Employment Law Outline

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					Employment Law Outline


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Employer/Employee
Employer Interests: core economic interest cost of destabilizing the workplace versus the undermining of morale by the employee, the
cost of replacement and the chance the new hire will be just as bad. Other issues, employer’s right to control the workplace, called
management prerogative, employer reputation.

Employee Interests: Losing the source of income, how long does it take to get another job, personal identity and social status.
Fairness, is it discriminatory to fire them, privacy interests.

Societal Interests: Economic interests, person is no longer economically productive to society, direct burdens on society:
unemployment requires government assistance, significant direct costs. Other social interests: interest in protecting workers from
discrimination or from being fired for social action

             a.   Employee
                         i. Someone who is told how to do something, what to do, how to do it, timeframe
                        ii. Exercising control is a major factor
                      iii. Trained by the employer
                       iv. Employer has the tools and means of production
                        v. Employer takes the risk for liability and pays for overhead
                       vi. longstanding continuing relationship
                      vii. generally full time is required
                     viii. Doing work on the premises of the alleged employer
                       ix. payment of business or travel expenses covered
                        x. services are integrally related to the business of the employer
             b.   Independent Contractor
                         i. They decide how they want to do the job, they just need to finish by the deadline
                        ii. paid for the job in full, not hourly
                      iii. pays for the tools, travel, transportation
                       iv. not covered by insurance
                        v. realization of profit or loss
                       vi. possibly works for more than one employer at a time

Rule: Just calling someone an independent contractor doesn’t make it so, it depends on the specifics of their job

Vizcaino v. Microsoft
    1. Facts: The employees bargained for a position as freelancers, but the Court didn’t take into account their contractual intent.
        The actual realities of the relationship are more important. Everything the “employees” signed said they were independent
        contractors that didn’t effectuate a waiver of benefits because what you call yourself doesn’t matter. Employees subject to
        misclassification turned around and sued for the employee stock option plan once the IRS made Microsoft change their
        classification to employees.
    2. Rule: Contract predicated on a mutual mistake allows the parties to rescind and rewrite the contract. Here they didn’t
        rescind the contract but they won’t treat it as an enforceable contract.
    3. Dissent: Microsoft wasn’t obligated to offer employee stock options, this particular benefit is not guaranteed and since they
        contracted out of it, this item should be left out. There is adequate consideration for them not to receive the extra benefits
        since they were paid more. There is no independent additional agreement that employees get ESPP it is just given to them.

Rule: Nepotism is not Discrimination

Kotch v. Board of River Port Pilot Commissioners, US Supreme Court, 1947.
    1. Two approaches to find public discrimination, one is that state action favoring one protected group.
                                                                   1
             a.    The state has to affect through its agency so we have state action.
             b.    Con Law analysis: Then we need to classify the groups, strict (it is automatically suspect on race, national origin,
                   alienage), intermediately suspect (gender), is there a rational basis for the action? (applies to everyone else)
              c. The classification being created here, who is benefited, who is not?
    2.   Rule: Nepotism is favored and non kin is unfavored, this is a rational basis test.The majority says there is a rational basis,
         who have to grow up on the river, more discipline, the gov. interest being served is having good pilots. This is rationally
         related to that government interest.
    3.   Dissent: If qualification for blood relation different than race? The dissent says it is similar to a racial discrimination, but the
         problem is there are people from the same race that are discriminated against. It is not clear the intent is based on race, it is
         based on family, the equal protection clause requires discriminatory intent not just discriminatory effect.

Rule: Just Hiring one ethnicity is not discrimination without Intent to Discriminate

EEOC v.Consolidated Services Systems, 7th Cir., 1993.
    Facts: Hiring done through referrals and that effectuated his workforce of being almost entirely Korean. The EEOC said it is
       discrimination to hire just Koreans and he had a huge percentage of Koreans when there were very few in the workforce.
    Rule: This word of mouth referral system is not discrimination because there were no intentional discriminatory acts. This
       was litigated as disparate-impact theory, which requires intent, here no intent
    Reasoning: There is no requirement to post every position publicly; it is too costly and not effective. He may have like the
       result of what took place but there was no evidence that he intentionally chose this system in order to discriminate. The court
       says the method used was a cost effective method and that may have been the only intention, to save money.

Hiring Process
Rule: You can ask for verification of authority to work in US but not before hiring because it may lead to discrim.

Collins Foods International, Inc. v. Immigration & Naturalization Service, 9th cir., 1991.
    1. Facts: Sizzler employee, shows up for work, manager says give me proof so I know you’re legal. SS card the employee
         brought was a forgery however the manager had allowed him to start working.
              a. Charges filed: Sizzler fined and charged with constructive knowledge because he didn’t look at the back to show it
                   was a forgery. They say Sizzler offered the job before verifying his legal authority to work in the US and that was a
                   violation.
    2. Holding: 9th circuit says Sizzler didn’t violate the law by not inquiring but that they shouldn’t have asked before hiring only
         after hiring, otherwise it would appear discriminatory.
              a. 9th circuit also says not looking at the back and comparing it with the INS log, the court says even by looking at the
                   back it wouldn’t help since they are all different. The court then says he doesn’t even need to look at the back. If
                   the documents reasonably appear on their face to be what they purport to be then that is all you have to do.
    3. Reasoning: It would appear discriminatory to ask based on a suspicion that they might be undocumented. We don’t want to
         burden the employer too much so not looking at the back is not considered constructive knowledge. If you make it too hard
         the employer may discriminate based on national origin.

Application Form:
   1. EEOC enforces Title VII of the Civil Rights Act, certain questions are prohibited as evidence of discrimination, the first set
         of protected classes: race, sex, national origin, color, familial status, age
   2. Are these relevant to the decision making process? Some say yes, policy says no there is no legitimacy
              a. If we allow questions about the protected classes they are given legitimacy as criteria for hiring
              b. Rule: We say no these should not be criteria used in hiring.
   3. Checking the background give, ex. dates of degrees attained are made after the initial hiring decision
   4. Employers can get this info by inferring into the characteristics:
              a. Age: You can figure out age based on the past work experience and the degrees attained.
              b. Sex: Look at the first name, or look at the school sometimes it might be a girls or boys school, or military history
                  but nowadays not so clear.
              c. Race and National Origin: Look at where they lived, went to school, or name
   5. Interviews: What do they want to find out?
              a. Personality judgments, how articulate you are, they may ask set questions
              b. Impermissible questions: Marital status, child bearing, child care questions
                        i. They ask to find out about reliability, why ask women? They get pregnant and there may be a long
                           absence, male employees can take four weeks off.
                       ii. Most men don’t take advantage of the Family Medical Leave Act out of fear they would be discriminated
                           against that they are the primary caregiver.

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             c.   Stratagems for getting the impermissible questions answered: Talking about their families informally and then
                  asking the employee if they have problems with child care, family plans, etc.
                        i. You can avoid illegal questions by leading them away from the question, lying

Rule: You can terminate for a lie when it is volunteered, but employer cannot ask illegal question

Lysak v. Seiler Corp., Mass, 1993.
    1. Facts: She volunteered that she was not planning to have any more kids, but she was lying because she was pregnant at the
         time, so she volunteered false information. She tells the employer she was pregnant three months into the job and he fires her
         for betraying him.
    2. Reasoning: The employer hadn’t asked the question, are you pregnant and are you planning to have kids. If she had been
         asked the questions and then you lied it would be okay. You can lie in response to an illegal question so then it would have
         been okay. Here there was no illegal question asked.
              a. If you lie you better be sure the question is illegal because if it is not illegal then you can be terminated for lying to
                  it.
              b. What about using after acquired information to justify a firing that was made for illegal reasons?
              c. There has to be proof that the info acquired would have affected their decision to hire them, the after acquired
                  evidence will not preclude the claim, the after acquired evidence can be used to mitigate damages only.
              d. The assumption is that if had not been discriminated against then you would have been fired as of the date the
                  acquired evidence was found. So you have the cause of action and damages up to the date of the acquired evidence.

References CA and Federal:
    1. References from a former employer: Skills, reliability, personality, reason they left the previous job, verify the info given on
        the application is accurate
    2. Applicants expectations: Will they say something favorable, if they do it can get you the job
    3. Statutory protections: Fair Credit Reporting Act and the California Act, similar but a little different: No access to the info
        given or challenge the info given, but you could for a credit decision.
             a. Then there was an amendment to include the employment, but it doesn’t apply if the employer does its own
                 investigation only to agencies that do the investigations for the employer.
    4. The federal law distinguishes between consumer reports based on public records and documents and investigative reports are
        based on public record but in addition they use info from personal interviews and there are many more protections under
        investigative reports. CA doesn’t distinguish between investigative and consumer reports. Defamation is a protection

Rule: Qualified privilege allows a previous employer to comment on a worker’s performance in defense of defam.

Chambers v. ATA, Ind. App. 1991.

Facts: Chambers was employed by ATA and she resigned after a dispute over working conditions, she was looking for a new job and
after not finding one she suspected her references from ATA were negative. She had her mother and boyfriend pose as employers call
to see what references they got. They were both told she didn’t work well with people, somewhat dependable, trouble maker, etc. She
sued for defamation and lost based on the fact that the employers had a qualified privilege. Chambers asserted Knowles was jealous
of her, snapped her fingers at her, the court says this is not ill will. It merely shows animosity it doesn’t prove it was the underlying
basis for the speech.

Rule: Qualified Privilege, defense to a defamation action and it applies to communication in good faith on any subject matter in
which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal,
moral, or social, if made to a person having a corresponding interest or duty. The privilege arises out of the necessity for full and
unrestricted communication on matters in which the parties have a common interest or duty. You can lose the QP if it was motivated
primarily by ill will, excessive publication, with reckless disregard of the truth over falsity.

Excessive publication: depends on the nature of the communication, if the employer went outside the legitimate interest the
prospective employer may have, or telling too many people who do not have the interest or duty to exercise the qualified privilege like
telling others in the company about why they were terminated.

Reasoning: Chambers said there was evidence of ill will based on the fact they didn’t forward the calls to personnel, court says just
because they had a bad relationship doesn’t mean they lost the qualified privilege and it wasn’t with reckless disregard for the truth.
Their own statements said she couldn’t get along with others, etc.

Rule: Just because the employee is truthful about why they were fired doesn’t count as truth for a defense, the reason they were fired
must be truthful.

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Rule: CA accepts compelled self-publication.

Lewis v. Equitable Life, Minn, 1986.

Facts: Employees did business traveling, before they went they were ill advised on the expenses while traveling, they did a good job
but they put in their expense reports. The policies for the spending kept changing and finally the employees were asked to pay back
the money and then they were fired. They tried to get other jobs because they have to say they were fired for gross insubordination.
They sue for defamation, but Equitable says you were publishing we said nothing. Their policy would be to say nothing. How do
they get around the publication requirement, they say they were compelled to self publication. Former employer should have known
they would have to do this, the former employer constructively was held to have published the info.

Truth and QP: It was in fact true that they were fired for gross insubordination but the court says the underlying implications of why
they were fired have to be true and what they did was not gross insubordination according to the jury. The jury finds this was
motivated by ill will and was not a good faith belief so they lose the QP.

Holding: The compelled self publication is found a legitimate substitute for the publication requirement not all states use this, the
court did reverse the punitive damages. CA accepts compelled self-publication.

Duties to Disclose Prior Record
Employer Handling Termination

    1.   Employer if they terminate should describe the reason accurately and only use a label when it is accurate. Termination could
         be negotiated into quitting. They could even negotiate a reference letter but then you may have a problem because if that
         employee later injures a third party your negotiated letter may bring about liability.
    2.   Liability based upon Respondeat superior held vicariously liable for torts of their employee if they were acting within the
         scope of employment.
    3.   Negligent hiring is when the employer is held liable for their own negligence.
    4.   Duty is owed to employees that the work place is safe and then it extended to third party which will come in contact with the
         employees.

Rule: Employer has a duty to select an employee with reasonable care, meaning check criminal background

Malorney v. B&L

Facts: Trucker is hired by B&L and he rapes and beats a hitchhiker he picks up. The employer is held to have a duty to select an
employee with reasonable care. In this case they have a duty to entrust the car with a competent employee. The prior employer of
B&L has records of an aggravated sodomy charge but B&L only inquired for his driving record not the criminal record.

Rule: Employer failed to check the criminal background and that was a breach of their duty to their own employees and a breach of
the duty to third persons. There is no evidence B&L asked for his prior record of arrests, they asked about convictions on the DMV
records and checked it but they asked for prior convictions and didn’t double check.

Reasoning: Employer has a rule against picking up hitchhikers but the court says they knew or should have known they were prone to
pick up hitchhikers. Determining whether there is a duty is a matter of law and whether they exercised reasonable care is for the jury.

Rule: You may not always have a duty to disclose the past actions but once you disclose it must be accurate

Randy W. v. Livingston High, Cal 1997.

Facts: Letters of recommendation made by former employers regarding Gadams’s qualifications, he was hired by the high school
despite sexual improprieties with female students in the past and induced resignations as result thereof at prior places of employment.
Female student allegedly was sexually assaulted by Gadams and she sued the prior employers for their misrepresentations made in
their letters of recommendation that led to his hiring at her high school. All the letters had no reservations about his qualifications.

Roland v. Christenson factors:
    1. Look to foreseeability, look at each step they did, they gave positive letters of recommendation, the prospective employer
        would read, rely, and hire Gadams. If the next employer does hire them based on what the prior employer knows he will
        molest again. Since there were complaints of sexual misconduct in the past he would do it again given the chance.
    2. Moral Blameworthiness: The defendants conduct is against the public policy to protect children

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    3.   The cost of avoidance against the foreseeable harm: The court says it was not so costly to convey the accurate information
         and might have prevented the hiring and thus the acts wouldn’t have occurred.
    4.   Public Policy: Protecting children is of the utmost importance. The defendants say this ruling will chill the open
         communication about prior employees and thus harm prospective employers in their hiring promise. The court says the
         qualified privilege protects that and so that argument fails.
    5.   Reliance: Even though Randy W. didn’t hear letters or rely, the employer did rely and that satisfies it.

Rule: The court says there is a duty not to misrepresent the facts that may lead to injury to a third party. Suggesting the info given
was the whole truth was an affirmative misrepresentation. They chose to make representations and so they have a duty to make a full
disclosure. They recommended without reservation and that amounted to an affirmative representation.

Rule: Some jxs say you do not always have a duty to disclose even with a special relationship, legislature should change the rule if at
all

Moore v. St. Joseph Nursing Home, Court of Appeals, MI, 1990.

Facts: Security guard worked at a place serviced by the employer of the killer, the killer was a maintenance worker and killed the
plaintiff. He had a horrible employment record with the prior employer but the Nursing Home says the Maintenance Management
never contacted them as a reference but had they contacted them they would only give them the dates of employment. The plaintiff
says they had a further duty to disclose the dangerous proclivities.

Rule: MI no duty to disclose placed on employers, it is not a special relationship though there is a qualified privilege for information
given, there is no affirmative duty to disclose, that type of change would best be left to the legislature. The court also says this harm is
not foreseeable, if you have a duty to disclose the harm has to be foreseeable. Here they say it was not foreseeable it was just a tragic
random event. That is wrong the prospective employer would have relied on the past history and not hired him and protected the
foreseeable victims.

Tarasoff special relationship: patient/therapist, the plaintiff tries to argue there is a special relationship because they have a moral and
social duty which gives rise to a qualified privilege and thus there is a special relationship.

Psych Evals and Medical Evals: Info Gathering Process in Pre-Employment:

    1.   Also there is achievement tests that test your ability to do the specific job they are hiring you for, they need to make sure they
         don’t discriminate in the tests
    2.   Aptitude tests are not no specific to job tasks, just to get a broader ability
    3.   Personality tests: looking to identify characteristics, ability to get along with others, temperment, etc.
             a. Inventory tests have a large number of True/False tests,
                         i. MMPI, Minnesota Multi-Phasic is designed to determine if individuals have psychological illness, it was
                            developed and tested on people with disorders and those answers were the profile of someone with the type
                            of illness that the person tested prior had.
                        ii. In the 1980s and 90s the test was normalized to reflect a broader range of race, ethnicity
                       iii. They weren’t developed to predict behavior in the workplace
             b. Open ended projected tests are designed to give open ended answers and then use that to determine if there is an
                  illness

Privacy Issue: These questions are very personal and people clearly would have an expectation of privacy. Is that good enough to say
these tests shouldn’t be used? Under a balancing approach which is used then you have to look at the employer’s interests as well. In
the target case the testers may be making judgments that have a discriminatory effect, but this is another way to attack the test, there is
a privacy interest, an antidiscrimination interest. Why are these religion questions and sexual orientation questions in here? They
were used to diagnose mental illness and that is different than trying to diagnose personality characteristics for the job.

Lie Detector Tests
    1. Lots of questions about the accuracy and reliability of the tests, none of the validation studies are recognized by the scientific
        world
    2. Not everyone has these physiological manifestations when they lie
    3. What may be observed may be an emotional reaction to the question but they may not mean they are lying
    4. The chart doesn’t tell if they are lying the interpretations by the examiner determines what is a lie
             a. Their backgrounds have been called into question
             b. There is no benchmark of scientific background required

Employer Polygraph Protection Act
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Section 2001: Definitional section, lie detector is defined as anything to render a diagnostic opinion regarding the honesty of the
subject, all devices are covered but paper-pencil honesty tests

Section 2002: Unlawful to directly or indirectly require applicants and employees to take a lie detector test, it is unlawful to refer to
the results of a test, cannot deny employment, make promotion, etc. based on the results or failure to take the test. Prescreening in the
private context is an outright prohibition.

Drug Testing
    1. More costly to employers, make mistakes, create a greater risk of accidents to themselves and others
    2. Not as reliable, which turn into productivity issues, greater demands on the employer’s healthcare
    3. One argument against mandatory testing is that they should test only people who have had an issue
    4. But the counter-argument by employers is that they screen so they never hire them and avoid the problem

Urine Test is most common
    1. Blood could be used but typically not because drugs are in the blood for a short period of time
    2. In contrast the metabolites stay in the urine longer, they are the residue of the drug use
              a. It provides no info on impairment just that it had been ingested at some point in time
    3. The employers typically are not testing for alcohol even though it is far more prevalent
              a. There are no alcohol metabolites in urine so you can only urine test it for a short period after use

Common Testing
   1. EMIT Test used initially and then a confirming test is used with a different technology to make it more accurate. Sensitivity
      means it is able to identify the substance, Specificity is measuring the absence
          a. The principle of prevalence is very important, it gives you the percentage of users in a population
          b. With a 50% prevalence the positive predictive value goes to 90%,
          c. but a 5% prevalence has only a positive predictive value of 34%
          d. The prevalence affects the results significantly so employers need to know the prevalence
          e. With a 15% prevalence 1/3 of the projections are wrong and only 2/3 are correct
   2. Most employers only use the EMIT test and nothing else
   3. Employers ask about prescription drug use and diet because they leave metabolites as well and it can confuse it

National Treasury Employees Union v. Von Raab
    1. Facts: Only used when customs agents were being promoted into certain positions where they would be in a position to have
         access to confidential info, using a firearm, and direct intervention of drug interdiction
    2. Employee concerns: Fairness regarding notice, violates 4th Amendment prohibition against unreasonable searches and
         seizures, privacy concerns
    3. 4th Amendment: No unreasonable searches and seizures, w/o probable cause
              a. Applies to the gov’t, even when the gov’t is functioning in the role of an employer
              b. 1st step: Is there a search?
                         i. Is there a gov’t intrusion in an area where there is a reasonable expectation of privacy? If yes, there is a
                            search, gets you into a 4th Am question
                        ii. Ex: Employee providing blood sample: intrusion into the skin
                       iii. Ex: Analyzing blood: informational intrusion
                       iv. Ex: Breathalyzer tests: also a search, deep lung breaths
                        v. Ex: Urine samples: No physical intrusion into the body
                                 1. Chemical analysis can intrude into private information, informational privacy
                                 2. Procedure of collecting urine may be an intrusion, a private bodily function in a public context
              c. 2nd step: Is there a warrant?
                         i. No warrant
                        ii. To get a warrant: Neutral magistrate reviews basis and scope of search, make sure it’s valid, need probable
                            cause
                       iii. Court: Getting a warrant would waste resources, a warrant would provide little in the way of additional
                            protection
                                 1. No abuse of discretion: everyone’s subject to the drug testing
                                 2. The procedures are uniform, don’t need protection against abuse
                       iv. Probable cause: Don’t need individualized suspicion
                                 1. Gov’ts need to discover such latent or hidden conditions is sufficiently compelling to justify the
                                      intrusion on privacy entailed by conducting such searches without any measure of individualized
                                      suspicion
                                           a. Preceding cases: Brief border stops, routine building code inspections, prison inmates
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         d.   3rd step: Is the search reasonable?
                    i. Balancing the individual privacy interests and the gov’ts interest in conducting the search
                   ii. Manner and context of search
                             1. The customs employees have a diminished expectation of privacy
                                      a. Diminished expectation of privacy: more intrusion permitted (ex: U.S. Mint employees
                                          undergo a search every time they leave the building)
                             2. Gov’t interest in competent customs officers outweighs privacy concerns
                                      a. People handling drugs, people carrying firearms
                                      b. Court remanded the gov’t interest in testing people handling classified information –
                                          needs to be narrowly tailored
2.   Scalia Dissent: There’s no real drug problem, you’re requiring people to give up their constitutional rights just to set an
     example. Is there a legitimate interest in preventing a problem before it occurs? Is drug testing is actually going to be
     actually doing the things the gov’t thinks it’s doing? What about alcohol?

3.   Loder v. City of Glendale (Cal. 1997) handout wk 3
         a. City of Glendale policy: All applicants for ALL jobs (current employees seeking transfers/promotions or outside
              applicants) subject to a medical examination and a urine drug test
                     i. Screening tests, confirmatory tests, and appeals: a lot of processes involved
                    ii. If refuse test
                             1. Current employee referred to drug rehab
                             2. Outside applicant – medically unemployable
         b. There was some evidence that a small percentage of employees/applicants were using drugs (actual amt/increase is
              in dispute)
         c. Taxpayer sues – “waste of taxpayer money”
         d. CA Supreme Court goes through federal constitutional analysis
                     i. Whether the gov’t interest established needed to be a compelling gov’t interest
                    ii. “Compelling gov’t interest” doesn’t mean a fixed quantum of gov’t interest; you need to look at the specific
                        circumstances
                             1. Balancing test: Look at expectations of privacy, intrusiveness of test
         e. Court does a 4th Amendment analysis
                     i. Glendale test applies to all applicants for all positions
                    ii. Gov’t purpose: Preserve the integrity of the current work force (different from the specifically tailored
                        interest in Von Raab, rationale was tailored to the jobs involved)
                             1. Rationale here: Efficiency, a generalized cost justification, not specific to any particular job titles
                             2. Court: Thus, under the 4th Am, can’t test employees
                  iii. What about outside applicants? Have a greater need for information: Can’t monitor applicants for
                        absenteeism, reliability, etc.
                             1. Employer looking at the applicant differently than a regular employee, the interests are more
                                  substantial
                             2. Applicants haven’t relied upon the job yet
                             3. Court: 4th Am allows testing of applicants for any position
                   iv. Expectation of privacy from applicants and employees is already low since they have to take a pre-
                        placement physical
         f. More deferential to employer interests?
                     i. Should there be a diminished expectation of privacy in the first place?
                    ii. Ex: Hill v. NCAA: Just because you change in a locker room means that you have a diminished expectation
                        of privacy regarding drug tests?
                  iii. Negligent hiring suits: If no drug testing, then can you be held accountable if you hire a drug user who
                        harms someone?
                   iv. Difficulties in the balancing tests: Statements of employer interests too general

California Constitutional Right to Privacy
         a. D passes 4th Am test, but the CA Constitutional Right to Privacy could be more protective
         b. Prima Facie Case:
                   v. Legally protected privacy interest
                  vi. Reasonable expectation of privacy in particular circumstances
                 vii. Serious invasion (not de minimis)
         c. Defense:
                viii. Negate elements of PF case
                  ix. Affirmative defense: Employer has the burden of proof

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                                1.  Substantially furthers one or more countervailing interest (fundamental interest in personal
                                    autonomy/bodily integrity – need compelling interest)
             d. P’s Rebuttal: Less intrusive equally effective and feasible alternative
    1.   CA Constitutional Right to Privacy applies to PRIVATE employers as well as public employers, 4th Amendment only
         applies to public actors
             e. Hill vs. NCAA (Cal. 1994): Addresses threats posed not just by gov’t, but also by business. Thus, applies to all
                  private employers

Medical Exams: They are required after the job offer has been made but before you start working, like in Loder there was a pre-
placement medical exam.

Interests:
     1. Competence: can the person do the job, what physical requirements are there, core competence issues. This is a legitimate
          interest.
     2. Safety: We need to find the medical conditions to determine if having this person will pose a threat to that employee, other
          employees, and third parties.
               a. Is this legitimate? They do have a duty to provide a safe workplace
               b. The safety threat depends on the job, a bus driver with seizures is dangerous a pod worker isn’t
               c. Employers have to be concerned that the questions refer only to the condition without making discriminatory
                    inferences.
     3. Occupational disease: Some jobs cause injuries, so the employer will say they want to know if the person is more susceptible
          to getting ill because of the conditions in that job, concerned with disease process not injury. Is this legitimate? Maybe
               a. Baseline medical condition: They want to get baseline info to see what the effect of being in the workplace will
                    cause, unions often negotiate that they will do baseline tests as a benefit to the employees
     4. Non-occupational disease: We want to know what the medical history is because we are concerned about absenteeism,
          reliability issues, greater demands on the health benefits, keep premiums down. Is this legitimate? Health insurance is a
          huge cost for employer, there may be a legitimate concern but is it legal?
     5. Genetic predisposition: genetic makeup is obtained and then compared with disease processes, if the genetic tests reveal a
          likelihood of getting a disease it becomes a high cost risk. Is that legitimate? The probability of getting the disease is not
          always known, they are many unknowns but overtime more of the known markers will be identified with diseases.

Discrimination
Reading Statutes
Legislative Intent is very important for statutory interpretation, where do we look for it?
    1. In the beginning of the statute there is a statement of intent and findings that express concerns and why they feel it
         appropriate to enact the statute they did
    2. Federal system – look to house or Senate reports, debates about the legislation, sponsors, Q&A
    3. Look to the ballot arguments if it was a referendum, like in the NCAA case
    4. Look at the cases which have addressed the same language and looked at the legislative language
    5. Read a general Treatise to get an idea for the scope and applications of the Act.
    6. Read the statute, look for exceptions and amendments

Title VII of the Civil Rights Act
     1. Regulates employment decisions, it tells employers what they may not do
     2. The statute doesn’t set forth affirmative obligations it is a prohibition against taking actions based on certain characteristics
         and it is only that. It is limited to restricted acts only not to tell them how to run their business and interfere with
         management prerogative
     3. Employment is addressed in Title VII
               a. Definitions: Employer, engaged in industry affecting commerce with 15 or more employees
               b. Fair Employment Housing Act covers employers with 5 or more and Sexual Harassment covers any employer with
                   one or more employees
               c. Employee: doesn’t apply to independent contractors, you have to have 15 or more employees on the payroll for 20
                   calendar weeks
     4. 703, sets forth the basic unlawful employment practices
               a. (a) the core prohibition based on sex, race, color, religion, national origin
               b. b and c applies to employment agencies and unions
               c. limited protected classes are covered, aliens are not covered, citizenship is not covered, broader classifications apply
                   in the CA Fair Employment Housing Act
               d. retaliation is unlawful, it encourages people to make the complaint, it is not uncommon for a court to find no
                   discrimination but find retaliation
                                                                    8
    5.   Does this promote equal achievement or equal treatment?
            a. Maybe equal treatment because all races are covered, both sexes are covered
            b. The language is race-neutral, gender neutral, etc. that suggests equal treatment
            c. Maybe equal achievement, it depends on the meaning of “because of”
            d. Since the classifications are not all inclusive it seems it is affirmative for people who were discriminated because of
                  the classes covered
            e. We could say the intent here was to benefit the disadvantaged races not to benefit those who had been benefited
                  (Whites) then it sounds like equal achievement

Section 706 Enforcement, EEOC created
    1. The Agency can file suit itself, the case against the Korean American Janitorial Service, they only tend to bring cases that
         target an industry or practice or they affect a broader area.
    2. Relief: injunctive relief, equitable relief like backpay reinstatement or hiring if not hired, two year SOL on backpay and
         considered equitable, attorney’s fees. People who stayed at work had little damages because they had no backpay so
         attorneys wouldn’t represent them
              a. Originally it was all equitable, in 1991 the amendment changed the remedial section §1977A, compensatory
                   damages are available and also punitive damages but there is a cap, compensatory and punitive combined is limited
                   to $300,000, there is a sliding scale based on size of the business
              b. Punitive you need malice or reckless indifference for the federally protected rights of the employee, not additional
                   outrageous conduct

Disparate Treatment Claims
What conduct violates 703(a)
   1. Disparate treatment claims: An employer making a hiring, promoting, firing decision and the basis for that action was one of
       the protected characteristics, the person was treated differently and the reason was their class, these tend to be individual
       claims because there is one job and there is one person saying I was denied this job, there could be several people, sometimes
       there is direct evidence the hiring partner used the protected characteristic to make their decision but that is rare
   2. What do to when there is no direct evidence, use circumstantial evidence, the courts have developed a proof framework to
       address the circumstantial evidence issue. This is central to all claims.

McDonnell Douglas v. Green

1. Plaintiff’s Prima Facie Case, employer took an action because of, the focus is on the discriminatory motive
     1. Protected Class: They must identify what class they are in
     2. applied/qualified: the person applied for the job and was qualified
     3. adverse action: but they didn’t get the job
     4. position open/filled by person of different race/sex/etc.

Why are these sufficient to establish the prima facie case? The facts infer discrimination and it is all the plaintiff will know for sure, it
only gets the ball rolling, it is a low burden

This is not just an inference of discrimination it becomes a rebuttable presumption and that is the interpretation used by the courts.

2. Defendant’s burden
(a) Negate prima Facie Case, they have the burden of producing evidence
(b) legitimate non-discriminatory reason (LN-DR)

3. Rebut LN-DR,

Plurality and O’Connor from Price Waterhouse,
    1. the final burden is on the plaintiff to show race/sex was a motivating factor
    2. O’Connor says the sex must be a substantial factor but both then feel the employer has the burden
    3. Defendant can show “But, employer would have taken some action even if sex not considered”
    4. If Defendant meets this burden under plurality then there is no violation under Title VII

Mixed Motive Case
Price Waterhouse v. Hopkins


                                                                     9
Issue: A woman was allegedly not promoted to partner because part of the decision making process was motivated by her sex. The
problem is the trier of facts found evidence of discriminatory intent and evidence of a lndr. It is commonly called a mixed motive
case.

Facts: There were positive comments about Hopkins and negative ones as well. Some of the comments intimated that the reasons
they didn’t like her was because of sex. She has direct evidence that one of the ways she could become a partner was to walk more
femininely, talk more femininely, etc.

Sex Stereotyping: There is allegedly a different standard being applied to her because she is a woman, the comments are based on
how she acts as a woman they are sex stereotypes being used against her. Title 7 doesn’t say sex stereotyping is prohibited but the
way it is evidence of discrimination because of sex is because it shows sex was playing a role in the way she is being evaluated.

Evidence of Defendant PW of a LNDR: The comments that she had problems working with staff, interpersonal problems, that was
found to be true, is that legitimate and nondiscriminatory? Interpersonal skills are a legitimate reason to evaluate someone and they
put in evidence that the male candidate’s interpersonal skills were evaluated in determining their candidacy. The trier of fact found
these were true reasons.

Causation: The Court says the because of sex doesn’t mean but for, but means it was taken into account in addition to other reasons
that may have been legitimate. The statute says because of but doesn’t say solely because of, so if there is evidence of sex was a
motivating factor the inquiry could end there. If that were sufficient what would that mean under Title VII? Why should we look at
whether the employer would have made the same decision had sex not been taken into account? Because the statute tries to take
discrimination out of the workplace, so if the same result would have taken place anyway then we are undermining management
prerogative. It would allow people to be insulated from adverse actions if in addition to their wrong acts their sex was taken into
account.

Rule: When gender is proven to be a motivating role in an employment decision, the defendant may avoid liability only by proving by
a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.
If employer demonstrates it would have taken action in the absence of the impermissible factor. That is necessary to protect
management prerogative. Finding no violation is consistent with Title VII because the same decision would have been made either
way, and Title VII is only made to get rid of discrimination.

Dissent: The dissent says the plaintiff has the burden to show the real reason, the but for reason was for sex because the plaintiff has
the ultimate burden of proof here, not the defendant. The plaintiff needs to show but for causation that the decision was made because
of sex and the reason given was false.

Rule: Rebutting the Presumption is accomplished with evidence not jury agreement with it, final burden on P

St. Mary’s Honor Center v. Hicks
Facts: Black guy is discharged and he says it was because he was Black. He presents the prima facie circumstantial evidence and the
defendant offers evidence to rebut the presumption that they made the decision for a reason other than race.

Holding: As long as you rebut the presumption the McDonnell Douglas test is no longer an issue, just because the fact-finders don’t
believe the reasons doesn’t mean you haven’t rebutted the presumption. The burden of persuasion still lies with the person alleging
discrimination. The plaintiff must prove both that the alternate reason given was false and that discrimination was the real reason in
order to be victorious. Here the plaintiff tries to prove the reason is false by saying all his peers were not disciplined in the same way
and his subordinates were not even disciplined.

Civil Rights Act of 1991 Amendments

After PW the 1991 amendemtns changed the law and said demonstrates means the burden of production and persuasion. Burden of
proof and evidence if the plaintiff demonstrates race was a motivating factor even though other motivating factors were present.

If 703M is satisfied, under 706(g)(2)(b) if the employer demonstrates it would have taken the same action in the absence of the
impermissible factor, that doesn’t defeat liability it is limited to declaratory and injunctive relief, no back pay etc, just declaratory
relief and attorney’s fees, no damages. The idea is the employer wouldn’t have hired them anyway so no damages. Why? You are
providing disincentive for taking the protected class into account but you are satisfying the statutory motive to take discrimination out
of the workplace. It also encourages plaintiffs to bring the cases with this scenario, but for attorneys it is a disincentive to take the
case because the chances are there will be no payoff.

Review For Mixed Motive PWC

                                                                    10
Prove a claim
    1. When your theory is the act has been violated
    2. The reason for the adverse action was because of the protected characteristic (intentional discrimination)

Proof Framework when there is only circumstantial evidence
    1. minimal requirements to get a presumption of discrimination pressures the employer to come forward with evidence of a
         rational reason why it took the adverse action

Price Waterhouse: Dealt with the mixed motive, legitimate and illegitimate reason used, 1991 amendments revised this holding and
codified it. Demonstrates means the burden of proof, and burden of producing evidence, you have to demonstrate it was a motivating
factor, the employer is protected because if the plaintiff has proved the protected class was a motivating factor and the employer
demonstrates it would have taken the action anyway, the remedy is limited to injunctive relief, declaratory relief, and attorney’s fees.
Under Price Waterhouse the plaintiff lost, under 1991 they get some relief. There is a question now as to whether direct evidence is
needed or circumstantial will do.

Direct Evidence in Mixed Motive or Circumstantial okay
O’Connor in her approach in Price Waterhouse says we need direct evidence that race was a substantial factor. O’Connor is the
narrowest holding. 1991 says motivating factor and O’Connor said substantial but the 1991 didn’t refer to what type of evidence was
required, so some courts have said Price Waterhouse still controls since the legislation didn’t deal with it, but the 9th circuit says the
1991 amendments did deal with the mixed motive problem. They said they did not limit the application to plaintiffs with direct
evidence only so either will work.

Jury Instructions
Any case can become a mixed motive case depending on the evidence, is the evidence proffered by the employer found to be true, if
so then there is a mixed motive if not then it is just a disparate treatment case. This difference affects the kind of instructions the jury
will get. There is an additional step in the mixed motive analysis. Plaintiff must prove the class was a motivating factor, then in
mixed motive do you find by a preponderance of the evidence that the employer also had a legitimate nondiscriminatory reason to take
the adverse action, if no it’s over, if yes then we limit the damages that are applicable.

Hicks
Another step in the McDonnell Douglas line, a further refinement of the proof framework saying that there is only one question we do
not allow the plaintiff to rebut the proffered evidence and just disproving the proffered evidence is not necessarily sufficient to win the
case, it might be sufficient but not always. If the finders of fact believe the employer is lying but then says we don’t believe race was
the motivating factor you will lose. You could win if they don’t believe the employer AND that you have enough evidence to show
race was the motivating factor.

706(g)(2)(b)
Under the 1991 amendments it says on a claim under 703(m) which, under the amendment means the plaintiff demonstrates race was a
motivating factor even though other factors also motivated the decision then the employer could still be held not liable if the employer
can demonstrate that they would have taken the same action in the absence of the impermissible factor. There can only be injunctive,
declaratory relief, and attorney’s fees.

703(a)(1), BFOQ
Sex or national origin are reasonably necessary to the normal operation of the particular business enterprise.
    1. Is there some aspect of the job that can only be performed by a person of a particular sex, origin, or religion
    2. If so, is this status-related aspect of the job reasonably necessary to the essence of the particular business?

Statutory defense when there is a claim of intentional discrimination (BFOQ)
     1. That the characteristic is a bona fide occupational characteristic, applies to religion, sex, or national origin
     2. It must be reasonably necessary to the particular business enterprise, employer has the burden of proof
     3. This comes up when the employer has admitted that they are intentionally discriminating.

BFOQ Analysis
   1. Sex Example: female could be required when the role is a woman or a male for a male role, classic example of sex
      authenticity.
   2. National Origin Example: French chef when you say it is a French chef.
   3. Correctional officers in Alabama prisons, only SC case in this area
          a. AL required that contact positions be all male, almost all positions did require contact so it eliminated women, the
               policy was direct so it was intentional discrimination. What is the essence of the correctional officers job to
               maintain security in a max sec prison. Females, the court held, could not maintain security in these conditions, they

                                                                    11
                  might be assaulted because there are no women and the presence might undermine security in that position. The
                  Court upheld BFOQ
             b.   Dissent said the conditions were unconstitutional and rather than penalize women change system

Southwest Airlines Case

Holding: The Court said the strength of the relationship between sex appeal and job performance was not proved. The Court said the
essence of the business is the safe transportation of passengers from one destination to another. The sex appeal is not reasonably
necessary to the essence of the business, the safe transportation of the public. The airline created the image and now is using the
image to defend discrimination when the real business has always been to fly someone to one place or another.

Customer Preference:
A couple of contexts that raise this, foreign country case where complying with title VII would cause the employer to be in violation
of some foreign law. You can discriminate in violation of title VII in order to comply with the law of a foreign country. EX.
American company that flew helicopters into Mecca was found okay because it violated the foreign law where the penalty was
beheading.

Foreign Cultural Preferences
Another one where they prohibited a woman from being a head marketing director because South American morals doesn’t respect
women and they do not deal with women. The lower court upheld that claim recognizing that foreign countries has preferences.
Foreign preferences do not take precedence over the preferences of the discriminated women. Foreign practice example only applies
when it is a codified law not customs alone.

Patients in intimate situations:
Preference based on privacy concerns, a patient involved with an employee with intimate bodily functions or touching the patient’s
body or saw them naked. Sex cases typically, there is no aspect of the job that only a woman or man could do so you don’t even get to
the next step. How do they address these cases? There is a need to balance the employee’s interest and the third party’s privacy
interests, a few cases allow employers make shift assignments based on sex if they can show there is no other way to accommodate the
privacy interests involved.

Disparate Impact
Griggs Prima Facie case
    1. Demonstrate an employer practice
            a. It must be a practice in the relevant labor market
                        i. What are the qualifications at issue?
                       ii. What is the geographical area in which they draw applicants from?
            b. Then look at the racial, gender makeup in the geographic area with the necessary qualifications
                        i.   Then compare that finding to the demographics at the company
                       ii.   Hazelwood case in order to be hired you needed a teaching cert, so the relevant pool was the people with
                             teachers certs. and compared it to the school’s demo.
            c. disproportionately adverse impact,
                      iii.   The courts have not set any mathematical formula to prove an adverse impact, substantial, etc., they look
                             to analyses of data by statisticians and the basic level of significance is one chance in 20, that is not the
                             norm there is no set standard period.
    2. Defendant then can rebut the prima facie case, up until Wards Cove the defendant had this burden of proof
            a. There is no inference in this analysis, the prima facie case must show a disproportionate hiring practice, it says there
                 is a harm and it is connected to their protected characteristic.
    3. Employer Rebuttal: that the practice is job related and (sometimes or) consistent with business necessity. This is a more
        demanding standard then the disparate rebuttal
            a. Job related: successful performance in the particular job, there must be a relationship
            b. Business necessity: less clearly defined in case law and the courts focus more on job related
                        i.   More of a general concept, look at the overall operation of the business.
                       ii.   Less absenteeism, less damage to goods, looking at criminal record
                      iii.   general business interests as opposed to your performance in a specific job
    1. Plaintiff can rebut the Defendant’s claim that the practice was job related or with business necessity
            a. Then either simultaneously or in the alternative you could say it is job related but there is an equally effective device
                 or business practice that could have been used that didn’t have the disproportionate impact
            b. Intent is getting close here but the Courts insists intent is irrelevant

Griggs v. Duke Power Co.
                                                                   12
Rule: If an employment practice which operates to excludes Blacks cannot be shown to be related to job performance, the practice is
prohibited. Congress directed the thrust of the Act to the consequence of employment practices, not simply the motivation. Plaintiff
has the same burden of proof as our prior analysis under McDonnell, same statute different analysis

Facts: Tests used in order to determine whether to promote. Duke Power operated a power plant with five depts. Prior to the Act four
depts. were only white with overt discrimination and labor was only Black, the highest wage in labor was lower than the lowest in the
rest of the depts.

Reasoning: Why were the tests discriminatory? The evidence to show that the tests are discriminatory is that Blacks only passed 6%
of the time and 58% of Whites passed. The high school diploma requirement also was discriminatory because only 12% of Blacks
had them while 34% of Whites had them. These are facts. How does this become a claim under Title VII when there is no
discriminatory intent?

Supreme Court Reasoning: The statute says because of and the Court construes it broadly. The statute was designed to achieve equal
opportunities and remove barriers that have operated in the past to favor a specific group. Tests that are neutral on its face cannot be
maintained if they freeze the status quo of prior discriminatory employment practices. The employer must show that the test
requirement is a business necessity. How is that consistent with Title VII? Because then you are deciding the employment decision
on the merits. Employer prerogative still extends to being qualified for the job.

Wards Cove Proof Structure Disparate Impact
   1. There must be a neutral employer practice
   2. Majority: Identify the specific employer practice that creates the disparate impact demonstrate that there is a correlation,
       there could be reasons the employers had nothing to do with unless it is something they’re doing to cause the disparate
       impact.
            a. Stevens dissent says the plaintiff shouldn’t have the burden to specifically identify the employer practice
            b. Stevens says there must be a causal nexus between the disparate impact and what the employer is doing, but the
                practice doesn’t need to be the sole or primary cause because if you have a whole bunch of questionable practices
                and a disparate impact make the employer sort it out
   3. Majority: Identify the relevant labor pool
   4. Different statistics

The Defendant Employer’s Rebuttal
    1. Employer must rebut the disparate impact either with statistics, Burden of proof on employer
    2. Or they could assert that the makeup is job related or consistent with business necessity
           a. Business justification, something that serves legitimate employer goals
           b. Demonstrably related to success in that specific job
           c. Under Wards Cove burden of producing evidence only not burden of proof like in Griggs
                     i. significant move away from Griggs procedurally
           d. Wards Cove majority is Price Waterhouse dissent plus O’Connor plurality
                     i. Why did O’Connor shift the burden from the employer in Price Waterhouse back to the employee in Wards
                         Cove? Maybe because here we don’t have bad intent,
                    ii. If you make it hard for the employer to prove their rebuttal they will implement quotas to get rid of the
                         disproportionate representation of different classes.

Plaintiff’s rebuttal to the Defendant’s defense
    1. Rebut the job relatedness and the business necessity
    2. Or There is an equally effective alternative that serves the business goal that has less disparate impact and the employer
          didn’t choose that method and they chose the method they did because they wanted disparate impact as a result,
               a. If the alternative costs a lot more and was less efficient than the court can take that into consideration when deciding

Wards Cove
Facts: Involved two salmon canneries in AL that were opened seasonally, they operate 24 hours a day. There are two types of jobs at
the cannery, cannery and non-cannery. Cannery job were laborers, gutting etc. non-cannery was everything else, machinery, medical,
etc. The cannery workers were overwhelmingly Pilipino and native American and noncannery were overwhelmingly white.

Prima Facie case in the ninth circuit: Compare noncannery jobs with cannery jobs and there was a very different spread among the
two by race. The ninth circuit said that these were such unusual hiring and business practices, seasonal, and odd working conditions
that made it appropriate to look at the noncannery workers as part of the relevant labor market. The noncannery workers were willing
to work in these strange conditions so the 9th circuit reasoned they should be part of the relevant labor market. Supreme Court
disagrees.
                                                                   13
Relevant Labor Market: The Court said you have to look at the qualifications of the cannery and noncannery workers. The pool you
should be comparing is the relevant qualified applicants. Here the noncannery pool didn’t have the qualifications to compete for the
cannery jobs so that was not the relevant labor market. Whatever your statistics were you haven’t established the disparate impact
because the labor market was wrong.

Rule for additional proofs required in prima facie case:
Identify the specific practice and then identify how that specific practice is having a disparate impact. There must be a facially neutral
policy that is applied to everyone that has a disparate impact. You need to show specific proof for each practice you are analyzing.
There has to be a causal nexus between what the employer is doing and the result. It might be hard to show the practices individually
affected the class. On the other hand the employer is protected because otherwise you might be able to say here’s what they are doing
and we don’t know why but here are the disparate results.

1991 Amendments
    1. Addressed issues related to ***disparate impact and ***mixed motive
    2. The first thing it did was codify that proving claims through disparate impact was a way to prove claims
    3. They then addressed Wards Cove, 703(k)(1)(a)(i) the complaining party must demonstrate that a respondent uses a particular
       practice that causes a disparate impact (Burden of proof)
            a. AND the employer fails to demonstrate that the employer practice is job related and consistent with business
                 necessity (Burden of proof), formally the employer could say job related OR business necessity
            b. (b)(i) Each particular challenged employment practice causes the disparate impact like Wards Cove, except that if
                 the complaining party can prove the practices are not separable for analysis they can treat the entire package of
                 practices as one practice, compromise to Wards Cove
    4. The amendments kept this rebuttal for the plaintiff, There is an equally effective alternative that serves the business goal that
       has less disparate impact and the employer didn’t choose that method and they chose the method they did because they
       wanted disparate impact as a result,
    5. The remedies are different when there is an intentional discrimination, disparate treatment, in those the plaintiff can get
       compensatory and punitive to a cap, plus right to a jury trial
            a. Disparate impact are just injunctive relief, declaratory judgment, reinstatement, get the promotion, but nothing else
                 and a judge hears the case
            b. In a mixed motive case, if the plaintiff has demonstrated an impermissible factor was a motivating factor in addition
                 to a permissible but the employer demonstrates it would have taken the same action then the plaintiff is limited to
                 declaratory relief.

Arbitration of employment claims
    1. ADR approach where they confer an arbitrator the authority to decide on the dispute
    2. Generally a lower cost way to resolve a dispute, meditation is also low cost
              a. little or no discovery, little or no motion practice, also the arbitrator has expertise in the industry
              b. Less likely they will grant outrageously large awards, they want parties to be happy with them
    3. Under Collective bargaining arrangement there is almost always arbitration, SC has held collective bargaining agreement
         cannot act as a waiver of the individual’s statutory rights, but in the securities industry SC upheld the binding arbitration
         agreement
    4. In CA., the arbitration clause would apply unless the clause was found unenforceable under a contract provision, illegality,
         duress, etc. They must comply with general contract principles, under FEHA the Court laid out what was required to be
         enforceable there must be:
              a. A neutral arbitrator
              b. agreement must provide a full range of remedies that would be allowed under a statute that a court or jury could
                  award under the particular statute
              c. It had to provide for sufficient discovery so the claim could be adequately pursued.
              d. Arbitrator’s decision must be in writing so a court can review the decision, there is a lot of deference given
                  nonetheless.
              e. Employee can not be required to bear in the arbitration that they wouldn’t be required to bear had they gone to court,
                  the big difference is paying the arbitrator, traditionally the union would pay half but when there is just one employee
                  the employer has to pay the entire cost of the arbitrator
              f. There must be mutuality both parties must have all their claims go to arbitration
              g. In CA the agreement must be consistent with these rules under Armen Dariz.
              h. An employer can require the employee to sign this agreement so long as it is in compliance because it supports
                  public policy to have arbitration
    5. Federal Claims
              a. not dealt with by all circuits yet not dealt with in detail like the CA Supreme Court did

                                                                   14
             b.   Ninth Circuit found the employment Title VII claims weren’t subject to binding arbitration but a later decision
                  overruled Circuit City
             c.   7th Circuit case that went to Supreme Court, if the employee signs the agreement and the EEOC investigates the
                  claim can the EEOC file suit even though the employee himself could not
                       i. SC said that enforcing the clause is a matter of contract law and because EEOC was not a member to the
                           contract they can sue of the employee’s behalf.

Problems with arbitration
    1. Employees are at a disadvantage because the arbitrators don’t care about keeping the employee happy they care about
        keeping the employer and unions happy for their business interest
    2. However they may be less likely to dismiss at an early stage so they get paid more

Affirmative Action
Weber
Facts: 703(d) no discrimination in training, 703(j) statute doesn’t require preferential treatment based on race because of an imbalance
in the races. Kaiser and USA had an imbalance in race amongst their skilled craft workers. It was a traditionally segregated position
and after the Act the 5 year requirement to get in continued the segregation. The workforce pool was 39% Black, overall workplace
was 15% Black, and the skilled craftsmen was only 2% Black. The employer decided to set up a training program and they set aside
50% of positions for Blacks and also based on seniority, but the 7 Blacks who got in had less seniority than the 6 Whites so one of the
Whites sued that he had been discriminated against, trial court found discrimination. Supreme Court reversed. Statutory
interpretation is the key here. Weber says it is clear that this is discrimination on the basis of race. Brennan admits that a literal
reading you might conclude this. This was union employer negotiation setting up the program.

Majority Reasoning:
   1. Reverse past discrimination: The Brennan majority says the legislative intent was to enact a statute that tries to accomplish
        the goals of what the affirmative action plan is trying to do, reverse the results of discrimination and segregation.
   2. No Legislative intent to prohibit favoring: He points out that the history says it was because of the plight of the Negro
        community. He says the language did not intend to wholly prohibit private and voluntary affirmative action as a method of
        solving the issue. He cites the language of 703(j) to support his position.
   3. You are permitted to use Affirmative Action: Saying you aren’t required isn’t the same as you aren’t permitted. Brennan
        says it would be ironic for the statute to forbid employers from addressing discrimination with actions based on the
        legislative intent. The statue says nothing requires the employer to use affirmative action but it doesn’t say permit or require,
        therefore they intended to permit the actions.
   4. Employer Prerogative: This according to Brennan said leave it to private employers to decide if they want to evaluate their
        practices and institute programs to eliminate the vestiges of the discrimination.
   5. Remedial Purpose: The statute was designed to remedy conspicuous racial imbalance and permitting voluntary programs to
        alleviate the problem is in the spirit of the statute. The program also was only going to continue until the party between the
        races was eliminated. It was designed to eliminate the imbalance not create a balance.
   6. Cannot Unnecessarily Trammell the Rights of Whites: In comparison to the rights of the Whites he says it doesn’t trammel
        the rights of the Whites. They are not discharging Whites they are allowed 50% of the positions so it doesn’t unnecessarily
        trammel the rights.

Rehnquist Dissent:
   1. He says start with statutory interpretation and look at the plain meaning of the language. He also says no one would have
        thought you could permit preference based on race because the language prohibits it, you don’t need to go beyond the
        statutory language.
   2. Racial quotas is flatly prohibited by the plain language of the statute. He also says the legislative history is taken out of
        context.
   3. The following part after the language cited says they meant not to prohibit more serious types of discrimination, voting,
        public accommodations, employment etc. He says it was selective readings to support an incorrect position.
   4. He says it would be ironic for the statute to allow race preferential treatment the basic principle is to take race out of the
        decision making process. He mentions that the court says this is not beyond the line but they don’t say why or what the
        boundaries are.

Blackmun Concurring:
    1. When there is an arguable violation of Title VII then maybe we should set parameters to allow employers to utilize some
       program to correct the imbalances otherwise they could be sued for trying to limit liability to Blacks by giving preference to
       Whites and vice versa.
    2. He agrees that the intent is to eliminate conspicuous imbalance so we should balance the rights of the employer with
       employee, so let the employers take action if they are faced with an arguable violation.
                                                                   15
Johnson v. Transportation Agency
Facts: 1987, this is only a Title VII claim building on Weber, Santa Clara had a voluntary aff. action plan, it was adopted because
mere prohibition of past discrimination is not enough to equalize the playing field, the agency is authorized to consider as one factor
the sex of a qualified applicant. The goal was to have measurable improvement and to have the workforce match the labor pool more
closely. 36% female, 22% overall female, 0% in craft position, and 5% labor pool skilled craft female. Nine applicants had the basic
qual. they interview and 7 of the 9 get 70 or more and two of them in the second round they recommend Joyce because she had gone
to affirmative action office and said she was concerned with the panel of interviewers who she had had problems with. The officer
kicks in and recommends her to the panel. The person deciding gives Joyce the promotion and Johnson sues.

Disparate impact analysis:
Is there any evidence that Santa Clara County discriminated against women either overt intentional or neutral or disparate impact? No
they didn’t create this situation the explanation was women weren’t traditionally hired and they weren’t encouraged to get the required
experience because of their traditional role. In Weber the employer had done intentional acts here they had not. We also need a
neutral employer practice, but there isn’t one. Remedial action is thus unnecessary.

Brennan Reasoning: He looks to Weber where there is conspicuous imbalance and a program designed to stop it that doesn’t
unnecessarily trammel the rights of the men. He says here he kept his job, there was no rigid quota, just looking at sex as one factor
among all the other factors doesn’t trammel the rights. She was compared against him in deciding unlike in Weber where the Whites
could not compete for the 50% reserved for Blacks. Any one of the seven was entitled to the promotion, she wasn’t selected just
because she was a woman.

Scalia Dissent: Nonsense, sex was the but for reason not one factor of many, had she not been a woman she wouldn’t have gotten the
job. This was not an employer practice creating a disparate impact it was societal norms creating stereotypes which affected what jobs
certain people got. In this case it is not remedial of any practice.

Birmingham Firefighters, 11th Circuit Rejects Aff. Action Policy as Arbitrary and unnecessarily trammeled

Facts: Affirmative action plan brought as a result of a settlement of a suit bought by Black firemen applicants. The consent decree
says reserve 50% of the slots for Blacks, by 1989 the numbers are totally changed and mirror the correct distribution. They had a
good disparate impact claim, and the facially neutral extra points for seniority was the employer practice that led to the disparate
impact. The stats supported their claim clearly.

Affirmative Action Challenge: Wilks sues because he was more qualified and not promoted as quickly as other Black applicants. He
was successful in arguing that Whites didn’t have sufficient notice to challenge the consent decree to attack it. Does this plan make it
past the 11th circuit when Wilks challenges it?

Analyzing an affirmative action plan?
    1. Does it support the intents of the statute and mirror Title VII?
            a. eliminate discrimination guarantee opportunity
            b. eliminate the effects of prior discrimination (job segregation and underrepresentation)
                       i. Evidence there is a conspicuous imbalance in a traditionally segregated job class.
    2. Does it unnecessarily trammel the rights of Whites?

Reasoning: Pro plan says the goal was to eliminate the racial imbalance and it did do that, and it did it to the appropriate proportionate
representation. Here however there was a 50% quota so does that trammel White rights? No because in Weber it didn’t so here it
wouldn’t either. 11th Circuit said 50% was arbitrary because it didn’t represent the percentage of qualified Blacks in the workforce
which was 10%, they also said 50% was unnecessary because it restricted 50% of the White’s opportunity and the burden was felt by
only a few. Wilks succeeded in the 11th Circuit.

Requirement of Remedial Action

Board of Education of Piscatawy v. Taxman 3rd Circuit dealing with whether remedial quality is required.
Issue: Majority says does Title VII permit an employer with a racially balanced workforce to grant non-remedial preference to
promote racial diversity?

Dissent says Does Title VII permit an employer to consider race as one factor in a layoff decision to obtain educational benefits of a
racially diverse faculty?

Facts: In order to determine if there should be a layoff, look at tenure and seniority, they are all tenured and the least senior tenured
are two people tied, Jackson and Taxman, so then they look at teaching evals, volunteer activities, degrees and certificates, to try to
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distinguish the two but they conclude they are of equal ability. Then they look to the affirmative action plan, it was not binding, when
candidates are of equal quality the people of a class should be recommended, there was no remedial purpose. The Black teachers were
neither underutilized nor underrepresented, Black representation was higher than the labor force, but in the business dept. Jackson was
the only Black and so they decide to lay off Taxman to promote a racially diverse workplace.

Majority Analysis: Does this have a permissible purpose? No because it had no remedial purpose.
   1. There must be a remedial purpose to justify affirmative action because the purpose of the statute is to eliminate
        discrimination and to eliminate the effects of prior discrimination.
             a. There is nothing saying racial diversity is promoted. Promoting diversity is not one of the reasons given by
                 Congress for allowing these plans. The court focuses on what is not said.
             b. When public employers were added to the coverage of Title VII the discussion was the same that was cited in
                 Weber, underrepresentation of Blacks in areas where there was traditionally segregation.
   2. From the majority perspective they say this practice does unnecessarily trammel White rights.
             a. Majority said it lacked goal and structure and it could extend for an indefinite period of time, the fact that it lacked
                 structure meant it was whimsical discretion.
             b. It is more burdensome to be fired, hiring decision is the least burdensome and a promotion is in between, here
                 Taxman was being fired for a racial reason. To lose a job is a tremendous blow
             c. The form of the plan itself was analyzed itself, it didn’t have to be applied, it was discretionary, there was no set
                 time goals, no set quotas. The one factor to be considered was promoting racial diversity.

Dissent Analysis:
    1. They start with the first question, does it mirror the purpose of Title VII?
             a. They say that Congress did not try to limit the remedy to curing past problems but also is trying to remedy future
                  discrimination, they want to eliminate patterns that may cause future discrimination.
             b. They cite a different part of the 72 report that the majority cites. There is language talking about future
                  discrimination in the public schools and thus they conclude promoting racial diversity will help promote the ending
                  of future discrimination.
    2. Does it unnecessarily trammel the rights of Whites? No the two people were equal and she had a 50% expectation of staying
        that was her expectation in staying. She had no entitlement to get the promotion.
             a. They use the factors by the majority to show that the plan is not burdensome, this is the only time they ever have
                  used their discretion.
             b. Like in Johnson, race was only one factor, they compared all the factors not just race. They compared all criteria in
                  making their decision, no fixed goals to succeed. Without fixed goals you may use the plan to maintain balance
                  instead of promote balance.

Wygant Case: There was a plan to exclude 50% of Blacks from layoffs regardless of their lack of seniority so there was a clear
entitlement for the White teachers laid off that they would have kept their job but for the fact of the plan.

Diversity Argument: Justification for affirmative action without presenting evidence of a prior disparate impact.

Grutter v. Bollinger
Facts: Michigan Law School admissions policy, no set aside spots for minorities, in contrast to undergrad, which gave extra points for
minorities. The Law School considered applicants and they promoted diversity, special commitment to racial and ethnic diversity they
wanted to enroll a critical mass to eliminate prior discrimination. Issue: Could diversity be a compelling state interest that would
justify this approach?

Majority Reasoning led by O’Connor: found it was a compelling state interest, with a lot of deference to the law school’s judgment
that diversity is essential. She says it does promote good attitudes, cross-racial understanding, better prepares them for a diverse
workforce. There were many amicus briefs supporting their program, military and private employers. They supported being able to
choose from a diverse pool of educated applicants.

Rehnquist attacks Critical Mass Argument: There are preferences made based on races, Native American critical mass is not the same
as other critical mass groups like Blacks. What justifies admitting different numbers of different races if you were trying to achieve
critical masses. The relationships represented is the same as the applicant pool as opposed to just wanting a critical mass. So there
really is no argument for a critical mass it is really just a balancing approach.

Alternative Plans
    1. Majority says this a narrow plan, everyone competes against each other, they are not insulated from competition whereas in
         the undergrads the Blacks were insulated from competition. It is not too broad to represent unnecessary burden. What could
         be possible alternatives to this program, is there an equally effective way to promote the diversity state interest without
         having such a disparate impact on races?
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    2.   Thomas’s Possible Alternatives: You could have diversity if you just lower your standards, should they have to change their
         fundamental nature as part of this? Majority says no, not using LSAT and GPA may serve diversity but hurt the education
         significantly.
    3.   What about a lottery? You may lose diversity and education, what about percentage plans? The UC system where you take
         the top 4% from every school in CA, harder to apply to law school, it definitely won’t help diversity and it will change the
         academic quality of the institution.

What would I want in an affirmative action case to go to the supreme court?

Why didn’t Grutter argue that there was a remedial purpose? Maybe because they wanted affirmative diversity to be a compelling
state interest. What’s the profile for the affirmative action programs?

    1.   We want some non-remedial goal to be justified, what is the context an employer could argue diversity is an important goal.
    2.   Race can never be a BFOQ so for race to be an element of hiring we need to have a voluntary affirmative action program.
    3.   Gratz v. Bollinger using additional points to people of race to get them into the school was struck down. Getting 20 points
         doesn’t offer applicants the individualized selection process.
    4.   Taxman told us losing your job is significant trammeling as opposed to someone in the applicant phase is not as trammeled
         on because they could always choose another job. Promotions are in the middle, they are not losing their jobs or benefits, but
         the hiring context there is less of an expectation to be hired, more play.
    5.   Grutter talked about compelling interest, they said diversity is a compelling interest in a law school
    6.   We need to find an affirmative program that mirrors the goals of Title VII, taking discrimination away from areas that had
         been marred by it in the past, remedial purpose, if we have a diverse group we could say that will help break down
         stereotypes that arose because of discrimination
    7.   Taxman, what would I do to Taxman to make it a better context, first would be to take it out of the layoff context and put it
         into the hiring process. Remember black teachers were not underrepresented but Blacks in the business dept. were
         underrepresented so we have two equal candidates one white, one black. They hire Williams to enforce their diversity goal is
         that a good case?
    8.   Wygant case struck down a justification that different races for role models was good
    9.   Gratz and Grutter said there is an educational benefit from having a diverse population
              a. Some of the causes develop when they have no contact with other races, so having a diverse workforce will help you
                   break down those stereotypes and lead to breakdown patterns of discrimination, this feeds Taxman back to Title VII
              b. Up until these two cases the Court didn’t accept aspirational purposes as opposed to remedial purposes. You had to
                   make a case of a manifest imbalance in a traditionally segregated position, another problem with the prima facie
                   case would be to locate the employer practice that caused the imbalance.

1991 Amendments and Affirmative Action
Two Provisions talked about aff. action
    1. 703(l) you cannot adjust the scores of, use different cutoffs, alter the results of employment related tests
            a. What is an employment related tests, the employer must validate that the test they used is an accurate valid way of
                 measuring success for a particular job, what this does is if you have an employment related test then you cannot
                 mess with those scores
            b. Court-ordered remedies, affirmative action, or conciliation agreements that are in accordance of law are not
                 invalidated by the amendments
                       i. 703(m) does nothing more to invalidate affirmative action plans, there is no comment that it was designed
                          to affect aff. action it only clarified mixed motive cases

The same proof structure is used for religion as was used for race and sex but there are differences

Religion
    1.   Private employers and Title VII, 703(a) lists religion upon which actions cannot be taken,
    2.   701(j) defines religion
             a. includes all aspects of religious observance and practice, as well as belief
             b. don’t be too narrow in what you call religion, practices related to a belief count
             c. We need a religious observance, practice, belief
             d. The court needs to judge whether the action is religious and not political
    3.   The Court in early cases asks if the person honestly believed it, did the belief occupy a place in the life that a belief in God
         would normally occupy.
             a. other less organized or established religions may not be familiar to everyone, thus they analyze it
             b. Is it a religious belief or political or social,

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                          i. Does the belief system address fundamental questions, like truth, and not narrow issues like environmental
                              issues, animal rights
                         ii. Is there some formal or external signs of ways to observe this particular belief system. Wearing kippot,
                              shawls, other clothing to signify an observer of the religion
                        iii. One court held being a vegan was not a religious practice so them not hiring him for not taking a mumps
                              test in chicken culture was okay
                        iv. Supreme Court has not looked at this question under Title VII
    4.   702(a) exceptions, doesn’t apply to an employer that is a religious corporation for people who are employed to carry on
         religious activities of the corporation, they can discriminate, minister priest yes, janitor, no, unless the janitor is part of a sect.
         If there is a religious doctrinal reason to employ someone then that is it and the courts are leery to query if it is a real core
         belief or not because of 1st amend.
    5.   703(e) educational institutions that are owned or operated by a religious organization

Religion Cases

Must make a reasonable accommodation for someone’s religion unless it imposes an undue hardship on the employer. Not all cases
are undue hardship/reasonable accommodation, they could be like the other cases we studied for race and sex. Typical case for
accommodation is when there is a neutral employer practice that doesn’t conform with someone’s religion.

How does the plaintiff proceed? I have a bona fide, religious belief, practice, observance and it is in conflict with some employer rule,
so it is adversely impacting me and I’ve notified my employer and some adverse actions results. We can litigate whether it is bona
fide or religious, assuming those are conceded, the employer has an obligation to demonstrate it made a reasonable accommodation
unless it imposed an undue hardship.

TWA v. Hardison 1977

Facts: Worker observed Sabbath on Friday night to Saturday night and he cannot work that day, he is covered by a union contract
which provides that job shifts are bid on based on seniority. Seniority is building specific. He initially has seniority so there is no
conflict, then he transfers to another building where he has no seniority. There is a neutral rule causing problems, he advises them of
the problem, he refuses to work on Saturday and he is fired.

Plaintiff Argument: Bona fide religious observance, neutral seniority rule conflicted he notified but was fired. Worker claims
employer didn’t provide a reasonable accommodation.

TWA Argument: that they did make reasonable accommodation: TWA went to the union to see if they would change the seniority
rules to accommodate the situation but the Union said they cannot breach that agreement unilaterally, TWA agreed the Union said no.
They tried to swap jobs with him to someone else, but it didn’t work out, they met with him rejected a four day work week, and
rejected hiring someone at premium wages to fill the spot. According to the Dissent, the overtime would have only cost $150. That
doesn’t seem like much of a burden.

Supreme Court Majority: They did make reasonable accommodation and to do anymore would give a preference to people in
choosing their day off based on their religion. Seniority is a reasonable way to deal with the problem of people not wanting shifts.
What is undue hardship? More than de minimus, do we look at this particular plaintiff’s costs or do you look at what it would be if
applied to all? It is not settled.

Dissent: The preferential treatment given to the employer is inherent because when you make reasonable accommodation it implicitly
favors one person over another. It is only limited by undue hardship.

Ansonia v. Philbrook
Facts: There was a neutral rule the school has about how paid time off is allocated, and as a result I have to take unpaid time off. He
notifies and it continues. Another collective bargaining agreement results in an accumulated sick leave policy to be used for other
kinds of absences other than illness, 3 personal days but not for days specifically identified under the other categories, and one of the
categories was 3 religious days. So he uses 3 days and he has three other holidays not covered, he argues he should be able to use the
personal days. Alternatively he gets to use his personal days and he pays the sub, employer says use unpaid leave, we’ll pay the sub.

Issue: Is this reasonable accommodation? He isn’t losing his job or seniority, he is just not being paid for time he doesn’t work. The
collective bargaining agreement doesn’t have to give way, that is decided. Unpaid leave would typically be a reasonable
accommodation but they remand for further factual inquiry.




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Rule: Once the employer has made a reasonable accommodation they don’t need to make further attempts at more desirable attempts
that would not create an undue hardship. Another argument is to say the 3 days of religious observances is accommodation enough
they didn’t need to do anymore.

ADA
There are no arguments being made that the employer cannot get the information, but the employer’s interests of costs is not enough
of a legitimate interest you need to tie it in with another interest, there haven’t been successful challenges to the these preplacement
exams on privacy grounds. The ADA kicks in so the medical exam info cannot be used before the decision to make an offer. The
ADA doesn’t limit the type of info the employer can receive but the CA act FEHA does limit it to job related and consistent with
business necessity.

Reasoning: Why doesn’t the ADA limit the scope of the info gathered? As an employer there is no way to limit their tests that may
affect competence and safety, there may be conditions out there that affect these areas that the employer doesn’t know about. They
then limit it in its use.

ADA §3 Disability, Core Definitions of Disability applies to all Titles
   A. A physical or mental impairment that substantially limits one or more major life activities of such individual
   B. A record of such impairment, or
   C. being regarded as having such an impairment

“Physical or mental impairment”: this is key, what is meant by this? Abnormalities, disfunctions, disease, illness, impairment that is
not covered, height, hair color, eye color, skin color, personality traits, being late, poor judgment, it must be a disease, disorder or
illness.

Obesity is a question mark, they distinguish between merely obese (50 pounds overweight) and morbidly obese (twice the normal
body weight) because morbidly is more like a disorder and the other is normal human variation attributed to voluntary human
behavior. That is criticized because although it may be voluntary it may be influenced by disease or disorder.

“Substantially limits”: severity and duration of the limitation. Is it substantial, is it permanent or temporary. Broken limbs are
substantial but are temporary, pregnancy is not. EEOC has asked, “Is the person restricted in manner or duration when compared to
the average member of the population?”

“Major Life activities”: mental and physical activities, seeing, hearing, reaching, walking, standing and sometimes work is considered
a major life activity, in that case it must prevent them performing in a broad range of jobs in many classifications not just precluded
from one type of job. If someone files a claim here they are looking at a particular class of jobs, are you precluded from that class of
jobs.

“Record of such Impairment”: Have an impairment, i.e. not currently affected by it but have a history of it. Now their fine but
because of the record would be within B.

“Being regarded as having such an impairment”: They were not substantially limited but they were still not getting jobs because of
fear, prejudice, stereotypes of the manifestation of the physical impairment. Cerebral Palsy people could do many things but people
still wouldn’t hire them. They were being discriminated against unfairly even though they were not substantially limited by their
impairment.

Exclusions from the definitions of Disability:
    1. §§510 and 511, These sections applies to all titles, 511 excludes homosexuality and bisexuality, transvestites, pedophilia,
        gender identity disorders, compulsive gambling,
    2. §510 is more general and addresses the illegal use of drugs, §104 applies to employment only and is a little more detailed
        addresses drug use in the work place, shall not include a person currently engaged in the use of illegal drugs.
    3. Histories of drug use may come within the definition of the act, someone no longer active in the use and participated in a
        supervised rehab program. Alcoholics are not by definition excluded, section C allows employers to have rules about drugs
        and alcohol, employers can prohibit it so if the person uses it they are out of the statute.
    4. Subsection D says a drug test is not considered a medical evaluation, because under the ADA an individual cannot be
        required to take a test before being offered the job, but they can be compelled after being offered the job. Drug tests can be
        required preoffer

Disparate Treatment Claim and Reasonable Accommodation Claim


                                                                   20
    1.   §102 , core protection prohibition of the act, qualified individual with a disability cannot be discriminated against, so they
         must have a disability under the three definitions, then we ask if they are qualified, can the person perform essential job
         functions either without an accommodation or with reasonable accommodation.
             a. What are the essential job functions, employers judgment to decide, if the employer has prepared a written
                  description that is evidence of the essential job functions
             b. Because of language is used here also, adverse action taken because of the disability, same causal nexus, same as
                  Title VII
             c. If the person does need an accommodation then we are in the world of reasonable accommodation, an employer has
                  a duty to make a reasonable accommodation, discrimination includes not making a reasonable accommodation with
                  the knowledge of a disability, unless they can demonstrate that the accommodation imposes an undue hardship.
             d. If the need of the reasonable accommodation caused the adverse action, that counts
    5.   Defenses: If the claim says I was qualified and denied that is a disparate treatment case, I am being treated differently
         because of my disability, you can also bring a disparate impact.
             a. Facially neutral qualifications and standards that screen out or tend to screen out a class of individuals with
                  disabilities, unless it is job related and consistent with business necessity without an available reasonable
                  accommodation that does not impose an undue hardship.
    6.   There are statutory definitions of “Reasonable Accommodation” and “Undue Hardship” and they are different than religion
         and Title VII
    7.   Remedies are the same as Title VII, §107, intentional discrimination you can get not only equitable but compensatory and
         punitive with the caps, if not intentional, then your limited to equitable, back pay, injunctive no compensatory or punitive.

Sutton v. United Airlines
Facts: Definitional case, disability, whether we should look at the person in their mitigated or unmitigated state. What is being
regarded as being an impairment. Two twin sisters apply to be global pilots, they are brought in for further inquiry but they say we
made a mistake because they have extreme myopia. Their vision was impaired but corrected they were 20/20, United says they must
have 20/100 uncorrected and they had worse than that.

Issue: If they are uncorrected their sight is uncorrected but corrected there is no limitation at all, do you look at them in the mitigated
or unmitigated state?

Rule: The majority holds they should look at the mitigated state not the unmitigated state.

Reasoning: They look to the findings of the actual statute, the number of blind people didn’t consider people who could have
corrected their vision to an unimpaired level. The report looked at health conditions and compared that the function impairment and
the number of health conditions was 160 million and the functional conditions was only 43 million, so we must ask are they
functionally impaired, if they mitigated that functional impairment than they are not part of the 43 million. You look at the individual,
if one person is taking their medicine for diabetes they are completely functional but someone not taking their meds will be limited.
So if you didn’t look at the mitigated state you couldn’t look at whether the treatment itself may substantially limit their abilities.

Substantially limits, used in the present tense so we look at the current state you are in not in the hypothetical so we should look at the
mitigated state

Section C Being regarded as having such an impairment: Two different ways to come under this definition,
    1. the employer thinks the person has an impairment but they actually do not have it and they made a mistake.
    2. Or the employee does have an impairment but is mistaken as to whether it is substantially limiting.
            a. Here the employer mistakenly believes they have an impairment that substantially limits a major life activity, which
                 here is work. The court doesn’t actually hold work is a major life activity but assuming that it is in order to
                 substantially limited they must be excluded from a large class of jobs not just one job, here they were applying for
                 one job global airline pilot, their vision may not impair them from many other pilot jobs. They actually had prior
                 pilot jobs so clearly there were many pilot jobs these sisters could hold. Failed under C.

Dissent: Present tense argument is criticized because A is present tense, but B is past tense, we must harmonize all the sections and
have a consistent approach to each in the context. They look at A and B together and say people with the condition now or had the
condition in the past are both covered. We could look at a person who is cured under B and under A they may be inflicted by the
condition.

Individualized Consideration Argument: The majority says look at the individual in the mitigated state because if that person
mitigates they are different from people who don’t. Dissent says you could just as easily look at the same individual in the
unmitigated state.

Statutory Interpretation
                                                                    21
    1.   Legislative history makes it absolutely clear that we should look at people in the unmitigated state, so how did the majority
         get away with what they did? If the text is clear and not ambiguous, then why go into the legislative history, it is not
         necessary and not appropriate in this case.
    2.   Just to say the person comes within the definition of a disability doesn’t mean they will win so 43 million is not what we
         should look at the decide the case. You should broadly extend who is covered because it is remedial in purpose so they
         should get to try to win their case but it doesn’t mean they should win.

Major Life Activity: definition

Toyota Manufacturer v. Williams
Facts: Woman worked on the assembly line using pneumatic tools gets carpal tunnel, then she was assigned to a dept with four jobs,
she was asked to do two of them which she could do fine. One of the four jobs she had to rotate into exacerbated her condition and
she asked for as a reasonable accommodation not to transferred into that position. She sues saying she was fired for having a
disability, she couldn’t do a major life activity, manual tasks.

Substantially limits: Substantially means according to the dictionary considerable or to a large degree, a minor limitation is not
substantial. A major life activity means greater in dignity, rank, importance, or interest.

Major life activities: The court defines it as activities that are of central importance to daily life, they also must be permanent or long
term.

Rule: Manual tasks that are of central importance to daily life means doing daily activities brushing hair teeth, etc. It was improper to
consider manual tasks at a job as a major life activity. The lower court overlooked the fact she could still do things around the house,
care for herself, bath herself etc. when those are the manual tasks that are major life activities. Occupation specific tasks may only
have limited relevance to the manual task inquiry.

Holding: Considering a person’s inability to do such manual work in her specialized assembly line job is not sufficient proof that
he/she was substantially limited in performing manual tasks.

Issue: Is being HIV positive make you disabled because you cannot have sex,

Bragman v. Abbot:
Rule: The court held having sex was a major life activity but then you have to ask does HIV limit the life activity, it doesn’t preclude
having a baby it just increases the risk to the baby, and it only increased the risk of transmitting the virus to her partner.
Dissent: You can still do all of those things just with a risk, but the majority said she was substantially limited. The dissent’s thinking
became the majority in Toyota because they looked at can you do the activity that occurs on a daily basis.

Reasonable Accommodation: May include making existing facilities more readily accessible to disabled people and job restructuring,
reassignment to a vacant position.

Undue hardship: Significant difficulty or expense in light of the factors to be considered, the nature and cost of the accommodation,
the overall financial resources, and the type of operations conducted

US Airways v. Barnett
Facts: Plaintiff wants to transfer to the mail room to accommodate his bad back, every few years the mail room positions come up for
bidding for others, he asks as a reasonable accommodation that the position be closed to bidding because there were two senior
employees that wanted his job. He wanted US to suspend seniority rules, he is let go and they do not suspend seniority rules.

Rule: Any request to alter the seniority system is not reasonable as a matter of law. Reasonable accommodation envisions some
modification or adjustment, the whole concept envisions some different treatment because of the disability which could be perceived
as preferential. Employer can seek to rebut the plaintiff’s version of reasonable accommodations, they can also say the reasonable
accommodations inflict an undue hardship.

Reasonable Accommodation Majority Position: Something that effectively accommodates the person’s needs is not a reasonable
accommodation according to majority. Effective and reasonable have different meanings, effective may not mean reasonable.
Reasonable means something that can be implemented without upsetting the employer’s system. Accommodation means it will deal
with the disability and help to alleviate it. Reasonable means it must be reasonable in the ordinary run of cases, reasonable on its face.
This is a case specific circumstances position, if the reasonable accommodation looks reasonable on its face it may still impose an
undue hardship in this case and thus be unreasonable.



                                                                    22
Burden of Proof: Is it reasonable on its face to have an employer violate seniority rules? Under this notion, an accommodation that
would require deviation from seniority in the ordinary course of events is not reasonable. However, the plaintiff could bring in facts
that show that in this particular case the deviation from seniority is reasonable.

Seniority Analysis: Why is deviation from seniority not reasonable on its face? It is often part of a collective bargaining agreement
that generally is considered an employee benefit that everyone can rely on as a neutral way to know what advancement they may
receive. It is very easy for employers to decide who gets raises when seniority is used. Seniority protects workers later in their career
when they may not be as valuable then they were in the middle of their career. If the reasonable accommodation interferes with
seniority it is unreasonable on its face.

O’Connor Concurring: We can only talk about this seniority rules when there is a legally enforceable seniority system under a
collective bargaining agreement, here US Airways did not have a legally enforceable seniority agreement and that should be a
requirement to use the majority’s position. There was specific language that said the employer could change the seniority rules, and
that it was not a legally enforceable right.

Scalia Thomas Dissent: What is a reasonable accommodation? Look at policies that affect people with a disability only, if a person
with a wheelchair cannot sit at a work station, asking for an equipment change is an appropriate accommodation, asking for a transfer
to a job you can do is a specifically related disability. Reassignment to a vacant position doesn’t mean give it to them if someone with
seniority had a rightful claim to it, only if there was a job open that was freely available would it be a reasonable accommodation.

Souter Ginsburg Dissent: Seniority role, there is nothing in the ADA that protects seniority so should seniority ever be considered,
yes but it is just one factor, they disagree that violating seniority on its face would be unreasonable. Here it is a unilaterally adopted
protection that is unenforceable and no expectations of rights. This employee is asking don’t let me go, and the other two could still
keep their jobs if they weren’t allowed to transfer.

Chevron v. Echazabal
Facts: §102 (6) eliminates the use of qualification tests unless they are job related and consistent with business necessity. (b) says
accommodations that pose a threat to others is not reasonable EEOC had interpreted that accommodations that pose a direct threat to
the employee’s health is overed as well.

Issue: Did EEOC exceed its authority when it went beyond the statute to protect others and said that meant protections to the
employee himself. The court held they exceeded their power. This is just another example of statutory interpretation. You have a list
of items and the statute only includes some things, the ones not in it are excluded. This concept is expressio unius exclusion alterius
meaning include one exclude the others. There is only a reference that when there is a direct threat to the health and safety of other
workers not to the individual.

Holding: Other agencies had talked about harm to self hand in hand with harm to others, but here they did not so it must be
intentional. In past lists things had referred to others and self so now when they refer to only others they purposely omitted self.
Therefore the person who could harm themself is therefore a risk from a business standpoint, absenteeism, healthcare costs, however
this is the kind of paternalism the act is designed to eliminate, the court says this is different paternalism the other paternalism was
based on stereotypes and assumptions not facts.

CA FEHA says anything that limits life activity not substantially limits and it is done without looking at the person in their mitigated
state and if there are meds to mitigate and they inhibit that counts

Major Life Activity: Mental, physical, social activity, includes working. You can look at one job or a class of jobs it is not limited to
one class of jobs. Much greater protection under CA FEHA than under the ADA

National Origin
National origin means ancestry, the country where the person was born or where their ancestors are born, it is not the same as non-
citizens. Saying you only hire citizens is not discrimination based on national origin but it could be if they did it do have the effect of
discriminating based on national origin.

ERCA applies to employers with 4 ort more, CA FEHA applies to employers with 5 or more, in CA ERCA is not relevant. ERCA
protects intending citizens, in this country legal who have declared their intent to become citizens.

Title VII protects national origin, same kinds of proof framework apply here.

Garcia v. Spun Steak

                                                                    23
Facts: English-only rule in the workplace challenged in the 9th circuit. Most employees were Spanish speaking and some of the
English speakers complained that the Spanish speakers belittled them in Spanish, while on the assembly line only English could be
spoken. Bilingual employees are disciplined for speaking Spanish, they sue and say the rule has a disparate impact against Hispanic
and Latino origin. However, regions are not national origin, so this is an oddly presented case on that issue.

Issue: How do you make a disparate impact claim under these circumstances? This is a terms and conditions of employment case,
how do you show there is a disproportionate impact?

Rule: There must be a “Significant Adverse Impact” on a terms or conditions of employment on employees of particular national
origin (population in general not so affected).

Reasoning: If there is a disproportionate impact here it will be on Hispanics but how do we relate the English only rule to national
origin? What is the connection between English and national origin? People speak the language of their national origin. It becomes
attenuated when you were not born there and do not speak the language. One argument is that if you speak more than one language
there is no disparate impact because you could choose to speak the language required. However, you may prefer to speak one over the
other, or you may not speak the language required. Here the court assumes there is a disparate impact and it will be on Hispanics.

Plaintiff’s argue the rule is denying them the opportunity to express their cultural heritage but the Court says there is no protection for
expressing their cultural identity on the job. Then they say it takes away their right to speak the language they are most comfortable
with and the English speakers are favored. The Court says no because the right to speak is completely in the control of the employer.
Here the bilingual employees can speak and they can speak English, you don’t have the right to speak in the language you feel most
comfortable. Monolingual employee however doesn’t have a right to speak, their right to speak is being affected. That is why there is
a remand.

Hostile Environment: The last argument was the rule created inferiority, isolation, and intimidation, this is a hostile environment
claim. EEOC says an English only rule establishes the prima facie case for a hostile environment based on national origin. The
EEOC approach is rejected because the rule itself can only establish a prima facie case on a case by case basis. The presumption of
the EEOC is wrong in terms of the management prerogative the employee should have to prove their case before employer has to
defend. Boochever dissents on this issue saying it will be too difficult to establish the prima facie case without the EEOC’s approach.
He says accept the presumption and make the employer defend, not that the employee will win but they will get a chance to make a
claim.

Holding: All three arguments fail, there is no prima facie case so the employer doesn’t have to defend but if they had looked at the
employer’s reasons for the rule what would have happened? They did it to prevent comments made against other employees, there is
some evidence that it is job related and consistent with business necessity but is there a better and less disparate alternative? You
could argue that they could just make a rule that no one could make disparaging remarks without referring to Spanish. The employer
also said it was distracting and thus could be dangerous. They also said it affected product quality because the FDA inspector only
spoke English; the only bona fide one is the racial tension one but the rule may have created more racial tension.

Fragante v. City and County of Honolulu
Facts: He is a Pilipino, he gets the highest score in written English tests but then when he is interviewed he is told that he has too
strong of an accent and thus could not communicate as well as the others. He sues saying he was qualified and he was rejected
because of his accent which is rooted in his national origin. The court assumes he made his prima facie case, EEOC has taken the
position that rejection because of accent is sufficient to make a prima facie case, because it relates to your national origin. Disparate
treatment case so the employers respond by saying there was a legitimate business purpose for rejecting him because communicating
with the public clearly is an important requirement for the job.

Legitimate nondiscriminatory reason: Was effective oral communication an effective component of the job? Yes, but he says he is
easily understood and he has experts that say he is easily understood in English, there was never any misunderstanding in the
interview. He said he had a long history of giving presentations in English, court reporter had only two times to ask what he said. Is
this a searching inquiry? The Court found he had an accent and didn’t always seem to answer the questions directly. We know he had
an accent but was he intelligible? The functional test would be a test of his interactions during the work.

Notes
Matsuda later says the accent is affected by dominant cultural norms, acceptable to them is having no accent, any other speech pattern
is having an accent. Attributes associated with no accent is intelligible, articulate, and conversely people with accents are considered
unintelligible and inarticulate. The person with the power doesn’t have to pay attention to the person without the power. The people
in the interview have the power and the interviewee has no power. She said look at the person’s ability to effectively communicate in
the workplace.

ADEA
                                                                    24
Age Discrimination in Employment Act (ADEA) – only people 40 years or older can assert their rights under the act
Difference from Title VII doesn’t apply to training or apprenticeship programs

Defenses
    1. BFOQ is a defense here as in Title VII,
    2. RFOA reasonable factor other than age

Analysis
    1. Legislative history/purpose of ADEA.
    2. Class Definition Ellis, the class definition is dealt with, here the class is people forty or over, you could manipulate the class
         by saying it affects people 55-59 just because of the facts, class can be manipulated with age while it cannot with race, sex,
         national origin, religion
    3. Employer prerogative: Ellis, the acts are not designed to interfere except to the extent to deal with the discrimination. Not
         allowing cost cutting may make everyone lose their job, they must show it was a reasonable business necessity. This is an
         area where courts should be reluctant to intervene.
    4. Pro Disparate impact: the claims may flesh out unconscious subtle discriminatory intent

Remedies
   1. Equitable relief
   2. Make whole remedies, back, reinstatement
   3. compensatory and liquidated damages in lieu of punitive
          a. Liquidated available for willful violation of the act, intentional or reckless disregard for the act
   4. Right to a jury trial

Proof Structure for Disparate Treatment
    1. McDonnell Douglas framework. Prima facie case where an inference is drawn that it was because of age
    2. One SC case said just because the replacement is within the protected group doesn’t mean that you cannot establish the prima
         facie case
    3. Last term, Supreme Court in General Dynamics v. Kline, said people who were younger could sue for discrimination against
         them in favor of older workers. A collective bargaining agreement said we will give health coverage to then workers over 50
         and the people over 40 sued saying it discriminated against people under 50. Majority held the intent of congress was to
         protect older workers only, it was not age neutral. They said age meant older age by its nature. Legislative history said it
         was addressing people who were older being discriminated against so people who are younger than the others cannot sue.

Hazen Paper v. Biggins
Facts: 62 year old claimed he was fired because of his age, and he sues under ERISA saying he was fired because of his pension
benefit was about to vest. Lower court relied significantly on the evidence that the termination was to prevent him from getting his
pension benefits. He was a few weeks shy of vesting when he was fired, they offered him a continuation in a consultant position not
eligible for pension. Evidence he was prevented from vesting was evidence it was because of age according to the lower court. This
was a disparate treatment case.

Supreme Court Rule: Age and vesting a pension benefit are analytically distinct because you could be vesting after 10 years and
still be young. What do you have to prove here to prove discrimination? He must prove age was determinative in the outcome.
Mixed motive analysis applies here, it was a motivating factor and had a causal relationship to the outcome. Here it was bad to fire
the person to prevent vesting but that is not an Age discrimination act concern that is addressed by ERISA directly. If the pension
vesting was because of reaching a certain age than the two are inextricably linked and you could have a claim under ADEA.

Possible situation of disparate treatment: If the reason you chose to lay off a group of workers was because of the need to cost cut but
they were all old you could say you really wanted to do it to get rid of older workers. You didn’t look at other options, it was just a
pretext to mask the intent to discriminate based on age.

Text of ADEA does it allow Disparate Impact
 §623(a)(1) “because of age”
         1. age must be a motivating factor not just a neutral factor
         2. counter argument, Not neutral
 §623(a)(2) “or otherwise adversely affect”
         1. looking at affect means look at impact of the action, there is specific language supporting it
         2. Title VII was amended to specifically address disparate impact but ADEA was not
                  i. Is that significant? Some say yes they intended not to extend this argument
 §623(f)(1) “reasonable factor other than age”: Defense to the Act
                                                                   25
         1.   Pro: Disparate Treatment only because it goes to the intent of the decision so even if it adversely impacts it won’t be
              illegal unless they intended it
         2.   Con: Disparate impact because it is part of the proof structure, it must be a reasonable factor not necessarily job related
              it is just to show it is not discriminatory it is a rebuttal. But the reasonable means job related according to the con

Ellis v. United Airlines
Facts: Height and weight requirements allegedly discriminated against older workers. Neutral policies like this cannot be a disparate
treatment claim because they are neutral. Equal Pay Act was interpreted to show it was just motive and it has the same language.
EPA didn’t talk about reasonable just a factor other than age, however so the counter says because it says reasonable it means job
related consistent with business necessity. The class definition is dealt with, here the class is people forty or over, you could
manipulate the class by saying it affects people 55-59 just because of the facts, class can be manipulated with age while it cannot with
race, sex, national origin, religion

Camacho v. Sears
Issue: Legislative history says we are trying to reverse stereotypes so disparate impact cases seem reasonable but Camacho Court says
there is no past history of discrimination against older people, in the past age was considered a plus so there was no legislative intent
to reverse it since it was not there.

Salary restructuring: There is economics and costs involved. Ellis says the acts are not designed to interfere except to the extent to
deal with the discrimination. Not allowing cost cutting may make everyone lose their job, they must show it was a reasonable
business necessity. This is an area where courts should be reluctant to intervene. Camacho says it is our job to judge the business
necessity and if they prove it was necessary than it will stand.

CA FEHA has clearly addressed this issue: Pay scale where they hired people with lower salaries and that correlated with age because
salary was based on years of experience, they could do that without violating the age discrimination. Legislature amended to reject
that argument. Findings said age is an immutable characteristic just like sex, and they said disparate impact cases are allowed. Salary
correlates with age according to CA.

Sex in Title VII
DeSantis v. Pac. Telephone
Facts: Plaintiffs argue discrimination based on sexual preference is discrimination based on sex, because sexual orientation is based
on their sex. No sex is gender according to congressional intent, legislature meant men v. women, sexual orientation is not covered.

Employment Criterion:
You could say under Title VII, there are different hiring criteria because they will hire women who have a sexual partner who is a
male but not men who have a sexual partner who is a male. The court says the employer will not hire someone who prefers their own
sex, so they treat men and women the same and thus it is nondiscriminatory.

Interference with Association:
They aren’t hiring me because of my association with my sexual partner, but the court says the focus here is the nature of the
relationship with the people of the same sex, that relationship is not protected under Title VII. What if a white married a black and
then was fired, you could argue we didn’t fire you because of the black person it is the relationship of marriage and that relationship is
not protected. That seems like a weak argument.

Effeminacy:
Someone who wore an earring was fired because he didn’t present the virile sex based stereotype of men, and that is in violation of
Title VII but it fails because the statute doesn’t protect effeminacy. However, under Pricewaterhouse sex stereotypes was evidence of
discrimination based on sex, different standards are being applied because of their sex. The gender is in the mind of the decision
maker. Here you could say the gender of the person was in the mind and the perception of the gender negatively impacted that
employee. Hey walk like a man.

Disparate Impact Argument:
The plaintiffs say there is a greater incidence of homosexuality among men and they are more visible than lesbians, therefore men are
hired less than women. The problem here is the congressional goal was to protect certain characteristics and bootstrapping sexual
orientation is not consistent with the purpose of the act.

Sneed dissents on this one argument. He said they would have to show the use of homosexuality as a bar for employment had a
disproportionately large impact on males because their gay population is larger than women.


                                                                    26
Holding: The basic holding that sexual orientation is not included in the definition of sex is consistent amongst the circuits. Getting
into Pricewaterhouse is a fine line because the evidence in the cases where Pricewaterhouse could be used had incidences where men
weren’t acting like a man, but if it was just evidence of sexual orientation than you would fail.

CA Labor Code 1101
Up until 2000 the only protection against discrimination based on sexual orientation came from Labor Code 1101. The code
prohibited negative conduct and coercion against employees because of their political affiliation. That was on the books from 1937.
A companion to the Desantis case filed state claims under this labor code. Several of the employer’s policies had policies against
manifest homosexuals, any social outreach political activities.

Supreme Court of CA looked at what is political activity, they said the struggle for equal rights among the homosexual community is
political activity. There was protection as political activity in order to find a way to protect against discrimination against gays.
Subsequent to the decision, a case came up with people who were not manifest (out of the closet) homosexuals. Attorney general gave
an opinion on the question and he said he thought the Supreme Court would hold the closest homosexuals protected as well. If you
didn’t protect the undisclosed homosexuals, you would force them to come out to get protection. You are not allowed to be coerced
so there had to be protection. The Labor Code was amended to add 1102.1 in 1992 to include the protection against sexual orientation
based on sexual preference, actual or perceived, exception for religious associations. In 2000 CA FEHA included sexual orientation
as a protected class. 13 states include it, 9 others have protection in public employment.

Public Employment and Sexual Orientation

Padula v. Webster
DC Circuit Court

Facts: Woman applies to be an FBI agent, takes written tests and does well, she goes on to screening and they discover she is a
practicing lesbian, she is asked and she says she is openly gay. She is not hired, and she claims it was because of sexual orientation.
FBI policy on sexual orientation is unclear, they used to blanket prohibit but now it supposedly is case by case but it is not very
flexible. Here conduct is assumed to be sodomy. We are looking at the classification prong, the classification is prohibiting me from
being employed.

Classification and what scrutiny?
Plaintiff says she should be suspect or quasi suspect to get more scrutiny requiring the prohibition to be substantially related to a
legitimate state interest, instead of the minimum standard of rationality. If you could prove you were born with it and couldn’t change
it than it would be an immutable characteristic, a feature. Race for purposes of the legal claims is not considered immutable because it
has changed overtime.

Suspect Class Argument Fails even though it could apply pretty well:
     Is homosexuality an immutable classification? It is still debatable.
     But there is a history of discrimination and they are politically powerless.
     History of discrimination is held to be true, are they politically powerless? Yes,
     are they saddled with unique disabilities because of this? Bowers said you could criminalize homosexual conduct it passes
        due process, so it is anomalous to give heightened protection to criminalized conduct***
     The employer says it would be unrealistic to hire someone to enforce laws when their sexual orientation is illegal.

Issue: Does that mean her status or her conduct as a homosexual? Here the court doesn’t have to resolve it because she admits status
and conduct. When we talk about conduct what does that mean? Sodomy or something else, the assumption here is sodomy because
Bowers was about sodomy.

Holding: It is not a suspect class, so rational basis test, so you have FBI agents and they serve in state where their behavior is
criminal. That is not appropriate. They may also be blackmailed with sensitive information if there is potential to use the fact they are
gay against them. There is a rational basis not to hire homosexuals.

Notes after Lawrence v. Texas
Lawrence looks at liberty from a definitional level, Bowers purports to do no more than prohibit a sexual act. However, Lawrence
says it touches on private behavior that people have the liberty to do in a private place. Right to liberty under the due process clause
given to engaging in homosexual conduct with consenting adults in the home.

What does this ruling do to Padula?
The policy would prohibit her from engaging in a recognized constitutional right. Equal protection says if a conduct benefits one class
and not another, that is one prong, the other is that the government is infringing on a fundamental right where heightened scrutiny is
applied or another right where the rational basis theory can be used. In order to justify the infringement on her constitutionally
                                                                   27
protected liberty interest the employer would have to prove under heightened scrutiny their basis is because of a compelling state
interest.

Don’t Ask, Don’ Tell
Holmes
History was that the military would ask and homosexuality was incompatible with military service then don’t ask don’t tell cam in and
the revoked that prior statement sing it is incompatible. Sexual orientation is a personal thing and is not barred only the conduct is
barred. Status versus conduct is critical, and what conduct means is critical.

Homosexual act
   1. Any bodily contact actively or passively permitted, between members of the same sex for the purpose of satisfying sexual
       desire.
   2. any bodily contact a reasonable person would perceive to demonstrate a propensity or intent to engage in the first conduct

Unless
    1.   departure from customary behavior
    2.   such conduct unlikely to recur
    3.   no coercion of force
    4.   member does not have a propensity or intent to engage in homosexual acts

Rule: Someone saying they are gay must rebut the presumption that they have a propensity to engage in homosexual acts.

Issue: Can we presume that the person has propensity to engage in homosexual acts just merely because they have declared that they
are gay.

Wiggins: It is reasonable to presume someone will act according to their sexual drive and therefore has a propensity to engage in
homosexual acts if they declare they are gay. Under the military rules heterosexuals are allowed time to release their sexual desires
when homosexuals are not allowed that opportunity so they have the propensity to act because they do not have an opportunity to
release their desires. He declares that the discharge is because of actual conduct or a propensity for conduct that is prohibited.

Reinhardt: Why is it rational to draw this inference against the person who is openly gay, when the Court is willing to allow someone
who is gay, but has not declared it, to be in the military? The presumption assumes that the person who is open will presumably break
the rules and the person who lied about their orientation and hides it will presumably not break the rules. He declares that you are
being prosecuted for your speech because you are not discharged for being gay, you are discharged for declaring you are gay because
it triggers a rebuttable presumption that you have or will engage in homosexual acts. Saying the status doesn’t admit facts that are
prohibited means you are punishing for speech. You could be punishing for acts that have never occurred, therefore it is the speech
that is being punished not the acts.

Rational Basis for the Don’t Ask/Don’t Tell Policy:
    1. Majority: Give deference to the military
             a. Having homosexuals in the military will affect discipline, moral, unit cohesion, retention, recruitment, forced
                  intimacy, shared quarters
             b. Fletcher dissent: why does being gay affect these things? Because people look negatively on gays and this
                  accommodation will breed more prejudice.
             c. Why is the threat greater when the person has declared that they are gay compared to people who are allowed in the
                  military who hide the fact that they are gay. Why is the threat more when they know who is gay?
             d. The logical next step in light of Lawrence v. Texas would be to allow the conduct off base, with non-military
                  personnel because otherwise there needs to be a compelling state interest to preclude conduct that occurs in private.

Wages and Hours
Minimum Wage:
CA doesn’t allow for employers to take credit for tips earned against their required minimum wage payment. Federal allows tips to
count towards income so they can pay less.

Federal minimum wage is $5.15 an hour, there is an alternative piece rate, certain amount per product produced as long as it exceeds
the minimum wage. Employers can quote wages in different ways but hourly employers still must keep track of their hours to insure it
exceeds minimum wage. CA minimum wage is $6.75 an hour.


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Overtime:
Overtime is time and a half when it exceeds 40 hours a week. CA overtime is time and half in excess of eight hours a day, or 40 hours
a week, it used to be 40 hours a week only. CA gives double time for the seventh consecutive day worked. Time and a half the
regular rate of pay, doesn’t include discretionary bonuses or holiday etc, and it doesn’t include fringe benefit contributions.

Compensable Time:
Waiting time is compensable time, not compensable, meal periods, company shutdowns, is the activity being controlled by the
employer and is it for the benefit of the employer. Field workers waited to be assigned to work sites, the employer said this was
commuting, CA Supreme Court said it was compensable because the employees were prohibited from taking their own transportation
to the worksite, thus it was in control of how many people came to each site and to control when they leave. 9th circuit looked at
putting on and taking off heavy safety equipment, this was held compensable time.

Fair Labor Standard Act and its Applicability
     1. Companies with two or more employees
     2. enterprise with $500,000 gross sales
     3. State and local governments can provide compensatory time off instead of time and half overtime
             a. Attempts to amend the Act to allow time off instead of overtime pay for all employees.
             b. They should get the option to get the compensatory time off instead of OT.
             c. Counterargument, some employees might prefer this but many cannot afford to take the time off and they need the
                 OT pay. They may be forced to agree to take compensatory time off.

Who is an Employee?
   1. Any individual employed by an employer, not an independent contractor (just like Title VII)

Reich v. Shiloh Church
Facts: Church says kids need vocational training and the kids under 16 don’t get paid, but they work alongside people who are paid.
They quote prices for the houses they build without the labor of the kids. Dept. of Labor says they are not trainees they are
employees. Who is getting the benefit from the relationship?

Rule: If the employer is spending a huge amount of time and money to train without getting any benefit from it then it is training but
if the employer is receiving the work product and getting benefit from it they are employees.

Reasoning: The Church sold the houses for large sums of money, they gave the kids “gifts” instead of salary, plus the kids got
imaginary wages and imaginary raises to determine how much they would get paid when they started getting paid. They were
competing with contractors who could not compete with a Church that wasn’t paying their employees so they benefited by getting
many bids when they otherwise might not have had they paid their under 16 year old employees.

Exemptions from the Act and Wage Provisions
   1. Certain enterprises, fishing, babysitting, why these?
   2. Certain jobs, agro workers, rail carrier, logging timber, taxi cab drivers, why these?
   3. Another approach is to say certain jobs or enterprises could be exempt if the employer made a showing that by the nature of
       the job or the seasonality of it or something else than they would be exempt. Why not do that? Then there would be
       litigation just to assert that right.
   4. Workers who are not legally allowed to work here are covered because if they weren’t then employers would have an
       incentive to hire undocumented workers.

Immigration and Labor Law
   1. Should immigration policy trump labor law?
            a. We should provide everything but reinstatement to keep the pressure on the employer to practice fair labor
                procedures.
            b. Under FLSA if you did the work, you should get paid even though you weren’t authorized to work.
            c. This concept applies to work done not work that would be done in the future.

Main Exemptions
   1. An employee employed in a bona fide executive, administrative, or professional capacity

Exempt Employees

Dalheim v. KDFW-TV



                                                                  29
Facts: Learned professionals, or artistic professionals where the individual has acquired advanced knowledge through specialized
study, not where the specialized knowledge has come on the job but from advanced study. Artistic, creative music dance theater, art
sculpture, where the result is as a result of imagination, invention, or talent.

Holding: These are employees and not creative professionals, they could be but not in this case. A reporter or writer or director of
producer appears to be creative but the actual work wasn’t creative it was controlled by the management. Just having the title doesn’t
do it.

Executive exemptions: Supervise the work of two or more employees must be the primary duty. Do you control hiring, training,
discipline, overall evaluations, raises, making recommendations or not? Those are supervisorial roles, but in this case no one had this
role, they could direct the work of other people but they lacked many other supervisorial roles.

Administrative exemption: Non-manual, and directly related to management decisions, discretion and decision making, broader
administrative decisions, advising about broad areas as opposed to being the in the online production area. No one was like this policy
setting role, didn’t set the long or short term goals, didn’t deal with marketing or advertising roles.

Rule: Fact intensive inquiry, don’t look at the title, look at what they are actually doing on the job. Dept of Labor says don’t look at
job classification look at their wage to determine if they are exempt.

Reasoning: Just because if they had done their work badly and they would have lost money doesn’t qualify it, we are not looking at
the bottom line, we are looking to see if you affect the roles on the job etc. Why do we make these exemptions? The job requires
more than just a 9-5 person they require them to work as long as is required by their position, these are always overtime cases because
minimum wage is never an issue. If the people are properly titled it accommodates management and the meanings of the Act, but
there is rife misclassification and it is always away from paying OT

Remedies: Liquidated damages (an amount equal to the pay they missed out on) these are considered compensatory not punitive.
Willful violation concept comes into play with the SOL, three years for willful, two years for not. Primary enforcement is through
private lawsuits. No executive agency oversight of the claims.

In CA: employees bring class actions under the FLSA and CA wage laws, against walmart, kmart, savon, with standardized
operations nationally. The argument as to certification, do the claims have common questions of fact that predominate or is it
individual questions that predominate.

Poverty Threshold and Minimum Wage

Originally cost of food X3, but today housing is much more than a third of expenditures and that was given in the past, federal poverty
threshold is so low it doesn’t even allow for subsistence living in many places. Minimum wage barely gives you level 1 poverty
wages.

Supply/demand graph:
Wages and individuals employed, s is the supply line, as the wage goes up supply goes up. As the wage decreases employers willing
to hire more. In an unregulated market the equilibrium point will be paid where the supply and demand cross each other.

Argument against Minimum Wage:
The number willing to work equals the number the employer is willing to hire and pay for, that is the equilibrium rate. If the
minimum wage is higher than the equilibrium rate, it will throw people out of work because the employer cannot hire as many people.

Inelastic demand curve:
If demand is very inelastic (demand doesn’t change in response to a wage change) then the overall benefit of the minimum wage
outweighs the few number of people thrown out of work. If the demand is elastic we would end up throwing out a lot more people
with a minimum wage, a small increase in wage will result in many people losing their job. The demand curve is probably closer to
inelastic than very elastic. The core intuition of the model is that employers will hire based on their cost and demand is dependent on
cost. This is the economic argument whenever minimum wage comes up. If we think it is generally inelastic demand than minimum
wage would be good.

Equal Pay Act

Corning Glass v. Brennan
Rule: §206(d) is the Equal Pay Act, the plaintiff has the burden of establishing that the work require equal skill effort and
responsibility and which are performed under similar working conditions, no discriminatory intent. You cannot establish claims under
disparate impact just disparate treatment with no intent.
                                                                   30
Four affirmative defenses: seniority, merit, earnings measured by quantity or quality of production, or a differential based on anything
other than sex. The employer has the burden of proving their defense.

Facts: The reasoning for the Equal Pay Act to remedy a serious endemic employment discrimination in private industry that men were
paid more than women even though the work was the same. Here working conditions was an issue, there were men working a night
shift and women working the day shift. The night shift was all men and they were paid higher, initially Corning said because the work
was performed at night it is not similar working conditions, thus the plaintiff didn’t meet their prima facie case.

Working Conditions: Working conditions is a term of art, we need to look at what working conditions are under job evaluations, even
according to Corning’s own testimony night and day didn’t count towards working conditions. Night and day are not considered
working conditions working conditions is the degree of safety hazards and surroundings.

Differential other than Sex: Then Corning says in the alternative it is the shift differential that caused them to pay more for night
shifts, that fact would qualify for a reason other than sex. That could be true but the people who had been given a higher wage still
maintained a higher wage after they offered the night shift to women. Factually it is not a shift differential because they still paid the
men more for the same shift. There had been laws prohibiting women from working at night, at the time they had added the night
shift they were all men, and in the day shift only women worked, and the men wouldn’t work at the rate paid to the women. The
differential had not been illegal until the Equal Pay Act.

Cannot lower other employees’ salaries to remedy a violation: Here Corning didn’t raise up the women’s wages to equal the men they
just allowed them to work in the night shift, plus they grandfathered the higher wage to workers who had been employed prior to the
Act coming into force. That was the violation, the remedy would have been to raise the women’s wages to the level of men’s wages.

Relationship between Title VII Discrimination and Equal Pay Act:

AFSCME v. WA
Facts: Male and female prison guards, they each guard their own sex, paid significantly different wages. Female guards sue, at the
time they sued the Equal Pay Act had not extended to county and state employers so they had to bring a claim under Title VII under
the CRA, they said they were being denied equal pay for equal work, and they claimed there was intentional discrimination based on
sex. The county did a wage survey to see if their wages were comparable to surrounding areas, the survey told them how their wages
compared. They paid the male guards 100% of what they were worth and they paid the females only 70% of what the survey said they
were worth this was intentional discrimination.

Procedural Posture: Trial court said it was not equal work, men guarded more prisoners, women did more clerical work, so not equal
effort, responsibilities, not equal work. They didn’t reach the second issue.

Issue: Do you need to reach the equal pay act standard to bring a Title VII case? What does authorize mean under the §703(h) last
sentence?

Title VII and the Equal Pay Act: Sex was added late to Title VII so no significant discussion in the house and senate reports.
Someone brought up how the CRA affects the Equal Pay Act. They added the Bennet Amendment, they can differentiate based on
sex only if it is authorized by the Equal Pay Act.

Rule: The Bennett Amendment incorporated the affirmative defenses, also if you cannot pass the prima facie case under Equal pay
Act then it fails under Title VII, here it is not equal work. You can use Title VII if there is a disparate impact so you could use both.
Gunther case you didn’t have equal work but Brennan says even though they were not equal they were comparable. You might start
out on equal but then move to comparable under Title VII. Most of the cases under Equal Pay Act don’t qualify as equal work so
under Title VII they may have a better chance of winning if they were not equal work but you could prove disparate impact if there
was a facially neutral criterion or intent of discrimination. Often times by beating the Equal Pay Act you get a legitimate non-
discriminatory reason of why they were paid differently to win in a Title VII claim.

Comparable Worth/Comparable Work:
Comparable work looks at jobs that are similar but not similar enough like the prison guards case. Comparable worth looks at
historical sex segregation in job classifications and looks at different stereotypical jobs like secretaries. They attach the disparity by
arguing the female jobs were worth the same as male jobs but weren’t being paid the same. They don’t say they are the same they say
they were worth the same. To determine pay, employers identify skill, effort, working conditions, responsibility and then make a
judgment as to how much each factor and at which level contributes to marginal value. Jobs are grouped that have a similar total
score even though they are very different jobs. That allowed the comparable worth advocates to compare jobs based on their worth.
Despite the equal point totals the women were paid less in comparable worth jobs.

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Rule: This argument has failed because you needed to show intentional discrimination not disparate impact. Employers said we are
doing this because of the market, we are paying what the going rate is for those jobs and they are not the reason they pay less for those
jobs. Equal Pay Act was not here to challenge the economic market, so they needed to show intentional discrimination.

Benefits
          Legally required benefits account for 10-15% of payroll, other benefits sometimes account for 40% of payroll,
          50/50 split for FICA between employer and employee,
          FUDA only employers pay unemployment insurance, only employers pay for worker’s comp, they buy private insurance,
          SDI state level is paid by employees when the disability is not work related, there is a cap, and there is a cap on social
           security.
          Everything else is not legally required so why do they give them? Paid holidays, sick leave, vacation, life/medical
           insurance, pension or retirement plans.
          Are they gifts, inducements to work farther in the future, or is it compensation for services rendered?
          In CA, you earn vacation as you work it is compensation for past services rendered, even if the company policy doesn’t
           have an accrual the courts say you accrue.

Sick Leave
       Must allow taking ½ of sick leave for taking care of child or spouse
       Most don’t allow 100% to protect employee from running out for them self

Health Benefits
       State level done through insurance regulation
       On federal level many are self-insured
       Under ERISA only vesting and fiduciary responsibilities dealt with, must protect assets
       If employer plan is for all employees then the company can get a tax deduction for the premiums they pay

Family Medical Leave Act
      Designed to address problems with two parent worker families
      Applies only to employers with 50 or more employees, same with CA Act
      If you have 50 or more you must have been in employed for 12 months at 20 hours a week
      2612, you can take up to 12 work weeks of leave for the birth of a child, because of the placement of a child into adoption
         or foster care, to care for spouse with health condition, or employee’s health condition within a 12 month frame, this is
         unpaid leave
      The only requirements:
            o the employer continue any health benefits as if the employee was still working without them paying, (dependents
                 would have to be paid for)
            o there is a right to reinstatement if you return to work within the 12 week period, to the same or equivalent position
      Private right of action available, lost wages, compensation, alternatively if the employer refused leave and the employee
         had to hire someone else they can recover their expenses paid to take care of the person, 2 year SOL 3 year for willful
         violation, can recover attorney’s fees
      Two parents at the same employer have to combine

Seidle v. Provident
Facts: Son has an ear infection, she is out for four days and she comes back and is fired, she claims she was terminated for taking
leave protected by FMLA. You can take it to care for spouse child, parent for a serious health condition. How do we know what is a
serious health condition? The parents went to the doctor, but only once, and they prescribed medication and mom gave meds. 3 days
for ear infection, one day for runny nose when daycare wouldn’t let him back.

Rule: If you are hospitalized it is serious, if not you need more than three calendar days of care provided by a health care provider,
here we do not have more than three days of continuous care and she was not under the supervision of a doctor so this is not a serious
health condition.

Kelley v. Marquardt
Facts: Employee has reached managerial stage she gets pregnant, employer considers reorganizing around her without telling her,
when she comes back she has the same pay and benefits but the job is different. She supervises less employees and has less
responsibilities, she claims it violates the provision that it must be the same or equivalent employment with the same conditions of
employment.

Rule: This was not the same or equivalent employment, to be deemed equivalent it must have the same job status, responsibility, and
authority. Having less people under your management and less responsibility doesn’t satisfy the statute.
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Paid Family Medical Leave Act
       Opportunity to apply for state disability benefits, this is the fund that provides wage replacement when people cannot work
          because of nonwork related injury,
       6 weeks of pay, care for a new born child or adopted child, to care for spouse, child, funded solely by employee
          contributions, it is deducted automatically
       This was passed to address leave that without this was unpaid, previously there was no obligation to pay
       Employer only obligated to give you this leave if more than 50 employees not obligated to reinstate

Other Working Conditions
       Bargaining agreements address terms and conditions of employment so unionized areas have power
       Sexual Harassment is under Title VII, it is not an independent cause of action, it has to fit within the antidiscrimination
         framework, it is similar to the sex stereotyping cases like Price Waterhouse

Sexual Harassment
          General Disparate Treatment
             o adverse action with regard to
             o terms and conditions of employment
             o because of the protected characteristic
          Two contexts unique to sexual harassment as opposed to general harassment
             o Quid pro Quo Case - request for sexual favors in exchange for tangible employment decisions
                       conditioning some job decision on acquiescing to the sexual favor
                       other employees didn’t have to meet this additional condition so it is discriminatory
                       that is how it fits into the anti-discriminatory framework
                       supervisory context only since they control workplace decisions
             o Hostile Environment - Terms and conditions have been adversely affected,
                       this originated in the race and national origin context, racial epithets, threatening behavior based on race, it
                          evolved out of the general harassment not sex
                       the Courts held that the person who was the target of this conduct created a different working condition
                          because of their race or national origin,
                       people of other races are not subjected to the same disparate treatment so there is different treatment
                          because of race
                       Not just supervisor conduct could be co-employee conduct

Sexual Harassment Proof Framework
      Unwelcome conduct (actions, statement, comments, photography)
      Sufficiently severe or pervasive to
      alter working conditions and create a hostile abusive working environment
      because of sex, race etc.

Harris v. Forklift Systems, Inc.
Facts: How bad does the conduct have to be and how doers it have to affect the plaintiff? The lower court had said the conduct was
not so severe that it affected her psychological well being so she had no claim. Supreme Court looked at what will establish
actionable conduct.

Rule: If there is evidence of psychological injury that would probably be sufficient but it doesn’t have to go that far. You must show
that the plaintiff subjectively felt it was sufficiently hostile AND that an objectively reasonable person would find it sufficiently severe
and pervasive to constitute a hostile working environment. The court said it is not to create a civility code, the workplace is not
perfect, personal idiosyncrasies should not dictate what goes too far. You may have to put up with isolated offensive conduct.

Factors to help identify actionable conduct: (sufficiently severe or pervasive to create a hostile/abusive work envir.)
       frequency of the discriminatory conduct
       its severity
       whether it is physically threatening or humiliating, or a mere offensive utterance
       and whether it unreasonably interferes with an employee’s work performance
       the effect on the employee’s psychological well-being

Whose perspective is relevant? (The victim or the harasser)

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Ellison v. Brady
Facts: Coworkers who had no prior contact, Gray becomes enamored with Ellison and starts writing notes that refer to sexual
experiences and other strange things, trial court found that this was not sufficiently severe, the Court said from Gray’s perspective it
was trivial. Was Gray intending to create a hostile environment? No he wanted to woo her. The 9th Circuit says we don’t care about
intent, we look at what the impact of the actions is, the employer’s intent is irrelevant it is the motive because of sex that we are
concerned with.

Rule: Look at the conduct from the victim’s point of view. This court articulates a reasonable woman standard because a reasonable
person standard is male-biased, women are more concerned with sexual assault generally since they are the victims more often, men
do not have sufficient experience to appreciate the severity of the acts.

Note: Harris came after Ellison and it is a Supreme Court case and Harris says reasonable person standard throughout, even under
Ellison it must be subjectively severe or pervasive, the objectively reasonable standard puts a check on hypersensitive subjective
viewpoints of individuals. The proof will be very fact intensive.

Unwelcomed:
      Only comes up in sexual harassment cases, identified in Meritor Bank the first SC case recognizing SH
      Meritor claim was the supervisor coerced sex out of an employee but not quid pro quo, he claims she consented so there is a
        defense
      Should consent be an issue? This is not the issue, the issue is unwelcomed, you might have consented but the engagement
        was unwelcomed, how do you establish unwelcomed?

Meritor Bank
Facts: Sexual intercourse case, lower courts had discussed whether evidence of how the plaintiff dressed or behaved regarding sexual
concepts was relevant. Judge can determine how probative the evidence is compared to the claim and the circumstances, then look to
see if there is undue prejudice.

CA amended the evidence code, 1106 which says any civil action which alleges sexual misconduct opinion and reputation evidence or
plaintiff’s sexual conduct is inadmissible to show consent, exception is that it is admissible to allege sexual conduct with the
perpetrator.

Sexual Conduct: All active and passive behavior both verbal and nonverbal, which rejects the narrow interpretation of sexual. Very
broadly construed, more things are covered by the statutes prohibition on admission.

Perpetrator: Under FEHA, co-employee, supervisor, or employer can be sued so who is the perpetrator? Include not only the named
defendants but any other actor the plaintiff wishes to ascribe to the employing entity, that could open it up quite broadly.

Because of Sex: Demonstrated as sexual desire, in quid pro quo cases, interested because of their sex. Also held true in same sex
sexual harassment cases, bisexual who discriminated equally didn’t raise a claim. Whether same sex sexual harassment with hostile
environment came up in Oncale

Same-Sex Sexual Harassment

Oncale v. Sundowner Offshore
Facts: Oil platform rig with all male crew, one individual is subjected to sexually related abuse, the behavior was very extreme. He
leaves and sues. Here this was an all male environment, no evidence that it was because of sexual desire, but the activity was highly
charged with sexual connotations. Again, just because it was sexually charged doesn’t make it Title VII, you have to tie it to gender.
You can create a hostile working environment without any sexual connotations because of gender.

Rule: Title VII is race and sex neutral so it does apply to men being abused by other men. Santa Clara county case where a man
chose a woman over a man because of discriminatory reasons, we cannot presume that a person of the same sex cannot discriminate
against their own sex. Whether members of one sex are exposed to a hostile environment and the others are not it is discrimination
and it doesn’t matter the sex of the actors.

Evidence to prove harassment: Evidence of sexual desire is not necessary but could help, compare the treatment of men and women
and if there are differences it could be because of sex. Sexual orientation is not protected and that is what Thomas’ concurring opinion
signals, it must be because of gender.

Distinguish because of sex: Sex stereotyping can be actionable because the person’s gender is in the mind of the person but thoughts
that the person is homosexual is not covered.
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What is the basis for employer liability?
    Did they know or should have known about the conduct, direct evidence of negligence, this is the basis for liability when the
         conduct is alleged by co-employees, not managerial role.
    When it is a supervisor in a quid pro quo case, they are acting pursuant to the employers powers so it was considered the
         employer’s actions.
    In Meritor in a hostile environment case, the court said the employer is not strictly liable but they said look to agency
         principles.
    How do you apply agency principles. Faragher v. Boca Raton case answers that.

Agency and Employer Liability

Faragher v. Boca Raton
Facts: No evidence the city knew or should have known and after applying agency principles found them not liable. You can only
sue the employer under Title VII, in CA you can sue the individual but you cannot get a good recovery. There was no sexual
harassment policy provided to the employees, it was not disseminated at all. There was no policy insuring that the harassing
supervisors could be bypassed in registering complaints.

Issue: Whether the action was within the scope of employment?
Reasoning: They reject the scope of employment argument because they are not authorized to perform the conduct anyways, even if it
is not specifically what the employer told you to do but it furthered the employer’s interests the employer could be liable but here it
didn’t further the employer’s interests. Time and space restrictions: Here it did occur on the job but sometimes the actions may occur
off site after hours.

Strict Liability rejected:
Another theory is to hold the employer liable because employers reasonably know this occurs and it is a risk of doing business, so they
can insure against the loss, they are in a better position to prevent it and to insure against the costs. As a policy matter we may want to
impose liability because of this, here they find no liability under this theory, but why? If we followed this theory then an employer
could be strictly liable for co-employees conduct because the same policy considerations apply to supervisors as they apply to co-
employees, they say it is just a frolic and detour.

Basis for agency finding: The supervisors were aided in accomplishing the harassment by the authority they were bestowed by the
employer. If it had been a tangible employment decision it is clear they were bestowed with power but here it is less clear. If a co-
employee makes fun of you, you can tell him to stop or walk away, if it is a supervisor you cannot walk out and tell him to stop.
There are only a few supervisors so employers should control that group better than all employees.

Holding: On the theory of aiding and creating the harm, employers are vicariously liable because the agency theory was applied not a
negligence theory. But Meritor said they shouldn’t always be strictly liable so they come up with a rule.

Rule for Finding Agency Liability:
    1. If the action is a tangible employment action then the employer is vicariously liable,
    2. if not a tangible action than the employers have an affirmative defense
    3. They must have exercised reasonable care to prevent or correct the conduct and the employee failed to avail themselves of
         the methods provided by the employer to prevent or correct the actions.
    4. They must have promulgated guidelines and laid them out to employees,
    5. They must provide a complaint procedure that provides an alternative that doesn’t use the supervisor, and they must follow
         through on the inquiry.
    6. If the employee doesn’t complain or file a complaint. The employer can say we didn’t have an opportunity to correct it. If
         the employee fails to use the mechanism that will usually satisfy the second element of the defense.

CA FEHA: requires employers provide a policy with specifics given, starting in two years all employers with 50 or more are
obligated to have 6 hours of training in sexual harassment. In CA employers are vicariously liable and these are not available
affirmative defenses but they also held that plaintiffs have a duty to avoid the harm, mitigating damages idea. In CA the employer can
defeat or limit damages by establishing the two Faragher elements. They cannot avoid liability but they can avoid damages.

Appropriate Remedial Action by employers for Sexual Harassment addressed in Ellison
      General approach, what action is appropriate in the particular circumstances for the particular problem
      Stop and prevent are the two goals, 9th circuit said what they did do in Ellison was not sufficient
      he was not disciplined or told what he was doing was wrong, he was only told stop it, when they thought about moving him
          back to San Mateo with Ellison they didn’t consult with her, there was a question as to whether he had actually reformed

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         The harasser has to suffer the transfer or move not the person who has complained if the employer found harassment, it is
          not always necessary to fire the harasser. Disciplinary action is fine.
         Actions towards general deterrence are favored, remedies allow compensatory and punitive because the employee usually
          hasn’t left, there was no back-pay to recover so there had to be some recovery. Plus they suffered emotional distress
          usually so back-wages wouldn’t satisfy the cause of action.
         Third party harassers are covered as well under Title VII, CA FEHA was not interpreted that way.
         CA case held employer not responsible for actions by a third party against a bus driver but then amended

CA FEHA Rule, applies to employers of 2 or more
      Amended to include acts by third parties against people providing services pursuant to a contract, non-employees,
       applicants,
      where the employer knew or should have known of the conduct.
      The extent of an employer’s control over the acts of the third party should be considered.
      Any regular customer where there are complaints that is where the employer may have responsibility because they can
       guard against it.

OSHA Terms and Conditions of Employment
         We are looking for unsafe exposures in the normal course of business operations, regular routine.
         Issue: Should health and safety be left to the market or regulated by the government?
         Market Theory: Some people will be risk averse and not work there, so if there are not enough risky people who choose to
          work there the employer will be forced to make it safer at the workplace.
             o Info: How do the employees become aware of the threats?
                      Union tries to get evidence of side-effects from the workplace but the employer has no incentive to provide
                          info so they may withhold info that could be used against them.
                      Non-union industry has the problem of info gathering,
                      cotton textile was a huge industry but there was a huge lack of mobility
             o Self interest of employers: A lower amount of injury will be a more stable workforce
             o Costs: Illness and injury is costly because of worker’s comp claims
         Government Theory: The employees who work in the unsafe places have no choice but to accept the conditions of
          employment. There really is no choice whether or not to accept the risk.
             o Cotton mill, all the kids had to go work for the mill or the parents got fired, they had no choice
             o Manufacturer of chemicals: No other industry in the area, they don’t want to confront the issue because there is no
                 good solution to their problem.
         OSHA: Pervasive in its scope, it affects all industries unless they are covered by more specific statutes
             o 5(a)(1) General Duty Clause: Employer must furnish a place of employment free from recognized hazards that are
                 causing or likely to cause death or serious physical harm
                      Affirmative duty on employers
                      Recognized: means known to the industry not to the employer
                      Hazard: a risk of injury or illness doesn’t have to reach injury
                      Not all hazards cause death or serious physical harm so not all are covered.
                      Likely to cause: relates to probability of harm, and deals with hypersensitivity
                                certain people may be overly sensitive to chemicals and those people may suffer harm but the
                                    likelihood in general maybe very low so it is not in violation, all you have to do is remove the
                                    hyper sensitive people
             o 5(a)(2) employer shall comply with OSHA standards promulgated under the act
             o Standards: Secretary could adopt industry consensus standards as the OSHA standards so there could be an
                 immediate implementation of enforcement of those standards
                      Problems: some of the standards were not well-developed and to modify and change the old standards you
                          have to go through a long rigorous process
                      6(b)(1): Secretary must make a finding that there is a need for standard based on info submitted by orgs,
                          then it will publish the rule and it could be challenged, it is costly and hard to get acceptance so few have
                          come about.
                      §6(c) allows secretary to adopt temporary standards if there is an immediate grave danger due to chemicals
         Benzene Case
             o dealt with 3(8) and 6(5) and gave substantive weight to 3(8)
                      ***SC held that as a threshold matter the secretary has to make a finding that the workplace is unsafe, they
                          must identify some exposure or condition, x substance at y level and present evidence that they can be
                          reduced or eliminated with some practice.
                                Material health impairment is the hazards that are causing or likely to cause death or serious
                                    physical harm
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                                   Substantial evidence that the workplace is unsafe, not required to be quantifiable nor does it need
                                    to be with a scientific certainty,
                                   Rule: the Secretary has the burden to show the current workplace is unsafe.
                                   There can be monitoring of levels even with a set standard to see if further changes need to be
                                    made either with more or less exposure
         Occidental Case
            o Before the sperm counts what could the secretary have done in the Oxy case?
                       Oxy said the study showed shriveling testicles resulted but no one knew it lead to sterility
                       After they find the sterility they have a hard time deciding what chemical caused it, but someone at Oxy
                          referred the company to that study so someone knew about the correlation, but if that study hadn’t been
                          made they may not have gotten relief.
         Cotton Textile case:
            o Problem for the secretary: We know there is a bysinosis, but the secretary must make a showing that some exposure
                 at some level is unsafe.
            o The company doctors were saying it was asthma because it was hard to see the difference, so how do you make
                 threshold finding?

Methods of Testing
      In Vivo: rat studies, costly, long term, not accurate to human side-effects because they use effects on mice and determine
         what effect there will be on humans
            o They try to extrapolate by giving a high dose of the chemical but it is criticized because it could be the high dose
                 that caused the cancer not the low dose.
      Epidemiological data, look at death and illness rates in certain areas and test people who work for certain industries to see
         what the effect of the exposure is. Look for differences in the control group.
            o You have to rule out other factors that may cause the same illness
            o There is a long time frame for the disease to develop and there is a small timeframe to study
      In Vitro tests: Petri dish injected into cells and see if the genetic material is affected,
            o carcinogens affect DNA usually, but they criticize extrapolating because there are many that do not affect genetic
                 material and the extrapolation is often inaccurate.

OSHA Burden
     They try not to make it too hard to show there is evidence of harm but they are subject to attack that they are wrong
     FDA approach, test everything and prove it is safe before you can sell it
          o Why not use this approach? It would be incredibly expensive but it probably would be much more effective at
             stopping the risks

Cotton Mill Case
       Issue: §6(5): one of the challenges in the cotton dust case was that the standard would require such significant costs that it
          was not feasible. They said the costs exceeded the benefits
       Supreme Court held: Cost benefit analysis is not required, but feasibility analysis is required, is it capable of being done, is
          there technology that can deal with the problem.
             o some economic analysis could be considered to the extent that complying with the standard would undermine the
                  long term profitability of the industry.
             o It is inconsistent with the Act to require them to have cost benefit analysis because Congress knew it would impose
                  costs but the safety was worth the costs. Supreme Court agreed.
       If you were doing costs benefit it is easy to weigh the costs either engineering controls with fans sucking out the dust or use
          respirators to protect them. Engineering is held more effective because it removes the problem and the respirators are often
          cumbersome, get clogged up and are not use but under a cost benefit analysis, engineering would be disfavored.
       The negative costs would be lost wages, cost of illness, enjoyment of life, how do you quantify those is more difficult than
          determining the costs to prevent. The negative costs could vary hugely.
       Technology forcing: You must adopt this new technology that seems to be effective, that can be done

OSHA Procedures:
     Purpose is to prevent so there are programmed and unprogrammed inspections.
     Some happen in response to an incident or a complaint, those are unprogrammed.
     Programmed are routine inspections not in response to a problem.
     If there hasn’t been an incident the employer can refuse the inspector entry, the inspector needs a warrant
          o doesn’t have to show probable cause, just that the inspection is part of the overall plan and purpose to insure all
              workplaces are safe, the employer was selected based on neutral criteria
          o no discrimination or improper motive for choosing this employer, they can get the warrant
                                                                  37
             o   denying the inspector gives the employer time to prepare

Voluntary compliance program:
      all employers must keep logs of work-related injuries,
      in the programmed inspection the inspector looks at the log, if the injury rate is lower than the average they don’t inspect
          the plant
      however, some employers have two logs, the real log and the OSHA log, this is not isolated
      falsification of logs happens a lot so maybe the program isn’t that effective

Inspections:
       If they do inspect they go around with a representative from the union and employer
       They discuss issues and go back to their office to decide if a citation should be issued
       They are given a time to abate the problem and they may be fined. Fines are usually not significant.
       Prosecution criminally is rare, they need willful violations, even when there have been previous deaths in the same situation
          and where they knew they had problems and did nothing.
       State criminal prosecution is not preempted by OSHA and there is no limitation of that law like under OSHA, the charges
          are brought against the corp. and individuals
       Inspection process is not widespread because there are few inspectors.

Enforcement
       Penalties may be imposed, abatement date, employer may appeal each of these
       employees could appeal as well, they reviewed by OSHA commission, they hear it de novo
       That decision can be reviewed by the Circuit Court of Appeals, DC Circuit or in the Circuit where the violation allegedly
         occurred
       No provision that allows employees to sue for violations of the act

Attempt at Ergonomic Standards by OSHA
         Employer didn’t have to do anything until there was an MSD incident, this contrasts with an approach that looks at risk
          factors and assigns caution zones and then implement changes

Requirements
      OSHA said there must be an MSD incident, a report of a sign of an MSD, one that requires the employee to be offwork,
         restricted work, beyond first aid, or the symptom persists beyond 7 days
      Then employer looks at the job and see if it routinely involves routine relevant risk factors, force, awkward posture,
         repetition, vibration, and contact stress.
      For keyboard people, if you had to be on the keyboard for four hours a day that is an action trigger, if there had been other
         reports under that position there must be a comprehensive approach if not quick fix

Comprehensive Approach
     Look at the job and the hazard, management leadership, employee participation, MSD management,
     You can combine a risk brace but you have to do more, change the work station or reduce the repetition
     MSD management meant there needs to be access to health care with a second opinion, and
     WRP (work restriction program) if the employer was put on restricted duty they still got 100% of their benefits and full
        salary.
     If the employer had to take time off 100% of benefits and 90% of salary, this was the unusual aspect of the regs, usually
        salary and benefit protection is not dealt with

Ergonomics Standards Shot Down
      Standards that Secretary attempted to adopt, and there was a critique of the standard
            o Secretary adopted these standards, had they been legally challenged could the Secretary have defended them?
      Vulnerable?
            o What made them vulnerable? The harm may not be that serious, and the vagueness of the disorder, there may be a
                question about causation as well, other things could cause them, The employer has to recognize the problem as well
                and they may not have.
            o Was it unsafe, exposure to conditions that are causing or likely to cause death or serious harm, could actions be
                taken to reduce or eliminate the harm.
      Defensible?



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             o   Those who think it was defensible: There was data that 1/3 of illnesses injuries reported were MSDs, 1/3 of costs to
                 worker’s comp to MSDs, and lost productivity, critics said there were no categories for MSDs so they just guessed
                 as to which injuries were MSDs
             o   Studies showed if you reduce exposure you could reduce severity of the injuries and that meets the standard because
                 it is reputable and it is the best evidence around.
             o   Given there are other causes of MSDs and the degree of severity is questionable, remember all we have to do is find
                 an actual or potential risk, some might be severe some not, but there were studies showing risk factors and MSDs
                 resulted in serious physical industry
             o   Ragsdale thought the ergonomic standard could be upheld legally

Can the Market address these issues instead of regs
       Point: Larger employers because of increase health care costs due to injuries may correct the problems on their own but
         smaller employers may not have that incentive.
       Counterpoint: Where there was the most danger there was no increase in pay in exchange for higher risk, employers
         targeted illegal aliens, there was a high turnover and the employers don’t care because they can always find a cheap
         replacement, no skill required, there was no choice for the workers either.

Cost-benefit analysis
       No one actually said industries would fail because of these regs, they used pure cost-benefit not feasibility test that the
          Supreme Court laid out.
       One argument said injury was decreasing because of employer implemented regs, OSHA said voluntary programs had
          happened at a much lower rate then claimed
       OSHA compared the lower cost fixes like wearing respirators and the higher cost engineering, but critics said productivity
          would be lower under the lower cost

Political Process
        Bush and Congress shot down the regs so Secretary came up with guidelines which are not required
        The only way to find liability for ergonomics issues under OSHA is under General Duty Clause

Finding Liability for Ergonomics Issues:
General Duty Clause §5
        1. Conditions or activity in employer’s workplace presents hazards to employees
        2. Employer or employers recognize hazard
        3. Hazard is causing or likely to cause death or serious injury
        4. Feasible means exist to eliminate or materially reduce hazard.

Pepperidge Farm Case,
Facts: they claimed OSHA could not proceed under General Duty because they couldn’t specify what amount of repetitions were
required to cause the injury and they couldn’t pinpoint what actions the employer should take to reduce the risk.

Commission said on this threshold issue:
   1. Element 1: Conditions or activity in employer’s workplace presents hazards to employees
           a. Secretary had evidence of a prevalence of employee injuries coming directly from Pepperidge Farms, actual injuries
                were reported.
           b. As a threshold matter they don’t need to pinpoint the time when it became a hazard because we already have
                evidence of an actual injury and in that context we don’t need to pinpoint when the injury came about.
           c. Without evidence of actual human injury they may need to pinpoint at what level exposure would cause the risk or
                potential risk.
           d. Here they knew the workplace had conditions which presented hazards because there were reported injuries
   2. Element 2 and 3: Employer or employers recognize hazard AND Hazard is causing or likely to cause death or serious injury
           a. There was evidence the employer knew about the injuries so element two is satisfied because they recognized the
                hazard, and we know it was likely to cause death or serious injury because there were reported injuries
   3. Element 4: Feasible means exist to eliminate or materially reduce hazard.
           a. To satisfy the abatement, they could rotate to diminish the repetition, add employees, mandatory breaks, basically
                reduce the repetition. Here Pepperidge Farms allowed thumbs to rest twenty minutes and eliminated picking up the
                5th Milano.
           b. They took actions but did they eliminate the hazard?
           c. Secretary failed to prove they were in violation because they need not take any specific action, they had a great
                variety of choices and chose to implement the ones they did. The actions they took were reasonable enough.


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Workers Compensation
Formerly employee could sue in tort but the employer could assert any of the number of defenses, co-employee rule said you cannot
recover if you are injured by a co-employee. Compensation relied on winning a tort claim.

State Laws
       Each state has their own laws
       Compensation today is a bargaining device,
       today there is a no fault system designed to get money into the hands of the injured quickly and without the vagaries of the
          tort system,
       wage replacement medical care medical services, are recoverable, no punitive or compensatory
       employers required to have workers comp coverage for their employees, most buy insurance
       workers generally fund the program through insurance, in CA state sells 50% of the policies
       Exclusive remedy for employees who get injured or ill on the job
       Generally speaking this is how the system works

Rules
           Determination made if they are totally disabled, temporarily disabled
           If they are totally temporarily disabled the wages are calculated as a percentage of wages with a cap
           2/3 of the average weekly wage unless that is more than 2/3 of your actual wage, there is a minimum
           Average weekly wage is $903, 1092, 1260, 1260 or 1.5 times the actual average weekly wage
           the average is set in the statute and the minimum is $189 a week

Temporary Benefits
     Temporary benefits, 2/3 of your actual wage or 2/3 of the average weekly wage whatever is less
     paid until the condition stabilizes, medically they have achieved recovery they sought
           o then they decide whether to continue to pay weekly, a calc is made of a lump sum in lieu of permanent weekly
                payments
           o lump sum amounts have been determined for particular losses, i.e. loss of limb, finger, etc.
           o Lots of things are scheduled amounts, if not a case by case determination is done
           o Amount you can recover is also dependent on how many dependents you have

Workers Comp Reform
      Almost all of the recent reform have related to the medical expenses, not the wage amounts
      a lot of employees hire attorneys to prove the injury is work related and that it qualifies for schedules
      max attorney fee is 12% of the wage replacement
      There is a review before they decide what to pay for
      Reimbursement of doctors is significantly reduced, pegged to medicare amounts
      They limit services, chiropractic and physical therapists, limited to 24 visits max
      This was supposed to result in a decrease in insurance rates, it went down 4% only and the state insurance corp rates went
         down less, its reserves are out whack given how many employees joined their program
      They now want to reduce some of the scheduled lump sums and reduce max attorney’s fees from 12 to 8
      CA employers pay $5.85 per 100 in payroll other states pay $3.00 and our benefits are middle to low
      Recovery under workers comp is significantly lower than what could be recovered under tort

Eckis Shamu case
Facts: Secretary at Seaworld works for the head trainer, she rides shamu in a bikini for promotion, she gets training, 3 rides, after the
2nd ride Shamu is upset, after 3rd ride she is attacked and is scarred. Seaworld pays all medical expenses and her wages. The guy
knew Shamu doesn’t like people wearing only a bathing suit and that he had attacked people in the past but the guy didn’t tell her.
Seaworld wants her in workers comp because she has a great tort claim against them.

CA Rule: You’re covered for injuries arising out of or in the course of employment.

Argument to get Out: Wholly unrelated to her employment as a secretary, when she was in her bikini she was an independent
contractor not an employee.

Holding: Minimum quantum of work connection, it happened during work hours at her place of employment, it was at the behest of
her supervisor, served the employer’s purposes for the benefit of employer. They provided all the equipment, bathing suit, whale.


                                                                   40
Injuries at lunch or break may be covered especially if they had been asked to do something or tacitly allowing the employee to use
equipment.

Weiss Case
Facts: Weiss claim is that the employer improperly released her phone number and address to her evil ex-husband, it was a personal
phone call it should not be in the course of employment. Employer did against policy release the info and that arguably caused him to
inflict emotional distress on her. Was she performing service incidental to her work at the time of injury?

Rule: Momentary breaks during work day should be considered incidental to employment, she was on the clock, using her work
telephone but she says it was a personal phone call. Court says a brief turning away of your duties to perform a personal task doesn’t
release you from the work environment and the scope of employment.

Argument for not arising out of employment: She says arising out of employment means causation, the husband’s motivation did not
arise out of employment. The act was facilitated by an action of the employer as distinguished by other cases where the employer did
nothing. They also had required her to give the info which allowed them to wrongfully turn it over.

Policy of these cases: We need to look to the future claims, they want to liberally construe the inclusion in workers comp they want to
assign more coverage than less to cover the people who may receive nothing in tort.

Exceptions to Exclusivity
      Employee cannot recover based on the nature of the employee’s conduct that caused the injury
      If you are under the influence you cannot recover under workers comp
      Reckless isn’t sufficient but intentional self inflicted injury including death, they are barred under WC
      Employee is injured in the commission of a felony for which they have been convicted
      If the injury arises out of an altercation in which the injured employee was the initial aggressor
      If the employee was voluntarily participating in recreational activities, off-duty, social, if no reasonable expectation that
          they will participate, one case where a partner was pressuring associates to play then they are covered
      If workers comp applies you cannot sue employer or co-employees

Exceptions with respect to co-employee conduct
      Caused by the willful and unprovoked physical act of aggression by the other employee, sue the co-employee not employer
            o horseplay, practical jokes, is allowed so there needs to be some intent to injure
      Caused by the intoxication of the co-employee

Workers Comp with respect to employer conduct
      willful physical assault by the employer
      serious and willful misconduct my the employer or managing person doesn’t take it out of workers comp but they can get
         50% more of their wages, ex. knew about some unsafe condition and did nothing

Dual Capacity
       Limited doctrine in CA
       Primary context it is brought is products liability
       you work for a ladder manufacturer and you have the ladder at home and you are injured because of a defect.
       In CA they ask if you bought the ladder through an independent third party they can sue the employer, but if they got it
         through the employer they would be under workers comp

Weinstein Case
Facts: Employer could have a role vis a vis the employee which creates independent different legal duties. If there is a
nonemployment role should workers comp be the exclusive remedy? Employee works for the hospital but is injured on the job and
she goes to her employer which is a hospital, employee comes there for treatment and is injured.

Rule: She was considered not covered by workers comp, no contractual employment duty to seek treatment at that hospital, she could
have gone elsewhere, she was a patient for treatment not performing services. She was not in the scope of her employment and the
employment itself did not cause her to use those facilities.

Injuries in the Context of Termination
        CA Supreme Court says yes, risks encompassed in the compensation bargain, promotion/demotion, getting involuntarily
            terminated is covered because it is foreseeable

IIED
                                                                  41
         For awhile they said if the employee is also arguing some kind of physical injury then workers comp bars
         If no other physical injury, workers comp doesn’t apply
         IIED claims now can be barred if the acts constituting it were in the normal risks of employment, that is part of the
          compensation bargain and it is covered.
         It is common for employees to suffer some emotional distress in the course of employment
         What about a claim for IIED without med costs or lost wages, nothing to recover under workers comp but the court still
          said it is under workers comp because they could have covered the costs involved had there been any expenses
         Discrimination Claims are not covered by workers comp, defamation is also not covered, it is an injury to reputation it is
          not a personal injury as conceived under workers comp even if the defamation causes physical injuries. Being defamed is
          not a normal risk of employment

Occupational Illness or Disease
We need to establish a nexus between the job and the illness, not proximate cause but causal nexus.

Problems proving your claim:
       Information problems exist in the context of occupational illness, there is typically a long latency period.
       There is an attenuated relationship between the workplace and the person when they are diagnosed wit the disease.
       Establishing the causal connection means you must rule out other factors.
       Scientific medical knowledge may be lacking in the area as well because there may be no incentive to study the illness.
       If there are studies from rats then can we extrapolate to humans, and epidemiological studies may establish only a
          probability of getting the disease but not that this person got the disease from work.
       CA have some rebuttable presumptions in some particular occupations, police and firemen have a rule that cardiovascular is
          work-related or lifeguards with skin cancer.

Procedural Bars
      State laws have tremendous variations in what is covered, illnesses that are ordinary to life are often excluded, like cancer,
          or maybe that the disease be peculiar to that industry or workplace
      Other rules have recent exposure rules, kind of like SOL, or minimum exposure rule, must have been exposed for a
          substantial period of time, CA has neither
      SC has a rule that says you need to become disabled within one year of their last exposure, so they were precluded from
          recovery, after the movie the laws were changed for bysinosis to allow for seven years
      SOL, same effect as recent exposure rule, NC has a 2 year from injury and injury was the date of exposure, now for latent
          injuries it is 2 years from the discovery of the disease.
      CA says you must file within year of date of injury, or for illness within a year of when you knew or should have known
          your illness was work related, this is very pro worker

Stress Claims
        Emotional psychological illness caused or aggregated by working conditions
        Most problematic claims are emotional or psychological injury, stressful conditions but no one incident that caused the
           problems

Three kinds of Claims
      1. Work stress that causes physical injury
      2. Physical work trauma that causes mental or psychological injury
      3. Work stress that causes mental or psychological injury

Mulcahey Case
Facts: Reporter covers a football game and after the game he comes home and is incoherent, he goes to the hospital and dies 5 days
later of a brain hemorrhage. After his death she sues for workers comp. What was the causal connection? Stressful working
conditions, there were deadlines every day, 4 hours of sleep a day, they had less staff then other papers. There was no clear
precipitating incident, the football game was an average game but he showed signs of suffering the hemorrhaging at the game.

Rule: There must be a causal nexus between the illness and the workplace. If the nature of the employment conditions contributed to
the illness then you are covered. This is not a demanding standard. The fact that he had high blood pressure and diabetes is irrelevant
because the court says the egg-shell plaintiff rule applies, take the employee as you find him.




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Note: CA has a but for standard but it doesn’t have to be the only cause just a contributing cause that without it the illness would not
have occurred. They limit recovery as well by saying the coverage is only for the amount that the employment had aggravated above
and beyond what they had.

Work stress that causes mental or psychological injury; most troublesome
Stressful work conditions that cause psychological injury. There is less confidence that the person actually has an injury. That is
more suspect

Guess v. Sharp Manufacturing
Facts: She is spattered with blood of a co-employee who she believes is gay and has HIV, she is diagnosed with post-traumatic stress.

Rule: There must actual exposure to HIV to get recovery for stress related injuries. This goes to the causal connection element, there
has to be an actual event that created the danger that led to her stress disorder. It must be real undeniable danger, there must proof that
he was HIV positive. She didn’t get AIDS and she tested 5 times, there was no rational relationship between her stress and her work.
A perceived or imagined exposure is insufficient.

Notes: Some states require some solid precipitating event, you’re a bank teller who is threatened with a gun in a robbery and then
after you suffer post traumatic stress disorder. Others say you cannot allow recovery for cumulative normal stresses where and tear of
work.

CA Rule:
   1. For psychiatric injury you have to prove by a preponderance of the evidence that the actual events of employment were
       predominant as to all causes combined of the psychiatric injury. 51% or more is predominant.
   2. Exception, if the injury is as a result of being a victim of a violent act then you need substantial cause. 35-40% is substantial.
       You must have been employed for 6 months unless it is the single event recovery.
   3. Worker’s comp is the exclusive remedy even if you cannot meet the standard.
   4. Another exception if the employer can prove with substantial evidence that the injury was caused by a lawful,
       nondiscriminatory, good faith personnel action. This applies to all psych. claims even if it accompanies a physical claim.
   5. Employers can give a pre-placement medical exam to establish any preexisting conditions so that if a claim ever arises then
       the employer can have evidence to show it didn’t arise out of employment.

Termination Issues, At-Will Employment
Protections Employers have if Employee leaves Voluntarily
       If there is a contract for employment for a set period of time
             o Claim of a breach of that contract with respect to leaving before they are supposed to
             o You cannot get specific performance for a personal services contract, you cannot make them work

Ariaz v. Solis
Facts: Personal service contract between boxer and his manager, Solis wouldn’t engage in any fight without the manager, he agrees to
fight under another promoter, although he agrees to give Solis his cut. Arias sues seeking to enjoin him from fighting in the
unapproved fight, specific performance not to fight.

Rule: Generally specific performance is not available but there is an exception if the services are unique or extraordinary, if it is not
unique or extraordinary he can’t get the injunction. It is unique and extraordinary if they have exceptional talent. The court said he is
highly rated in the world so he has exceptional talent. When is it appropriate to award an injunction? If there would be irreparable
harm and they would have won on the merits.

Civ Proc: Irreparable harm is weighing the relative burden, would damages be insufficient to remedy the situation? The trainer says
he is not prepared to fight and could be injured badly, he might not ever get a good fight again. The weight of the fight is higher than
normal and that makes him more likely to lose. However, the manager had set up a fight with the same guy 3 months earlier but the
doctors wouldn’t let him fight. Because of these factors in the managers view it is not an appropriate fight and they defer to his
judgment and enjoin the fight.

Notes: Typically entertainers with a contract of duration that try to leave a manager they may get an injunction. It is enjoining them
from going elsewhere not forcing them to work for the manager.

Regular people without exceptional talents:



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Does that employer have any remedies if they leave? For a breach of contract one can get expectation damages and consequential
damages. The costs to hire someone knew even if they may have had to pay more because of the short notice. It has to be a
reasonable rate of pay and if it is higher you get those consequential damages.

Promise not to Compete either directly or indirectly against the former Employer
      Non-competition clauses
             o A lot of jxs may enforce them under the rule of reason approach,
             o Rule: what restriction is reasonable to protect legitimate employer interests and not unreasonably interfere with
                 their right to a good livelihood,
             o Factors Considered: what is the length of time they cannot compete, geographical scope of the restriction, what was
                 the nature of the business, there position of employment
      CA doesn’t follow the rule of reason
             o Rule: Any contract with a restraint on competition is void and the provision is strictly construed
                       Why did CA take this approach? The rule of reason wants to protect competition but CA thinks restraining
                           actually hurts competition.
                       If you restrict people from working in their own industry they may not be able to work.
                       Employees aren’t getting extra consideration for their promise not to compete
                       There is still a restraint against taking trade secrets, that activity can be enjoined
             o Trade Secrets Rule
                       Info including client customer list and other processes formulas that derive independent economic value
                           that is not known to the public or the industry,
                       the person who owns that info has taken reasonable efforts to keep it secret.
                       have they spent money developing a list of clients, interviews, studies, cold calls, and have kept the list
                           secret? If yes then you can be protected if someone steals it.
             o Unfair Competition
                       Employee leaves and makes a product just the same as prior employer’s product, they have
                           misappropriated aspects of the prior product is also illegal

KGB v. Jim Olis
Facts: Ted Gianulis hired by radio station to promote in a chicken outfit. It boosted the visibility of KBG and developed his own
following. They have a contract. The alleged breach is of two terms of the contract. He agreed not to act as a mascot in the SD area
for 5 years. The other clause Ted agreed that the knowledge, outfit, and the chicken idea are fully owned by KGB and they are
copyrighted. After leaving KBG, Ted goes off as the Chicken and the lower court enters an injunction from appearing anywhere
wearing the Chicken outfit. They also enjoined him from wearing the chicken suit in SD county or any substantially similar chicken
outfit, because there could be confusion that he was the KGB chicken when he was not. It would infringe on their copyright.

Issue: Does KGB have a proprietary interest in the chicken outfit?

Rule: They have an interest in the KGB Chicken because it represents their station but they do not have a proprietary interest in any
Chicken mascot outfit.

Reasoning: KBG says they have an interest in the routine also, but the Court said this chicken didn’t have well defined attributes, he
just made up the act every time depending on the circumstances, it was a fluid entity and Ted contributed to that by his own input, the
fixed character entity is protected. He danced around and even though you couldn’t see his face, he added personal attributes.

Irreparable Harm: There is no argument that they will be harmed by extra publicity, the confusion will inure to their benefit.

Schlage Lock Top Sales guy:
       He got Home Depot and other big stores to sell their locks and Kwikset hires him for the same position
       In his position at Schlage he had access to proprietary secrets relating to marketing, Schlage sought to enjoin him on the
          grounds that the trade secrets he inevitably would be using and disclosing the info,
       it was the same market, same stores, same position, he consciously or unconsciously would be using the trade secrets
       Schlage argued it wasn’t general attributes and sales skills but protected secrets that he possessed. He can’t do his job well
          without using the info, some jxs have held in favor of this position
       CA recognized this is a covenant not to compete without a contractual agreement, they rejected this argument, the policy
          against interfering with mobility and livelihood is stronger.

Conflict of Laws
       Employee and Employer are in MN


                                                                  44
         They enter into non competition and MN follows rule of reason, but employee leaves MN company and works for CA
          company CA company goes to court seeking a declaratory judgment that the MN rule is in violation of public policy.
          Contract said MN law will apply. MN had legitimate interests in the contract.
         On the other hand that law is absolutely contrary to CA law, is the policy so strong that we won’t enforce the other state
          law, does CA have a materially greater interest than MN
         The employee is in CA now and the new employer is in CA also, but MN had significant legitimate interests and CA had
          none at that time.
         Court of Appeals have gone case by case, CA Supreme Court hasn’t ruled on this
         Not hiring someone who doesn’t sign because of a noncompetition clause is aginst public policy
         Race to the court house issue: the MN person files an action and the employee files in CA at the same time, whoever gets
          their first if they are in the same case has primacy,
         but in terms of a sister state comity comes into play, there is a notion first in time gets primacy, but even though that is the
          case, courts have rejected notions of one state enjoining another state’s action

Problems with Termination in At-Will Employment
    1. What are the fundamental assumptions about the relationships?
            a. People should not lose or gain employment based on certain protected characteristics
            b. Underlying that idea is that employees have certain fundamental rights
    2. Contract relationship is assumed between employer and employee
            a. When a specific term is not laid out in the contract courts fill in the gap
            b. How do they decide what the provision is and then what if there is a breach?
            c. They look at reasonable expectations, industry standards, company policies & practices
            d. what was said between the parties in negotiating maybe
    3. Presumptions
            a. When the presumed facts more likely than not flows from known facts
            b. An at will presumption was adopted by the courts when there was no fixed duration for employment, they presumed:
    4. At Will Presumption: Employment having no specified term may be terminated at the will of either party
            a. Why did courts adopt this? There was no notice requirement, employer thus intended more likely than not that the
                 employment could be terminated at will with no constraints
            b. Employer benefits: more flexibility for the employer, they don’t have to give a reason that could be challenged in
                 court, it gives the employee motivation to maintain good behavior and working
            c. Employee rights and benefits: Flexibility, they could leave a job for a better one immediately, liberty interests, the
                 courts cannot enforce involuntary servitude
            d. If there is nothing said there is an assumption is at will, an alternative could have been that:
    5. Alternative Presumption: in the absence of any provision concerning the conditions of termination, employment may only be
        terminated for good cause and upon reasonable notice
            a. Why wasn’t this adopted? The employer built the company and they have a higher proprietary interest and only if
                 the employee had negotiated a term would they have any extra rights.
            b. Employee has no right of continued employment. If the alternative was used the employer would not have complete
                 control.
            c. Who gets this alternative presumption? People who have bargaining power, you must be unique and less fungible,
                 unions tend to collectively bargain for better terms
    6. Unionized Context
            a. Disputes over breach of contract are handled in a grievance and arbitration procedure
            b. There are usually steps taken where people are evaluated over time, any continued dispute goes to binding
                 arbitration, the employee is represented by the union, employer protected by counsel
    7. Arbitration
            a. Arbitrators have developed general principles as to what constitutes just cause or good cause
                       i. they look at what the collective bargaining agreement says,
                      ii. look at negotiations that took place (like legislative history),
                     iii. past practices, industry practice,
                     iv. they must stay within the four corners of the document, not outside sources of law
            b. Good cause
                       i. reasonable person standard sometimes used
                      ii. whether the employee’s actions so impaired the relationship as to make it impossible to continue
            c. First element: impaired employer interest
                       i. The first element they typically look at is whether an employer interest was impaired by an employee’s
                           action, it might not be misconduct
                      ii. what is a legitimate employer interest? An efficient functioning workplace, there may not be misconduct
                           but they may just be unable to do the job, absenteeism, lateness

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              d.   Second element: Maintaining control of the workplace
                         i. arguing over doing a task, insubordination, loyalty, giving away trade secrets
              e.   Fairness
                         i. Due process context
                                 1. Notice requirement, did the employee have notice of the employer expectations
                                 2. Are there work rules, clear production standards, some everyone has notice of
                                 3. Procedure that the employer develops the basis for taking their action, it tells the employee what
                                      they have done and gives them an opportunity to respond
                        ii. Equal protection concept
                                 1. have other employees doing similar conduct been treated the same way
                                 2. If the employer could tolerate absents by someone else than why now?
                       iii. Proportionality
                                 1. does the punishment fit the crime, is the seriousness of the conduct equal to the discipline imposed
                                 2. You might start with suspension without pay and then fire them
                                 3. the crime should also fit the offender, no legitimate reason for the conduct
              f.   Legitimate purposes of the conduct and the discipline
                         i. rehabilitation: an interest that is favored, some circumstances have no opportunity to rehabilitate
                        ii. specific and general deterrence, did the discipline deter the employee from doing it again or will it help
                            deter other people from doing it
                       iii. incapacitate: what actions are necessary to protect the safety of the workplace
                       iv. retribution: not a legitimate employer interest in discipline
              g.   Burden of proof
                         i. typically the employer has the burden of proof that good cause was satisfied
                        ii. they are typically the moving party and the employee has a legitimate expectation of continued
                            employment
                       iii. employer has to meet by the preponderance of the evidence

State Rules: CA still has the at will presumption, it used to be the presumption for all and was strictly construed.

Termination in Response to Request to Breach Public Policy
Peterman Case
Facts: Employer asked the employee to take action that was against the law and when he didn’t he was fired, Peterman had been
called to testify and his boss told him to lie under oath, he testifies truthfully and is fired. How can you show that the request breached
contract?

Illegal Contract: Even if it is at will the object of the employment would not include committing crimes. That is a reasonable
expectation of the party to not be asked to commit a crime. By refusing to commit a crime it was not in breach of any reasonable
expectation you had. Is this how the court looks at this cause of action? No

Tort Action: The public policy of the state is established in the statutory law so asking someone to violate public policy is wrong, if
we allowed the employer to do that we would be letting the employer use the legal system to force the employee to break the law. The
first in road into the employment at will didn’t come out of a breach of contract claim but a tort claim to protect public policy. This
doesn’t give the employee the right of continued employment and it doesn’t infringe on employer rights because they never had the
right to make people break the law.

Public Policy Notion: The most common in road adopted by most jx is a tort claim for being asked to violate public policy. The
balance of power had shifted from employer to employee. Not all states recognize this.

Rejection of the Public Policy Argument

Murphy v. AHP
The court doesn’t recognize this public policy doctrine because they think it is best left to the legislature. Judicial restraint in this area
in some states, recognizing it is a problem but it is a legislative matter. Judges doesn’t say what is the public interest, the people speak
through their representatives to show what their will is.

Note: Why is it not appropriate for the judges to redefine this common law rule for at will employment when they came up with it in
the first place?

Defining Public Policy
    1. CA Rule***: Prior to the Gantt case, CA Supreme Court said in Foley case that public policy is defined by:
                                                                     46
              a.   Rule: Public policy had to be clear and well established, these elements addressed the notice requirement. The
                   policy has to be substantial and fundamental (it must be important)
              b.   Possible sources of public policy: constitution, statute, admin. rules/regulations/decisions, common law (judicial
                   decisions), professional code of conduct
              c.   Public policy as distinguished from private interest, we want to protect the public good not the individual
                   employee’s private interests

Wrongful Termination CA Supreme Court

Foley v. Interactive Data

Test for Public Policy:
    1. Notice: Provided by a clear and well established public policy
    2. Important: Substantial and fundamental rights dealt with
    3. Public Interest: The policy must serve a public interest not the private interests of the employee
    4. Possible sources of Public Policy: Constitutional provisions, statutes, administrative regulations/rules/decisions, common
         law/judicial decisions, professional codes of conduct.
    5. Courts can look at these sources broadly or narrowly

Gantt v. Sentry Insurance
Facts: Man fired for supporting a co-workers sexual harassment claim and he refused to lie to an investigator. It had been a
misdemeanor to lie to an investigator under FEHA so there were statutory provisions that the plaintiff cited that support his claims for
wrongful termination. The court didn’t have to reach the issue of what the source of public policy would be sufficient to sustain a
wrongful termination action, but the court asked the parties to brief the question. The court then addressed the issue in dicta.

Narrow interpretation of Public Policy: A narrow view would restrict it to constitutional provisions and statutes because the
legislature has specifically promulgated these rules so the court is not overstepping its bounds, plus those provisions are more
important and more directly tie to the political process. Tort damages as well can pay out big bucks so this is a big deal.

Broad Interpretation: Utilizing professional codes of conduct and administrative rules seems consistent but it expands the rules
beyond what the employer may be on notice from. There may be differences in industry practice as well, plus these regs already have
punishments built in so what motivation do we have for tort claims.

****Current CA Supreme Court Rule: Policy had to be tethered to policies delineated by constitutional provisions and statutory
provisions but in Green they bring in administrative regulations and throw that in as a source. These regs are delegated to those
agencies and their rules are part of the political process. They are complex and detailed to serve specific public purposes, they are
clearly pursuant to statutory authority. The rule must be important, there must still be notice, and it still must serve a public interest,
like airline safety in Green.

Termination of Attorney

IL Rule:
Balla v. Gambro
Facts: Appellee is general counsel and manager of regulatory affairs, he learns the parent company is proposing to ship some dialysis
machines to the US that do not meet FDA specs so he tells the company to reject the shipment and the president does but behind his
back the president finds another buyer to sell them to, so he accepts them. Balla finds out and he wants to stop the shipment he is
fired, he reports the shipment, FDA seizes them as adulterated goods, he sues under wrongful termination, he was supporting FDA
specs which help health and safety.

Test:
1. Whether the attorney’s discharge resulted from info he learned as a laymen in a nonlegal position.
2. Whether he learned the info as a result of attorney/client privilege.
3. Whether there were any countervailing public policies favoring disclosure of privileged info.

Holding: No cause of action here because he already has a duty to disclose the info regarding the safety of the public who would be at
risk if the priduct was distributed. Attorney/client privilege would be damaged because it would allow the attorney to reveal this info,
it would seriously undermine the relationship. You can’t get full advice without all the facts that is why the privilege is there.

Result: An attorney in IL must quit before he reports any illegal activity.

CA Approach:
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General Dynamics v. Superior Court of San Bernardino
Facts: Client has absolute right of termination of the attorney at any time, but there may be consequences at times, if it is a
contingency he can collect quantum meruit for services performed, when the attorney is an independent contractor, the attorney had
sued after being fired but he only could recover quantum meruit.

Distinguishing IL Rule: In-house counsel is more intricately integrated into the workforce, outside counsel has more independence
and they can more easily stand firm on their ethical standards and walk away if they are told to perpetrate fraud. In house is under
pressure to comply.

Code of professional responsibility and serving public interest: They are concerned with the attorney/client privilege which is a public
interest, they mediate the interests by giving the in house attorney a cause of action so long as it doesn’t breach the attorney client
privilege, they limit the context the claim can be brought.

CA Rule for Attorney: If you are asked to specifically violate a code that is a mandatory under the professional codes of conduct you
may have a cause of action but if the attorney/client privilege doesn’t permit the disclosure then you cannot bring the action. There
must be a specific code requirement and you must show but for cause, but if this is not what you are pointing to then there is a
problem. Courts should think about protective orders and in camera proceedings to provide protections to the attorney/client privilege
so the cause of action can proceed.

Contractual Term Limiting Employment at Will as a Way to Rebut the Presumption

Written Communications
    1. Offer letter: employer sends applicant offer and some terms in that letter
    2. Post acceptance letter: letter while employed outlining performance goals

Gordon v. Matthew Bender
Facts: Gordon is a sales rep and he is put on probationary status, the letter sets forth what sales goals we needs to meet to go back to
acceptable sales performance. He is fired even though he meets the goals, he says he has an implied promise to keep him on staff so
long as he maintains the levels in the letter. He can only be terminated if he doesn’t meet the expectations. This is a form of just
cause, a specific form. We have a written document with specific language so how do we construe the language in the letter?

Rule: The language here is not a form of good cause because you cannot imply good cause unless it specifically says good cause. The
language acceptable sales performance is a subjective standard and in order for it to be good cause it has to be an objective standard in
order to constrain the employer from just saying I can fire you because I don’t like you anymore.

Problems with the rule: There were actual quotas stipulating what the sales goals they wanted him to achieve but nevertheless the
court says they are subjective standards, why? The court looks to other cases with more ambiguous language and relates this case to
the more ambiguous language that sounds more subjective. They say this “kind” of language is insufficient it was insufficient in other
cases and it is insufficient now.

Scribner v. World Com
Facts: Here we have a written document, it is a contract but it a contract they have with all of their employees with a stock option
plan, you have to be employed to exercise under the plan, unless there is early termination without cause or disability, so that is the
language we are working with. World Com sold the division that Scribner was working and as part of the sale World Com agreed to
fire all of its employees and not rehire them and allow the buyer to hire them all to stay in the division. Sale goes through, plaintiff is
fired and they are told they will be rehired by the new company, plaintiff tries to exercise its options, the committee says he was fired
for cause so early termination clause doesn’t apply, they try to deal and give some of the options.

Issue: What does cause mean in this stock option plan?

Rule: If they want to make “cause” mean anything other than the meaning understood by employees than they have to specify that.
They say that in this case the employees understood “cause” to mean good performance.

Reasoning: How did they decide this is what the employees thought it meant? They say it was fact specific inquiry but they do not
interview employees or look at other contracts, no evidence of subsequent dealings given. The court does try to see what the
reasonable expectations of the parties are in this context but they don’t do a great job.

Notes
Pugh v. See’s Candy
Facts: This is the seminal case that broke the trend that made it very hard for employees to rebut at will presumptions, in that case
there were no writings, but in cases where there were writings they would construe the language very narrowly. In Pugh, no writing,
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plaintiff argues he has some just cause protection implied from statements made to him and actions by the parties. Northern CA case.
He was a long time worker there, he is very successful, he heads up an area with record sales and then is fired. He asks why? They
say look inside yourself. He sues for breach of an implied promise that he would have continued employment.

Plaintiff’s argument: No writing, but he has statements that if he kept up the good work he would stay on board, old boss told him
this. Practice for not terminating without good cause. Never had been criticized or disciplined over his many years.

Mutuality of Obligations: This idea made it hard to rebut at will presumption, employee can leave at any time, so since employee has
that right, employer has the same mutual right to terminate at will. Groden said this doctrine to reject the presumption is flawed. He
says you do not have to have mutual obligations to make the contract enforceable. Once promises are made they become enforceable.

Additional Consideration: In order to support an employer’s promise that it would terminate only for cause there had to be some
additional consideration supporting this performance other than the performance of the job. Groden says this is flawed as well
because courts should not look to the sufficiency of consideration. Consideration can support the entire contract because it is for the
parties to decide what is sufficient. There is very few situations where employees could show additional consideration so these two
ideas have generally knocked out any cases.

Holding: There was sufficient evidence that Pugh had made his prima facie case that there was an implied promise and no evidence of
good cause to warrant the termination, now the employer has the burden to rebut the implied promise or that there was good cause,
employee could then rebut those ideas. Remedies are legal remedies not equitable remedies, back wages up to X point in time and did
you mitigate. Equitable reinstatement is not available

Problem: It was the new owner that fired him after they purchased it, so how are they going to know that there are these implied
promises. How can Blue Chip get around this if the seller told them they only fired for good cause.

Employee Manual Context

Hoffman v. LaRoche
Facts: Are the written statements in the manual contractual implications, plaintiff says yes, employer says no. The manual was given
to Hoffman after he was hired. He was fired 9 years later in breach of the manual, there was a very substantive portion laid out
regarding termination, no category for discharge without charge. There was a procedure set forth in the manual that the employer
didn’t follow. Two breaches occurred. Employer says they can change the provisions at any time and that they did so.

Issue: How can we make the manual a legally binding contract on the employer? Legal expectations of the parties, the employer
thought it would get the employees to rely on the policies in the manual. They said it was just a philosophy, but in practice it wasn’t it
was a manual.

Rule: The manual was an offer of terms with respect to employment, acceptance is by continued employment and consideration is
salary. The court said but if you explicitly say it is not a contract you are covered. Now employers have disclaimers saying this is not
a contract and we can fire you at anytime and you can leave at any time. Another disclaimer says the only way to change the at will
presumption is to have a signed writing that they are no longer at will and it was signed by the employee and the president of the
company. It also explains at will employment.

Cotran Case
Facts: Claim is made they are sued on an implied promise that they can be fired for good cause only. What does the jury get to
decide? Do they decide if the employer’s basis for firing was factually accurate or based on something else? Cotran sues after he is
fired for what he alleged is a false case of sexual harassment. He didn’t say the sex was consensual in the interview out of
embarrassment, jury finds he didn’t harass them so therefore there was no cause for firing, and he is awarded damages.

Issue: What is the role of the jury with respect to deciding a case where good case is an issue?

Rule: They determine whether it was objectively reasonable for the employer to take the actions it did. Did the employer act in good
faith and have a reasonable belief after an appropriate investigation that the employee acted in the way they alleged he did. There
must be substantial evidence against the employee and the employee must have an opportunity to respond. This means an employee
can be fired for something he actually did not do. This is the CA Supreme Court standard for an implied contract to fire for good
cause.

Breach of the Covenant of Good Faith and Dealing

Summary Case: Fortune Case, Salesperson works towards a big sale and just before he was supposed to receive a huge commission of
$92,000 he is fired. The reason he was fired was to deprive him of the benefits he would have received under the contract. This
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doesn’t interfere with employer prerogative because employer decided to pay commission so hold them to it. Can’t fire people just
because you don’t want to pay them the commission you promised to pay. Some courts have held this to be a breach in contract other
courts have held it is a tort claim. The idea is that you cannot destroy, injures, or interferes with the other parties ability to enjoy the
contract.

Foley v. Interactive Data
Facts: fired because incoming supervisor being investigated for embezzling. CA Supreme Court laid down a number of rules.

Rule: Most significant part is under Covenant of Good Faith and Fair dealing claim , there was a breach because employer didn’t go
through a 7 step procedure outlined in the employer’s manual for termination process. He was deprived of the benefit of this
provision, his termination without it is in bad faith because the procedure allowed him an opportunity to respond to the charges.
***You can get contract damages only under this claim not a tort claim

Lucas for majority, Kaufman dissent: Majority held it was a tort claim like in the insurance context, the insurer refused to settle
within limits denied there was coverage, action by insurer when they acted in bad faith was found analogous. Factors in the insurance
contract looked at:

    1.   Motive/purpose for entering K: No commercial motive by the insured
             a. motive of the insured for getting insurance, they are not seeking to make a profit just to protect themselves against
                  adversity
             b. Employee context: employee is working for money, Lucas was in it for the money
             c. Kaufman’s view of this element:
                        i. Yes you are getting money but you need it for necessities of life, he looks at what you do with the money,
                           most people spend not save, you are not seeking a profit just to sustain your core necessities.
                       ii. Most of us can live without insurance so it is not voluntary, strong reliance on employer so there should be
                           a stronger protection, work is your social identity, sense of self worth
    2.   Relative Bargaining Power:
             a. Insurance context, most insurance is adhesion no bargaining
             b. Employment contract:
                        i. Kaufman says: generally employee has less bargaining power, don’t look at just the bargaining power at the
                           entry point but over time employees they have less power
                       ii. Not always some people do have bargaining power
    3.   Consequences of Breach, special vulnerability:
             a. Insured is especially vulnerable to breach, quasi fiduciary
             b. Employment Contract: Employee is looking for the same fiduciary duty, they are vulnerable, if they lose their job
                  they may lose everything
    4.   Adequacy of K damages:
             a. Insurance K,
                        i. contract damages are inadequate to deter breach because of insured doesn’t pay right now in bad faith and
                           then four years later you get a judgment, the insurance company will have made a whole lot more money
                           on your money over that time, there is no incentive to deter breach
                       ii. Also contract damages four years later won’t help out the insured
             b. Employment K: Costly to train so there is some incentive for the employer not to breach, however it is unlikely the
                  employer will fire someone when it is more costly to hire a new person
                        i. Employee’s Perspective: Contract damages compensate you for the work you have done
                       ii. Kaufman: Not just a commercial transaction, the cause of action is designed to protect your from non-
                           consensual harm at the hands of a tortfeasor.
                      iii. Majority: everything is tied to the promises made in the contract, the breach of the covenant of good faith
                           and fair dealing is to effectuate your reliance damages.
    5.   Employer prerogative:
             a. Tort covenant of good faith and fair dealing may deter employer from taking action they would otherwise take
             b. There are many remedies against employers already, if they are going to get this remedy as a tort it should be done
                  by the legislature
             c. It is anomalous to say an at will employee has this action for good faith and fair dealing because it might just be a
                  windfall for some employees where others are fired in bad faith have no action

Most recent CA Supreme Court Case:

Guze v. Becktel
Most recent CA Supreme Court case follows up on Lucas and says what is the scope of this breach, it has existence beyond the
promises in the contract, implied in fact or other, covenant is designed to effectuate those promises. You must have a contract claim
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right or term that you are tying the cause of action too, you can then sue on that contract claim and the covenant claim is superfluous,
and if you don’t have a contract you have no claim. It basically kills the cause of action even though there is a footnote saying it is not
dead. It may occur in a Fortune case, where the salesman has done all the work and the day the contract is signed they are fired, then
you could use it, but it is very hard to get a cause of action. Some recognize it as a tort claim, some states don’t have it at all.

Richard Epstein’s Critique on this topic: Critical of all these judicial developments, he affirmatively defends strict at will. Covenant
of Good faith and public policy arguments are criticized by him. Market should be able to operate freely, parties are independent
actors with autonomy, they should be able to contract for good will, it promotes autonomy. On the average at will fits just fine, any
other way increases costs. He says employees want to be able to quit at any time and employers want to be able to fire, if the
relationship goes south neither will want to pursue it. There are constraints on each side to firing or quitting a job.

Epstein’s Critique of Judicial Exceptions to At Will Employment
    1. Exceptions add uncertainty and costs in the tort area
    2. Good employees don’t need these exceptions, they are protected by their good work, only slackers benefit
    3. Basic premise he starts with that at will is autonomy, freedom of contract, is that realistic?
    4. Problems
              a. He says no one would enter into if it wasn’t to their benefit,
                        i. however employees don’t have bargaining power in this area,
                       ii. plus information is sometimes limited, most employees don’t know they should try to get a just cause
                            exception,
              b. if the employer’s actual practice is just cause they shouldn’t give up chips but they may not know,
                        i. and regardless they have no power to bargain for just cause
              c. employees do not foresee any problem arising so they do not think about just cause as an issue
    5. Critics say the exceptions don’t go far enough
              a. If you are not an employee you cannot assert rights,
              b. reinstatement is not a remedy so there is never really any job security, 6 months average award
              c. underinclusive, Guze case talked about the longevity issue,
                        i. longevity, raises, promotions point to implied promises, but the court says not necessarily
                       ii. they are merely a reflection of continued satisfactory employment, not an implied promise to fire for good
                            cause only
    6. Economic Argument against increasing protections
              a. more claims are filed, more litigation costs,
              b. costs toward employer infrastructure to preempt claims
              c. so employers either have to lower wages or fire employees, this hurts lower wage employees
              d. they are already more susceptible to job loss,
              e. the people most benefiting from the doctrines are high paid employees who don’t need it
    7. Why not let the legislature draft a statute like the MT statute
              a. it will take uncertainty out of the process and make it clearer when the apply, and the remedies
              b. Before Foley was decided there was bilateral support for it,
                        i. employer wanted the political process to get involved to hopefully protect them from tort damages
                       ii. employees wanted more protections and felt that was a good option
              c. After Foley, when covenant breach was found a contract claim, employer support went away

Property Rights get Involved
    1. Charles Wright, New Property, wrote on welfare benefits
             a. Should they get a property right in those interests, he spoke about employment as well
             b. For most people their job is their primary source of economic, social, and personal status
             c. However, they are not perceived to have a property interest in this value
    2. Glendon
             a. She says there has been a change in the 20th century,
             b. it started with family relationships defining economic, social, and personal statuses,
             c. at that time at will become the fundamental, so you could easily terminate that relationship
             d. As the century progresses work became more important, and family became less important
             e. we got no-fault divorces and ways to terminate parental relationships, and in roads on at will
             f. The excerpt we have talks about how an employee’s interest in their job value increases over time
             g. a lot of the monetary benefits are connected to length of tenure,
             h. so as time goes on their job becomes more valuable, they have a right to get their pension
             i. marginal value of an employee decreases with age so at some point there is a greater incentive for the employer to
                 want to get rid of the employee when the employee has a great interest to stay
             j. Imbalance between employer and employee is big upon entry but in increases over time
    3. Traditional roles
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         a.   employers had the property interest in the labor, they had the money, they own it all and has the right to control it
              all,
         b. employee have a property right in their own labor only, not a right to a job, they hold the job on condition that they
              provide labor
4.   Substantive protections
5.   Where does an employee get a property right? Out of an oral, written, implied contract
         a. If an employee has some legally enforceable right to stay on the job does that remove the employer’s property right?
              No they both have shared property rights
         b. To terminate you could have an explicit agreement to terminate only for just cause
         c. If the employer has no cause then they would have to buy out their employee’s interest (severance)
6.   Procedural Protections would be a huge protection
         a. Due process, but what form, notice, pre-termination hearing to determine if there is cause,
         b. employee would stay on the job until it was decided which is a significant benefit
         c. this would create real job security because if the employer loses their claim, they stay on the job



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