Discrimination Laws, Remedies, Waivers, Disability Discrimination, and Employment Relationships: Contractual and Tort Theories

This article provides an overview of chapters 12-16 of employment law, covering topics such as discrimination laws, remedies, waivers, disability discrimination, and employment relationships. It discusses the protected classes under Title VII, legal theories of discrimination, and affirmative action. It also covers the Older Workers' Benefit Protection Act, Equal Pay Act, Rehabilitation Act, and Workers' Compensation laws. Additionally, it provides information on the ADA Amendments Act and contractual and tort theories that impact employment relationships.

Week 1 - Instructor Notes
Chapter 12: Discrimination Laws Protected Classes under
Title VII and the Constitution; Chapter 13 Remedies
The basic employment law statute is the Civil Rights Act of 1964, as amended (Title VII). The text in
Chapter 12 walks the reader through the requirements and procedures of Title VII. Chapter 12
covers the various "protected classes" under Title VII, as well as the two (2) legal theories upon
which proof of discrimination is made. Chapter 12 also discusses "sexual harassment", as aspect of
sex discrimination under Title VII, plus the issues of affirmative action and reverse discrimination.
Chapter 13 addresses burdens of proof for the various theories of discrimination, affirmative action,
reverse discrimination and remedies for violation of the statute. This Chapter discusses the
"disparate impact" cases and the proof needed to establish a violation of Title VII based upon
disparate impact. These are, for the most part, class action cases where many potential claimants
have been handled in the same way by the Employer. For example, if an Employer required all
employees to be at least six (6) feet tall, females would be screened out of employment
consideration in disparate numbers. Whether the height requirement is unlawful, however, depends
upon the business reason for requiring this factor. Please also note the "mixed motive" case
analysis, using the Price Waterhouse v. Hopkins case. These are interesting cases because the
Employer's defense is that the employee would have suffered an adverse employment decision even
if it had not considered the unlawful criteria. For Ms. Hopkins, she showed that her gender was part
of the decision not to make her a partner and the Employer established that she would not have
made partner even if she was a male. This analysis was modified by the 1991 Civil Rights Act, and
now an Employer's use of a mixed motive results in a limitation of the remedy against the Employer
but does not validate the employment decision that depended at least in part, on an unlawful criteria.
It is important to remember that the nature of these employment discrimination provisions are
limitations on an Employer's otherwise unfettered discretion with regard to employment and
employment relations. The protected classes and the methods of proof of discrimination are very
specific. Thus, while analyzing a factual situation to determine whether there has been unlawful
discrimination, it is important to isolate a few variables. First, was there an adverse employment
decision made by the Employer that affected the employee? This may be a hiring decision or a
termination decision, but it also includes decisions regarding training, hours of work, promotion and
any other decision that affects the employee's work environment.
Secondly, was the adverse employment decision based on the protected class as claimed by the
employee or applicant for employment. Whether the decision made by the Employer was the correct
one, or whether it did not meet a sense of "fairness" is not relevant to this analysis (it may be
relevant under certain State common law doctrines). You should come away with the firm
understanding that proof of a Title VII violation is not the same as making the determination of
whether a decision was fair; rather, it depends on whether adverse employment action was taken
against an individual because of his/her race, sex, color, creed, origin, religion or other protected
class.
Week # 2 -Chapter 14 Overview – Instructors Notes
Chapter 14 includes a discussion of waivers under the Older Workers' Benefit Protection Act
(OWBPA). The OWBPA is an amendment to the ADEA. It is important to note that use of a "waiver"

is not a legal requirement; however, if the Employer chooses to use a waiver agreement, it must
contain those elements found in the textbook. Waiver Agreements are very common in reduction in
force cases. When an employee is offered a severance/benefits package, the requirement that
he/she sign a "Waiver And Release Agreement" is almost universal among Employers of any size.
For "non-age" claims (or potential claims), there is no requirement that an employee be given a
consideration period or a revocation period as required under the OWBPA. Thus, an Agreement that
does not contain those periods (and assuming it meets all other requirements), is perfectly valid for
waivers of all claims or potential claims EXCEPT age. Question: Should all waivers of discrimination
such as race and sex have similar consideration and revocation periods?
Chapter 14 also discusses the Equal Pay Act in the context of differences in pay based on sex.
Please note the case of Corning Glass Works v. Brennan. That case discusses the defenses
available to Employers for claims made under the EPA. How many of these defenses would also be
a defense to a Title VII claim of sex discrimination based on males being paid more than females for
the same job?
Chapter 15 Overview - Week 3 - Instructor Notes
This chapter covers disability discrimination and workers' compensation statutes. The Rehabilitation
Act of 1973 is specifically designed to cover the Federal government as an employer as well as
private Employers who do business with the federal government. As applied to private employers,
the concepts for understanding discrimination under the Rehabilitation Act is the same as those for
the Americans' With Disabilities Act (ADA) that governs virtually all private employers.
The ADA requires more than a duty not to discriminate as found for all of the protected classes
under Title VII (with the exception of religious discrimination). The ADA goes further and requires
that an employer make a "reasonable accommodation" to the needs of a qualified person with a
disability so that the disabled person may perform the essential functions of a job. Examples of what
is meant by a "reasonable accommodation" are found in the book. These accommodations do not
have to be made if, by doing so, it would cause "undue hardship" to the Employer. Congress has
enacted specific criteria for what is an undue hardship which include an examination of the
profitability of the employer's specific facility where the issue arose and consideration of the
employer's overall profitability (for those employers who have multiple locations, parent and
subsidiary relationships, etc.).
Workers' Compensation laws are also addressed in Chapter 15. Before these laws were passed,
injured employees had to sue their employer in state court for negligence if the employee wanted to
recover money for their on the job injury. Compensation laws are a compromise. Employees receive
compensation for their injuries without having to go to state court, and the employer is shielded from
lawsuits in state court from its injured employees. Each state has a workers' compensation statute
that itemizes the recovery for each type of injury (i.e., a certain dollar amount for loss of a hand, an
eye, etc.), and also has a specific statutory amount the employer must pay for loss of income by the
injured employee (typically about 2/3 of the employee's normal wage).

Week 3 - Instructor Notes
ADA Amendments Act
The ADA Amendments Act became effective on January 1, 2009. The Act retains the ADA's basic
definition of "disability". However, it changes the way that these statutory terms should be interpreted
as follows:
 EEOC is directed to revise that portion of its regulations defining the term "substantially limits";
 expands the definition of "major life activities" by including two lists:
1. the first list includes many activities that the EEOC has recognized (e.g., walking) as well as
activities that EEOC has not specifically recognized (e.g., reading, bending, and
communicating);
2. the second list includes major bodily functions (e.g., "functions of the immune system, normal
cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions");
 states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be
considered in assessing whether an individual has a disability;
 clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit
a major life activity when active;
 provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because
of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the
impairment is transitory and minor;
 provides that individuals covered only under the "regarded as" prong are not entitled to reasonable
accommodation; and
 emphasizes that the definition of "disability" should be interpreted broadly.
More information on the revisions can be viewed at eeoc.gov (Links to an external site.).
WEEK 4 -Overview
This week you will learn about contractual and tort theories which impact employment relationships.
This will include discussion of employment-at-will, the Sarbanes-Oxley Act, employer liability for torts
committed by employees, and negligent hiring and retention of employees.

Week 4 - Activities
Readings
Please read the following.
 Chapter 16: Employment Relationships: Contractual and Tort Theories.
Week 5 - Instructor Notes
Notes From the Instructor
This week you will be working on your midterm project. Please be sure to review the instructions and
requirements very carefully. This project will allow you to apply your knowledge of employment law
to real life situations which HR managers face on a daily basis. These are often very difficult,
emotionally-charged decisions, and the HR manager must learn to be objective and to keep in mind
the applicable laws and interests of the employer. The classroom is a good place to practice making
these decisions. Please note that there is no right answer with respect to which employees will be
retained or given a severance package and you will not be graded based on who is hired/fired. You
will be graded based on following the instructions, and your written analysis and application of the
law to the situation as this simulates the type of thinking that an HR manager would do. The
participation requirements are reduced for week 5 so you can focus on your midterm project.
However, you are required to post your lessons learned to the discussion board. Please take a few
minutes to read through some of your fellow students' posts and respond to their lessons learned.