Assignment Prompt & Instructions
– ## UnitIIIStudyGuide.pdf
– ## UnitVIIIStudyGuide.pdf
**## UnitIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit III
Upon completion of this unit, students should be able to:
2. Summarize Title VII of the Civil Rights Act of 1964.
2.1 Identify the conduct that constitutes sexual harassment.
2.2 Analyze the protection against sexual harassment under Title VII.
3. Analyze the impact that workplace sexual harassment has on an organization.
3.1 Summarize the prevalence and cost of harassment in the workplace.
3.2 Analyze the appropriate response of employers to harassment and ways to prevent its
occurrence.
Required Unit Resources
Chapter 8: Harassment, pp. 281–318
Unit Lesson
It is hard to imagine a more perfect example of alleged sexual harassment in the workplace than played out in
the hearings to confirm Clarence Thomas as a Supreme Court justice in 1991. Many in human resources
(HR) and employment law watched the testimony of Anita Hill with great interest, but few could have known
how significantly this event would affect the workplace and the work of employment lawyers and human
resource professionals. While the nation watched, Hill described under oath how Thomas allegedly harassed
her while she worked for him from 1981 to 1983 in federal government agencies. Hill claimed that Thomas
talked about scenes in pornographic movies and images in pornographic materials, as well as boasting of his
own sexual abilities (“The Thomas Nomination,” 1991). Thomas’ strong denial and the lack of witnesses to
any of the alleged interaction set the stage for a classic he said/she said scenario. The he-said side of the
equation carried the day, and Thomas ended up being confirmed by the Senate by a slim margin.
Nevertheless, sexual harassment took a great leap forward in public consciousness.
With sex added as a protected category in the last days before Congress voted on the Civil Rights Act of
1964, sexual harassment was likely not even on the radar of the drafters. According to Cohen (2016), sexual
harassment has been around as long as women have been in the workplace. As women began to employ in
numbers in manufacturing and clerical roles in the early 20th century, they faced physical and verbal assaults
by male managers. This conduct continued for decades and women had only the options of enduring sexually
harassing conduct or quitting. Complaining was ineffective; at most, women were told the conduct was
harmless and complainers were frequently retaliated against (Cohen, 2016).
Title VII’s passage laid the groundwork for a legal remedy for sexual harassment, but it was not until 1975 that
the term sexual harassment was coined (Cohen, 2016). Then, in the late 1970s, attorney Catharine
MacKinnon developed the legal theory for sexual harassment as a violation of Title VII, including the concept
of hostile work environment. Until this theory was tested and upheld by the Supreme Court in Meritor Savings
Bank. v. Vinson, (1986), courts followed the “boys will be boys” thinking that left women vulnerable to
environmental harassment (Strebeigh, 1991).
How far have we come since the 1970s when a 1976 survey by Redbook found that 80 percent of working
women reported that they had been sexually harassed in the workplace? Unfortunately, we have not come as
far as you might expect. The continuing problem of workplace sexual harassment is reflected in recent
surveys cited by Feldblum and Lipnic (2016) in the Equal Employment Opportunity Commission’s (EEOC)
Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.
UNIT III STUDY GUIDE
Harassment in the Workplace
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
According to Feldblum and Lipnic (2016), approximately 25 percent of women reported sexual harassment in
the workplace. However, when the term sexual harassment was defined in terms of specific behaviors such
as unwanted sexual attention or sexual coercion, the rate of women who reported experiencing sexual
harassment rose to 40 percent. The number rose further to 60 percent when sexist or crude and offensive
behavior was included in the survey. Reflecting this problem, approximately one third of the charges filed with
EEOC in fiscal year 2015 included a claim of harassment, and 45 percent of those alleged sexual harassment
(Feldblum & Lipnic, 2016).
Many persons subjected to sexual harassment do not report it, let alone file a charge of harassment. Internal
reports should be viewed by organizations as an opportunity to investigate the concern, reach a finding, and
take appropriate steps based on that finding. Investigations can be stressful for the participants and the
organization, but they can lay the groundwork for resolution in an efficient and productive way. In one
situation, a nurse complained about an incident at the annual social gathering for the maternity and obstetrics
practice for which she worked. She reported to the office administrator that at the party, while her husband
was not present, one of the doctors approached her, complimented her dress, and put his arm around her,
squeezing her breast as he did so. The investigation revealed no witnesses and the doctor adamantly denied
the allegation. However, the nurse’s excellent record, her credibility and lack of a motive to fabricate, and the
doctor’s questionable behavior and comments toward other staff tilted the scales in favor of a finding the
conduct more likely than not occurred.
This created a dilemma for the other doctors in the practice: ignore the findings and retain a close colleague,
take steps to reprimand him, or remove him from the practice. Investigations of harassment sometimes yield
findings that require difficult choices by the organization, but they also reinforce the organization’s
commitment to a harassment-free workplace and can fend off costly litigation if handled appropriately.
The process that played out in the medical practice follows from important developments in workplace
harassment stemming from two key Supreme Court decisions in 1998. In Faragher v. City of Boca Raton
(1998) and Burlington Industries, Inc. v. Ellerth (1998), the Supreme Court resolved questions about the
employer’s liability for supervisor sexual harassment and provided an affirmative defense to situations when a
supervisor harasses a subordinate. Courts had struggled with when to hold employers liable for conduct by
supervisors who violated employer policies, some following the theory that employers are liable for actions of
their managers, but others reluctant to hold employers liable for the supervisors’ conduct that the employers
had prohibited. The Supreme Court held that if an employer has a policy that prohibits harassment, provides a
method for reporting such harassment, investigates reports, and takes corrective action to stop harassment if
it is found to have occurred, the employer could defend itself against a legal claim even if a supervisor
harassed an employee. Thus, in the medical practice situation, if the practice took steps to discipline the
doctor and prevent him from harassing the nurse or others in the future, it could defend itself against a
lawsuit. If it failed to take corrective action against the doctor, the practice had a strong risk of being
successfully sued.
The costs of harassment in the workplace are not easily quantifiable. However, they are real. Feldblum and
Lipnic (2016) reported that the EEOC obtained approximately $160 million in harassment cases in fiscal year
2015, combining pre-litigation settlements and damages in lawsuits filed by the EEOC. However, this does
not include lawsuits in which EEOC was not involved. In addition to legal damages, costs include legal fees
and the less quantifiable loss of productivity in the workplace caused by harassment and its aftermath.
Employers can seek to minimize harassment in the workplace through demonstrated commitment to
harassment-free workplaces at the highest levels in the organization in the form of communication of policy
and complaint procedure, periodic training of employees and supervisors, and prompt response to complaints
of harassment. Training is a key component of any organizational program, but organizations are often
reluctant to make the financial commitment to meaningful and effective training. All too often, training is not a
priority until there has been an incident of workplace harassment. At that point, however, employees may
view the training cynically as merely a reaction to a legal threat, rather than a true commitment to ensuring
that all employees are comfortable in the work environment. Training is most effective as an integral part of an
overall culture putting the highest priority on respect in the workplace and creating clear avenues for
communicating concerns.
In the second decade of the 21st century, 25 years after Anita Hill went before the Senate, the scorecard on
eliminating sexual and other harassment in the workplace is far from acceptable. In some ways, we have
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
seen substantial advancements in workplaces where respect for women as well as all persons is
demonstrated at the highest levels in the organization, and harassment is not tolerated. In other ways,
however, there is still much room for improvement, particularly in industries where women have only recently
begun to appear in greater numbers and in areas of work where improper behavior is tolerated because of the
levels of stress and risk, such as law and medicine. Human resources professionals will lead the way on
these necessary improvements and will need to gain the full support of their organizations for their efforts to
be successful.
References
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
Cohen, S. (2016, April 11). A brief history of sexual harassment in America before Anita Hill. Time.
http://time.com/4286575/sexual-harassment-before-anita-hill/
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Feldblum, C. R., & Lipnic, V. A. (2016, June). Report of the co-chairs of the EEOC Select task force on the
study of harassment in the workplace. https://www.eeoc.gov/june-2016-report-co-chairs-select-task-
force-study-harassment-workplace
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Strebeigh, F. (1991, October 6). Defining law on the feminist frontier. New York Times Magazine.
http://www.equalwomen.com/nytmagazine1991.html
The Thomas nomination; Excerpts from Senate's hearings on the Thomas nomination [Interview transcript].
(1991, October 12). The New York Times. http://www.nytimes.com/1991/10/12/us/the-thomas-
nomination-excerpts-from-senate-s-hearings-on-the-thomas-nomination.html?pagewanted=1
Suggested Unit Resources
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 8 presentation (PowerPoint) or Chapter 8 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 8 questions in your textbook on pages 319–322.
**## UnitVIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit VIII
Upon completion of this unit, students should be able to:
1. Discuss the legal significance of the employer-employee relationship.
1.1 Examine the termination of the employer-employee relationship.
1.2 Apply exceptions to the employment at-will doctrine.
Required Unit Resources
Chapter 16: Terminating Individual Employees, pp. 637–669
Unit Lesson
The first unit of the course examined the concept of employment at will and the fact that the concept is not an
absolute. Subsequent units further explored how employment at will is modified through employment laws
that confer rights on employees and impose obligations on employers. This unit will now review exceptions to
the doctrine that are imposed by judicial decision and by the practicalities of our legal system that influence
employer decision-making. This unit also brings the discussion full circle by focusing on the end of the
employment relationship through involuntary termination and the significance of that action for the
employment cycle as a whole.
Exceptions to the employment at will rule are dependent on state law and states vary widely in the
acceptance of exceptions. These exceptions relate to terminations that fall in the gaps between statutory
regulation of the employment relationship and address terminations that do not strike one as just. The most
prevalent exception is for termination for reasons that violate a state’s public policy. For example, a
termination might be illegal if one of the following situations prompts it:
• discrimination based on race, national origin, sex, pregnancy, religion, disability, citizenship status,
or age;
• retaliation for taking a leave of absence for a serious medical condition;
• retaliation for having complained about workplace safety or a work injury; and
• retaliation for having complained about wage violations or having filed a wage complaint.
Even in states that do not recognize the many exceptions to the employment at will rule, it is generally
accepted nationwide that an employee cannot be fired for serving on a jury or for refusing to break the law at
the direction of his or her employer. Sources of public policies are state constitutions, statutes, or
administrative regulations.
Public policy wrongful termination cases can be costly to employers. In a Michigan case, a nurse complained
that a coworker’s negligence resulted in a patient’s death (Landin v. HealthSource, 2014). Landin, a nurse,
complained that a coworker was negligent in patient care. After the accused coworker became aware of
Landin’s complaint about her, she reported Landin to management, and Landin was subsequently terminated
for procedure violations. Landin’s termination also occurred after the employer became aware that he was
speaking to the widow of the deceased patient. The jury found that Landin’s termination violated a public
policy contained in Michigan’s health code that prohibits a health facility from disciplining employees who in
good faith report the malpractice of a health professional. The jury awarded $1.2 million in damages.
The second main exception to the employment at will rule is the implied contract. An implied contract may be
formed when an employer makes an oral or written representation to an employee that his or her job is secure
or that certain procedures will be followed before an employee is terminated. In the past, an implied contract
UNIT VIII STUDY GUIDE
Terminating the Employment Relationship
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
was found in some states from representations in an employee handbook that employees would be
discharged only for “just cause.” In the leading case on the implied contract exception, when hired by Blue
Cross Blue Shield of Michigan, a manager, in response to his question about job security, was told that his
employment would be secure as long as he did his job. Additionally, the employment policies included
statements that it was the employer’s policy to terminate employees only for “just cause” (Toussaint v. Blue
Cross & Blue Shield, 1980).
The court found that the manager’s representation and the provision in an employee handbook stating that an
employee can be fired only for just cause created an implied contract if it created an expectation of job
security in the employee. Most employers respond by including in their policies a disclaimer clearly stating
that its policies do not create a contract for employment and carefully define the persons who have authority
to create a contract with an employee for a definite term. Additionally, offer letters typically contain a
statement that they do not create a contract for a definite term and that employment can be terminated at any
time, for any reason. Despite all states not being bound to adhere to the implied contract exception, these
disclaimers in employee handbooks and offer letters guard against expectations and potential legal problems.
Human resources (HR) professionals should also ensure that managers understand the risks of verbally
providing assurances of job security and that such statements can bind the employer.
The third exception to the employment at will rule and the one recognized in the fewest states is the covenant
of good faith and fair dealing. This exception originated in California, where an 18-year airline employee was
terminated without any explanation. Relying in part on the length of the employee’s employment, the court
found that the employee could not be fired without good cause. The court found a covenant of good faith and
fair dealing in the employment relationship and a corresponding duty not to deprive the employee of the
benefits of employment (Cleary v. American Airlines, Inc., 1980).
There are complicated exceptions, as well as the human factor of how unpredictable juries can be in reacting
to actual cases. As a result, employers cannot rely solely on the premise of the employment at will concept as
a justification for termination. According to Paul Falcone (2016), in the event a case escalates to the trial
stage, the employer must be prepared to prove that there was cause to terminate. That proof of legitimate
cause is best substantiated by documented progressive disciplinary warnings and/or failed or negative
reviews or evaluations. When jurors go behind closed doors, they are going to want to see that the employer
treated the employee fairly. Jurors will see this through accurate and timely documentation of performance
issues and efforts to work with the employee to correct the issues.
Reducing risk in connection with employee terminations requires attention to detail and holding managers
accountable for managing performance. A supervisor may want to terminate an employee on the spot when
there is no documentation of performance issues, or when the reasons are subjective ones such as “not a
good fit” or “not a team player.” However, efforts must made to identify if there are objective factors that
support termination. Further, documentation of reasons for termination should occur before an employee is
fired; collecting information after an employee is terminated can be viewed as an effort to justify a termination
that was rushed and not well thought through.
Another tool to reduce risk is to have someone in HR review all termination decisions to ensure they are
appropriate, documented, and consistent with how the organization has handled similar situations. Some
organizations utilize a committee to review the case for termination, review the employee’s file, ask questions
about the decision, and make a determination based on knowledge of the organization’s historic approach
and how the circumstances of the particular case fit into that approach. It is highly recommended for the
employer to consult with counsel when there are significant risk factors. A process such as this can not only
reduce risk before a termination is implemented but demonstrate to a jury that the employer takes each
termination seriously and utilizes a process to ensure employees are treated fairly and consistently.
Just as important is the goal to reduce risk in the execution of the termination decision. The best approach is
for the employee’s direct manager and a witness, preferably an HR representative who will take notes to
document what is said amongst parties, attend a termination meeting. The meeting should have a clear plan
and defined roles in advance; what will be said and who will say it should be determined. A clear statement of
the grounds for termination should be prepared, documented, and delivered verbally to the employee. Some
states require employers to provide a written reason to the employee at the termination meeting, and some
require a termination letter if requested by an employee (“Termination,” 2015). While stating the reason for
termination may be awkward, providing no reason, making vague or inconsistent statements, or giving too
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
much information can cause employees to believe they were unfairly treated and cause them to take legal
action. It is best to be honest and be brief.
No employer wants to find its name in the news or on the defending side of a lawsuit after it terminates an
employee. Besides the obvious costs, damage can occur in critical areas of recruiting, retention, and morale.
HR professionals play key roles in making sure the appropriate and required factors are weighed fairly in
decisions about whether to terminate employment. HR professionals must remove the emotion from the
decision and consider what is best for the organization. They must lead the way in reducing risk through
application of their legal knowledge and by treating people with dignity and respect.
References
Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).
Falcone, P. (2016, September 26). Employment-at-will vs. the discharge-for-just-cause-only standard: A
critical employment law distinction. Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employment-
at-will.aspx
Roberto Landin v. HealthSource Saginaw, Inc., 854 N.W.2d 152 (2014).
Termination: Should a company provide a terminated employee with a reason for the termination? (2015,
March 25). Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/tools-and-samples/hr-
qa/pages/shouldacompanyprovideterminatedemployeewithareasonforthetermination.aspx
Toussaint v. Blue Cross & Blue Shield, of Michigan, 408 Mich. 579, 292 N.W. 2d 880 (1980).
Suggested Unit Resources
You are encouraged to read the remainder of Chapter 16 in your textbook, which continues this unit’s
discussion of additional issues involved in the termination of employees.
Chapter 16: Terminating Individual Employees, pp. 670–696
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 16 presentation (PowerPoint) or Chapter 16 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 16 questions in your textbook on pages 697–701.
**## UnitVIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit VIII
Upon completion of this unit, students should be able to:
1. Discuss the legal significance of the employer-employee relationship.
1.1 Examine the termination of the employer-employee relationship.
1.2 Apply exceptions to the employment at-will doctrine.
Required Unit Resources
Chapter 16: Terminating Individual Employees, pp. 637–669
Unit Lesson
The first unit of the course examined the concept of employment at will and the fact that the concept is not an
absolute. Subsequent units further explored how employment at will is modified through employment laws
that confer rights on employees and impose obligations on employers. This unit will now review exceptions to
the doctrine that are imposed by judicial decision and by the practicalities of our legal system that influence
employer decision-making. This unit also brings the discussion full circle by focusing on the end of the
employment relationship through involuntary termination and the significance of that action for the
employment cycle as a whole.
Exceptions to the employment at will rule are dependent on state law and states vary widely in the
acceptance of exceptions. These exceptions relate to terminations that fall in the gaps between statutory
regulation of the employment relationship and address terminations that do not strike one as just. The most
prevalent exception is for termination for reasons that violate a state’s public policy. For example, a
termination might be illegal if one of the following situations prompts it:
• discrimination based on race, national origin, sex, pregnancy, religion, disability, citizenship status,
or age;
• retaliation for taking a leave of absence for a serious medical condition;
• retaliation for having complained about workplace safety or a work injury; and
• retaliation for having complained about wage violations or having filed a wage complaint.
Even in states that do not recognize the many exceptions to the employment at will rule, it is generally
accepted nationwide that an employee cannot be fired for serving on a jury or for refusing to break the law at
the direction of his or her employer. Sources of public policies are state constitutions, statutes, or
administrative regulations.
Public policy wrongful termination cases can be costly to employers. In a Michigan case, a nurse complained
that a coworker’s negligence resulted in a patient’s death (Landin v. HealthSource, 2014). Landin, a nurse,
complained that a coworker was negligent in patient care. After the accused coworker became aware of
Landin’s complaint about her, she reported Landin to management, and Landin was subsequently terminated
for procedure violations. Landin’s termination also occurred after the employer became aware that he was
speaking to the widow of the deceased patient. The jury found that Landin’s termination violated a public
policy contained in Michigan’s health code that prohibits a health facility from disciplining employees who in
good faith report the malpractice of a health professional. The jury awarded $1.2 million in damages.
The second main exception to the employment at will rule is the implied contract. An implied contract may be
formed when an employer makes an oral or written representation to an employee that his or her job is secure
or that certain procedures will be followed before an employee is terminated. In the past, an implied contract
UNIT VIII STUDY GUIDE
Terminating the Employment Relationship
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
was found in some states from representations in an employee handbook that employees would be
discharged only for “just cause.” In the leading case on the implied contract exception, when hired by Blue
Cross Blue Shield of Michigan, a manager, in response to his question about job security, was told that his
employment would be secure as long as he did his job. Additionally, the employment policies included
statements that it was the employer’s policy to terminate employees only for “just cause” (Toussaint v. Blue
Cross & Blue Shield, 1980).
The court found that the manager’s representation and the provision in an employee handbook stating that an
employee can be fired only for just cause created an implied contract if it created an expectation of job
security in the employee. Most employers respond by including in their policies a disclaimer clearly stating
that its policies do not create a contract for employment and carefully define the persons who have authority
to create a contract with an employee for a definite term. Additionally, offer letters typically contain a
statement that they do not create a contract for a definite term and that employment can be terminated at any
time, for any reason. Despite all states not being bound to adhere to the implied contract exception, these
disclaimers in employee handbooks and offer letters guard against expectations and potential legal problems.
Human resources (HR) professionals should also ensure that managers understand the risks of verbally
providing assurances of job security and that such statements can bind the employer.
The third exception to the employment at will rule and the one recognized in the fewest states is the covenant
of good faith and fair dealing. This exception originated in California, where an 18-year airline employee was
terminated without any explanation. Relying in part on the length of the employee’s employment, the court
found that the employee could not be fired without good cause. The court found a covenant of good faith and
fair dealing in the employment relationship and a corresponding duty not to deprive the employee of the
benefits of employment (Cleary v. American Airlines, Inc., 1980).
There are complicated exceptions, as well as the human factor of how unpredictable juries can be in reacting
to actual cases. As a result, employers cannot rely solely on the premise of the employment at will concept as
a justification for termination. According to Paul Falcone (2016), in the event a case escalates to the trial
stage, the employer must be prepared to prove that there was cause to terminate. That proof of legitimate
cause is best substantiated by documented progressive disciplinary warnings and/or failed or negative
reviews or evaluations. When jurors go behind closed doors, they are going to want to see that the employer
treated the employee fairly. Jurors will see this through accurate and timely documentation of performance
issues and efforts to work with the employee to correct the issues.
Reducing risk in connection with employee terminations requires attention to detail and holding managers
accountable for managing performance. A supervisor may want to terminate an employee on the spot when
there is no documentation of performance issues, or when the reasons are subjective ones such as “not a
good fit” or “not a team player.” However, efforts must made to identify if there are objective factors that
support termination. Further, documentation of reasons for termination should occur before an employee is
fired; collecting information after an employee is terminated can be viewed as an effort to justify a termination
that was rushed and not well thought through.
Another tool to reduce risk is to have someone in HR review all termination decisions to ensure they are
appropriate, documented, and consistent with how the organization has handled similar situations. Some
organizations utilize a committee to review the case for termination, review the employee’s file, ask questions
about the decision, and make a determination based on knowledge of the organization’s historic approach
and how the circumstances of the particular case fit into that approach. It is highly recommended for the
employer to consult with counsel when there are significant risk factors. A process such as this can not only
reduce risk before a termination is implemented but demonstrate to a jury that the employer takes each
termination seriously and utilizes a process to ensure employees are treated fairly and consistently.
Just as important is the goal to reduce risk in the execution of the termination decision. The best approach is
for the employee’s direct manager and a witness, preferably an HR representative who will take notes to
document what is said amongst parties, attend a termination meeting. The meeting should have a clear plan
and defined roles in advance; what will be said and who will say it should be determined. A clear statement of
the grounds for termination should be prepared, documented, and delivered verbally to the employee. Some
states require employers to provide a written reason to the employee at the termination meeting, and some
require a termination letter if requested by an employee (“Termination,” 2015). While stating the reason for
termination may be awkward, providing no reason, making vague or inconsistent statements, or giving too
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
much information can cause employees to believe they were unfairly treated and cause them to take legal
action. It is best to be honest and be brief.
No employer wants to find its name in the news or on the defending side of a lawsuit after it terminates an
employee. Besides the obvious costs, damage can occur in critical areas of recruiting, retention, and morale.
HR professionals play key roles in making sure the appropriate and required factors are weighed fairly in
decisions about whether to terminate employment. HR professionals must remove the emotion from the
decision and consider what is best for the organization. They must lead the way in reducing risk through
application of their legal knowledge and by treating people with dignity and respect.
References
Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).
Falcone, P. (2016, September 26). Employment-at-will vs. the discharge-for-just-cause-only standard: A
critical employment law distinction. Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employment-
at-will.aspx
Roberto Landin v. HealthSource Saginaw, Inc., 854 N.W.2d 152 (2014).
Termination: Should a company provide a terminated employee with a reason for the termination? (2015,
March 25). Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/tools-and-samples/hr-
qa/pages/shouldacompanyprovideterminatedemployeewithareasonforthetermination.aspx
Toussaint v. Blue Cross & Blue Shield, of Michigan, 408 Mich. 579, 292 N.W. 2d 880 (1980).
Suggested Unit Resources
You are encouraged to read the remainder of Chapter 16 in your textbook, which continues this unit’s
discussion of additional issues involved in the termination of employees.
Chapter 16: Terminating Individual Employees, pp. 670–696
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 16 presentation (PowerPoint) or Chapter 16 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 16 questions in your textbook on pages 697–701.
**## UnitIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit III
Upon completion of this unit, students should be able to:
2. Summarize Title VII of the Civil Rights Act of 1964.
2.1 Identify the conduct that constitutes sexual harassment.
2.2 Analyze the protection against sexual harassment under Title VII.
3. Analyze the impact that workplace sexual harassment has on an organization.
3.1 Summarize the prevalence and cost of harassment in the workplace.
3.2 Analyze the appropriate response of employers to harassment and ways to prevent its
occurrence.
Required Unit Resources
Chapter 8: Harassment, pp. 281–318
Unit Lesson
It is hard to imagine a more perfect example of alleged sexual harassment in the workplace than played out in
the hearings to confirm Clarence Thomas as a Supreme Court justice in 1991. Many in human resources
(HR) and employment law watched the testimony of Anita Hill with great interest, but few could have known
how significantly this event would affect the workplace and the work of employment lawyers and human
resource professionals. While the nation watched, Hill described under oath how Thomas allegedly harassed
her while she worked for him from 1981 to 1983 in federal government agencies. Hill claimed that Thomas
talked about scenes in pornographic movies and images in pornographic materials, as well as boasting of his
own sexual abilities (“The Thomas Nomination,” 1991). Thomas’ strong denial and the lack of witnesses to
any of the alleged interaction set the stage for a classic he said/she said scenario. The he-said side of the
equation carried the day, and Thomas ended up being confirmed by the Senate by a slim margin.
Nevertheless, sexual harassment took a great leap forward in public consciousness.
With sex added as a protected category in the last days before Congress voted on the Civil Rights Act of
1964, sexual harassment was likely not even on the radar of the drafters. According to Cohen (2016), sexual
harassment has been around as long as women have been in the workplace. As women began to employ in
numbers in manufacturing and clerical roles in the early 20th century, they faced physical and verbal assaults
by male managers. This conduct continued for decades and women had only the options of enduring sexually
harassing conduct or quitting. Complaining was ineffective; at most, women were told the conduct was
harmless and complainers were frequently retaliated against (Cohen, 2016).
Title VII’s passage laid the groundwork for a legal remedy for sexual harassment, but it was not until 1975 that
the term sexual harassment was coined (Cohen, 2016). Then, in the late 1970s, attorney Catharine
MacKinnon developed the legal theory for sexual harassment as a violation of Title VII, including the concept
of hostile work environment. Until this theory was tested and upheld by the Supreme Court in Meritor Savings
Bank. v. Vinson, (1986), courts followed the “boys will be boys” thinking that left women vulnerable to
environmental harassment (Strebeigh, 1991).
How far have we come since the 1970s when a 1976 survey by Redbook found that 80 percent of working
women reported that they had been sexually harassed in the workplace? Unfortunately, we have not come as
far as you might expect. The continuing problem of workplace sexual harassment is reflected in recent
surveys cited by Feldblum and Lipnic (2016) in the Equal Employment Opportunity Commission’s (EEOC)
Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.
UNIT III STUDY GUIDE
Harassment in the Workplace
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
According to Feldblum and Lipnic (2016), approximately 25 percent of women reported sexual harassment in
the workplace. However, when the term sexual harassment was defined in terms of specific behaviors such
as unwanted sexual attention or sexual coercion, the rate of women who reported experiencing sexual
harassment rose to 40 percent. The number rose further to 60 percent when sexist or crude and offensive
behavior was included in the survey. Reflecting this problem, approximately one third of the charges filed with
EEOC in fiscal year 2015 included a claim of harassment, and 45 percent of those alleged sexual harassment
(Feldblum & Lipnic, 2016).
Many persons subjected to sexual harassment do not report it, let alone file a charge of harassment. Internal
reports should be viewed by organizations as an opportunity to investigate the concern, reach a finding, and
take appropriate steps based on that finding. Investigations can be stressful for the participants and the
organization, but they can lay the groundwork for resolution in an efficient and productive way. In one
situation, a nurse complained about an incident at the annual social gathering for the maternity and obstetrics
practice for which she worked. She reported to the office administrator that at the party, while her husband
was not present, one of the doctors approached her, complimented her dress, and put his arm around her,
squeezing her breast as he did so. The investigation revealed no witnesses and the doctor adamantly denied
the allegation. However, the nurse’s excellent record, her credibility and lack of a motive to fabricate, and the
doctor’s questionable behavior and comments toward other staff tilted the scales in favor of a finding the
conduct more likely than not occurred.
This created a dilemma for the other doctors in the practice: ignore the findings and retain a close colleague,
take steps to reprimand him, or remove him from the practice. Investigations of harassment sometimes yield
findings that require difficult choices by the organization, but they also reinforce the organization’s
commitment to a harassment-free workplace and can fend off costly litigation if handled appropriately.
The process that played out in the medical practice follows from important developments in workplace
harassment stemming from two key Supreme Court decisions in 1998. In Faragher v. City of Boca Raton
(1998) and Burlington Industries, Inc. v. Ellerth (1998), the Supreme Court resolved questions about the
employer’s liability for supervisor sexual harassment and provided an affirmative defense to situations when a
supervisor harasses a subordinate. Courts had struggled with when to hold employers liable for conduct by
supervisors who violated employer policies, some following the theory that employers are liable for actions of
their managers, but others reluctant to hold employers liable for the supervisors’ conduct that the employers
had prohibited. The Supreme Court held that if an employer has a policy that prohibits harassment, provides a
method for reporting such harassment, investigates reports, and takes corrective action to stop harassment if
it is found to have occurred, the employer could defend itself against a legal claim even if a supervisor
harassed an employee. Thus, in the medical practice situation, if the practice took steps to discipline the
doctor and prevent him from harassing the nurse or others in the future, it could defend itself against a
lawsuit. If it failed to take corrective action against the doctor, the practice had a strong risk of being
successfully sued.
The costs of harassment in the workplace are not easily quantifiable. However, they are real. Feldblum and
Lipnic (2016) reported that the EEOC obtained approximately $160 million in harassment cases in fiscal year
2015, combining pre-litigation settlements and damages in lawsuits filed by the EEOC. However, this does
not include lawsuits in which EEOC was not involved. In addition to legal damages, costs include legal fees
and the less quantifiable loss of productivity in the workplace caused by harassment and its aftermath.
Employers can seek to minimize harassment in the workplace through demonstrated commitment to
harassment-free workplaces at the highest levels in the organization in the form of communication of policy
and complaint procedure, periodic training of employees and supervisors, and prompt response to complaints
of harassment. Training is a key component of any organizational program, but organizations are often
reluctant to make the financial commitment to meaningful and effective training. All too often, training is not a
priority until there has been an incident of workplace harassment. At that point, however, employees may
view the training cynically as merely a reaction to a legal threat, rather than a true commitment to ensuring
that all employees are comfortable in the work environment. Training is most effective as an integral part of an
overall culture putting the highest priority on respect in the workplace and creating clear avenues for
communicating concerns.
In the second decade of the 21st century, 25 years after Anita Hill went before the Senate, the scorecard on
eliminating sexual and other harassment in the workplace is far from acceptable. In some ways, we have
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
seen substantial advancements in workplaces where respect for women as well as all persons is
demonstrated at the highest levels in the organization, and harassment is not tolerated. In other ways,
however, there is still much room for improvement, particularly in industries where women have only recently
begun to appear in greater numbers and in areas of work where improper behavior is tolerated because of the
levels of stress and risk, such as law and medicine. Human resources professionals will lead the way on
these necessary improvements and will need to gain the full support of their organizations for their efforts to
be successful.
References
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
Cohen, S. (2016, April 11). A brief history of sexual harassment in America before Anita Hill. Time.
http://time.com/4286575/sexual-harassment-before-anita-hill/
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Feldblum, C. R., & Lipnic, V. A. (2016, June). Report of the co-chairs of the EEOC Select task force on the
study of harassment in the workplace. https://www.eeoc.gov/june-2016-report-co-chairs-select-task-
force-study-harassment-workplace
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Strebeigh, F. (1991, October 6). Defining law on the feminist frontier. New York Times Magazine.
http://www.equalwomen.com/nytmagazine1991.html
The Thomas nomination; Excerpts from Senate's hearings on the Thomas nomination [Interview transcript].
(1991, October 12). The New York Times. http://www.nytimes.com/1991/10/12/us/the-thomas-
nomination-excerpts-from-senate-s-hearings-on-the-thomas-nomination.html?pagewanted=1
Suggested Unit Resources
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 8 presentation (PowerPoint) or Chapter 8 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 8 questions in your textbook on pages 319–322.
**## UnitVIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit VIII
Upon completion of this unit, students should be able to:
1. Discuss the legal significance of the employer-employee relationship.
1.1 Examine the termination of the employer-employee relationship.
1.2 Apply exceptions to the employment at-will doctrine.
Required Unit Resources
Chapter 16: Terminating Individual Employees, pp. 637–669
Unit Lesson
The first unit of the course examined the concept of employment at will and the fact that the concept is not an
absolute. Subsequent units further explored how employment at will is modified through employment laws
that confer rights on employees and impose obligations on employers. This unit will now review exceptions to
the doctrine that are imposed by judicial decision and by the practicalities of our legal system that influence
employer decision-making. This unit also brings the discussion full circle by focusing on the end of the
employment relationship through involuntary termination and the significance of that action for the
employment cycle as a whole.
Exceptions to the employment at will rule are dependent on state law and states vary widely in the
acceptance of exceptions. These exceptions relate to terminations that fall in the gaps between statutory
regulation of the employment relationship and address terminations that do not strike one as just. The most
prevalent exception is for termination for reasons that violate a state’s public policy. For example, a
termination might be illegal if one of the following situations prompts it:
• discrimination based on race, national origin, sex, pregnancy, religion, disability, citizenship status,
or age;
• retaliation for taking a leave of absence for a serious medical condition;
• retaliation for having complained about workplace safety or a work injury; and
• retaliation for having complained about wage violations or having filed a wage complaint.
Even in states that do not recognize the many exceptions to the employment at will rule, it is generally
accepted nationwide that an employee cannot be fired for serving on a jury or for refusing to break the law at
the direction of his or her employer. Sources of public policies are state constitutions, statutes, or
administrative regulations.
Public policy wrongful termination cases can be costly to employers. In a Michigan case, a nurse complained
that a coworker’s negligence resulted in a patient’s death (Landin v. HealthSource, 2014). Landin, a nurse,
complained that a coworker was negligent in patient care. After the accused coworker became aware of
Landin’s complaint about her, she reported Landin to management, and Landin was subsequently terminated
for procedure violations. Landin’s termination also occurred after the employer became aware that he was
speaking to the widow of the deceased patient. The jury found that Landin’s termination violated a public
policy contained in Michigan’s health code that prohibits a health facility from disciplining employees who in
good faith report the malpractice of a health professional. The jury awarded $1.2 million in damages.
The second main exception to the employment at will rule is the implied contract. An implied contract may be
formed when an employer makes an oral or written representation to an employee that his or her job is secure
or that certain procedures will be followed before an employee is terminated. In the past, an implied contract
UNIT VIII STUDY GUIDE
Terminating the Employment Relationship
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
was found in some states from representations in an employee handbook that employees would be
discharged only for “just cause.” In the leading case on the implied contract exception, when hired by Blue
Cross Blue Shield of Michigan, a manager, in response to his question about job security, was told that his
employment would be secure as long as he did his job. Additionally, the employment policies included
statements that it was the employer’s policy to terminate employees only for “just cause” (Toussaint v. Blue
Cross & Blue Shield, 1980).
The court found that the manager’s representation and the provision in an employee handbook stating that an
employee can be fired only for just cause created an implied contract if it created an expectation of job
security in the employee. Most employers respond by including in their policies a disclaimer clearly stating
that its policies do not create a contract for employment and carefully define the persons who have authority
to create a contract with an employee for a definite term. Additionally, offer letters typically contain a
statement that they do not create a contract for a definite term and that employment can be terminated at any
time, for any reason. Despite all states not being bound to adhere to the implied contract exception, these
disclaimers in employee handbooks and offer letters guard against expectations and potential legal problems.
Human resources (HR) professionals should also ensure that managers understand the risks of verbally
providing assurances of job security and that such statements can bind the employer.
The third exception to the employment at will rule and the one recognized in the fewest states is the covenant
of good faith and fair dealing. This exception originated in California, where an 18-year airline employee was
terminated without any explanation. Relying in part on the length of the employee’s employment, the court
found that the employee could not be fired without good cause. The court found a covenant of good faith and
fair dealing in the employment relationship and a corresponding duty not to deprive the employee of the
benefits of employment (Cleary v. American Airlines, Inc., 1980).
There are complicated exceptions, as well as the human factor of how unpredictable juries can be in reacting
to actual cases. As a result, employers cannot rely solely on the premise of the employment at will concept as
a justification for termination. According to Paul Falcone (2016), in the event a case escalates to the trial
stage, the employer must be prepared to prove that there was cause to terminate. That proof of legitimate
cause is best substantiated by documented progressive disciplinary warnings and/or failed or negative
reviews or evaluations. When jurors go behind closed doors, they are going to want to see that the employer
treated the employee fairly. Jurors will see this through accurate and timely documentation of performance
issues and efforts to work with the employee to correct the issues.
Reducing risk in connection with employee terminations requires attention to detail and holding managers
accountable for managing performance. A supervisor may want to terminate an employee on the spot when
there is no documentation of performance issues, or when the reasons are subjective ones such as “not a
good fit” or “not a team player.” However, efforts must made to identify if there are objective factors that
support termination. Further, documentation of reasons for termination should occur before an employee is
fired; collecting information after an employee is terminated can be viewed as an effort to justify a termination
that was rushed and not well thought through.
Another tool to reduce risk is to have someone in HR review all termination decisions to ensure they are
appropriate, documented, and consistent with how the organization has handled similar situations. Some
organizations utilize a committee to review the case for termination, review the employee’s file, ask questions
about the decision, and make a determination based on knowledge of the organization’s historic approach
and how the circumstances of the particular case fit into that approach. It is highly recommended for the
employer to consult with counsel when there are significant risk factors. A process such as this can not only
reduce risk before a termination is implemented but demonstrate to a jury that the employer takes each
termination seriously and utilizes a process to ensure employees are treated fairly and consistently.
Just as important is the goal to reduce risk in the execution of the termination decision. The best approach is
for the employee’s direct manager and a witness, preferably an HR representative who will take notes to
document what is said amongst parties, attend a termination meeting. The meeting should have a clear plan
and defined roles in advance; what will be said and who will say it should be determined. A clear statement of
the grounds for termination should be prepared, documented, and delivered verbally to the employee. Some
states require employers to provide a written reason to the employee at the termination meeting, and some
require a termination letter if requested by an employee (“Termination,” 2015). While stating the reason for
termination may be awkward, providing no reason, making vague or inconsistent statements, or giving too
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
much information can cause employees to believe they were unfairly treated and cause them to take legal
action. It is best to be honest and be brief.
No employer wants to find its name in the news or on the defending side of a lawsuit after it terminates an
employee. Besides the obvious costs, damage can occur in critical areas of recruiting, retention, and morale.
HR professionals play key roles in making sure the appropriate and required factors are weighed fairly in
decisions about whether to terminate employment. HR professionals must remove the emotion from the
decision and consider what is best for the organization. They must lead the way in reducing risk through
application of their legal knowledge and by treating people with dignity and respect.
References
Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).
Falcone, P. (2016, September 26). Employment-at-will vs. the discharge-for-just-cause-only standard: A
critical employment law distinction. Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employment-
at-will.aspx
Roberto Landin v. HealthSource Saginaw, Inc., 854 N.W.2d 152 (2014).
Termination: Should a company provide a terminated employee with a reason for the termination? (2015,
March 25). Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/tools-and-samples/hr-
qa/pages/shouldacompanyprovideterminatedemployeewithareasonforthetermination.aspx
Toussaint v. Blue Cross & Blue Shield, of Michigan, 408 Mich. 579, 292 N.W. 2d 880 (1980).
Suggested Unit Resources
You are encouraged to read the remainder of Chapter 16 in your textbook, which continues this unit’s
discussion of additional issues involved in the termination of employees.
Chapter 16: Terminating Individual Employees, pp. 670–696
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 16 presentation (PowerPoint) or Chapter 16 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 16 questions in your textbook on pages 697–701.
**## UnitIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit III
Upon completion of this unit, students should be able to:
2. Summarize Title VII of the Civil Rights Act of 1964.
2.1 Identify the conduct that constitutes sexual harassment.
2.2 Analyze the protection against sexual harassment under Title VII.
3. Analyze the impact that workplace sexual harassment has on an organization.
3.1 Summarize the prevalence and cost of harassment in the workplace.
3.2 Analyze the appropriate response of employers to harassment and ways to prevent its
occurrence.
Required Unit Resources
Chapter 8: Harassment, pp. 281–318
Unit Lesson
It is hard to imagine a more perfect example of alleged sexual harassment in the workplace than played out in
the hearings to confirm Clarence Thomas as a Supreme Court justice in 1991. Many in human resources
(HR) and employment law watched the testimony of Anita Hill with great interest, but few could have known
how significantly this event would affect the workplace and the work of employment lawyers and human
resource professionals. While the nation watched, Hill described under oath how Thomas allegedly harassed
her while she worked for him from 1981 to 1983 in federal government agencies. Hill claimed that Thomas
talked about scenes in pornographic movies and images in pornographic materials, as well as boasting of his
own sexual abilities (“The Thomas Nomination,” 1991). Thomas’ strong denial and the lack of witnesses to
any of the alleged interaction set the stage for a classic he said/she said scenario. The he-said side of the
equation carried the day, and Thomas ended up being confirmed by the Senate by a slim margin.
Nevertheless, sexual harassment took a great leap forward in public consciousness.
With sex added as a protected category in the last days before Congress voted on the Civil Rights Act of
1964, sexual harassment was likely not even on the radar of the drafters. According to Cohen (2016), sexual
harassment has been around as long as women have been in the workplace. As women began to employ in
numbers in manufacturing and clerical roles in the early 20th century, they faced physical and verbal assaults
by male managers. This conduct continued for decades and women had only the options of enduring sexually
harassing conduct or quitting. Complaining was ineffective; at most, women were told the conduct was
harmless and complainers were frequently retaliated against (Cohen, 2016).
Title VII’s passage laid the groundwork for a legal remedy for sexual harassment, but it was not until 1975 that
the term sexual harassment was coined (Cohen, 2016). Then, in the late 1970s, attorney Catharine
MacKinnon developed the legal theory for sexual harassment as a violation of Title VII, including the concept
of hostile work environment. Until this theory was tested and upheld by the Supreme Court in Meritor Savings
Bank. v. Vinson, (1986), courts followed the “boys will be boys” thinking that left women vulnerable to
environmental harassment (Strebeigh, 1991).
How far have we come since the 1970s when a 1976 survey by Redbook found that 80 percent of working
women reported that they had been sexually harassed in the workplace? Unfortunately, we have not come as
far as you might expect. The continuing problem of workplace sexual harassment is reflected in recent
surveys cited by Feldblum and Lipnic (2016) in the Equal Employment Opportunity Commission’s (EEOC)
Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace.
UNIT III STUDY GUIDE
Harassment in the Workplace
HRM 6302, Employment Law 2
UNIT x STUDY GUIDE
Title
According to Feldblum and Lipnic (2016), approximately 25 percent of women reported sexual harassment in
the workplace. However, when the term sexual harassment was defined in terms of specific behaviors such
as unwanted sexual attention or sexual coercion, the rate of women who reported experiencing sexual
harassment rose to 40 percent. The number rose further to 60 percent when sexist or crude and offensive
behavior was included in the survey. Reflecting this problem, approximately one third of the charges filed with
EEOC in fiscal year 2015 included a claim of harassment, and 45 percent of those alleged sexual harassment
(Feldblum & Lipnic, 2016).
Many persons subjected to sexual harassment do not report it, let alone file a charge of harassment. Internal
reports should be viewed by organizations as an opportunity to investigate the concern, reach a finding, and
take appropriate steps based on that finding. Investigations can be stressful for the participants and the
organization, but they can lay the groundwork for resolution in an efficient and productive way. In one
situation, a nurse complained about an incident at the annual social gathering for the maternity and obstetrics
practice for which she worked. She reported to the office administrator that at the party, while her husband
was not present, one of the doctors approached her, complimented her dress, and put his arm around her,
squeezing her breast as he did so. The investigation revealed no witnesses and the doctor adamantly denied
the allegation. However, the nurse’s excellent record, her credibility and lack of a motive to fabricate, and the
doctor’s questionable behavior and comments toward other staff tilted the scales in favor of a finding the
conduct more likely than not occurred.
This created a dilemma for the other doctors in the practice: ignore the findings and retain a close colleague,
take steps to reprimand him, or remove him from the practice. Investigations of harassment sometimes yield
findings that require difficult choices by the organization, but they also reinforce the organization’s
commitment to a harassment-free workplace and can fend off costly litigation if handled appropriately.
The process that played out in the medical practice follows from important developments in workplace
harassment stemming from two key Supreme Court decisions in 1998. In Faragher v. City of Boca Raton
(1998) and Burlington Industries, Inc. v. Ellerth (1998), the Supreme Court resolved questions about the
employer’s liability for supervisor sexual harassment and provided an affirmative defense to situations when a
supervisor harasses a subordinate. Courts had struggled with when to hold employers liable for conduct by
supervisors who violated employer policies, some following the theory that employers are liable for actions of
their managers, but others reluctant to hold employers liable for the supervisors’ conduct that the employers
had prohibited. The Supreme Court held that if an employer has a policy that prohibits harassment, provides a
method for reporting such harassment, investigates reports, and takes corrective action to stop harassment if
it is found to have occurred, the employer could defend itself against a legal claim even if a supervisor
harassed an employee. Thus, in the medical practice situation, if the practice took steps to discipline the
doctor and prevent him from harassing the nurse or others in the future, it could defend itself against a
lawsuit. If it failed to take corrective action against the doctor, the practice had a strong risk of being
successfully sued.
The costs of harassment in the workplace are not easily quantifiable. However, they are real. Feldblum and
Lipnic (2016) reported that the EEOC obtained approximately $160 million in harassment cases in fiscal year
2015, combining pre-litigation settlements and damages in lawsuits filed by the EEOC. However, this does
not include lawsuits in which EEOC was not involved. In addition to legal damages, costs include legal fees
and the less quantifiable loss of productivity in the workplace caused by harassment and its aftermath.
Employers can seek to minimize harassment in the workplace through demonstrated commitment to
harassment-free workplaces at the highest levels in the organization in the form of communication of policy
and complaint procedure, periodic training of employees and supervisors, and prompt response to complaints
of harassment. Training is a key component of any organizational program, but organizations are often
reluctant to make the financial commitment to meaningful and effective training. All too often, training is not a
priority until there has been an incident of workplace harassment. At that point, however, employees may
view the training cynically as merely a reaction to a legal threat, rather than a true commitment to ensuring
that all employees are comfortable in the work environment. Training is most effective as an integral part of an
overall culture putting the highest priority on respect in the workplace and creating clear avenues for
communicating concerns.
In the second decade of the 21st century, 25 years after Anita Hill went before the Senate, the scorecard on
eliminating sexual and other harassment in the workplace is far from acceptable. In some ways, we have
HRM 6302, Employment Law 3
UNIT x STUDY GUIDE
Title
seen substantial advancements in workplaces where respect for women as well as all persons is
demonstrated at the highest levels in the organization, and harassment is not tolerated. In other ways,
however, there is still much room for improvement, particularly in industries where women have only recently
begun to appear in greater numbers and in areas of work where improper behavior is tolerated because of the
levels of stress and risk, such as law and medicine. Human resources professionals will lead the way on
these necessary improvements and will need to gain the full support of their organizations for their efforts to
be successful.
References
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
Cohen, S. (2016, April 11). A brief history of sexual harassment in America before Anita Hill. Time.
http://time.com/4286575/sexual-harassment-before-anita-hill/
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Feldblum, C. R., & Lipnic, V. A. (2016, June). Report of the co-chairs of the EEOC Select task force on the
study of harassment in the workplace. https://www.eeoc.gov/june-2016-report-co-chairs-select-task-
force-study-harassment-workplace
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Strebeigh, F. (1991, October 6). Defining law on the feminist frontier. New York Times Magazine.
http://www.equalwomen.com/nytmagazine1991.html
The Thomas nomination; Excerpts from Senate's hearings on the Thomas nomination [Interview transcript].
(1991, October 12). The New York Times. http://www.nytimes.com/1991/10/12/us/the-thomas-
nomination-excerpts-from-senate-s-hearings-on-the-thomas-nomination.html?pagewanted=1
Suggested Unit Resources
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 8 presentation (PowerPoint) or Chapter 8 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 8 questions in your textbook on pages 319–322.
**## UnitVIIIStudyGuide.pdf**
HRM 6302, Employment Law 1
Course Learning Outcomes for Unit VIII
Upon completion of this unit, students should be able to:
1. Discuss the legal significance of the employer-employee relationship.
1.1 Examine the termination of the employer-employee relationship.
1.2 Apply exceptions to the employment at-will doctrine.
Required Unit Resources
Chapter 16: Terminating Individual Employees, pp. 637–669
Unit Lesson
The first unit of the course examined the concept of employment at will and the fact that the concept is not an
absolute. Subsequent units further explored how employment at will is modified through employment laws
that confer rights on employees and impose obligations on employers. This unit will now review exceptions to
the doctrine that are imposed by judicial decision and by the practicalities of our legal system that influence
employer decision-making. This unit also brings the discussion full circle by focusing on the end of the
employment relationship through involuntary termination and the significance of that action for the
employment cycle as a whole.
Exceptions to the employment at will rule are dependent on state law and states vary widely in the
acceptance of exceptions. These exceptions relate to terminations that fall in the gaps between statutory
regulation of the employment relationship and address terminations that do not strike one as just. The most
prevalent exception is for termination for reasons that violate a state’s public policy. For example, a
termination might be illegal if one of the following situations prompts it:
• discrimination based on race, national origin, sex, pregnancy, religion, disability, citizenship status,
or age;
• retaliation for taking a leave of absence for a serious medical condition;
• retaliation for having complained about workplace safety or a work injury; and
• retaliation for having complained about wage violations or having filed a wage complaint.
Even in states that do not recognize the many exceptions to the employment at will rule, it is generally
accepted nationwide that an employee cannot be fired for serving on a jury or for refusing to break the law at
the direction of his or her employer. Sources of public policies are state constitutions, statutes, or
administrative regulations.
Public policy wrongful termination cases can be costly to employers. In a Michigan case, a nurse complained
that a coworker’s negligence resulted in a patient’s death (Landin v. HealthSource, 2014). Landin, a nurse,
complained that a coworker was negligent in patient care. After the accused coworker became aware of
Landin’s complaint about her, she reported Landin to management, and Landin was subsequently terminated
for procedure violations. Landin’s termination also occurred after the employer became aware that he was
speaking to the widow of the deceased patient. The jury found that Landin’s termination violated a public
policy contained in Michigan’s health code that prohibits a health facility from disciplining employees who in
good faith report the malpractice of a health professional. The jury awarded $1.2 million in damages.
The second main exception to the employment at will rule is the implied contract. An implied contract may be
formed when an employer makes an oral or written representation to an employee that his or her job is secure
or that certain procedures will be followed before an employee is terminated. In the past, an implied contract
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Terminating the Employment Relationship
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was found in some states from representations in an employee handbook that employees would be
discharged only for “just cause.” In the leading case on the implied contract exception, when hired by Blue
Cross Blue Shield of Michigan, a manager, in response to his question about job security, was told that his
employment would be secure as long as he did his job. Additionally, the employment policies included
statements that it was the employer’s policy to terminate employees only for “just cause” (Toussaint v. Blue
Cross & Blue Shield, 1980).
The court found that the manager’s representation and the provision in an employee handbook stating that an
employee can be fired only for just cause created an implied contract if it created an expectation of job
security in the employee. Most employers respond by including in their policies a disclaimer clearly stating
that its policies do not create a contract for employment and carefully define the persons who have authority
to create a contract with an employee for a definite term. Additionally, offer letters typically contain a
statement that they do not create a contract for a definite term and that employment can be terminated at any
time, for any reason. Despite all states not being bound to adhere to the implied contract exception, these
disclaimers in employee handbooks and offer letters guard against expectations and potential legal problems.
Human resources (HR) professionals should also ensure that managers understand the risks of verbally
providing assurances of job security and that such statements can bind the employer.
The third exception to the employment at will rule and the one recognized in the fewest states is the covenant
of good faith and fair dealing. This exception originated in California, where an 18-year airline employee was
terminated without any explanation. Relying in part on the length of the employee’s employment, the court
found that the employee could not be fired without good cause. The court found a covenant of good faith and
fair dealing in the employment relationship and a corresponding duty not to deprive the employee of the
benefits of employment (Cleary v. American Airlines, Inc., 1980).
There are complicated exceptions, as well as the human factor of how unpredictable juries can be in reacting
to actual cases. As a result, employers cannot rely solely on the premise of the employment at will concept as
a justification for termination. According to Paul Falcone (2016), in the event a case escalates to the trial
stage, the employer must be prepared to prove that there was cause to terminate. That proof of legitimate
cause is best substantiated by documented progressive disciplinary warnings and/or failed or negative
reviews or evaluations. When jurors go behind closed doors, they are going to want to see that the employer
treated the employee fairly. Jurors will see this through accurate and timely documentation of performance
issues and efforts to work with the employee to correct the issues.
Reducing risk in connection with employee terminations requires attention to detail and holding managers
accountable for managing performance. A supervisor may want to terminate an employee on the spot when
there is no documentation of performance issues, or when the reasons are subjective ones such as “not a
good fit” or “not a team player.” However, efforts must made to identify if there are objective factors that
support termination. Further, documentation of reasons for termination should occur before an employee is
fired; collecting information after an employee is terminated can be viewed as an effort to justify a termination
that was rushed and not well thought through.
Another tool to reduce risk is to have someone in HR review all termination decisions to ensure they are
appropriate, documented, and consistent with how the organization has handled similar situations. Some
organizations utilize a committee to review the case for termination, review the employee’s file, ask questions
about the decision, and make a determination based on knowledge of the organization’s historic approach
and how the circumstances of the particular case fit into that approach. It is highly recommended for the
employer to consult with counsel when there are significant risk factors. A process such as this can not only
reduce risk before a termination is implemented but demonstrate to a jury that the employer takes each
termination seriously and utilizes a process to ensure employees are treated fairly and consistently.
Just as important is the goal to reduce risk in the execution of the termination decision. The best approach is
for the employee’s direct manager and a witness, preferably an HR representative who will take notes to
document what is said amongst parties, attend a termination meeting. The meeting should have a clear plan
and defined roles in advance; what will be said and who will say it should be determined. A clear statement of
the grounds for termination should be prepared, documented, and delivered verbally to the employee. Some
states require employers to provide a written reason to the employee at the termination meeting, and some
require a termination letter if requested by an employee (“Termination,” 2015). While stating the reason for
termination may be awkward, providing no reason, making vague or inconsistent statements, or giving too
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much information can cause employees to believe they were unfairly treated and cause them to take legal
action. It is best to be honest and be brief.
No employer wants to find its name in the news or on the defending side of a lawsuit after it terminates an
employee. Besides the obvious costs, damage can occur in critical areas of recruiting, retention, and morale.
HR professionals play key roles in making sure the appropriate and required factors are weighed fairly in
decisions about whether to terminate employment. HR professionals must remove the emotion from the
decision and consider what is best for the organization. They must lead the way in reducing risk through
application of their legal knowledge and by treating people with dignity and respect.
References
Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443 (1980).
Falcone, P. (2016, September 26). Employment-at-will vs. the discharge-for-just-cause-only standard: A
critical employment law distinction. Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employment-
at-will.aspx
Roberto Landin v. HealthSource Saginaw, Inc., 854 N.W.2d 152 (2014).
Termination: Should a company provide a terminated employee with a reason for the termination? (2015,
March 25). Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/tools-and-samples/hr-
qa/pages/shouldacompanyprovideterminatedemployeewithareasonforthetermination.aspx
Toussaint v. Blue Cross & Blue Shield, of Michigan, 408 Mich. 579, 292 N.W. 2d 880 (1980).
Suggested Unit Resources
You are encouraged to read the remainder of Chapter 16 in your textbook, which continues this unit’s
discussion of additional issues involved in the termination of employees.
Chapter 16: Terminating Individual Employees, pp. 670–696
In order to access the following resources, click the links below.
The following PowerPoint presentation supplements the textbook chapter reading and is provided for further
knowledge and review of the unit materials.
Chapter 16 presentation (PowerPoint) or Chapter 16 presentation (PDF)
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit
them. If you have questions, contact your instructor for further guidance and information.
At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic
situations that relate to employment law. Exploring these questions allows you the opportunity to further your
understanding of the concepts in each chapter and prepares you for similar situations you may encounter in
your workplace.
• Review the Chapter 16 questions in your textbook on pages 697–701.
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