Post-<Emphasis Type="Italic">Burlington</Emphasis>: What Employers and Employees Need to Know About Retaliation

Since the landmark decision in Burlington Northern & Santa Fe Railway Co. v. White, numerous federal district courts and circuit courts of appeals in the United States have considered employees’ retaliation claims. This paper reviews several post-Burlington cases and provides employers with a roadmap as to what has been held to be retaliation under the law and what has not. Our contribution is an up-to-date analysis of retaliation cases, on a specific employment action basis, to provide guidance to employers of the types of activity that could support a claim of retaliation and to employees to alert them as to the types of activity that they should not have to endure in the workplace.     

The legal history of work-related sexual harassment and implications for employers

Over the years, the courts have come to consider sexual harassment as a kind of sex discrimination under Title VII of the Civil Rights Act of 1964. Employers are held liable for sexual harassment, and have an affirmative action obligation to eliminate sexual harassment from the workplace. The courts and the EEOC Guidelines have defined sexual harassment as tangible employment consequences or behavior that creates a hostile or offensive working environment. Employers can limit their liability by creating a system to detect sexual harassment and to remedy it promptly. Suggestions to wards developing a strong policy to eliminate sexual harassment from the workplace are given.     

Electronic mail,privacy, and the public sector: Guidelines for public employees and organizations

What privacy rights are public employees entitled to when using their electronic mail systems? Are they entitled to privacy rights in the messages they send or receive? The setting, public or private, is crucial to determine what privacy rights exist for the employee. Unfortunately, no public sector electronic mail privacy case has been considered by the courts. Nevertheless, E-mail privacy guidance does exist. This article investigates previous privacy considerations provided in other workplace situations—cases that involve technologies other than E-mail—in search for common rules established by the Supreme Court. With this foundation, the article then applies the same rules to an electronic mail environment and provides guidelines intended to assist public managers in the creation or reevaluation of their organization’s electronic mail privacy policy.     

Employee drug testing: A constitutional perspective

The proliferation of employee drug testing by federal and state governments and by private sector employers acting pursuant to governmental directives has led to a steadily growing number of lawsuits raising constitutional challenges to such testing. Most of these cases have been based on the Fourth Amendment's prohibition of unreasonable searches and seizures. In 1989, the Supreme Court addressed the constitutionality of employee drug tests for the first time in two cases,Skinner v. Railway Labor Executives' Ass'n andNational Treasury Employees Union v. Von Raab. Recognizing that urinalysis drug testing constitutes a search for Fourth Amendment purposes, the Court determined the constitutionality of the drug tests by balancing the governmental interest in the testing against the privacy interest of the employees and, in both cases, upheld the drug testing at issue. TheSkinner andVon Raab decisions provided guidelines for analyzing Fourth Amendment challenges to employee drug testing, and the lower courts are now in the process of applying and refining these guidelines. Constitutional challenges to employee drug testing programs have also been based on the due process clause and the equal protection clause of the Fourteenth Amendment and on the First Amendment's guarantee of freedom of religion. Unlike Fourth Amendment claims, however, these claims have rarely been successful.     

The Paramour’s Advantage: Sexual Favoritism and Permissibly Unfair Discrimination

Despite the prevalence of sexual favoritism in the workplace, there is much debate over whether this phenomenon rises to the level of prohibited discrimination and harassment. While the United States Supreme Court has not yet involved itself in adjudicating issues of sexual favoritism, the Equal Employment Opportunity Commission, however, has issued guidelines. The California Supreme Court recently addressed the “sexual favoritism as sexual harassment/discrimination” issue and, absent better guidance from the federal courts, the California decision provides interesting insights for the legal and business communities. This article explores key issues involving workplace romances, sexual favoritism, and Title VII’s prohibition of sexual harassment as an illegal form of discrimination based on sex. We use the recent California Supreme Court decision in Miller to illustrate the legal and managerial challenges facing policy makers and management practitioners. We conclude with a discussion of policy alternatives for creating a discrimination- and harassment-free workplace while effectively managing workplace romances and instances of sexual favoritism.

An Affirmative Defense to Sexual Harassment by Managers and Supervisors: Analyzing Employer Liability and Protecting Employee Rights in the United States

Sexual harassment in the workplace is a serious worldwide employment problem. In the United States, courts have taken an increasingly expansive view of both employers' obligations and employees' rights in dealing with the issue. Landmark decisions of the U.S. Supreme Court addressing harassment by supervisors have sought to provide further guidance to employers in order to prevent harassment and refine their obligations. Yet despite the Court's efforts, harassment claims brought on by supervisor conduct continue to be a matter of great concern. This article offers a brief overview of U.S. sexual harassment law including its affirmative defense and provides a decision protocol for employers operating in the U.S. to follow in determining whether or not an affirmative defense can be confidently asserted. Finally management practices that respond to legal principles of an affirmative defense to prevent liability and protect employee rights are presented and discussed.     

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.     

Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace

Reasonable accommodation of religious practices continues to be a problem in the workplace. Recent Supreme Court decisions have enabled employers to exclude employees from the decision-making process of what constitutes a reasonable accommodation of their religious beliefs through the de minimis standard. In this article it is argued that, in most cases, the reason employers have been allowed to discriminate against these employees is the contentious nature of minority religious beliefs with the mainstream religious culture. Because judges view discrimination based on religious beliefs as distinct from the other reasons for discriminatory practices, such as race, sex, or national origin, it appears unlikely that adherents to minority faiths will face any abatement of discrimination in the workplace.     

Court Standards for Terminating Employees Under the ADA: Some Questions and Answers for Managers

Since the passage of the Americans with Disabilities Act in 1990, managers have had to wrestle with the question of what to do when employees become disabled and can no longer perform their jobs as they had before. By law, managers are required to retain such employees if, with reasonable accommodations, they are able to perform their jobs' essential functions. But the written law leaves a number of issues in doubt, such as how managers should (1) determine whether an employee's impairment qualifies as a disability, (2) identify the job functions that are essential, and (3) decide how far to go when granting an accommodation. The Equal Employment Opportunity Commission (EEOC) has issued volumes of regulatory guidelines that deal with these questions. Only now, however, is a body of case law beginning to emerge. Because case law takes legal precedence over EEOC interpretations, managers must keep abreast of court decisions, especially when the courts' edicts conflict with those published by the EEOC. This article describes ADA case law in the form of answers to questions frequently posed by managers. It is based on a review of 44 ADA court cases dealing with wrongful termination claims, 4 of which were decided by the Supreme Court.     

Virginia's New Ban on Public Employee Bargaining: A Case Study of Unions, Business, and Political Competition

This article explores the reasons why the Virginia General Assembly passed a law prohibiting public employee bargaining some 16 years after the Virginia Supreme Court had clearly ruled that such bargaining was impermissible absent express statutory authority. The impetus for this legislation apparently was a series of actions by Governor L. Douglas Wilder's administration involving payroll deductions for state employees. The Virginia case is compared and contrasted to the findings of recent aggregate quantitative studies of the determinants of public sector labor relations legislation, illustrating the relative influence of organized business interests over those of labor.     

The Rights of Employees with Disabilities: Supreme Court Interpretations of the Americans with Disabilities Act and Their Implications for Human Resource Management

The Americans With Disabilites Act (ADA) of 1990 provides broad protection to an estimated 43 million Americans against discrimination in many facets of their lives. Title I of the Act prohibits discrimination in employment. Title III of the Act, which prohibits discrimination in public accommodation, has also impacted the employment relationship. Eight years after the passage of the Act, the U.S. Supreme Court issued its first ruling under the ADA. Two subsequent decisions have been rendered that further interpret the statute and the Court has repeatedly denied to review cases that deal with another key interpretation of the ADA. This paper analyzes these cases and decisions and their implications for management practices.     

Balancing Employee Rights and Responsibilities in Sexual Harassment Cases Following <Emphasis Type="Italic">Faragher</Emphasis> and <Emphasis Type="Italic">Ellerth</Emphasis>: An Employer’s Perspective

In 1998, the United States Supreme Court issued two opinions that delicately balanced the responsibilities of employers and employees in fulfilling Title VIIs goal of eliminating discrimination in the workplace. Those two opinions—Faragher v. City of Boca Raton and Burlington Industries,Inc. v. Ellerth—require employers to implement measures to prevent harm to their employees, but also require employees to take advantage of those measures to avoid harm. Numerous articles have evaluated the responsibilities of the employer under Faragher and Ellerth. But little, ifany, emphasis has been placed on the responsibilities of the employee. This article evaluates the role of the employee in avoiding harm and, analyzing recent decisions from the Second and Third Circuits, argues that the employees responsibilities shouldplay an integral part in evaluating sexual harassment liability.     

The civil rights act of 1991: Legislative responses to judicial decisions

The Civil Rights Act of 1991, among other things, responded to nine different Supreme Court decisions. Seven of these dealt with issues of statutory construction, while one was concerned with the Federal Rules of Civil Procedure, and still another with a judicial response to yet another judicial decision. With one exception, the decisional subject matter varied widely. Some of the responses bestowed employee rights directly (as with Americans abroad), while others were more remedial, dealing with court situations in which employees sought rights such as expert fee shifting. Overall, the 1991 Act importantly perpetuated an already established recent trend adding a new interactive dimension to thede jure granting of employee rights by the branches of the Federal Government.     

The equal pay act: Responsibilities and rights

The Equal Pay Act of 1963 (EPA) requires that men and women receive equal pay for equal work. Plaintiffs who claim discrimination on the basis of the EPA may settle out of court, or may bring legal action in the courts. Employers possess specific rights under the law, and can defend themselves against charges of discrimination through a number of “employer defenses.” These defenses involve providing that pay differences are based on seniority systems, merit systems, production systems, or “any other factor other than sex.” This article will also discuss the impact of court decisions that have further honed the responsibilities and rights of both employees and employers under the EPA.     

The ARCO decision: Inroads into the per se rule under Section 1 of the Sherman Act

In this study, the author analyzes the 1990 U.S. Supreme Court decision inAtlantic Richfield Company vs. USA Petroleum Company approving Atlantic Richfield’s maximum pricing plan improsed on its distributors (despite the Court’s recognition that theper se rule forbade such schemes). Theper se rule had been one of the last substantial measures of effective antitrust policy administered by enforcement authorities and the courts, perhaps even more fundamental than scrutiny of proposed mergers and predatory practices. That principle has been weakened by the ARCO decision. The author addresses some of the likely consequences of the ascendancy of the Chicago School and the NeoClassical theory generally in antitrust interpretation.     

Understanding injustice-related aggression in organizations: a cognitive model

Recent developments in the literature on workplace aggression emphasized the role of perceived injustice in the occurrence of aggressive behaviours in the workplace. The present article develops a cognitive model, which contends that perceptions of injustice are necessary but not sufficient to trigger aggressive behaviours in the workplace. Rather, retaliatory actions following perceived injustices are embedded in a nexus of personal values, blame attribution, opportunities to carry out the aggressive action, probability of retaliation from the target or a third party, and the advantages incurred by such actions. The paper develops three constructs, injustice threshold, repertoire of perceived injustices and psychological suspended sentence, to explain individual reactions to perceived injustices. Implications for empirical investigations and practice are discussed.     

Attention Deficit/Hyperactivity Disorder in the Workplace Under the ADA in the Wake of Sutton and Its Companions

The terms Attention Deficit Disorder (ADD) or Attention Deficit/Hyperactivity Disorder (AD/HD) refer to a neurological impairment that affects the individual's ability to sustain attention and to behave in a calm, rational manner. ³ Although this disorder has long been considered to be restricted to childhood, recent research has demonstrated that many children carry it over into adult life and take it with them into the workplace. Most U.S. courts have treated AD/HD as a disability covered by the Americans with Disabilities Act (ADA). ⁴ However, in the summer of 1999, the U.S. Supreme Court made three decisions that will undoubtedly affect the future status of AD/HD and other impairments under the ADA. This article examines those decisions, how they affect the employment rights of AD/HD-afflicted employees, and the changes they will probably bring to litigation in this area. Because we have many reservations about the court's decisions, we not only voice our criticisms of the decisions, but also offer an alternative approach.     

Estimating Bayesian Decision Problems with Heterogeneous Expertise

We consider the recent novel two‐step estimator of Iaryczower and Shum (American Economic Review 2012; 102 : 202–237), who analyze voting decisions of US Supreme Court justices. Motivated by the underlying theoretical voting model, we suggest that where the data under consideration display variation in the common prior, estimates of the structural parameters based on their methodology should generally benefit from including interaction terms between individual and time covariates in the first stage whenever there is individual heterogeneity in expertise. We show numerically, via simulation and re‐estimation of the US Supreme Court data, that the first‐order interaction effects that appear in the theoretical model can have an important empirical implication. Copyright © 2015 John Wiley & Sons, Ltd.     

The Implications of ADA Litigation for Employers: A Review of Federal Appellate Court Decisions

Analysis of litigation outcomes indicates that most plaintiffs who sue under the Americans with Disabilities Act are unsuccessful. Equal Employment Opportunity Commission enforcement data and six years of federal appellate court decisions were reviewed, as well as recent rulings of the United States Supreme Court. The courts are interpreting the ADA very narrowly, and very few plaintiffs prevail. The results of this research suggest that if employers engage in an individualized assessment of whether an individual is protected by the law and whether the requested accommodation is reasonable, legal liability will be minimized. © 2001 John Wiley & Sons, Inc.     

Post-9/11 Backlash in the Workplace: Employer Liability for Discrimination against Arab- and Muslim- Americans Based on Religion or National Origin

In the wake of the September 11, 2001 terrorist attacks, discrimination and violence directed toward American immigrants in general, and Arab- and Muslim-Americans in particular, increased markedly. Yet, despite a November, 2001 joint initiative undertaken by the EEOC, the Justice Department, and the Labor Department to increase sensitivity to and combat instances of potential discrimination or harassment against individuals who are—or are perceived to be—Muslim, Arab, Afghani, Middle Eastern, or South Asian, EEOC charge statistics for workplace discrimination claims involving religion, ethnicity, national origin, and citizenship indicate that the reported incidence of such conduct has continued to increase. This paper examines recent federal court cases that involve employment discrimination claims by Arab- and Muslim-Americans at both the trial court and appellate court levels to identify problematic fact patterns that may give rise to employer liability and to better understand judicial treatment of the legal issues when such cases are taken up on appeal. Management guidance for reducing potential liability when such situations arise in the workplace is developed based on recent findings in the case law. Analogous international implications are also discussed.