Equality Canadian Charter of Rights –Every individual is equal before and under the law and has...

Equality

• Canadian Charter of Rights– Every individual is equal before and under the law and

has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

• US Constitution 14th Amendment– No State shall . . . Deny to any person within its

jurisdiction the equal protection of the laws.

Equality

– Discrimination• Means practices or attitudes that have, whether by

design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics

• It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is accidental

Employment Discrimination

• Title VII 1964-amended 1991

• Prima Facie Case– Applied for position– Qualified for position– Rejected

• Burden shifts to employer after PF case– Legitimate nondiscriminatory reason

Proving Discrimination

• Individual Disparate Treatment– McDonnell Douglas 1973– Burdine 1981– Hicks 1993

• Abandon this structure?

• Disparate Impact

• Reasonable Accommodation

Price Waterhouse v. Hopkins

• Sex-Stereotyping case • Congress responds to this case in the 1991

amendments– Gender a motivating factor-mixed motives– R’s burden to prove it would take the same step

in the absence of the illegal motive– R is liable for an award that does not benefit the

individual plaintiff - even though it would have taken the same action anyway

BFOQ Defense

• Age for airline pilots?

• Lifting requirement for firemen?

• Religion requirement for salespeople?

• Protecting from harm?– UAW v. Johnson Controls (1991)

Equality

• Identical treatment may frequently produce serious inequality

– The goal is not to treat everyone the same, e.g. a pregnant woman and a man

– The goal is to avoid imposing penalties on one person or group obligations, penalties, or restrictive conditions not imposed on other members of the community

Equality

• 31 million women work outside the home– 78% dead-end jobs – clerical, service, factory,

sales – 17% non-college teacher or nurse– Less than 5% are “professional”, physician,

lawyer, engineer, scientist, college professor, etc.

Equality

• Women and Men with genius IQ levels, >151– 86% of men became professionals– Less than 50% of the women ever worked

• Of those, 37% nurses, librarians, non-college teachers• Only 11% were lawyers, drs, professors, scientists

• Being female uniquely qualifies you for domestic work– We can predict that women will spend the equivalent of

a full working day, 7.1 hours preparing meals, cleaning house, laundering, mending, shopping

Reasonable Accommodation


• Definition of disability:– Physical or mental impairment– That substantially limits– Major life activities – walking, seeing, hearing,

speaking, breathing, learning, working (509)


• Who should initiate the conversation?

• Who should bear the cost?

• Do the facilities need to be exactly equal

• Working on Saturdays?

Pregnancy Discrimination

• Can a state go farther than the federal government in protecting against discrimination?

• 701(k) An employer must treat pregnancy the same way they treat other types of temporary disabilities.

• Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991)

Sexual Harassment

• Quid pro quo

• Hostile environment

Sexual Harassment

• Hostile Environments

– Discrimination based on sex creating a hostile or abusive work environment

– A reasonable person subjected to the discriminatory conduct would find that the harassment so altered working conditions as to make it more difficult to do the job

Sexual Harassment

• Can we transform Title VII into a general civility code for the American workplace?– Same sex harassment– Sexual orientation harassment

• 13 states prohibit

– Racial harassment– Physical appearance harassment

Age Discrimination

Affirmative Action

• The Nation was concerned about centuries of racial injustice and intended to improve the lot of those who had ‘been excluded from the American dream for so long’

• The plan did not create an absolute bar to the advancement of white employees

• Not a mandate to fire white employees• A temporary measure• Johnson v. Transportation, 1987

Affirmative Action

• Dissent: Racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer’s own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex into certain jobs

Affirmative Action

• Remedial purpose

• Diversity?

• Law school admissions– At UCLA minorities accepted fell 80% between

1996 and 1997 104->21 8 enrolled– Berkely 74->15 1 enrolled

• Symbolic importance

Duty of Loyalty and Trade Secrets

• General or Specific job training• Competitive market with many bidders• Non-compete clause protects the investment and

employer makes in training an employee about trade secrets

• Training creates an incentive for opportunistic behavior

• The contract creates an incentive for employer to behave opportunistically

Duty of Loyalty and Trade Secrets

• Uniform Trade Secrets Act – 41 states

• California (again) is different

• Lawsuits are uncommon because they hurt recruiting efforts

• High employee mobility, high information spreading, low litigation and rapid economic growth

Duty of Loyalty and TS

• No compensation for any period in which you are breaching

• ABC reporters at Food Lion?

Enforcement of Noncompetition Clauses

• Thirteenth Amendment problems

• Recruitment and initial training costs– 1979 Survey $2K/office worker– $3,500/production worker– $10,000 for salary-exempt workers

Taking Customers and Employees

• Misappropriation of TS– Unjust enrichment by improper appropriation– Use or disclosure of a TS

• Define TS – Customer database

• Take reasonable steps to protect

• Defense: Fair Competition

Trade Secrets in Information

• Remedy: Preliminary Injunction• UTSA or common law• Federal Trade Secret protection

– Broader definition– Up to $500,000 in fines– Up to 15 years in prison– Up to $10 million in fines for organizations– Additional charges? Wire, mail fraud


• General knowledge, skill acquired through training or experience belong to the employee.

• The risk of future competition falls upon the employer

• An employer cannot by contract prevent the employee upon termination of employment from using their skills


• Employer must prove it is specific/ts/special circumstances, not general knowledge

• Recouping costs of general training does not justify a noncompete clause

• James Brown? Albert Einstein?• Recover training expenses• Oral promises admissible as evidence?• Consideration problems?


• Karpinski v. Ingrasci NY 1971”never practice dentistry and/or Oral Surgery in 5 counties except a) in association with the plaintiff or b) the plaintiff terminates the agreement and employs another oral surgeon

• $40,000 note payable to plaintiff if he violates the NC clause


• Public policy militates against the loss of a person’s livelihood

• 5 small rural counties were ok, in a different circumstance, 1 or 2 counties would not be ok with the court

• Unlimited time is never allowed

• Dentistry/and or oral surgery?


• Lifetime Worldwide bans?

• Economics questions – do we prevent resources from moving to where they would be most valuable?

• Fact specific questions

• 3 answers: Rewrite, Blue Pencil, Strike down

Equality Canadian Charter of Rights –Every individual is equal before and under the law and has...

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