Employment Law OUTLINE

• Threshold Issues

o At Will Presumption

 Definitoin

• People are presumed to be able to be fired at

anytime for any reason except for certain
prohibitions (Public Policy etc.)

 Bammert v. Don’s Super Valu

• Public Policy is an exception to the employers total

right to hire and fire in the at will relationship
(Cannot fire for refusing to break the law).

• Here the court found that the when an employee was

fired for the acts of her spouse the act was too
attenuated to invoke a public policy exception at will.
(narrow exception)

o Defining Employee

 Tests

• Right to Control (Substance over Form)

a. WHEN USED: Agency, Respondeat Superior/

Tort, EIRSA($), IRS Immigration and Labor.

o Whether the manager/owner retains the

right to control the manner and means of
work.

o Who supplies the instrumentalities, tools and

workplace.

o Skill required (less skill more likely employee)

o Length of employment (not a one time job)

o Degree to which workers services are integral

to the companies operations.

o Whether or not the worker is engaged in a

distinct business or occupation.

o Whether worker provides services to other

 companies.

o The degree to which management supervises

the worker.

o The method of payment, whether by the time

worked or by the job.

o Parties subjective understanding

• Economic Realities Test

o When Used: FLSA, Minimum wage and

overtime, title 7 discrimination

o Workers opportunities for profit or loss

o Whether the manager/owner retains the

right to control the manner and means of
work.

o Who supplies the instrumentalities, tools and

workplace.

o Skill required (less skill more likely employee)

o Permanency of the work relationship

o Degree of services being integral

o Overall: the degree to which the worker is

economically dependent on company
continued work.

 Cases

• Lemmerman v. A.T. Oil (Control Test)

o Child worker found to be employee

 Manager had authority to hire and fire

 Application was not taken from

employee, employee not listed and was
informally paid cash register all not
dispositive to show not an employee.

 Fact that child was paid for services

showed employee/employer relationship.
 • Dial America

o Economic Realities Test

o Home Researchers were employees because:

 They were permanent workers

 Paid a consitent wage

o Distibutors

 Had control over profit or loss by having

the ability to charge their own rates.

o Contractual Limits to at Will Employment

 Express Contracts

• General rule regarding written contracts -if the

contract is for a definite term the employee may be
discharged before the expiration date only for breach
of contractual provisions or other good cause.

• Gordon v Bender

o Benders policy was to keep employees if they

maintained their sales quota (satisfactory
performance).

o Term ‘Satisfactory Performance’ was not a

definite term, promise was not clear. Only
objective terms in K will limit the at will
doctrine. Need more defeintive terms such as
“for cause.”

• Scribner

b. Employee fired because company was

merging, not for deficient performance. In his
contract he was entitled to stock options if
fired without cause. The companies stock
option commission decided to redefine for
cause as the merging situation and not merely
deficient performance.

o Court says Stock Option Committee can only

interpret the contract, not redefine the terms.
Cannot stretch for cause to mean something
 other than the formal definition which means
for deficient performance only.

 Implied Contracts

• Pugh:

o This was an oral contract that created a for

cause employment relationship given all the
factors as a whole. Substance over form. A
reasonable employee would have believed he
could only be fired for cause. (company history,
statements told him etc.).

o Challenging Contract Claims

 Offer

• Intent to be bound (Reasonable expectation of

employee)

• Specific terms (for cause, lifetime employment, for a

year).

 Acceptance

 Consideration (for a modification).

• New consideration to modify a contract.

• Majority Approach- Showing up for work the next day

after the new promise is consideration, the employee
is at will after all

• Minority Approach- Showing up after to work after

promise is not enough, there must be something
given up.

 Parol Evidence

• Rule for excluding unreliable evidence

• Evidence comes in if it occurs AFTER the writing.

• Exclude evidence if:

o Written contract

o Integrated- the writing was intended to be the

final and complete agreement between the
 parties. (on given topic ,partial vs. full)

o Proffered evidence occurred prior to or

contemporaneous with writing.

o Proffered terms contradict or add to written

terms.

 Statute of Frauds

• Contracts that by their terms cannot be performed in

a year or less.

o Contract begins to run when the agreement is

made, regardless of when the performance
begins.

• Thus Must be in Writing

• Is the writing sufficient. Intent to authenticate

o Must be signed by the person denying the

contract (i.e. the employer)

o Consideration

o Subject Matter

o Other essential terms depending on the K.

o Overall evidence that the contract was made.

o Modifcation of Contracts—Employee Handbooks

 Woolley v. Hoffman-La Roche, Inc.

• HELD: Absent a clear and prominent disclaimer an

implied promise contained in an employee manual
that an employee will be fired only for cause may be
enforceable against an employer even when the
employment is for an indefinite terms and would
otherwise be terminable at will.

• Offer: Specific terms (manual) and reasonable

employee would have assumed the employer had
the intent to be bound.

• Court : Larger corporation is more likely to be

presumed having the attempt to be bound.
  Fortune (good faith requirement)

• Salesman employed at will based on commissions.

He was fired to avoid payment of major commissions.

• Court held it was a breach of implied duty of good

faith found within in every contract, despite its at will
nature.

• The salesman was entitled to a commission, this

right was in the K, not a separate right. Must be
based in the K, implied or express.

• Good faith rule runs in contrast with the at will rule.

• TORTS

o Hiring

 Defamation

• General Requirements Defamation

o Statement Communicated to someone other

than the plaintiff (courts split on if act can be a
statement)

 Statement must be published (repeated

to a third person)

o Statement must be false (although stated as

fact, not opinion)

o Must tend to harm (actual reputational harm-

presumed) the plaintiff’s reputation and to owe
him or her in the estimation of the community.

• Lewis v. Equitable Life

o Plaintiffs fired for “gross insubordination.”

Although underlying conduct did not meet that
description in truth.

o Forced self publication qualifies, employees

forced to reveal prior fire reason.

o If statement by prior employer can be proven

false or ill described they will be liable.
 • Affirmative Defenses

o TRUTH IS ALWAYS AND AFFIRMATIVE DEFENSE

burden on defamer.(when defamed person is a
private actor)

o Privilege

 Judicial or administrative proceeding

privilege. If made in the context of an
investigation no defamation.

 Conditional Privilege – an employer who

reasonably believes the listener had an
important interest in the information is
privileged from defamation liability
assuming he did not abuse the privilege.

• Abuse-disclosure is unreasonable in
manner or motive/purpose.

 Negligent Hiring

• Elements

o The employer owed the third party a duty of

reasonable care

o The employer breached the duty

o The breach caused the third party’s harm AND

(i.e. the failure to do a background check when
there was no record would show no causal
chain)

o The party suffered harm

• Malorney v. B&L Motor Freight

o Truck driver rapes girl in truck, had prior

charges never looked into by company. No due
diligence to verify criminal background check.

o Duty depends on the type of employer. What

are the steps that reasonable employer should
take.

o Level of inquiry is tied to the level of risk.

Foreseeabilty
  What is the chance of that person being
exposed to the risk foreseen. (risk of rape
of a hitchhiker is high in the truck driving
field.).

 Intentional Misrepresentation (Need no show duty but

difficult to prove)

• Misrepresentation in fact

• Material

• Knowledge of falsity or reckless disregard for truth

• Intent to induce reliance

• Causing reliance

• Reasonable reliance

• Damages exist based upon reliance

 Negligent Misrepresentation (Must show duty)

• DUTY OWED:

o No duty to disclose information absent a

special relationship. (Between former and
employers and future employers, i.e.
recommendation letters).

o Speaker assumes duty by giving a reference

(to act reasonably in not making a
misrepresentation of fact) Minority Approach

o Silence in situation involving foreseeable risk of

physical harm. (Omissions thus are captured in
this one).Minority approach (Singer)

 Verification of Immigration Documents

• IRCA (Immigration Reform Control Act).

o Requires all employers to verify immigration

status. Applies to even smallest employers.
Violate if:

 Must employ knowingly

  Or failure to verify docs

o So long as the employer is presented with

document that appear valid on their face the
employer is exempted from liability.

o Employers tread a thin line between IRCA and

Discrimination actions under title VII.

• Collins Foods Int’l, Inc. v. INS

o Constructive knowledge not enough so long as

verification procedure meet minimum
threshold.

o Court said minimal effort ok in light of title VII

catch-22.

 Honesty Personality Test

• Illegal to make an employee go through a polygraph

• Honesty and Personality tests are allowed

 Medical Questionnaires

 Griffin v. Steeltek, Inc

• Any business with 15 or more employees is covered

by ADA prohibition on inquiring into disabilities,
regardless if the person actually has a disability.

• Plaintiff was forced to say he had certain inquiries

which lead to him not to being hired, or the fact that
he left a medical question blank.

• Court says that you must prove damages, how did

the asking of the medical questions deprive you of
the job.

 ADA Statute

• Pre-employment

o Cannot inquire into whethater someon has a

diabailty, or how sever it is.

o Medical Exam Barred

  Procedures or tests that seeks
information as to the subjects physical or
psychological health.

 If you ask an employee to perform a task

you must do that to all employees at
initial stage.

• Employee Entrance Exam (post offer, pre-placement)

o You can learn about the employee, just cant

use anything non job related against them
(states can prohibit).

o A covered entity may require a medical

examination after an offer of employment has
been made to a job applicant and prior to the
commencement of the employment duties of
such applicant, and may condition an offer of
employment on the results of such
examination if:

 All Employees tested

 Results confidential from supervisor AND

 Results used only in accordance with this

subchapter (i.e. can use results only if
job-related).

o Employee medical screening-

 Can only use if job related consistent

with business necessity.

o Regulation of Conduct During Employment Relationship (Privacy)

 Monitering Employees During Work

• Ontario v. Quon

o Cop text messages

 The court focuses on the explicit

disclaimers in disavowing a right to
privacy. Despite the fact that the
superior seemed to create an impression
he might not check the messages, it was
still fairly clear from the circumstances
 that the messages sent on the work
pagers were not private. Disclaimers
highly effective.

 The superior only checked work hour

messages, thus properly narrowed the
scope. Even if there was some
expectation of privacy it was not
breached.

• Intrusion Upon Seclusion (Thygeson)

o Elements

 Intentional intrusion (physical or

otherwise) AND

 Upon the Plaintiffs solitude or seclusions

or private affairs or concern AND

 Which would be highly offensive to a

reasonable person. (method
(invasiveness level) and motive of the
employer are legitimate, i.e. to ascertain
the employees work performance).

 NOTE

• If employee consents or the item

is in plain view not secluded, the
elements cannot be met.

• Look to the search itself, how did it

happen and why did it happen? The
less intrusive the search the more
likely it was reasonable and not in
violation (Quon).

 Regulation of Off-duty conduct

• Political activity

o genearlly, at will employer's have a lot of

discretion to fire for off-duty conduct.

• Intentional infliction of emotional distress

o Elements
  That the defendant intentionally or
recklessly

 That the conduct was “extreme and

outrageous”

 That the actions of the defendant cause

the plaintiff emotional distress and

 That the emotional distress suffered by

the plaintiff was severe.
o OUTRAGEOUS
 psychological harm does not go to
outrageousness, just used for damages.
o Wrongful Discharge in Violation of Public Policy
 An employee
• courts only find public policy when implicit for the
public at large
has to apply to a wider range of humanity
 Relinquish legal right/privilege
• balance act between E and R interests
o R's interest in having a regulated, safe,
efficient workplace environment
o E's interest to maximize access to
statutory/const rights in the work place. (guns
in parking lot of work- AOL)
 Gardner (armored truck case)
• would not create a public policy to discourage
good/heroic behavior.
• Dissent: create vigilantes/stupid acts
 Public policy
• ID the public policy vioated by R's act.
• always possible for employer to deny reason for
firing
• does policy affect society at large (R will claim it was
inhouse issue)
• Elements
o clear
o well established
o effect society at large
o Employer Rights that limit At-Will Employment
 Duty of Loyalty (fiduciary duty)
• courts require high standard to find breach of DoL.
• Agent has duty not to compete with the principal
 concerning subject matter of agnecy while employed.
• An agent can plan to compete with principal prior to
leaving employment, if no unfair acts or injury is
done principal.
• Poaching clients/co-workers is a sign of violation of
DoL.
• The greater the harm that co-worker's leaving
causes, the more likely its a violation of DoL to talk
to them about leaving.
o Non-compete clauses
 limitations
• can't be too broad
• limited in scope of activity, duration and area
• balancing: whether R's interest outweigh's hardship
to E and to the public.
 questions
• what is being protected?
• why is it being protected?
 Enforceability?
• Better for E to quit than be fired.
• Court can reform overly broad clause.
 ORS
• non-compete void unless entered upon:
o initial employment; or
o subsequent to all bona fide advancement of
the emoployee w/the employer.
o Trade Secrets
 Uniform Trade Secrets Act
• test
o what is the secret?
o Secret is stolen.
• What is a TS?
o Information that has independend economic
value from not being generally known to other
persons; and
o party seeking protection took reasonable steps
to preserve secrecy.
 Does not have to be immediately
valuable
o Other Factors (totality test)
 Extent known in the business
 extent known outside business
 precautions taken
  savings effected by value of info. being
secret.
 expense and effort level for developing
secret etc
• R has to prove misappropriation.
• When E disclose's TS w/out R's consent
o Types of misappropriation
 E who used improper means
 E should have known TS was acquired
under circumstances giving rise to duty
of secret
 E gained info by accident, sould have
known wasTS
• Statutory Limits to At-Will Employment: Wage and House Laws
o FLSA
 Violation types (and who can sue)
• child labor (agency)
• failing to post notice of protection (agency)
• overtime (agency, private)
• minimum wage (agency, or private)
 2yr sol, 3 for willful violation; atty fees, liquidated damages
 Who it applies to
• applies to employers other than private contractors
 Exemptions
• Administrator exemptions
o elements
 paid on salary basis
• 455/week
 office or non-manual work primarily
 directly related to management or
business operations; and
 primary duties involve use of discretion
in matters of significance.
• Executive Exemptions
o elements
 paid on salary basis
• 455/week
 primary duties are managing business or
dept
• setting schedule, hiring/firing,
etc...;
 usually in charge of 2+ fulltime
employees; AND
  authority to hire/fire or meaninfully
recommend to those decisions.
• Professional exemptions
o elements
 paid on salary basis
• 455/week
 primary duty: work that is intellectual
character
• independent judgment
 specialized knowledge, field of study,
from prolonged study
o what is principal activity?
 Pay and clothing is integral to primary
activity.
• Duty can be indespensible but not
integral.
 Compensation
• What activities are required to be compensated
under FLSA
o begins when you start engaging in principle
activity
o embraces all activities integral and
indispensable to the principle activity.
 Usually don/doft is not enough, but in IDB
it was (special clothing)
• can't do job without this clothing
 activity has be “integral and
indispensable” to a “principal activitiy”
and therefore itself be a “principal
activity.”
o Integral v. Indespensable
 integral: required to do to complete the
job.
 Indespensable: a duty the boss requires
of you.
o De minimus activity: too small to hear claim
(bothersome)
 factors: administrative difficulty in
timing; size of claim; regularity of
occurrence.
• Continuous Workday
o if while on call, life activities (personal pursuits)
o Do the restrictions placed on the employee
preclude using the time for personal pursuits?
  On call time is not work if it can be used
effectively for personal pursuits.
o Engaged to wait: compensable
o Waiting to be engaged: noncompensable.
o TOTALITY testifying
• Minimum Wage
o SOL
 rules: 2 yr sol, 3 yr for willful violation
 SOL does not end upon filing of suit
• SOL begins when pay is due
• Enforcement and Remedies
o Willful Violations
 reckless disregard: reasonable employer
would have known that the challenged R
act would have violated the statute.
o Negligence
 If R is unreasonable in belief of
compliance, can be subject to liquidated
damages.\
 if reasonable, can still owe damage/atty
fees but no liquidated damages.
o Coverage
 enterprise coverage: two or more
employees and at least 500k in gross
volume
 individual coverage: anyone involved in
interstate commerce
o Anti-retaliation
 no discrimination against anyone who
has filed a complaint.
• Must have a reasonable belief that
complaint is valid.
 Majority: internal, inhouse complaints
qualify
 Was E fired for the complaint or for other
reason?
• McDonald Douglas test
• Statutory Limits To At-will Employment: Family Leave
o FMLA
 basic faqs
• must have at least 50 employees within 75 miles of
each other
• economic realities test
• to qualify: E who has worked for R for at least 12
 months and averages 24 hrs a week in that period,
1250 hours in the last yr
• up to 12 weeks/year of leave before can be fired
• E must give notice to R.
o give reasonable notice, when foreseeable.
o R can force E to use this leave when take time
off.
• upon return: only entitled to same health benefits
and the same or similar job.
 Medical leave
• birth/adoption: can take leave w/in 12 months of
event.
• Serious health condition
o Definition: An injury or illness that requires
inpatient care or continuting treatment by a
health provider. (cannot do job)
 Types: pregnancy; chronic conditions;
inpatient care; continuing treatment.
o Continuing treatment requirement
 more than 3 days of incapacity AND
• at least 2 doctor visits w/in 30 days
of incapacity OR
• 1 doctor visit within 7 days of
incapacity and course of treatment
supervised by DR.
o can take leave to care for: immediate family
only (parents, spouse, kids)
o Incapacity: unable to perform daily functions.
o FMLA violations
 2 types of violations
• interference
o not intent based
o cannot restrain, interfere or deny an
employee's ability to take leave or get
reinstatement
 ex: can't put too much paper work in the
way of leave
 can't put job duties on person while on
leave.
o Parker
 substantially equivilant job
• does not have to be exact same job
duties.
 R can show that old job was eliminated
 as defense.
• discrimination
o intent based
 have to prove R's intent to punish for
leave use.
o King
 P engaged in protected activity (FMLA
leave)
 R took adverse action against E
 causal connection between the two acts,
and E's act was a substantially
motivating factor for R's act.
o General/specific notice requirement
 general: posting rights under FMLA in
workplace
 specific: don't have to tell E that their
leave is FMLA leave.
• TITLE VII
o Overview
 action based on race, religion, sex, natural origin
 have to file with EEOC, issues right to sue letter.
 Some states require filing with state agency
• EEOC defers to local jurisdiction
• In deferral jurisdiciotn: 300 days to file with EEOC
(consider 60 day required deferral time
• If nondeferral: 180 days to file violations
• Notice to R w/in 10 days of filing violations
 Damages
• can get backpay, atty fees, compensatory/punative
damages (caps depending on R's size)
o no backpay cap; no frontpay cap (dupont)
o Disparate Treatment
 must show intent
 Definition
• Intentional discrimination proven directly or
circumstantially
 McDonald Douglas
• E proves prima facie case
o member of protectd group
o suffered adverse employment action
o circumstances give rise to inference of
discrimination
• R produces legitimate non-discriminatory reasonable
 • E has burden to prove R's reason is pretext for
discrimination.
 Price Waterhouse
• sexual stereotyping
o discriminated against for failing to conform to
sexual stereotypes
o R can show it would have taken same action
absent prohibited characteristic
 this reduces damages; does not absolve
liability.
o E proves prohibited reason was motivating
factor in R's act.
 Mixed motive is not excusable on R's
part.
o Affirmative defenses
 Bona Fied Occupational Qualification Defense (BFOQ) (only
treatment, not impact)
• when it can be used
o when necessary for purposes of authenticity or
genuineness
o must be reasonably necessary to essence of
particular business and all or nearly all of
excluded group are unable to perform.
• Exceptions
o refusal to hire women based on sex
stereotypes
o R may have to supply separate facilities for
sexes.
o Disparate Impact
 definition
• R uses an employment practice that causes
disparate impact on basis of protected class and R
fails to domonstrate that challanged practice is job
related and consistent with business necessity
 arguments
• dispute over data, sample size problem
• 80% rule: if protected group is less than 80% of
majority group, than inference of disparate impact.
• R would then have to show that practice is consistent
w/business necessity.
• Must show that results are because of a business
practice (intent not necessary)
 Griggs
• show R's practice
 o that has an impact
• R must show that practice is business related
 proof
• minority approach: incapable of separation
o if different parts of R's practices are impossible
to separate into discrete parts, can waive
requirement of showing a specific practice.
 Allen
• E domonstrates business practice causes
disparate impact on protected group

• burden of persuasion shifts to R to demonsrate job-

related and consistent with business necessity;

•
burden of pursuasion shift to E to demonstrate the
existence of an equally effective test with less
discriminatory impact on protected group.
 Business necessity
• neutral job requirement that is necessary for the
business
• does not need to go to essence of job, just necessary
(lower standard than BFOQ)
o ex: beards at logging themed restaurant
(authenticity)
o Harassment
 two types of claims
• qui pro quo
o sexual favors in exchange for tangible
employment benefit.
• Hostile work environment
o conditions of work so severe and pervasive as
to alter terms and conditions of employment
 no change in employment status needed
o Harris v. Forklift
 workplace must be objectively hostile or
abusive
 objective v. Subjective
• a reasonable person would be
offended or feel abused
• have to subjectively alter terms of
employment
o sliding scale of hostile work environmental
 severe and pervasive: the more severe, it
can be less pervasive to be bad enough.
 o Tangible employment action is helpful to show
an altering in terms/conditions of employment.
 Constructive discharge can count
• no choice but to quit given
circumstances
 if can show tangible R action, prove's E's
case.
• Supervisor as harrasser
o R's affirmative defense to show R exercised
reasonable care to prevent and correct
harrassment...
o and E unreasonably failed to use preventative
or corrective inhouse measures
o affirmative defense of taking reasonable steps
to correct harassment.
• Co-worker/customer
o as part of prima facie case, E bears burden of
proving R knew/should have know of
misdonduct AND R failed to take immediate
corrective act.
 Uniforms, grooming standards ok, as long as not unduely
burdensome on either sex.
 Evidenciary presumptions
• sex being a motivating factor; harassment is
motivated by sexual desire; comparative treatment
of one sex better than the other.
o Retaliation
 definition
• opposition: if retaliated against for opposing unlawful
employment practice
• participation: retaliated against for participating in
action against R
 timing
• more close in time of R's adverse act to E's act, more
likely its retaliation
• being harassed for claim
o workplace banter not included as viable factor
o fact questions:
 frequency of discrimination
 severity
 offensive utterance OR actually
physically threatening/humiliating
 unreasonbly interferes with E's work
performance.
  Burlington Northern
• Employer's actions were so harmful to keep
reasonble worker to dissuade from making or
supporting a charge of discrimination.
• Prima facie case for oppostion/participation
 E must show victim of Title VII violation
 E participated in Title VII proceeding or
opposed unlawful practice of R.
 R knew of oppostion/participation
 E suffered adverse employment action
 AND causal connection between R's
treatment of E and E's
opposition/participation giving rise to
interence of discrimination.
• Statutory Limits to At-Will Employment
o Race and National Origin
 Accent
• BFOQ for accent
 Word of mouth hiring
• only hiring from one race, can't punish for hiring from
community of people they know personally.
o Religion
 two types of claims
• one particular religion is discriminated against
(mcdonald douglas)
• failure to accomodate
 Reglious Accomodation test
• establish bonefied religious belief
• a conflict between R's requirement and E's religious
beliefs
• Inform R of conflict with religious belief.
• Did R reasonably accomodate belief or would usch be
unreasonbly burdensome
o reasonable accomodation
 adjustment to work environment that will
allow E to continue religious practice
o unreasonable accomodation
 anything that causes undue hardship:
anything beyond normal costs, less
efficient workplace, or employee
• Failure to accomodate
o Heller: requires sincere religious belief
o Costco: requires bonefied religious belief
  religion must have higher calling
seriously held in comparison with
traditional religious beliefs
 act has to be central to religious tenets
• Selecting for Forum for Dispute Resolution
o Mandatory Arbitration
 predispute arbitration
• requires minimally sufficient notice of arbitration
policy
o if notice fails, enforcement of arbitration clause
is inappropriate
 Notice (intent to be bound by agreement)
• would a reasonable listener believe that the speaker
(R) intend their communication to be binding (ex:
waive right to jury trial)
• sufficiency of notice turns on whether R
communication would have provided a reasonably
prudent E of notice of waiver of rights.
o Objective standard of "reasonably prudent E."
• facts to view
o how was offer communicated
o actual words used in communication
o context of that workplace re: that type of
communication
 Unconscionability
• procedural
o manner of inducement to k
 ex: adhesion k (this is sufficient to prove
procedural unconscionability)
 presentation of k; bargaining power
inequality
• substantive
o in terms of k
• Age Discrimination
o faqs
 20 or more employees
 40 or more years of age
 SoL is 180 days in nondeferral statement
 same exhaustion rules as Title VII (no punatives, IIED)
 Can be an inference of age discrimination if there is a large
separation in age between E and the firing supervisor,
even if R is over 40.
o Age can be BFOQ under certain circumstances
  narrowing factor
• otherwise prohibited action where the differentiation
is based on Reasonable Factors Other than Age
(RFOA provision)
o steps
 E points to practice that has impact
 R only has to show that impact is for reasonable purpose
• very easy for R to show (a reasonable basis).
• ADA
o Prima Facie Case
 person has disability
 person is a qualified individual
 R unlawfully discriminated against him because of the
disability
o Claims Types
 Fired for disability
 Failure to accommodate
o Definition of disability
 shall not discriminate aginst qualified individual
 physical or mental impairment that substantially limits
one or more major life activity of such individuals
 A record of such impairment
 Being regarded as having such impairment
o Substantially Limits... major life activity\
 Toyota
• definition of SL and MLA
o unable to perform major life activity that
average person in the general population can
perform. OR
o significantly restricted as to the condition,
manner or duration under which an individual
can perform a particular major life activity as
compared to the condition, manner, or duration
under which the average person in the general
population can perform that same major life
activity
o In determining major life activity, the following
factors should be considered.
 Nature and severity of impairment

 duration or expected duration of the

impairment

 the permanent or long-term impact

 resulting from the impairment
 if each individual limited task does not
qualify as a major life activity, then
cumulatively they may.
 When major life activity is WORK
• at a minimum E must allege that
they are unable to work in a broad
class of jobs.
• It is insufficient for ADA p's attempting to prove
disability status to merely submit evidence of a
medical diagnosis of impairment. They rather must
offer evidence that extent of limitation in terms of
their own experience is substantial.
•
 2008 amendment
• physical or mental impairments
o subsntailly limits
 E must be viewed in unmitigated state
o major life activity
 need not be of central importance to
most people's lives
 broader, nonexhaustive list.
o Examples

 caring for inelsef, performing manual

tasks, seeing, hearing, eating, sleeping
walking, standing, lifting, bending,
speaking, breathing, learning, reading,
concentrating, thinking, communicating,
and working.- OR

 Operating of a major bodily function. - US

o Qualified
 Claimant must be qualifiied to do work without
accommodation or with reasonable accomodation made by
R.
• able to perform essential functions of employment
position that person holds or seeks with or without
reasoanble accomodation
 Essential job function
• fundamental job duties of employment position the
indiviudal with a disability holds or desires.
o Not the marginal functions of the position.
• A written discription of the job function shall be
considered evidence of the essential functions of the
 job.
• Other factors for ESSENTIAL JOB FUNCTION

o employer's assessment of job duties (given

greater deference)

o understanding between E and R

o amount of time performing that function

o consequnces of not requiring person to

perform function

o terms of collective bargaining agreement

o work experience of past people at that job

o current work experience of people in similar

jobs
o Being regarded as having a disability
 def.
• Having been regarded as a person with a non-minor
impairment for 6 months.
o Accomodation by R
 Reasonable accomodation
• making existing facilities used by E readily accessible
to and usable by individuals with disabilities.
o Reasonable examples
 reassignment to a vacant position,
acquisition or modividaction of
equipment or devices, etc.
 Undue Hardship for R
• def.
o An action requiring significant difficulty or
expense, when considered in light of factors
 nature/cost of accommodation
 overall financial resources of facilitites /
overall financial resources of covered
entity / composition, structure and
function of workforce
 number of people employed at facility
• not reasonable to...
o ask to be exempt from essential job function
OR ask something that would cause an undue
hardship on R.
 Offered accomodation does not have to be offered to
everyone.