Preparation Guide 7

Chapter 7 is entitled “Freedom in the Workplace” and addresses conditions of employment. It is perhaps the most eclectic of the chapters but essentially deals with the issue of balancing the employer’s management prerogatives with those freedoms recognized by society on the side of employees. The main areas within this chapter are 1) grooming and dress, 2) harassment, 3) privacy, 4) freedom of expression, and 5) regulation of off-work activity. While it often matters whether an employee is a public or private employee, here this distinction becomes critical to any legal analysis.

1-What federal statute does harassment in the workplace fall within? From reading the Oncale case (p. 611) what is problematic with using the statute referred to above?
What is vicarious liability and how does this figure into claims of harassment? In the Suders case (p. 596) the court addresses an employer’s affirmative defense to claims of vicarious liability. According to this case, how can an employer affirmatively defend against such claims?
What are the elements in a prima facie case of sexual harassment? What are the factors that establish a harassment claim based on hostile environment? Which individuals can create a claim for hostile environment harassment?

2-From the Rankin case (p. 635), what is the threshold question to be decided when a public employee maintains that their 1st Amendment rights have been violated? According to Pickering (referenced within) how are the employer’s rights balanced against the employee’s rights in these matters?
How did the court use this Pickering balancing in the Garcetti case (p. 643)? Which aspect proved to be the most problematic for the employee?
Has Rankin survived Garcetti?

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