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Personnel Policies and Practicies

III. Basic Federal and State Legal Regulation of Employment

Federal and state laws that cover broad swaths of the public and private sectors fall into two rough categories: civil rights (Part A, below), and labor market or workplace regulation (Part B, below).

1. Fundamentals of Employment Civil Rights Law
   
   The following approaches the complex and dynamic field of employee civil rights law in several different ways. Sections 1 and 2 catalogue some of the major federal statutory sources of anti-discrimination law from Reconstruction through the heyday of the Civil Rights movement. Sections 3 and 4 then discuss of some of issues that commonly arise in discrimination matters - regardless of what "type" of discrimination is at issue. Section 5 briefly reviews the major "protected classes" created by anti-discrimination law (e.g., race, sex, religion, age, disability, etc.) and some of the distinctive issues associated with each group. Section 6 discusses recent developments in the law of federalism, or so-called "States' rights." Section 7 concludes the discussion of civil rights issues with a brief review of major " employee rights" issues (freedom of speech, free association, privacy and "whistleblowing") that have a significant constitutional or federal component.
   
   The single most dramatic change in both civil rights and employment law in the last fifty years has been the development of laws against "discrimination." Laws passed during Reconstruction have been dusted off and brought back from obscurity, comprehensive new laws have passed and the idea that discrimination is improper and should not be allowed has spread in our popular and political culture.
   
   "To discriminate" literally means nothing more than "to mark or perceive the distinguishing or peculiar features" of something.² To say a person has "discriminating" taste in art, food or films, for example, is to compliment an ability to distinguish the exceptional from the ordinary, the acceptable from the undesirable. Obviously, in this literal sense, employers want to discriminate in selection and retention of employees. The law, however, has long recognized another kind of discrimination - one in which irrelevant characteristics are treated as crucial or minor differences are given undue weight. Such discrimination is a "breach of the . . . duty to treat all . . . alike and afford them equal opportunities" or "a failure to treat all equally."³ This is sometimes referred to as "invidious discrimination."⁴
   
   The basic duty not to discriminate in the second sense can be traced back to deep roots within the common law and American history. However, the end of Reconstruction and the establishment of the "Jim Crow" system froze the development of the law of equality or nondiscrimination for many years. The Civil Rights movement and court decisions beginning with Brown v. Board of Education⁵ ended this interregnum and brought discrimination issues back to the forefront of American law and politics.
   
   In addition to such historic factors, many employment discrimination claims are litigated because of the vast numbers of employment decisions made every year and, indeed, every day. It requires only a small fraction of employees believing they have been victims of discrimination - or feeling they can get redress by using discrimination laws - to generate a tide of cases. Thus, the law of employment discrimination has expanded and developed rapidly over the last quarter century.
   
   
   1. Federal, State and Local
      
      We commonly think of anti-discrimination law as national. In fact, within our system of federalism there are typically overlapping anti-discrimination laws. Federal law can be thought of as establishing a "floor" of protection. ⁶ In fact, many federal civil rights statutes have specific provisions stating that the federal law does not prevent states or local governments from granting more extensive anti-discrimination protection. Similarly, within the states local governments may have authority to pass ordinances or rules forbidding discrimination. Again, local laws may be different from state law. These overlapping levels of authority require employers to be familiar with federal, state and local law and realize that duties can change from one jurisdiction to the next.
      
      
      1. Responsibilities to Chartering Authorities
         In addition to compliance with law, charter schools need to be cognizant of anti-discrimination policies of the chartering authority. Even if there is no law against a certain type of discrimination, the chartering authority may have adopted a policy on the subject that the school must follow.
      
      
   2. Reconstruction Era and Modern Statutes
      
      
      1. The Civil Rights Enforcement Statutes
         During Reconstruction, Congress passed a number of laws - known as Civil Rights Acts and the Ku Klux Klan Act - that were intended to make "the equal protection of the laws" a reality. The Supreme Court began giving restrictive interpretations to these laws before the end of Reconstruction. For many decades these laws were little used. These laws were revived by Supreme Court decisions issued from 1961 to 1973 - though some early restrictions have survived. The two most significant Reconstruction Era laws are commonly called Section 1981 and Section 1983.
         
         
         1. Section 1981
            Section 1981 first passed to enforce the Thirteenth Amendment. That Amendment emancipated slaves, but Southern states quickly began attempting to re-establish an effective state of slavery. Section 1981 sought to secure emancipation. It gives "[a]ll persons" the
            
            

            same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.⁷

            Because slavery involved both public, law-making entities (state and local governments) and private parties (slave owners), Section 1981 applies to both governmental and non-governmental actions. However, 1981 only applies to "race" discrimination. While "race" includes many ethnic groups,⁸ the term is not interchangeable with "national origin." Also, 1981 does not reach discrimination based on sex, religion, disability or any other non-racial grounds. However, as part of its prohibition on race discrimination, 1981 may reach issues of discrimination against whites (or others) due to their association with members of another race, and discriminatory retaliation.⁹ Section 1981 - like all of the Reconstruction Era statutes - only reaches intentional discrimination. While most federal anti-discrimination statutes have limitations on remedies - such as a cap on damages - there is no such limit under Section 1981. Thus, intentional racial discrimination triggers the most extensive civil remedies allowed by federal law.
            
            
         2. Section 1983
            The most important Reconstruction Era statute is 42 U.S.C. § 1983. This law is a major expression of the fundamental change in the balance of federal and state power brought about by the Civil War Amendments. Simply, Section 1983 makes it possible for a private person to sue any state or local government that has violated federal law - whether constitutional or, in some cases, statutory. It is the basic means for private, civil enforcement of federal law against state and local government. When a public employer takes action against a public employee, any claim that this action violated federal law may end up as a 1983 complaint. In employment discrimination cases, Section 1983 gives public employees another way to sue for intentional discrimination that violates the constitution. Thus, 1983 is the same as 1981 in only applying to intentional discrimination, narrower in only applying to public employers, but broader in applying to discrimination on the basis of race and other constitutionally significant grounds - for example, sex, religion and perhaps political affiliations. Section 1983 applies to many issues outside the discrimination context. Section 1983 cannot be used to sue a state itself for monetary damages. It can be used to force state officials to comply with federal law in the future.
            
            
         3. Conclusion
            In general, the Civil Rights Enforcement statutes provide strong remedies for a limited class of cases. There are many technical legal issues that can be raised under these statutes that we do not discuss here. There is no administrative system for processing these claims before they are filed in court. In fact, even if a local law or internal "grievance" process would provide some remedy, an employee is generally not required to use this alternative before going to court. The most important lesson of these long-standing laws is that intentional discrimination, especially intentional race discrimination, gives rise to the most significant available federal remedies.
         
         
      2. Title VII
         The Civil Rights Act of 1964 is the single most comprehensive federal anti-discrimination law. Title VII of that Act¹⁰ is the baseline federal law prohibiting employment discrimination. More employment discrimination claims are filed and processed under Title VII than under any other American law. As originally passed, Title VII forbade employment discrimination by private employers. In 1972 the Act was amended to extend Title VII rules to employees of state and local governments.
         
         Title VII prohibits discrimination on the basis of "race, color, religion, sex, or national origin."¹¹ It also prohibits retaliation against an employee who has "opposed any practice made . . . unlawful" by Title VII, or who has filed a Title VII charge or "testified, assisted, or participated in any manner" in a Title VII case.¹² Title VII forbids intentional discrimination and certain discriminatory effects. Title VII charges must be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the action being disputed. The time generally begins to run when the employee has notice of this action - even if this comes before its effective date.¹³ In some (but not all) states charges are "deferred" to the state agency that investigates civil rights claims. While the EEOC has the right to take the employee's case to court, this is the exception to the ordinary pattern. Normally, after an EEOC investigation there are attempts to negotiate or "conciliate" a settlement. If this is unsuccessful, the EEOC determines if there is "cause" or "no cause" to believe discrimination has occurred. This finding has little significance in itself, except that it triggers a "right-to-sue" letter, allowing the employee to then take his or her case to court. If EEOC proceedings have been pending for more than 180 days, the employee can actively request a right-to-sue letter. Title VII remedies were redefined by the Civil Rights Act of 1991 and now include compensatory damages, as well as opportunities for a jury trial.
         
         
      3. Spending Clause Civil Rights Statutes
         When the Civil Rights Act of 1964 was being drafted and debated, Congress realized that many entities engaged in discrimination received significant federal funds. In effect, the federal government was funding discriminatory activities or programs. Title VI of the 1964 Act was prompted by this realization and prohibited any "program or activity" that received federal funds from discrimination on the basis of "race, color or national origin."¹⁴ Title VI is not, however, a major alternative to Title VII because Title VI only applies to employment when the "primary objective" of the federal funding is to promote employment.¹⁵ Title VI is significant here because its use of a distinctive constitutional power of Congress - the Spending Clause - became a model for other statutes. Under these laws, Congress makes certain forms of nondiscrimination a condition of the agreement to receive federal funds.
         
         Title IX of the Education Amendments of 1972,¹⁶ for example, prohibits discrimination on the basis of sex in any educational program that receives federal funds. Though Title IX is most famous for its effects on women's athletics, it also provides an alternative method for suing educational institutions for sex discrimination in employment. The Age Discrimination in Employment Act (ADEA) similarly has a prohibition on age discrimination in federally funded activities.¹⁷ Perhaps most significantly, Section 504 of the Rehabilitation Act of 1973¹⁸ was the first, and for many years only, federal statute to prohibit disability discrimination. Section 504 follows the Title VI model, prohibiting discrimination only in federally funded programs or activities (but, unlike Title VI, prohibits employment discrimination without regard to the primary purpose of the federal funding).
         
         As with the Reconstruction Era statutes and Title VII itself, there are a variety of technical debates concerning the Spending Clause statutes that go beyond the scope of this manual. The main significance of these laws for the charter school employer is that (1) in some cases these statutes provide employees with another route to federal court and (2) these provisions give federal funding agencies a role in scrutinizing certain employment practices of the state or local entities they fund.
      
      
   3. Aspects of Employment Covered: "Adversity"
      
      The most common employment discrimination claims involve termination of employment. Challenges to the failure or refusal to hire employees, particularly challenges to any tests or other screening mechanisms used in the hiring are also common. The scope of these laws, however, reaches any term or condition of the employment relationship. Thus, the refusal of a promotion, or the imposition of a demotion, may be the occasion for a discrimination claim. In the area of alleged "harassment" in the workplace, one question that arises is whether the harassment has been severe enough that it can be said it has changed the conditions or terms of employment.
      
      There is, of course, a limit to what employees can complain about. That limit is described by the concept of "adversity." To give one example, lateral transfers may be adverse if the circumstances show the employer meant or the employee reasonably perceived the transfer as either punishment or a limit on future prospects. However, a 'pure' lateral transfer - with no loss of pay, job prestige or future opportunity - is not necessarily 'adverse' just because the employee preferred other work.
      
      While loss of pay, benefits or career opportunity is the most common form of adversity, it is by no means the only source of bona fide discrimination complaints. In one recent case, an employee who used a wheelchair complained about the transportation arrangements for a training session outside the office. The employer rented vans to transport employees but - despite the employee's request - refused or neglected to rent a lift-equipped van. The employee complained about being manhandled onto and off of the vehicles used for this event. The trial court - and even the defendants - did not question that this action involved sufficient "adversity."¹⁹
      
      
   4. Common Discrimination Issues (and Defenses)
      
      Different statutory language or history has resulted in distinct theories of discrimination. The issues most important to newly protected groups - women, for example, as opposed to African-Americans - have brought new issues or aspects of discrimination - such as employer policies toward pregnant employees - to the forefront. The following sections attempt to summarize the main theories or topics that have some general significance, before we briefly review issues unique to different protected classes (e.g., race, sex, religion, age, disability, and so on).
      
      
      1. "Disparate Treatment"
         "Disparate treatment" is both another term for "intentional discrimination" and a description of a Title VII method for providing discriminatory intent. Intentional discrimination on the basis of a forbidden characteristic is the classic form of invidious discrimination and the form with constitutional significance in some cases. There are, roughly, two types of evidence of intentional discrimination and at least two methods of proving such e a case.
         
         First, in some cases the intent to discriminate is openly announced or apparent. A job advertisement that states "only men may apply," tells the reader, on its face, that the employer is "discriminating" against women. With a few exceptions, such open admissions become rare almost as soon as an anti-discrimination statute passes. One variation on this theme, however, is the use of euphemisms, code words or other expressions that are clearly understood as referring to a forbidden basis for employment decisions. An employer who states that the work place needs "new blood," and then proceeds to fire older employees invites the inference that preferring "new blood" was just another way of announcing an intent to discriminate based on age. This sort of evidence is sometimes referred to as "direct evidence" on the theory that it directly reflects the intent or mental process of the employer.
         
         Second, and far more commonly, intent to discriminate is proven through circumstantial evidence. This is not surprising, since a hidden or secretive state of mind can only be proven circumstantially. Common forms of circumstantial evidence include any suspicious timing of events and the odd nature - whether trivial, stale, false or otherwise implausible - of an employer or manager's explanation of those events.
         
         Using direct or circumstantial evidence (or a combination), an employee can simply put on its evidence of improper intent and challenge the defendant to rebut it. However, Title VII also creates a unique method for ferreting out proof of discriminatory intent. Under the Title VII scheme, an employee is given a very light initial burden of proof. For example, merely the employee is in a protected class and that the action unfavorable to the employee was also favorable to someone not in the protected class, is enough to meet this initial burden. Then the employer is required to explain its reasons for action. After the employer offers an explanation, the employee gets a second chance to put on evidence to convince the court or jury that discrimination really took place. The requirement that the employer step forward with some explanation creates an opportunity for the employee to explore any weakness in that explanation and argue for an inference of discriminatory intent. This is the method of proof known as "disparate treatment." When an employee uses this method to disprove the truth or reasonableness of an employer's stated reason for some action, the allegedly false or implausible reason may be called a "pretext" or "pretextual."
         
         Given the Title VII allocation of burdens of proof it is obviously important that employers think through their reasons for action and be sure those reasons have some weight - that they are based on knowledge of the true facts, for example, or at least careful investigation, and that they would commonly be understood as a good reason for taking the action in question. It is not enough to say that an employee is "at will." Though a good reason may not be required by the common law, an employer's inability to articulate a persuasive reason when pressed may well lead to a conclusion that the reason offered was a 'pretext' and the action was really based on discrimination.
         
         
         1. BFOQ
            One defense to a claim of intentional discrimination is to argue that a normally forbidden consideration can be use due to unique requirements of a particular job. This is called a bona fide occupational qualification or BFOQ. Despite the rules against sex discrimination, for example, it would be permissible for a theater company to insist on hiring a male to play Romeo and a female to play Juliet. It was, similarly, a BFOQ for Spike Lee to hire an African-American lead in Malcolm X. It is doubtful any charter school will ever have a job in which race, religion, or age is a BFOQ. As discussed further below, the "qualification" issue becomes more nuanced in the case of disability discrimination. The only area in which a true BFOQ is likely to exist in the charter employment context is the need to hire or assign employees of appropriate gender to supervise sex-segregated locker and rest rooms. It is almost certainly not a BFOQ to hire a person of particular national origin to teach a particular subject - one need not be of Hispanic origin to teach "Chicano Studies," for example.
            
            
         2. Mixed Motives
            People often act for more than one reason. Employment decisions, further, are often made by more than one person. If several people, with many different reasons between them, decide to terminate an employee, how does an issue of discrimination get sorted out? This problem is what the law calls a "mixed motive" issue. Suppose, for example, a teacher informs a charter school governing body that she has become pregnant and will have a baby during the next school year. One member of the governing board is concerned that the teacher will use her leave and not come back because "that's what women do." Others never liked her before she was pregnant. The second group and the one board member concerned about the employee's return to work form a voting majority and terminate the teacher. Has there been forbidden pregnancy discrimination? The most likely answer is "yes."
            
            An employee is only required to show that a forbidden or discriminatory reason was a substantial or motivating reason for the decision. The bad motive of even one board member - even if that board member had several motives - will probably satisfy this test. Then, the employer can defend on the basis that if the illegal motive had never been present the same decision would have been reached in any event - in other words, that the illegal motive, while present, did not 'cause' the result. While this defense can be important, it is often difficult to establish. That is, the employer must show that if history had been different the outcome would have been the same. Juries are understandably skeptical of such arguments.
            
            The solution is not to let history be written this way in the first place. If a board member expresses an illegal motive, even during confidential discussion, board members or administrators should insist that such reasons be taken out of the decision making process. Every decision maker should be comfortable with the legality of not only his or her own reasons, but the reasons being offered and used by others. In the example given above, the board members who never liked the employee should consider whether they really want to "win" based on another board member's dubious and illegal reason.
         
         
      2. "Disparate Impact"
         One of the ways of demonstrating discriminatory intent is to show an overwhelming mathematical or statistical improbability that any other reason can account for certain behavior. This specialized form of circumstantial proof is well illustrated in the classic case of Yick Wo v. Hopkins.²⁰ In that old case, the City of San Francisco required licenses for laundries and then refused to give licenses to every one of over 100 Chinese applicants, while simultaneously granting licenses to all-but-one of 200 non-Chinese applicants. The Supreme Court found the city had used an apparently neutral provision "with an evil eye and an unequal hand." But what if the evidence of statistical disparity is a little less glaring? Or a lot less glaring, but still of statistical significance? How much discriminatory effect is needed to show intent? How much, even if it doesn't prove intent, is a cause for concern? And under what circumstances might an otherwise disturbing discriminatory effect be justified by an employer?
         
         The theory of "disparate impact" attempts to provide one set of answers to such questions. It is important to remember that the "disparate impact" theory has multiple purposes. On the one hand, it is clear that not all cases of discriminatory intent can be proved by either direct or circumstantial evidence. States of mind are invisible and some employers who discriminate will get away with it. A test that reaches some discriminatory effects helps improve deterrence by "catching" some of these hidden cases of intentional discrimination. In addition, a focus on discriminatory effects requires employers and other institutions to ask if their existing practices have real value. If a practice has a discriminatory effect and is for every other purpose worthless, the resulting discrimination may be unintentional, but also lacks justification. Indeed, discriminatory effect analysis is arguably superior to inquiries into intent - instead of trying to "read minds" and hunt down bigots, the disparate impact test asks two straightforward, objective questions: Does the practice have discriminatory effects? If so, does it also have some positive benefit that outweighs this negative effect or cost? The first step in a "disparate impact" case is to establish the discriminatory effect of a certain behavior or practice. A classic example would be a pre-employment test or other screening device. If the test screens out a disproportionate number of the members of a protected class, then it must be justified according to "disparate impact" standards.
         
         
         1. Business Necessity
            The basic justification for a test, screening device, or other practice is whether it is "job related for the position in question and consistent with business necessity."²¹ Again, a simple example may help illuminate this abstract test. Suppose physical education teachers are required to pass a test of physical fitness. Suppose further that this particular test has a statistically significant effect of screening out more females than males. To prevail in a discrimination claim brought by women who failed the test, the school will need to show that this test has a real relationship to being a capable P.E. teacher. There are professionals and businesses that specialize in reviewing employment screening tests of different kinds to be able to justify their relationship to the job (or counsel the employer to get a new test).
            
            
            
         2. Less Discriminatory Alternative and Failure to Accommodate
            Showing that a practice is "consistent with business necessity" is not an onerous test. However, the employee-plaintiff has one more arrow left in the disparate impact quiver. The employee can try to show that another practice (such as another test) does just as good a job of serving the employer's legitimate interests while also eliminating the discriminatory effect. This is called the "less discriminatory alternative" doctrine. Few cases are actually decided on this basis. When employers are given "less discriminatory alternatives" they usually either take the alternative or reject it on the basis that it really doesn't work as well as the existing practice - and in that case the issue reverts to whether the first practice was "consistent with business necessity" to begin with. The less discriminatory alternative test is identical to the concept of "reasonable accommodation" in disability discrimination law. A "reasonable accommodation" is typically a proposal for how an employer can modify existing rules or requirements and still achieve legitimate interests - literally, a "less discriminatory alternative."
         
         
      3. Hostile Environment
         The "hostile environment" concept is most familiar from sexual harassment cases. Jokes, pranks, ridicule, sexual innuendo, or unwanted touching can all make up part of a harassing "hostile environment." Despite its prominent identification with sex harassment cases, the concept of a hostile work environment has general applicability. If an employer made (or deliberately allowed) a work place to become truly hostile to, for example, the members of a particular religion, this could become a Title VII claim. The theory is simply that a sufficient degree of day-to-day mistreatment becomes an "adverse" term or condition of employment. If such mistreatment is due to membership in a protected class, then it is a form of forbidden discrimination.
         
         
      4. Retaliation and Coercion
         Title VII, the ADA and other civil rights statutes often forbid discrimination for making complaints, testifying, opposing illegal practices or otherwise attempting to support the law. Thus, employees have a protected right to file claims or otherwise oppose what they think are illegal practices.
         
         
      5. "Affirmative Action" vs. "Reverse Discrimination"
         Affirmative action plans attempt to respond to a history of discrimination by creating some system of benefits or preference for the group that historically suffered discrimination. The great debate concerning affirmative action boils down to an issue of specificity. If an individual employee can show that they were discriminated against on the basis of, say, race, it is of course permitted to give that employee a remedy for discrimination (i.e., some "affirmative action"). If, on the other hand, the issue is 400 years of discrimination against African Americans, it is not permitted for an employer to only hire African Americans (or a high percentage of African Americans) in a misguided attempt to remedy the nation's past. Somewhere in between these extremes, race-conscious remedies are permitted, but excessively creating sinecures or quotas based on race is not. The Supreme Court has offered deeply mixed signals on when one crosses the line from proper remedies for past evils into improperly creating a new evil. Charter schools may, of course, be bound by existing court orders covering their chartering authority. On the other hand, schools should not adopt affirmative action plans unless there has been careful review, with counsel, of the circumstances that justify the plan, and the contours of the plan.
      
      
   5. Protected Classes
      
      Keeping in mind the issues that commonly recur in anti-discrimination law we now turn to brief examination of the some of the unique features or issues that arise with regard to each different protected (or, in some cases, unprotected) class. See Box 1.
      
      

      Box 1, Major Protected Classes in Anti-Discrimination Law
      General Federal Law race/color/nationality/ethnicity sex, including          pregnancy          sexual harassment religion, including          reasonable accommodation of religious practices disability, including          reasonable accommodation and          nondisabled associates of disabled individuals	State or Local Law marital status political affiliation* "lifestyle" or legal activity sexual orientation
      *Also raises issues under the First Amendment, which may be litigated under 42 U.S.C. § 1983

      
      
      
      1. Race, Color, Nationality, and Ethnicity (Title VII and § 1981)
         One of the reasons race discrimination is "invidious" is that the entire concept of race is largely a myth. Human beings are not neatly divided into well-defined races. The range of variation within any group defined by ancestry tends to overlap substantially with the variations within any other group. In addition, humans have interbred freely since pre-historic times - if one could go back in time one would discover more common ancestors, sooner, than most people think. But if race is mythical (or nearly so) what does it mean to forbid race discrimination? The drafters of the Reconstruction Era statutes were concerned with freedmen recently released from slavery and, to a lesser extent, with then-unpopular immigrant groups, such as the Chinese. In the debates, however, the drafters reflected the understanding of the time, discussing the "German," "Irish," "Russian," and other "races." Title VII approached this problem by referring to "race, color . . . or national origin."
         
         Thus, the Supreme Court has held that Section 1981 and Title VII clearly forbid discrimination based on concepts of "race" that have been rejected by biologists, anthropologists and others but are, in fact, at the root of invidious discrimination based on ancestry. Thus, discrimination against "Jews," "Arabs" or any other perceived "racial" category is covered by these statutes.²² A handful of more specific issues have emerged in trying to define "race, color or national origin."
         
         
         1. National Origin and Alienage
            National origin is not the same as alienage. National origin refers to the reality or perception of a person's ancestry. Alienage refers to one's current country of citizenship and any related immigration status. Thus, the categories of "national origin" and "alien" are not interchangeable.²³ Only if a "no aliens" rule were adopted for "the purpose or effect" of excluding people due to national origin, would this raise a Section 1981 or Title VII issue. Despite this, discrimination against legal aliens may well be actionable under Section 1983 (in part because state and local governments have no business interfering with the federal practice of granting certain immigrants or visitors legal status).²⁴
            
            
         2. National Origin and "English Only"
            "National origin" has been long understood to include speaking a language other than English. "English only" rules may violate Title VII and can also raise serious First Amendment issues.²⁵ In general, any requirement for speaking English should be justified by business necessity, including specific definition of when use of non-English languages is considered problematic. Such rules must be reasonable: a teacher who is able to speak to a parent, for example, in the parent's native language should not be forbidden from using the most effective available form of communication. Simply, blanket "English only" policies are ill-advised, but employers can require appropriate communication and this can mean using English (or, for that matter, using another language) in defined contexts.
         
         
      2. Sex or Gender (Title VII, Title IX and the Equal Pay Act)
         
         
         1. Equal Pay Act
            The Equal Pay Act, 29 U.S.C. § 206(d), passed before Title VII, and forbids paying men and women at different rates for "equal work." Equal work is not necessarily identical. The Act has been characterized as requiring the same pay for work that is "substantially equal."²⁶ Whether jobs are substantially equal is analyzed by looking at skill, effort, responsibility and working conditions. If all four of these factors are equivalent then the two jobs are "equal" and rates of pay may not vary according to gender. A plaintiff who prevails under the Equal Pay Act receives double damages: i.e., the amount of financial loss times two.
            
            
         2. Comparable Worth Theories
            Plaintiffs - primarily women - have also pursued claims under Title VII that lower pay for certain jobs that are not, strictly speaking, "equal," may still amount to forbidden sex discrimination in compensation. These arguments go by the name "comparable worth." A "comparable worth" claim based on a theory of intentional discrimination may have merit under Title VII. "Comparable worth" theories based on discriminatory effects have been rejected by the courts. If jobs are very similar, but not identical, an employer should be careful not to in any way determine compensation by criteria that are linked to gender.
            
            
         3. Title VII and Title IX
            As mentioned above, employees of educational institutions that receive federal funds may pursue either their administrative and court remedies under Title VII or may proceed directly to Court under Title IX. Also, the federal Department of Education may use Title IX directly to scrutinize the employment practices of a school or local educational agency.
            
            
         4. Pregnancy Discrimination
            An amendment to Title VII makes it clear that discrimination on the basis of pregnancy is considered discrimination on the basis of sex. The point of reference for pregnancy discrimination is how the employer treats other employees with other temporarily disabling conditions. The Pregnancy Discrimination Act amendments require that employers extend the "same" treatment to pregnant employees. Courts have noted that this means an employer who treats all employees with temporary disabilities badly may extend the same (bad) treatment to pregnant employees. This is correct, but has been superceded, to some extent, by the Family and Medical Leave Act (FMLA) (see section II(B)(2) for more information). For employers covered by FMLA, some measure of accommodation will extend to the needs of pregnant employees. Some states have specific measures that require accommodations for pregnant employees. These provisions are not pre-empted by Title VII, but in some cases may have been superceded by FMLA.
            
            
         5. Sexual Harassment
            
            (1) Quid Pro Quo
            The original theory of sexual harassment has the Latin title "quid pro quo," which means: "this for that." Quid pro quo harassment exists when an employer or supervisor conditions a job benefit on the employee's participation in sexual activity.
            
            (2) Hostile Work Environment
            Hostile work environment harassment exists when unwelcome sexual conduct or contact (which may include jokes, insults, distribution of pictures, pranks, or assaults) is sufficiently pervasive and offensive that a judge or jury can conclude it changes the employee's conditions of work. It is important to remember that minor acts of misjudgment - such as a single off-color joke - may not amount to harassment. On the other hand, tolerating such incidents with no counseling or consequence invites the development of a work place culture than can be indicted as constituting a hostile work environment.
            
            (3) The Target of Harassment
            Sexual harassment can target women or men. Further, the Supreme Court has held that same-sex harassment is actionable under Title VII. With either quid pro quo or hostile environment harassment, the only question is whether the individual has been targeted due to gender or sex - the gender of the accused harasser will be no defense.
            
            (4) Grievance Procedures and Prevention
            An employer can easily be unaware of the actions of an individual supervisor or group of employees that results in a claim of sexual harassment. Further, traditional grievance policies, in an attempt to preserve a "chain of command," often direct employees to present their complaint to the very person who is harassing them. Employers can defend a sexual harassment claim on the basis that the employer took reasonable steps to prevent harassment. However, to make out this defense an employer must have an "escape valve" in their grievance policies that always gives the harassed employee an option other than complaining to the person who is abusing them. In addition to this, an employer should affirmatively raise the subject of harassment, express strong disapproval, and be prepared to use appropriate and significant sanctions.
         
         
      3. Religion
         Title VII prohibits discrimination based upon the religious beliefs or practices of employees.
         
         
         1. Accommodating Religious Practices under Title VII
            Title VII defines discrimination based on religious practice to include failure to "reasonably accommodate" the practice. Common issues that arise under this requirement include time off for religious observances or events, religiously prescribed dress or appearance, and religious practices that may otherwise violate employer rules. Reasonable accommodation does not include any action that would cause an employer "undue hardship," and in this context "undue hardship" includes any cost or inconvenience that is more than de minimis (that is, very small). On the other hand, an employer should be sure to understand an employee's request for accommodation and consider whether it can be met - the failure to properly investigate and analyze a request for accommodation has been held by many courts to constitute a violation.
            
            
         2. Establishment Clause Problems
            Schools present a unique issue of accommodation because the school is also under an obligation not to "establish" religion. Though a full discussion of establishment clause issues is beyond the scope of this manual, it is safe to say that "accommodation" under Title VII should not include allowing individual instructors to import religious instruction into their classroom or teaching practices.
         
         
      4. Age Discrimination in Employment Act
         Age discrimination was not included in Title VII. In 1967, Congress passed the Age Discrimination in Employment Act (ADEA). The ADEA forbids discrimination in employment against persons 40 years of age or older due to their age. The methods of proof under the ADEA are similar to Title VII with several important variations. First, under the "disparate impact" method of proof it is not necessarily pertinent for a person discriminated against on the basis of age to show that a person under age 40, or perhaps even a "younger" person, enjoyed the opportunity lost by the complaining employee. In the words of the Supreme Court, "that one person in the protected class has lost out to another person in the protected class if thus irrelevant, so long as he has lost out because of his age."²⁷ While a comparison to a much younger person may still be used as evidence, other kinds of evidence that age was a factor in an employment decision may be used to prove intentional age discrimination. Conversely, while "disparate impact" theories of age discrimination may be valid for some purposes, use of rules that have statistical correlation with age but truly have another bona fide basis (such as length of work or seniority) are not considered to result in discrimination "because" of age.
         
         Another issue that arose after the ADEA passed concerned benefits based on age (such as retirement plans). The issue has a convoluted history, but the ultimate outcome was that age-based benefits are not forbidden if there is an actuarial basis for the prohibition. The other major area of concern to public employers are rules that provide for mandatory age-based retirement. The ADEA rules on this issue vary according to both type of employee, age of the employee and the mandatory retirement rules in effect in different states as of certain dates in 1983 and 1986 - when the relevant amendments were adopted. A school that faces an issue of mandatory retirement should consult local counsel and determine the precise ADEA category for the employee in question.
         
         The original ADEA remedies were drawn form the Fair Labor Standards Act. As a result, it is possible, in ADEA cases, for an employee to obtain double damages for "willful" violations.
         
         
      5. Disability Discrimination: Section 504 and the ADA
         Disability discrimination was first forbidden in federal law through Section 504 of the Rehabilitation Act of 1973, a Spending Clause civil rights act. That is, Section 504 forbade disability discrimination in "programs or activities" that received federal funds. The concept of disability discrimination developed under Section 504 and related provisions from 1973 to 1990. In 1990, Congress passed the Americans with Disabilities Act (ADA).²⁸ In many ways the ADA takes rules developed under 504 and applies them generally. In employment, the ADA has the scope of Title VII.
         
         
         1. What is a "Disability"?
            The ADA and Section 504 define disability without resort to a specific list or description of disabilities. The general definition of disability is "a physical or mental impairment that substantially limits one or more major life activities." "Major life activities" include things such as walking, standing, hearing, seeing, working, and learning. Thus, a prospective employee who is paraplegic and arrives at a job interview in a wheelchair is unmistakably "substantially limited" in the "major life activity" of "working" and thus disabled. At the same time, a recovered alcoholic who decides not to mention her troubled history may be (the issue can be closer in this case) a person with a disability entitled to protection - including the right to maintain some privacy about her disability.
            
            Though this definition has been in use for a quarter century, many basic issues about its scope and meaning remain open and current law requires a careful case-by-case approach. A few issues are settled. Whether a physical or mental impairment "substantially limits" a major life activity is analyzed after taking into account any remedial or mitigating measures the person uses. Thus, for example, a person may have very poor eyesight which is corrected by glasses. If the correction works well enough, this person is not disabled in the major life activity of seeing. This doctrine should be approached with some caution. Few corrective measures work as simply and completely as eyeglasses do for routine problems of visual acuity. Nonetheless, disability is to be analyzed after looking at corrective measure even for such situations as high blood pressure controlled by medication, and monocular vision corrected by behavioral adaptations.
            
            It is also clear that the formal list of major life activities is not limited to the items listed in the statutes or regulations. Thus, for example, the Supreme Court found that HIV infection (even in its earliest stages) was a "disability," because it immediately had a significant and restrictive impact on the "major life activity" of "reproduction."²⁹ Reproduction is not listed in the statute or regulations, but was a "major life activity" in the view of the Court. In addition, the Court found the relatively small chance of passing on a "dread" and fatal disease was enough to be a "substantial limitation" on this life activity.
            
            In addition, Section 504 and the ADA are not only concerned with the reality of disability, they are also concerned with mistaken assumptions of disability. Thus, if an employer clearly communicates that he or she considers the employee disabled this will be evidence of disability and may result in a finding that the employee was "regarded as" disabled. Finally, by way of general cautions, it is important to remember that being disabled in the major life activity of "working" is only one way of showing disability under Section 504 and the ADA. For some reason, employee plaintiffs often claim to be restricted in working. This is probably the most difficult way of providing disability and unquestionably the form of disability that makes it most difficult to win a discrimination case. Because many employees and their attorneys have gone down this difficult path, it is easy to find cases involving people we would ordinarily think of as clearly disabled where a court finds the employee is not disabled under the ADA. In fact, the Supreme Court has clearly hinted that employees and their lawyers are making it hard on themselves by focusing too much on the major life activity of working. Sooner or later, employee attorneys are going to find other, more persuasive, ways of describing their clients' disabilities. Thus, while employers should be aware that just showing an employee is or is not "disabled" can be an important ADA issue - and one on which many employers have had surprising success - it is nonetheless safest to approach an employee who appears to you to be "disabled" with the assumption that the ADA applies. It is also important to keep in mind that state statutes may forbid discrimination on the basis of specific named conditions or forbid discrimination based on specific aspects of life with a disability, such as using a guide or service dog.³⁰ Though Section 504 and the ADA use general definitions of "disability," some persistent issues have either developed a general rule in the case law or resulted in more specific legislative treatment and even amendments to these definitions. We review a few of these topics below.
            
            (1) Alcoholism and Addiction
            Whether alcoholism and addiction should be considered disabilities was controversial from the day Section 504 passed. In effect, two different compromises have developed to adapt the concept of disability discrimination to alcoholism and addiction. With respect to addiction to illegal drugs, the condition or status is regarded as a disability, but the act of taking illegal drugs - and the effects that has on behavior - is not considered protected. In effect, "recovered" addicts who are not using or persons undergoing current treatment are considered "disabled." Addicts who are using are considered to be engaged in misbehavior and not protected. Alcoholism is slightly different. Because consumption of alcohol is not illegal, an active alcoholic may still be considered disabled, but a sharp distinction is created between the condition (whether active or "recovered") and any resulting impact on work. Any behavior of the alcoholic that adversely impacts work and may result from consumption of alcohol is unprotected and may be treated in the same way that the same behavior would be treated for a nonalcoholic employee. In addition, employers are specifically permitted to adopt and enforce strict rules against possession, use, sale or being under the influence of drugs or alcohol at work.
            
            (2) Contagious Disease
            Contagious disease will be considered a disability if the employee can otherwise meet the general test for "disability." In the case of Arline v. School Board of Nassau,³¹ for example, the Supreme Court found a teacher with tuberculosis to be disabled under Section 504. An employer is permitted, of course, to take steps to control or prevent the spread of contagious disease to other employees, patrons or the public. But reflexively firing an employee due to their contagion without first realistically assessing the risk and considering less drastic alternatives ("reasonable accommodation") raises an immediate and serious disability discrimination issue.
            
            (3) Disabilities Related to Sexuality and Reproduction
            While "reproduction" is a "major life activity" - making HIV infection, for example, a disability - the ADA specifically excludes certain conditions related to sexuality from its coverage. Homosexuality and bisexuality are defined as "not impairments" and, therefore, not a disability.³² The ADA defines the following conditions, which are generally recognized as mental or behavioral impairments, to not be protected disabilities: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, and gender identity disorders not resulting from physical impairments.³³
            
            (4) Morbid Obesity
            Court decisions are split on whether "morbid obesity" is a bona fide medical condition that should be considered - in some circumstances - a disability. The safest course is to assume that diagnosed morbid obesity - not merely being overweight - may qualify as a disability.
            
            (5) Mental Disabilities
            Section 504 and the ADA make no categorical distinction between physical and mental disabilities. Thus, individuals with sufficiently pronounced cognitive impairments ("mental retardation"), people with major psychoses ("mental illness") and perhaps others will be able to claim that their mental impairments substantially limit major life activities, making them disabled. It may be important, in thinking about employees with mental disabilities, to reflect more carefully on the "essential functions of the job" issue discussed below. Courts have recognized that things like being able to get along with others, and being able to understand and follow instructions, are "essential functions" of many jobs. Thus, the obligation not to discriminate against persons with mental disabilities will often be measured with reference to the extent to which the individual's condition does or does not prevent them from doing the job and the extent to which the employer has properly explored the issue of reasonable accommodation. Certain diagnosable behavioral conditions are defined by statute not to be disabilities. These include kleptomania, pyromania, compulsive gambling and psychoactive substance abuse disorders resulting from current illegal use of drugs.³⁴
            
            
         2. Otherwise Qualified or QIWD
            A common misunderstanding of Section 504 and the ADA is that it protects all persons with "disabilities" (whatever that means). In fact, Section 504 only protects an "otherwise qualified" disabled person. The ADA changes this term (but not the concept) to a "qualified individual with a disability" (QIWD). In both cases, the concept is that the person not only has a disability but is also "qualified" to participate in some activity (such as employment). Thus, what is forbidden is not discrimination - in the literal sense - based on disability, but discrimination despite qualification, due to disability.
            
            To put the same point another way, Section 504 and the ADA permit an employer to take adverse action against employees due to their disabilities. What they forbid is taking adverse action due to disability when this is unjustified or needless - when the employee is "qualified." It is crucial, then, to somehow measure what makes a person with a disability "qualified" for a job. Because of this unique feature of disability discrimination, it is still common - and may remain common - to find employers who freely admit that they took adverse action due to an employee's disability. Whether such behavior is legal or illegal cannot be analyzed across-the-board, but must be reviewed on case-by-case basis.
            
            
         3. Defining Essential Functions
            The specific definition of being "qualified" (or "otherwise qualified") for Section 504 or ADA employment discrimination purposes can be stated as "being able to perform the essential functions of the job, with or without reasonable accommodation." We will return to reasonable accommodation below. Here we discuss the concept of "essential functions." An "essential function" is one that, if removed, would truly change the job in question. Employers are encouraged by the ADA to place work functions into written job descriptions, which get special status as evidence of what is or is not an "essential function." Clearly, however, the concept is intended to distinguish between those minor or ancillary functions that could be easily reassigned and those functions which "are" the job in question.
            
            
         4. Interactive Process and Reasonable Accommodation
            A person is "qualified" or "otherwise qualified" under the ADA if they are able to perform the "essential functions" of the job with or without reasonable accommodation. "Reasonable accommodation" is not precisely defined, but the statute gives a list of examples of what may be reasonable accommodations in certain cases. These include reassignment to a vacant position, job restructuring, part-time or modified work schedules, and acquisition or modification of assistive devices. The issues are, simply, can the employer make some sort of change in the work environment that will enable the person with a disability to perform all the "essential functions" of the job? And, if so, are the changes that would allow this "accommodation" of a sort and cost that can be called "reasonable?"
            
            Generally, an employer should not reach a conclusion that no accommodation is possible without first discussing the situation with the person with a disability. This "interactive process" is critical because, in many cases, employers may overestimate what will be required or may be unaware of the real nature of the disability. The person with a disability is often well informed on advances in technology, for example, that are relevant to their needs. On the other hand, the employer may be aware of workplace opportunities and limitations that the disabled employee does not know about. A simple conversation about what the employer needs or can do and what the employee is able to do - or would be able to do, if something were changed - will satisfy this "interactive process" requirement.
            
            (1) Architectural Access and Auxiliary Aids
            Though the issue of reasonable accommodation is usually a general one that can only be pinned down through case-by-case discussions, both public employers and private businesses are separately subject to requirements for architectural access to their facilities. The rules regarding architectural access are detailed, complex, and vary significantly depending upon the type of facility, whether it was built before or after the ADA passed, and what activities are being carried out in the facility (among other things). If the problem faced by a disabled employee is impacted by architectural access issues, the employer should take extra care to make sure the separate rules on architectural access have been properly followed.
            
            (2) Testing and Pre-Employment Inquiries
            Though an employee's disability must be discussed in order to provide a reasonable accommodation (or in order to decide that a requested accommodation is not reasonable) it must not be discussed in pre-employment interviews and the like - unless raised by the prospective employee. While many employees with disabilities want and need accommodations, many do not. Many of those who need no accommodation also prefer to keep private medical information to themselves. The ADA generally prohibits pre-employment inquiries into disability (though not into job-related abilities) and pre-employment medical testing. Drug tests are defined not to be medical tests. If medical screening or testing is necessary, it should be required after an employee has been given a conditional offer of employment. If the employee fails a legitimate medical test or exam after accepting this conditional offer, the offer can be withdrawn. The ADA rules on employee interviews are complex and to a degree controversial, but the basic rule is that questions about medical history or disability should be avoided, unless a prospective employee raises the issue him or herself and wishes to discuss accommodations. You may ask, always, about ability to do the job "with or without reasonable accommodation."
            
            In some cases, the test itself may discriminate on the basis of disability. For example, a blind teacher may be perfectly able to teach, but will not be able to pass a pre-employment or licensing examine if it is given in print. The key here is to make sure any form of examination tests for the skills needed for the job and not for a disability that may or may not impact the job. While most relevant to testing agencies, this requirement will apply to any formal screening device used by an employer.
            
            
         5. Undue Hardship and Direct Threat
            A proposed accommodation is not reasonable if it will cause an "undue hardship" or a "direct threat." An undue hardship is any "significant difficulty or expense," taking into account the nature and cost of the accommodation and the resources and responsibilities of the employer. In other words, what may be a "reasonable accommodation" for General Motors, may be an "undue hardship" for a Mom-and-Pop business that just happens to reach the size required for ADA coverage. Like the test of reasonable accommodation, the test for "undue hardship" is judged case-by-case. A "direct threat" is a real risk to the health or safety of others arising from the disability of the employee. Direct threat issues most commonly arise with employees with contagious diseases or certain mental illnesses. An employer should consider the severity and nature of the threat, the probability it will be realized, and whether it can be prevented by some accommodation, before determining that there is a "direct threat."
            
            
         6. Associational Discrimination
            The ADA forbids employers from discriminating against nondisabled people due to their social or other relationship to a person with a disability. The most common examples of this are persons with disabled children and the partners of individuals with HIV infection.
         
         
      6. Others - State and Local
         As noted above, many states have discrimination rules that vary somewhat from the federal models. A few of the common variations are discussed below.
         
         
         1. Marital Status and Nepotism Rules
            A number of states forbid discrimination on the basis of "marital status." These statutes forbid discrimination based on whether a person is "married" or "single." Generally, these statutes would not forbid employment of an individual by their spouse or other rules aimed at the abuses of nepotism.
            
            
         2. Political Affiliation
            State or local law may forbid making employment decisions on the basis of political affiliations. The First Amendment also places some limits on patronage systems of public employment.³⁵
            
            
         3. "Lifestyle" Discrimination Laws
            Several states have adopted rules that prohibit discrimination on the basis of an employee's lawful activities away from work. These statutes were generally proposed and passed at the behest of the tobacco industry in order to limit the effect of "no smoking" rules and in some cases are limited to "use of lawful products" or even to use of tobacco. Their language, however, is often broader and may prohibit employers from considering most legal activities that take place away from work. Many of these statutes have exceptions and a school that is concerned about an employee's legal but questionable activities away from work should consult with local counsel before deciding to take any adverse action.
            
            
         4. Sexual Orientation and Transgender Discrimination
            Perhaps the most controversial extension of anti-discrimination concepts has been to forbid discrimination based on sexual identity. Distinguishing the issues, and understanding the limited law in this area, requires careful definition of terms.
            
            Sexual orientation refers to the relation between the sex or gender of a person and the sex or gender of those the person finds sexually attractive. That is, sexual orientation refers to one's status as heterosexual (males attracted to females and visa versa) or homosexual, often referred to as gay (males attracted to males), lesbian (females attracted to females), or bisexual (persons attracted to males and females). During the early part of the 20th century, homosexual orientation was commonly considered a mental illness and homosexual behavior was often a crime. The American Psychiatric Association removed homosexuality from its listing of recognized psychiatric disorders in 1973. Homosexual behavior has also been widely, but not universally, decriminalized. Federal laws to forbid employment discrimination based on sexual orientation have been proposed, but not passed. At this writing about a dozen jurisdictions forbid employment discrimination based on sexual orientation. In other jurisdictions, some localities forbid such discrimination and others do not. Chartering authorities may also have policies.
            
            Transvestism refers to the propensity to wear clothing conventionally associated with the opposite sex. The reasons for and context of the use of opposite sex apparel vary (which may affect whether the behavior is protected). Transvestism is not exclusively associated with any sexual orientation. Thus, statutes, ordinances or policies that forbid discrimination based on sexual orientation have generally been interpreted not to reach discrimination against transvestites. Transvestism is a recognized psychiatric condition. However, the ADA expressly defines "disability" not to include transvestism. State or local statutes or ordinances, or chartering authority policies, related to "disability" or "handicap" (but not the ADA or Section 504) are either defined, or may be construed, to reach transvestism in a few cases. Also, "lifestyle" discrimination statutes may protect individuals whose transvestism takes place solely away from the work place. However, in general - in most jurisdictions and under most existing anti-discrimination laws - transvestites do not receive anti-discrimination protection.
            
            Transsexualism (also called "gender disphoria" or "gender identity disorder") refers to ana person's belief that their "true" sexual identity is the opposite of their biological sex. This is a recognized psychiatric disorder. In addition, so called "intersexuals" have biological features of both sexes and may, of course, experience a resulting psychiatric "gender identity disorder." Transsexuals have attempted to claim that discrimination against their condition is forbidden as a form of sex discrimination. Courts have uniformly rejected these efforts.³⁶ Courts have also held that laws against discrimination based on sexual orientation do not reach transsexuals, since the issue is not same-sex attraction, but personal sexual identity.³⁷ Finally, the efforts of transsexuals to use disability discrimination laws have been largely unsuccessful.³⁸ The ADA expressly excludes gender identity disorders that do not result from physical impairments from its coverage. Impliedly, therefore, only intersexuals might be covered by the ADA - and this could in turn depend upon what treatment the individual had received and whether they could demonstrate "substantial impairment" in a "major life activity." Only two reported lower court decisions have found state or local protection for transsexuals. A New York case found New York City's comprehensive anti-discrimination ordinance forbade such discrimination³⁹ and a District of Columbia court found that the District's prohibition on "appearance" discrimination could reach transsexuals in a properly plead case.⁴⁰ In general, however, most jurisdictions and most cases have permitted employment discrimination against transsexuals.
            
            
         5. Still Other
            Individual states forbid employment discrimination on a variety of other bases. Different state anti-discrimination statutes treat, for example, arrest, convictions or expunged juvenile records; family responsibility; height or weight; matriculation; parenthood; personal appearance; public assistance status; sickle cell trait; unfavorable military discharge; being a victim of domestic abuse; or submission to polygraph, genetic, HIV or certain drug or alcohol tests.⁴¹ The citations we give in the footnote are only a general guide and only accurate as of this date. Again, there is no substitute for local counsel on such issues.
      
      
   6. Federalism Issues - the 11^th Amendment and State vs. Local Charters
      
      Within the last five years the Supreme Court has begun actively limiting the applicability of certain federal laws to the States themselves under the 11^th Amendment to the Constitution. Most recently, the court found that the ADEA did not apply to the States and next term it will consider the same issue with respect to the ADA. It is important to realize that these cases do not limit the applicability of federal law to local government. The 11^th Amendment only protects a State itself from liability. Also, in most cases a State or its officials can still be sued to force future compliance with federal law - only retroactive relief (such as money damages) is barred. Finally, discrimination based on race, sex, religion and perhaps disability may still be the basis for a damage suit against a state. Nonetheless, in some states charter schools are entirely a creature of state government. In those jurisdictions, charters may have additional protection against certain forms of federal liability.
      
      
   7. Individual Employee Rights
      
      
      1. Constitutional Rights
         Under 42 U.S.C. 1983, an individual employee can contend any adverse action by a public employer is a violation of their individual rights. Perhaps the most common issue to arise in this fashion is retaliation for the exercise of the right of free speech or free expression, as guaranteed by the First Amendment. Of course, a public employer has the right to regulate many aspects of work-related speech. The classic retaliation case involves a public employee who writes a critical letter to the editor of a local newspaper, or takes a public position on a controversial public issue. Just because this individual is a public employee does not mean they have lost First Amendment rights or can be fired as a form of punishment. The analysis of free speech issues can be complex, but several factors will help guide it. To the extent the speech concerns issues of "public concern" it is more likely protected. To the extent it is merely of personal concern to the employee, it is less likely to be protected. To the extent the speech occurs in a traditional forum for free speech (like a letter to the editor of a newspaper), the more likely it will be protected. To the extent it takes place in the work place - and especially if it disrupts the work place - the less likely it is protected.
         
         In addition to free speech, employees have a constitutional right to freedom of association. Most significantly for charter schools, an employee has the constitutional right to join together with other public employees in organizations concerned with education and work place conditions. In other words, union membership, as such, is a constitutionally protected status.
         
         The other common constitutional concern relates to employee privacy interests. Employees have a reasonable expectation of privacy in their personal effects. Thus, when a public employer looks in an employers' briefcase, desk or rifles through other personal property, this may be a "search" that is regulated by the Fourth Amendment search and seizure clause. Employers should not dig into the personal property of employees without consulting counsel and being sure the activities either is not a "search" or is a justified search.
         
         
      2. Statutory Privacy Rights and "Whistleblower" Statutes
         There are two major statutory areas in which employers should be concerned with individual employee rights. First, most states have laws regulating what is or is not a public record and what must be treated as a private employment record. Employees are granted rights to confidential treatment of some or all of their employment records by these statutes. As the rules vary from state to state, charter employers should make efforts to become specifically informed on the requirements for maintaining confidential employment records.
         
         Second, both federal and state laws create specific protections for "whistle blowers." The oldest of these laws is the False Claims Act, which dates back to the Civil War (and to the common law before that). The False Claims Act creates a unique system in which private individuals can try to prove that another private person has committed fraud against the federal government. A person who successfully proves such a claim receives a portion of the funds recovered (a kind of bounty). More importantly, any employee who takes action to disclose fraud against the federal government is protected from retaliation.
         
         The False Claims Act only reaches a very small range of behavior - revelation of fraud against the federal government. Many individual states create protections for employees who reveal defined forms of misbehavior by their employer. These whistleblower laws vary from state the state, but the underlying principle is simple: If an employee is reporting conduct that should never have happened, the employee may well be exercising a right, and even a duty, under state law.
   
   
2. Basic Workplace Regulation
   
   Many issues involving labor markets and work place practices were historically a matter of state regulation or no regulation. However, quite apart from its role in defining and protecting civil rights, Congress also has power to regulate the labor market and workplace practices through the Commerce Clause of Article 1 of the Constitution. Over time, federal regulation has grown at the expense but not to the exclusion of state regulation. We have selected seven areas of interest to charter schools that fall into this category of broad economic regulation by either the federal or state governments. The most long-standing concern in the field of labor market regulation is establishing and enforcing a minimum wage and a reasonably standard work week. The federal government has taken the lead in this area with the Fair Labor Standards Act. Another broad labor market regulation - and the most recently development in this area - is the Family and Medical Leave Act, which establishes a floor of protection for taking leave from work for certain purposes. A third federal law, falling in slightly different category, is COBRA. COBRA grows out of the historical oddity that during World War II employers used paid health insurance as a way of improving compensation in spite of wage and price controls. This became a common feature of the American labor market while, at the same time, the social welfare "safety net" for health insurance remained quite incomplete. Thus, the issue of what happens to heath insurance secured through work when, of example, employment ends, is regulated by COBRA. The Employee Retirement Income Security Act (ERISA) responds to the analogous set of issues with respect to pensions earned through employment. The next two topics - OSHA and Workers Compensation - treat federal and state efforts, respectively, to deal with safety, accidents, injuries or illness arising out of the working environment. Finally, Unemployment Compensation is a portion of the Social Security Act designed to soften the immediately financial impact of loss of work and provide a brief period of transitional income, at least for those who lose work through no "fault" of their own.
   
   
   1. FLSA and Overtime
      
      The Fair Labor Standards Act requires establishes the minimum wage, eight hour day and forty hour work week as the basic standard for all employment in the United States. FLSA applies to employees of local governments but not to employees of the State itself. FLSA does not regulate the work hours of "professionals," and thus will not apply to a typical salaried teacher. But FSLA will apply to hourly workers of most, if not all, charter schools. An employer who requires or allows an hourly employee to work more than 40 hours in one work week will be required to pay the employee at an overtime premium rate.
      
      Charter schools frequently wonder how one distinguishes "employees" from "volunteers" under the FLSA. There are surprisingly few cases on this issue, but two rules should be kept in mind. First, a person who is an employee cannot also be a volunteer. If you allow hourly employees to "volunteer" extra time, you owe them extra pay. Second, if it appears a person was forced to "volunteer" in order to obtain some item of economic value, this may transform the person from a "volunteer" into an employee. How this will apply to charter school parents (who presumably have a right to free public education without regard to charter enrollment) remains to be seen.
      
      
   2. Family and Medical Leave Act ("FMLA").
      
      The federal Department of Labor provides a good summary of the requirements of the Family and Medical Leave Act:
      
      

      The Family and Medical Leave Act of 1993 (FMLA or Act) gives "eligible" employees of a covered employer the right to take unpaid leave, or paid leave if it has been earned, for a period of up to 12 workweeks in any 12 months because of the birth of a child or the placement of a child for adoption or foster care, because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition, or because the employee's own serious health condition makes the employee unable to do his or her job. Under certain circumstances, this leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.
      
      An employee on FMLA leave is also entitled to have health benefits maintained while on leave. If an employee was paying all or part of the premium payments prior to leave, the employee would continue to pay [their] share during the leave period. The employer can recover its share only if the employee does not return to work for a reason other than the serious health condition of the employee or the employee's immediate family member, or another reason beyond the employee's control.
      
      An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.
      
      The employer has a right to 30 days advance notice from the employee where practicable. In addition, the employer may require an employee to submit certification from a health care provider to substantiate that the leave is due to the serious health condition of the employee or the employee's immediate family member. Failure to comply with these requirements may result in the denial of FMLA leave. Pursuant to a uniformly applied policy, the employer may also require that an employee present a certification of fitness to return to work when the absence was caused by the employee's serious health condition. The employer may deny restoration to employment without such certificate relating to the health condition which caused the employee's absence.

      29 C.F.R. 825.100.
      
      As subdivisions of state or local government, charter schools are public agencies covered under FMLA. While the constitutionality of the FMLA's coverage of some state entities is being litigated, the safest assumption is that FMLA applies to all charter schools. While the constitutionality of the FMLA's coverage of some state entities is being litigated, the safest assumption is that FMLA applies to all charter schools. Charter school operators should note the "Special Rules Applying to Employees of Schools" found at Section 825.600. This section adds three things to the general FMLA scheme. First, it creates a potential exception to FMLA coverage for isolated, rural schools where the school employs fewer than 50 employees and is at least 75 miles away from any other school under the same employer (usually the school board). Second, it addresses situations where instructional employees take intermittent leave (where the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend), and options the employer has to lessen the impact on their instructional duties. Third, it provides guidelines for instructional employees taking leave at or near the end of an academic term.
      
      Employees must have worked for the employer for at least twelve months, working at least 1,250 hours during twelve months to be eligible for FMLA leave. Notice explaining FMLA's applicability and workings must be conspicuously posted on the employer's premises. If an employer maintains an employee handbook, information concerning FMLA entitlements and employee obligations under FMLA must be included in the handbook or other document. It is important for employers to define when leave they offer under their own policies is or is not "counting" against FMLA leave. Failure to do so may mean the employer owes the employee policy-based leave and FMLA leave.
      
      
   3. COBRA
      
      The Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") requires employers of more than 20 employees - including public employees at the state or local level - that provide group insurance coverage as an employee benefit to extend that coverage under certain circumstances for former employees and dependents. Circumstances that trigger COBRA coverage are known as "qualifying events" and include the following: termination of employment, reduction in hours worked to the point of ineligibility for benefits, death or divorce of the employee, and a few other specific events.
      
      Covered employees must elect to extend coverage within a specified time period (60 days from the "qualifying event, or notice of such event"), and such extended coverage is at the employee's expense. Coverage may be extended up to 18 months following termination or a reduction in hours, and for longer periods under certain other circumstances. Employers are required to: 1) provide notice of COBRA applicability to all current and new employees; and 2) notify those employees of their COBRA rights and responsibilities anytime a "qualifying event" takes place triggering COBRA coverage. Employee handbooks are good places to provide this information. As certain "qualifying events" may not be known to the employer (e.g. divorce), employees need to understand their obligation to notify the employer of the event and make their coverage election within 60 days.
      
      
   4. Employee Retirement Income Security Act (ERISA)
      
      ERISA regulates employer pension plans and employee retirement benefits. Public employers at the state or local level are generally exempt from its operations. Thus, to the extent charter operators are clearly classified as public employers under state law, ERISA will not apply. However, ERISA-type regulation may still apply to charter school retirement plans under either: (1) state law or constitutional provisions governing public employee retirement; or (2) Internal Revenue Service regulations which must be complied with prior to a public employer having their retirement plan approved by the IRS.
      
      
   5. Occupational Safety and Health
      
      Congress passed the Occupational Safety and Health Act ("OSHA") in 1970 promoting workplace safety through a comprehensive system of regulation, inspection, and enforcement of work sites across the country. Whether OSHA itself applies to public employers varies depending upon whether a State has adopted federal standards and enforces OSHA itself. Employers who have OSHA or work place health or safety concerns should consult specialized counsel in their jurisdiction.
      
      
   6. Worker's Compensation
      
      Worker's compensation laws provide a statutory mechanism to compensate employees injured on the job. These laws are essentially a compromise providing the employee guaranteed compensation in the event of an injury, while at the same time prohibiting that employee from seeking possibly greater compensation from their employer through the court system. Where applicable, worker's compensation is the only recourse an injured employee has available - the "exclusive" remedy.
      
      Worker's compensation laws are in place in every state, though not mandatory in three states (New Jersey, Texas, and South Carolina). Public employers are generally covered to the same extent as private employers, so charter schools should assume their states' worker's compensation laws apply to them. In each state, some sort of worker's compensation agency administers the program and is the best place to start for employers seeking more information as to how they fit into their state's system.
      
      
   7. Unemployment Compensation
      
      Unemployment compensation was part of the original Social Security Act. Unemployment compensation is a system of insurance. Employers pay a "tax" - though the rate varies with, among other things, the employer's history of past claims, making this tax look more like a premium based on risk assessment. Employees who lose work without "fault" on their part are then entitled to a period of compensation for this unemployment. The period is defined in weeks - and the number of weeks goes up when the rate of unemployment goes up. Beneficiaries are required to keep looking for work to maintain their entitlement. State rules on what amounts to "fault" that will disqualify an employee from benefits vary significantly. In general, however, an employee who quits without reason or is fired for cause is "at fault." An employee who is laid off due to the needs of the employer is not "at fault." Treatment of illness or disability varies.
      
      An employee who is laid off must file a claim. The employer can then agree to the claim or contest it. If the claim is contested, the employer will be required to appear at a hearing and demonstrate that the employee was "at fault" within the meaning of state law. Each state maintains a hearing procedure for those who wish to contest claims. Documents filed and statements made in unemployment proceedings can end up being used as evidence in cases involving other issues (such as discrimination claims). However, administrative decisions made in the unemployment hearing process decisions are generally not binding in cases. If either party appeals an administrative decision to court, the court decision may have some binding effect on other cases arising out of the same loss of employment.

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