Employment Law OverviewOctober 9, 2012

What is Employment Law?

A great many common law rulings, statutes, administrative rules and legislation make up the practice and interpretation of employment law. Its governance falls under the umbrella of both federal and state statutes, as well as administrative regulation and judicial precedent.

When workers file claims for sexual harassment, wrongful termination and employment discrimination, these claims fall under employment law. Likewise, overseeing workplace safety and standards, fair wages, retirement and pensions, employee benefits, and much more, is part of this wide-ranging legal area. Employment law deals with the employer and the employee’s actions, rights and responsibilities, as well as their relationship with one another.

What is Sexual Harassment?

Sexual harassment is amorphous and complicated, taking on many forms and involves many subtleties. Although most sexual harassment claims are filed by women, the harasser can just as easily be a woman, and there are no laws requiring that the victim and harasser be of different sexes (i.e., same sex sexual harassment is also considered against the law). Furthermore, a harasser can be a boss, a supervisor, a co-worker, someone in a different area of your workplace, or even an agent of a supervisor. The victim doesn’t even have to be the one actually harassed, if he or she is negatively affected by harassment around him or her. The two basic types of sexual harassment are Quid Pro Quo and hostile work environment.

• Quid Pro Quo sexual harassment is the more obvious form of harassment, wherein sexual conduct becomes the basis of an employment decision, i.e. a supervisor says, “Have sex with me and I’ll give you the job, or the promotion, or a raise,” or conversely, “If you don’t have sex with me, I’ll fire you.”
• A hostile working environment – while not as easy to define – can just as easily constitute sexual harassment, if the conduct considered harassment is all of the following: Unwelcome, severe, and pervasive in the workplace. A hostile working environment can be as straightforward as a supervisor making sexual advances or asking for sexual favors, or it can be more amorphous, as in the case where a co-worker sends pornographic emails or shares lewd or offensive jokes, out loud, in the workplace.

What is Wrongful Termination?

If an employee is fired without just cause and the employer was wrong to do it, then the employee was wrongfully terminated. In most cases, an employee is wrongfully terminated for one of the following reasons: illegal discrimination (because of your race, gender, religion, or national origin), retaliation, or for whistleblowing.

In addition, many wrongful termination cases often involve retaliation. Retaliation is basically an employer’s way of seeking revenge upon on employee for trying to enforce his or her legal rights. An employer is expressly prohibited from terminating an employee relationship for an employee’s attempt to assert his or her own legal rights. To establish a case of retaliation, an employee is required to show;

• he or she engaged in a protected activity (such as exercising constitutional rights);
• he or she performed his or her job according to his employer’s legitimate expectations;
• despite meeting his employer’s legitimate expectations, he or she suffered a materially adverse employment action;
• and he or she was treated less favorably than similarly situated employees who did not engage in a protected activity.

What is Employment Discrimination?

Employment discrimination law revolves around the Civil Rights Act of 1964, which makes it illegal for an employer to discriminate in hiring, firing, promoting, or giving raises on the basis of an employee’s sex, race, gender, national origin, or religion. To qualify in a discrimination case, one of two factors must exist: disparate treatment, or disparate impact.

• Disparate treatment refers to when people are treated differently with respect to the terms and conditions of their employment because of their race, color, sex, national origin, religion, age or mental or physical disability.
• Disparate impact is an employment policy or practice, while neutral on its face, adversely impacts against a particular racial, ethnic or sex group. For example, a neutral policy or practice may have an adverse effect on disabled individuals or religious groups.

Employment legal issues can be very contentious. Having a basic understanding of some of the major areas in employment law can help alleviate some of the anxieties both employees and employers might encounter when dealing with these issues.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC