GBA 335 Module 2 AVP Transcript Title: Protected Classes and Tort Theories in Employment Relationships
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Slide Title: Protected Classes under Title VII and the Constitution
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• Title VII’s objective
Narrator: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Title VII’s objective • Traditional remedies (expanded in 1991)
Narrator: The traditional remedies under Title VII are referred to by the Court are reinstatement, back pay, lost benefits, attorney’s fees and injunctions. Congress expanded the remedies available to plaintiffs in 1991, by allowing recovery of compensatory and punitive damages, as capped for cases of sex and religious discrimination.
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Slide Title: Protected Classes under Title VII and the Constitution Slide Content:
• Title VII’s objective • Traditional remedies (expanded in 1991) • Front pay
Narrator: “Front pay” is money awarded for lost compensation during the period between judgment and reinstatement. It is also money awarded in lieu of reinstatement, when reinstatement is not viable because of the continuing hostility between a plaintiff and the employer or its workers.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Title VII’s objective • Traditional remedies (expanded in 1991) • Front pay • Religious hiring and discrimination
Narrator: Section 702 allows religious organizations to refuse to hire individuals based on religious grounds; that is, these religious organizations are allowed to discriminate on religious grounds for nonreligious jobs.
There is not a distinct line between the definitions of what is a religious activity versus a secular activity. However, the fear that some judges may not understand the tenets of a religion coupled with fear of the significant liability in a discrimination case could affect the way a religious organization would carry out its religion if it were subject to a ban on religious discrimination for secular activities. It is for this reason that Congress enacted the 1972 amendments to Section 702.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Determining sexual harassment – Tangible employment action – Employer liability – Employer defense Narrator: In determining sexual harassment the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all of the circumstances. The Oncale court decision simplifies the law regarding sexual harassment and protects all victims of sexual harassment in the workplace with no exceptions. It is also important to remember the Court’s warning that “common sense” and “context” must apply before courts and juries when determining whether the conduct is severely hostile or abusive.
A tangible employment action in the context of sexual harassment lawsuits refers to action taken by a supervisor which constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
An employer can be found to have “aided in the agency relation” and thus be liable for damages in a sexual harassment case when the supervisor was empowered by the employer to make the economic decisions in question.
In sexual harassment cases, where no tangible employment action is taken, a defending employer may raise an affirmative defense to liability for damages if; (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing conduct; (2) the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Determining sexual harassment – Tangible employment action – Employer liability – Employer defense • Constructive discharge and actual termination • Accents and national origin
Narrator: The Courts have agreed that constructive discharge is functionally the same as an actual termination, from the point of view of economic harm to the employee.
Accents and national origin are intertwined in many cases. An employer may unlawfully discriminate against someone based on national origin by falsely stating that it was the individual’s inability to measure up to the communication skills demanded of the job. Slide 8
Slide Title: Protected Classes under Title VII and the Constitution
Slide Content:
• Reasonable belief in good faith
Narrator: As long as a plaintiff reasonably believes in good faith that the practice they opposed violated Title VII, it is improper for an employer to retaliate against anyone claiming a violation of Title VII unless the claim is “completely groundless.”
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Slide Title: Protected Classes under Title VII and the Constitution
Slide Content:
• Reasonable belief in good faith • Pregnancy and family decision making
Narrator: The courts have decided that Section 701(k), which equates discrimination on the basis of pregnancy to discrimination on the basis of sex. Both forms of discrimination are prohibited by the statute. The courts have ruled that it is the role of women and their families to make decisions involving pregnancy. The Court said that “in other words, women are as capable of doing their jobs as their male counterparts and may not be forced to choose between having a child and having a job.”
It may be argued by some that fetal health is relegated to a secondary role behind maternal re- productive choice and family material prosperity.
However, Title VII does not allow intrusions by employers into the domain of private family decision making.
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Slide Title: Protected Classes under Title VII and the Constitution Slide Content:
• Reasonable belief in good faith • Pregnancy and family decision making • Decisions relating to clergy
Narrator: Decisions relating to clergy are immune from judicial review in civil courts. This ruling falls under Section 702 exemption and the Free Exercise of Religion Clause of the First Amendment.
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Slide Title: Protected Classes under Title VII and the Constitution
Slide Content:
• Reasonable belief in good faith • Pregnancy and family decision making • Decisions relating to clergy • English-only policies
Narrator: English-only policies are legal in all but a few circumstances, such as when the employee speaks no English or when English-only rules foster a hostile environment for minorities.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Conviction records
Narrator: It is generally held that inquiries into arrest or conviction records of job seekers are an irrelevant inquiry. Unless an employer can prove that the conviction record is relevant to the applicant’s ability to perform a job or that a record of criminal conviction must exclude an applicant because of business necessity, the rejection of an applicant because of a record is unlawful under Title VII. Slide 13
Slide Title: Protected Classes under Title VII and the Constitution
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• Conviction records • Reasonable accommodation for religious practice
Narrator: The Supreme Court ruled in TWA v. Hardinson that failure to reasonably accommodate a religious practice is unlawful unless the employer can demonstrate that it cannot reasonably accommodate the practice without imposing undue hardship on its business.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Conviction records • Reasonable accommodation for religious practice • Sexual harassment guidelines
Narrator: The guidelines on sexual harassment protect men as well as women and apply as well to sexual harassment of males by males and females by females.
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Slide Title: Protected Classes under Title VII and the Constitution
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• Conviction records • Reasonable accommodation for religious practice • Sexual harassment guidelines • Governmental agency or political subdivisions • Part-time and summer or seasonal employees
Narrator: Punitive damages are not recoverable against a government agency or political subdivision.
Part-time and summer or seasonal employees are protected against discrimination under Title VII. Slide 16
Slide Title: Contractual and Tort Theories in Employment Relationships
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• Employment-at-will doctrine
Narrator: The court decisions that have carved out exceptions to the employment-at-will doctrine are classified as follows: (1) The tort theory that a discharge violates established public policy and the so-called whistle-blowing cases, which are also structured on public policy (2) The tort theory of “abusive discharge” (3) The contract theory of express or implied guarantee of continued employment except for just-cause terminations, and (4) The theory of an implied covenant of good faith and fair dealing in employment contracts.
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Slide Title: Contractual and Tort Theories in Employment Relationships
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• Employment-at-will doctrine • At-will termination and illegal acts – Before terminating an at-will employee – Due care in termination
Narrator: Employment for an indefinite term may be terminated at will and without cause. Public policy, as expressed in the criminal laws of the states and the United States, require a narrow exception to this employment-at-will doctrine whereby an employer cannot discharge an employee for refusal to perform an illegal act.
The courts have implied that employers should exercise due care in making the potentially devastating decision to terminate an employee for misconduct. The Court concluded that it is not in the best interest of the public or employees to discharge employees suspected of wrong- doing without first attempting to discover the truth.
Slide 18 Slide Title: Contractual and Tort Theories in Employment Relationships
Slide Content:
• Employment-at-will doctrine • At-will termination and illegal acts – Before terminating an at-will employee – Due care in termination • Whistleblower protection law
Narrator: It is a violation of the state’s whistleblower protection law for an employer to retaliate against an employee for calling the state health department about an unsafe or unsanitary kitchen condition.
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Slide Title: Contractual and Tort Theories in Employment Relationships
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• Illegal intimidation
Narrator: It is illegal to intimidate victims of at-will employment relationships from testifying in federal court proceedings or in retaliation for their cooperation in federal court proceedings when they have a claim for damages under the Civil Rights Act.
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Slide Title: Contractual and Tort Theories in Employment Relationships
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• Illegal intimidation • Independent contractors
Narrator: It is often necessary for employers to use independent contractors to do work for them or compel the employer to convert employees to independent contractors. However, if the employers continue to exercise control over the former employees, the employers may be vicariously liable for the torts of these individuals.
Slide 21 Slide Title: Contractual and Tort Theories in Employment Relationships
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• Illegal intimidation • Independent contractors • Reprehensible acts by employees
Narrator: Employers, as part of their annual performance and salary reviews, may ask for disclosure of criminal proceedings and dispositions from its current management employees in a questionnaire. If employees are represented by a union, there may be great opposition to questions that may be anticipated, based on employee privacy rights.
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Slide Title: Contractual and Tort Theories in Employment Relationships
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• Illegal intimidation • Independent contractors • Reprehensible acts by employees • Employees with record of violence
Narrator: Thus employers may be very reluctant to hire or retain employees with any record of violence in their past, least the employers be held liable for negligent hiring or retention of the employees in question. However, there is a very strong public policy position that individuals who have committed a crime of violence and have been rehabilitated should have the opportunity to be productive citizens.
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