Employment Discrimination Law Notes

Important Contacts and Course Information

  • Instructor is an adjunct with a day job.
  • Contact information is available in the syllabus on TwinPage.
  • Shared box folder contains the syllabus.
  • Instructor welcomes questions, even on material from previous lectures.

Syllabus Highlights

  • Syllabus is available in a shared Box folder.
  • The course may deviate some from the syllabus.
  • The required textbook is the fourth edition.
  • Using the third edition may cause confusion after the first six weeks.

Attendance Policy

  • Students missing more than two class periods may face grade penalties.
  • Students should inform the instructor about any absences.
  • Recordings of the lectures will be made available in the Box page.

Grading and Exams

  • The course will typically have an end-of-semester exam.
  • The instructor is open to suggestions for mid-semester assignments.
  • PowerPoints will not be used regularly.
  • Visual aids, primarily charts, will be provided and posted.
  • The grading policy adheres to Ole Miss Law standards, with a GPA range of 2.7 to 3.1.
  • The grading policy is mandatory for adjunct faculty.
  • The exam will consist of short essay questions and multiple-choice or true/false questions.
  • True/false questions require a sentence or two of explanation.

Scheduling Conflicts

  • The instructor has no hard scheduling conflicts.
  • If a conflict arises, alternative arrangements such as Zoom lectures or notes will be provided.

Instructor Background

  • The instructor has a mixed litigation and general practice, with about 70% focused on litigation.
  • About half of the litigation practice is employment-related.
  • The instructor graduated in 2006 and has been with the same firm since then.
  • The course is approached from a practitioner's perspective.
  • The focus is on legislation and case law, particularly individual district court cases.

Course Content: What We Will and Won't Cover

  • Excludes labor law (NLRA, unions, collective bargaining).
  • Excludes employee/employer relations (OSHA, ERISA benefits).
  • Focuses on employment discrimination statutes, anti-discrimination, and anti-retaliation statutes.
  • Mainly federal statutes will be covered.
  • If time permits, ancillary state law causes of action and constitutional issues will be discussed.

Rationale Behind Anti-Discrimination Statutes

  • Statutes address unequal bargaining power between employers and individual employees.
  • Reflect a policy judgment against certain employer decisions.
  • Congress has defined parameters of what can and can't happen.
  • Enforced through administrative and litigation processes.
  • Litigation has shaped the understanding of the outer limits of these laws.
  • Congress has occasionally stepped in to make changes and refinements.

Definition of Discrimination

  • Discrimination is unequal treatment.
  • In this course, the focus is on disparate treatment under similar circumstances.
  • The challenge is proving or disproving discrimination.
  • Discrimination often happens internally, as a mental process rather than overt action.
  • Cases with explicit discriminatory statements are rare and tend to settle quickly.

Litigation and Settlement

  • Most employment discrimination cases settle or are decided on summary judgment.
  • The goal from day one is often to posture the case for summary judgment.
  • Employers may settle cases based on litigation costs or the risk of unfavorable outcomes.
  • Plaintiff's lawyers look for examples of inconsistent treatment.

Key Questions to be Covered

  • What constitutes actionable discrimination?
  • How can unlawful discrimination be proven?
  • Who should have the burden of proof?
  • What are the appropriate remedies for proven violations?

Course Approach and Civil Procedure

  • The course will cover civil procedure.
  • Practitioners need to think through the lens of civil procedure.
  • The area of law is mechanical, but not intimidating.
  • The course will discuss proof and how to employ it.
  • The instructor primarily represents employers.

Plaintiff's Perspective and Business Models

  • The course will discuss the difference between the employee and employer sides.
  • The instructor aims to present the material fairly.

Case Law and Factual Descriptions

  • Case facts are derived from briefs and arguments of parties.
  • Judges provide the best version of the undisputed facts for summary judgment cases.
  • For motions to dismiss, factual allegations in the complaint are taken as true.

At-Will Employment

  • In most states, including Mississippi, employment is at-will.
  • Either party can terminate the relationship for a good reason, a bad reason, or no reason at all.
  • This is the default employment relationship, unless there is a written contract.

Dangers of At-Will Employment

  • Employers cannot fire for discriminatory purposes.
  • Firing for a bad reason is not the same as discriminating based on protected class.
  • The term "wrongful termination" can be misleading.

Public Policy Exception: The McCorm vs. Terminix Case

  • Mississippi recognizes a public policy exception to at-will employment.
  • An employee cannot be fired for refusing to participate in an illegal act.
  • An employee cannot be fired for reporting illegal acts of their employer.
  • This allows for an independent "wrongful termination" lawsuit.

McCorm Claims

  • Focus on the employee's actions (reporting or refusing to participate in illegal activity).
  • Requires an adverse employment action.
  • The burden of proof differs from discrimination claims.

Additional Cases Expanding and Limiting At-Will Employment Exceptions

  • Swindle Case: Legislature can make exceptions to at-will employment, such as protecting employees with guns locked in their trucks.
  • Scott v. Golley: An employee willingly participating in illegal activity cannot benefit from the McCormick exception.
  • Obeying Case: Reporting something unethical or disliked is insufficient for the application of the McCormick rule the reported act must be illegal.
  • Jarell Case: An employee's subjective belief that what he reported was illegal isn't enough summary judgement requires a factual basis for illegal conduct, plus describing how the conduct specific acts violated the law.

Review of Key Takeaways about At-Will Employment Policy

  • At-will employment is the default.
  • Exceptions include true contractual employment and the McCormick public policy exception.
  • A limited exception exists under legislative protections
  • Written employment contracts can provide for cause standards.
  • Terminating for cause is a vanilla breach of contract claim.

Cautions for Terminating At-Will Employment

  • Having a bad reason or no reason for termination can create exposure.
  • Employer should be cautious about exposure if and after the employee makes a report about the company that the employer could be liable for.
  • Having a bad reason or no reason is suspect, and juries dislike it.

Tortious Interference with Contract

  • Despite at-will status, employees have a contract to work for money.
  • If a supervisor acts maliciously to cause harm, they may be sued individually.
  • Recommending termination without a valid reason can be seen as malicious.

Case Study Exercise 1.1: Is There a Viable Claim?

  • A potential client was fired for missing two days without calling in. The client insists that she told her boss's administrative assistant she needed to take two days off to attend a funeral. About a month ago she filed a workers comp claim and that other employee have been retained after missing to days without calling in, but that those employees are white while the client is a person of color. Is this a viable claim to take?
  • When is somebody being discriminated or being retaliated against, and when is their performance simply not good?
  • What are the right questions to ask?
  • Need to figure out if she has claim and is credible
  • Do you have an employment contract (right away), has proof
  • Who is that person, how are they going to look, where do you live/work -- relevant because they could be different jurisdiction.
  • What are the employer's policies, can someone be let go based on what is in those policies?
  • Did other people do the same thing & not get in trouble, have to show more or less they are same.
  • All the actions can come down, did she say, and does the admin stand by what she said?
  • Lawyers can make paper records when someone forgot to say something

Additional Pointers

  • Clients often can't distinguish being similarly situated and aren't always objective.
  • So you as lawyer is there way to figure out how? what is the comparison? What's comparable.
  • The goal is puzzle solving: is there X fact? If Y-fact?
  • Remember every bit of evidence can be testimony -- not all is documentary.
  • Always factor 1) How much the client understands. 2) what must one share.

Case Study 1.3 Hypotheticals.

  • Scenario: Architecture firm that is losing clients cuts associate salary by 20%, cancels bonuses, cuts the summer internship from 12 weeks to 8 weeks at summer. The firm also terminates the first 3 years associates to increase profits/per partner in bad times.
  • The issue is the people being affected here: Who has contracts. (Interns might not have contracts.)
  • If you get sued, they are still not going to win. Figure out better reasons but that still not great. You might win.
  • Are the 3rd years a protective class? This matters if there will be a disparate impact.
  • Be careful about a pretext for lies.
  • The firm has a history of, at the least, taking a convenient and well-worn pass to hire by only paying to the people who wear blue pin Stripe - a dumb way to hire.
    ** Female associate reports domestic violence and she is terminated for attracting negative attention?**
  • You should have an employment policy for survivors of domestic violence in that case.

Social Media Questions: A Recipe for Discrimination.

  • Is it right to enforce policy to terminate employment who post things that harm the firm's reputational image?
  • Can someone participate at an event that goes against the firm's public belief - in these cases, you don't want to be a social media police.
  • You will get burned if you need to follow policies consistently.
  • Employers also have to align and train people who are responsible for carrying out big decisions because everyone is in on the same page.