MURANE & BOSTWICK, LLC
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EMPLOYMENT LAW AND JOB DISCRIMINATION

Murane & Bostwick, LLC has prepared this page for general information concerning Wyoming law. The information below does not constitute legal advice with respect to any particular circumstance. You should not act, or refrain from acting, based upon any information provided. If you have a question or a problem which may involve legal issues or relationships, you should seek the assistance of an attorney. Murane & Bostwick’s attorneys who emphasize this area of the law are listed at the end of this page.

Age Discrimination in Employment Act (ADEA). The ADEA prohibits discrimination against workers 40  years old or older. The Act makes it illegal to intentionally discriminate against workers 40 years old or older or to develop employment policies that have a disparate impact on persons 40 years old or older.

For an employee to prevail on an ADEA claim, the employee must show that he or she was 40 years old or older, that some adverse employment action was taken, and that he or she was replaced by a younger worker. In defending against such a claim, the employer must come forward with evidence that the decision was not age related or age based.

Under the ADEA, an employer may discriminate on the basis of age under certain circumstances, such as where there exits a bona fide occupational age qualification "reasonably necessary to the normal operation of the particular business."

Sexual Discrimination and Harassment. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, including pregnancy. Under Title VII, an employer must judge both male and female employees based on their individual capacities to perform a job, rather than on some preconceived notion as to their respective capacities as a class. Employment decisions may be based on sex, however, if sex is a bona fide occupational qualification.

Title VII and the Civil Rights Act of 1991 prohibits discrimination based on sex. Sexual harassment is a form of workplace discrimination based on sex. Two types of sexual harassment are recognized, (1) quid pro quo (this for that) in which submission to or rejection of sexual conduct is used as a basis for making employment decisions and (2) hostile environment sexual harassment, where sexual conduct unreasonably interferes with an employee’s working environment. The Civil Rights Act of 1991 expanded the remedies available to employees suing for sexual harassment to include compensatory damages and punitive damages.

It is critical that employers formulate a sexual harassment policies which include a reporting mechanism for employees and a method for investigating and responding to allegations of sexual harassment and that the policies be communicated to the employees. These policies may eliminate or reduce sexual harassment and may protect the employer from liability, at least in the case of hostile environment sexual harassment where the employer has no knowledge of the harassment.

Americans with Disabilities Act (ADA). The ADA prohibits discrimination against disabled persons capable of performing the essential functions of a job and requires employers to make reasonable accommodations to qualified disabled individuals who can otherwise perform the essential job functions. Disability is defined in the Act as a physical or mental impairment that substantially limits one or more of an individual’s major life activities.

The ADA imposes limits on the inquiries an employer may make of a prospective employee. The employer may ask if the employee is capable of performing all the essential functions of the job, but the employer cannot inquire as to whether the applicant is disabled or as to the nature or severity of any disability. Compliance with these requirements suggests that the employer should formulate specific job descriptions setting forth the essential functions of the job so that inquiry as to those functions may be made during the job interview.

Reasonable accommodation is a key concept under the ADA. If the employee can perform the essential functions of the job with reasonable accommodation, those accommodations must be made. Reasonable accommodation may mean making existing facilities readily accessible and usable by disabled individuals, job restructuring, modified work schedules, etc. An employer, however, is not required to make an accommodation that would impose an undue hardship on the operation of the employer’s business. An undue hardship is an accommodation necessitating significant difficulty or expense considered in the light of the safety of others, the nature and costs of the accommodation, the financial resources of the employer, and related factors.

Procedural Note: The Civil Rights Acts contain deadlines within which to file claims. An employee believing he or she has been subject to a discriminatory act should consult counsel promptly. An employer, correspondingly, may have a complete defense to a claim simply on the basis that the claim is tardy.

At-Will or Contractual Employment: Wyoming continues to adhere to the employment-at-will doctrine, which, in the absence of a contractual relationship, allows either an employee or an employer to end the employment relationship at any time and for any reason or for no reason. Employees often believe, however, that they can only be terminated "for cause," and Wyoming courts have often found implied contracts providing job security and termination only for cause. The source for such an implied contracts has been found in employee handbooks, personnel policies, employment manuals and/or the employer’s course of dealing. Employee handbooks containing probationary periods, specific grounds for termination, or step discipline may be found to create an expectation or reliance by the employee that he or she may only be discharged for cause.

Alternatively, Wyoming courts have given effect to disclaimers in employee handbooks and manuals notifying employees that they are at-will employees. Such disclaimers, if conspicuous, can preclude a progressive discipline policy from forming an implied contract. Disclaimers, to be effective, must be prominent, which may require that they be in large and bold type, set off with a different border, and repeated throughout an employee handbook or manual.

An employer may revise an employee handbook with disclaimers which reinstate an employee’s at-will employment status. If the change modifies an existing employment contract requiring termination for cause, however, the employer must provide additional consideration to make the change effective. In other words, the employer must provide some benefit to the employee, such as an increase in pay, to effectively modify the existing contract of employment.

Q: "My boss is an ogre subject to irrational fits of anger. He just fired me as a scapegoat for a problem he created and it is completely unfair. Do I have legal recourse?"

A: In the absence of a discriminatory purpose for the discharge, such as age, race, gender, or disability, and absent an employment contract providing that termination may only be for cause, an employee may have no recourse. An at-will employee has no legal right to fairness in the termination of his or her employment. If, however, there are factors such as mentioned above that suggest an implied contract may exist, requiring termination only for cause, then there may be enforceable rights. If an employer supplied an employee handbook or manual, the discharged employee should consult counsel for advice as to whether that handbook or manual may provide an implied contract requiring termination only for cause.

Q: "We have an ineffective employee who is a disruptive influence in the workplace and who creates disharmony among other employees. This employee is also a member of a protected class (i.e., disabled, or over 40, or non-white, or female). Can we fire him/her?"

A: Welcome to the troubled waters of employment law. The employer in this hypothetical has a problem without an easy solution. Yes, the employer can fire this employee, but despite the employer’s best motives and best efforts to document valid reasons, the employer may get sued for discrimination. In order to protect against a charge of discrimination, an employer will need to carefully document the employee’s deficient work performance and the problems caused by the employee. If the employee brings a charge of discrimination before the Equal Employment Opportunity Commission and/or files suit, the employer will need to be able to demonstrate a non-discriminatory reason for the termination. An employer cannot prevent the employee from making the charge, but can arm itself with evidence that may defeat the claim before the EEOC or in court.

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