or it is highly impractically to determine which members can perform the duties) AND the required qualification goes to the essence of the business operation 

Common ways to make pretext an issue for the jury to decide:

1. demonstrating a factual premise is false

2. employer failed to follow established policy

3. shifting reasons for the challenged employment decision

4. comparator evidence: evidence that other employees were treated more favorably 

Establishing a prima facie case of disparate treatment based on circumstantial evidence, the plaintiff shows that:

1. they belong to a protected group

2. they applied and was qualified for the job (or promotion) 

3. that despite their qualifications, they were rejected, and

4. after their rejection the position was filled by a person with similar qualifications who is a member of a different race, gender, ethnicity, etc than the plaintiff 

Disparate (or adverse) impact:

a substantially different rate of selection in hiring, promotion, or other employment decision that works to the disadvantage of a protected group. 

Involves “facially neutral” policies or practices: employees are treated the same, but the effect or impact is adversely different for members of a protected group 

Proving intent is not necessary, but plaintiff must demonstrate that the challenged practice(s) have a disparate impact on a protected class (4/5ths rule)

If it is established that the challenged practice is having a disparate impact, the burden shifts to the defendant to establish a defense: that the challenged practice is job related.

The “Job-Related” Defense

Only relevant in disparate impact cases (job related and consistent with business necessity defense)

Generally, it requires some type of reasonable evidence (not merely good faith employer belief) that the challenged practice is related to improved performance of people occupying the job in question or some other important employment outcome.

Basic element of harassment claims:

1. the harassment is based on a protected characteristic (sex, disability, etc)

2. the harassment resulted in a tangible adverse employment action or a hostile environment

3. the claimed harassment was unwelcome

4. the harassment is legally attributable to the employer (there is a legal basis or legal theory for holding the employer liable - vicarious liability or negligence)

When Vicarious Liability and Negligence are relevant

Vicarious liability: top officials and managers/supervisors in both quid pro quo and hostile environment situations 

• for supervisors/managers creating a hostile environment, the employer may try to establish the Ellerth-Faragher defense, otherwise no affirmative defense 

Negligence: non-supervisory/co-worker employees and third parties in hostile environment situations - employee must prove negligence 

Quid Pro Quo sexual harassment (tangible employment action):

Typically occurs when submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting the individual

Status of the harasser: the harasser must be an individual with authority to grant or withhold job benefits 

“Constructive discharge”: circumstances which would cause a reasonable person to feel compelled to quit (treated as termination) 

Hostile Environment sexual harassment:

Occurs when an employee is subjected to unwelcome advances, sexual innuendos, or offensive gender-related language, or other harassing behavior that is severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee 

the harassment must be based on the person’s sex, bur does not have to be sexual in nature 

Harasser status: may be a top official, manager/supervisor, co-worker or third party

can result from a wide range of verbal conduct, physical conduct, or the display of images

key: the negative environment caused by the offending conduct must be severe or pervasive

no factor is required in order to find actionable harassment 

Factors relevant to whether the environment is “severe or pervasive”:

• whether the conduct is verbal, physical, or both

• how frequently it was repeated

• whether the alleged harasser was a supervisor or coworker

• how many involved in the harassment

• whether the harassment was directed at more than one individual

The Ellerth-Faragher Affirmative Defense

Only relevant in cases involving alleged hostile environment harassment by a manager/supervisor.

Even if the plaintiff establishes the elements of hostile environment claim, the defendant-employer may avoid liability by proving BOTH:

1. it exercised reasonable care to prevent and to correct promptly any harassment (such as established policies/procedures) AND

2. the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise

Negligence standard vs Ellerth-Faragher Affirmative Defense:

The Ellerth-Faragher defense requires the employer to affirmatively proved it exercised reasonable care, the negligence standard requires the plaintiff to affirmatively prove the employer failed to exercise reasonable care 

the Ellerth-Faragher defense also requires the employer to prove that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm 

Elements of the plaintiff’s Prima Facie case for retaliation claims:

the plaintiff-employee must establish three things:

1. the plaintiff-employee engaged in a protected activity, and

2. the employee was subjected to materially adverse action (Not limited to materially adverse employment actions), and

3. there is a causal link between the protected activity engaged in by the plaintiff and the materially adverse action (there is evidence supporting a conclusion that the plaintiff suffered the materially adverse action because they engaged in a protect activity, not for some other reason)

“Participation” and examples

Involvement in the enforcement of antidiscrimination law. Individuals who are “participating” must have a “good faith belief” 

• filing or threatening to file a charge with the EEOC

• bringing or threatening to bring a lawsuit 

• providing testimony in administrative or court hearings 

• assisting in the EEOC’s investigation of a discrimination (including harassment) claim 

Can internal complaints to one’s employer be based on a good faith belief that the employer discriminated unlawfully constitute as “participation”?

the view of most courts: NO

the view of the EEOCC: YES - raising EEO complaints in an employer’s internal complaint or investigation process, whether before or after an OOEC has been filed, are covered under the protection of the participation clause)

“Opposition” and examples

Resisting or speaking out against discrimination apart from participating in formal proceedings. The individual must have both a good faith and an objectively “reasonable” belief that the employer engaged in unlawful behavior (good faith belief is not enough). 

• internal EEO grievances and other EEO related complaints made to one’s employer (EEOC considers internal EEO claims a form of participation)

• writing letters to the media

• refusal to implement an instruction to interfere with the EEO rights of others 

“Materially adverse”

severe enough that it would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination 

• the standard applies objectively, but in light of the plaintiff’s circumstances how vulnerable is the person to retaliation?

• may include conduct that reaches beyond the workplace (does not have to involve an employment action directly against the person claiming retaliation)

Evidence required to establish a link between protected activity and employment action:

1. the employer/decision-maker knew about the employee’s protected activity. Required!!

2. temporal precedence (the employer became aware of the employee’s protected activity BEFORE the materially adverse action was taken by the employer). Required!!

3. temporal proximity: the length of time that has passed between the employee’s protected activity and the materially adverse action

   1. the shorter the gap the more likely it is causation will be established, no hard and fast rule but generally:

   2. adverse action that occurred within a few weeks of the protected activity is ordinarily sufficient; a passage of a year, or even several months, ordinarily would not be sufficient

   3. depends greatly on what other evidence of retaliatory animus/intent exists

If the employer is able to articulate a non-retaliatory reason for its adverse employment action/decision, can the plaintiff-employee still prevail?

Yes, but only if the plaintiff-employee can establish that it is MORE LIKELY THAN NOT that the adverse employment action/decision was motivated by the employer’s desire to retaliate 

Factors contributing to the occurrence of sexual harassment

Characteristics of the harasser (individual differences)

• past behaviors: sexual coercion, other forms of sexual harassment

• demographic characteristics: male

• personality traits: dark triad, lower conscientiousness, trait aggressive

• beliefs and attitudes: rape myths, sexism, traditional gender roles, sociosexual

The extent to which the organizational culture tolerates sexual harassment and other characteristics of the work environment 

• men outnumber women

• women working in jobs considered atypical for women

• management/leadership roles are dominated by men 

• there are significant power differences (formal authority) between management

The broader environment within which the organization exists (societal factors, legal environment)

Recommended sexual harassment prevention practices

1. a comprehensive harassment policy 

2. an accessible reporting/complaint procedure

3. regular training 

4. consistently demonstrated accountability 

5. recruitment and selection 

6. leadership that communicates and demonstrates a commitment to harassment prevention  

Using arrest records in employment decisions

Generally, the requesting or use of arrest information should be avoided unless required. If arrest information seems critically important for some position, an attorney should be consulted before going ahead with its use. 

where the applicable state law does not prohibit the use of arrest information in employment decisions, you might consider asking about relevant arrests if the job involves:

• close, unsupervised contact with vulnerable persons

• access to customers homes or dwellings 

• access to dangerous tools, weapon, or substances

• driving vehicles as an essential function

when permissible, the disclosure of relevant arrest information may create a dity for the employer to investigate further. arrest information should never be viewed as an absolute bar to hiring an employee. 

Critical point for criminal convictions

A criminal conviction should not be viewed as a general, absolute bar to hiring an employee. Convictions should be evaluated in light of:

• the nature and gravity of the offense

• the nature of the position in question

• the length of time since the offense occurred and evidence of rehabilitation 

Thus, a conviction may be grounds for not hiring an individual for one job, but not for another job. the bottom line is that the conviction must be reasonably related to performance of the job in question. 

EEOC Enforcement Guidance: consideration of arrest and conviction information in employment decisions

Outlines two ways by which an employer can satisfy the job related defense:

1. validation evidence (empirical evidence)

2. developing a targeted screen that 1. utilizes nature of crime, time elapsed, rehabilitation 2. allows an “individualized assessment” to determine whether the policy as applied is job related 

Types of information that can be “checked”:

• identity verification

• criminal records

• employment verification 

• education/degree(s) verification

• credit check (financial responsibility and trustworthiness)

• driving record

• social security number verification

• reference checks 

• sex offender registry check

• credential verification (professional certification, licenses)

If a background check is conducted by a third party, under FCRA the employer must:

1. disclose a job applicant that a credit report/background check will be conducted and the information may be used in the employment decision 

2. obtain the applicants consent in writing and use a separate form (do not have to consider an applicant who refuses to consent to the check)

3. before an adverse employment action is taken, must give the individual a copy of their consumer credit report and summary of your rights under FCRA

4. after the adverse action, must give the individual notice of adverse action, contact information of the credit reporting agency, their right to obtain a free copy of the report 

Guidelines for background checks

1. there should be a written policy that addresses the organization’s desired (required) practices with regard to background checks 

2. check the potential applicability of state-specific limitations on background checks 

3. select vendors (third parties) carefully, or provide internal background checker extensive training 

4. obtain signed written consent 

5. all information sought should be job related