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What if Title VII had a provision that mandated, “in addition to specific protected traits (sex, race, religion, etc.), all employers have an obligation to protect employees from discriminatory conduct based on other recognized traits (smoker, obesity, red hair, etc).”
This would be a general duty not to discriminate. What if the Fair Labor Standards Act had a provision that required, “in addition to specific regulations regarding compensable work, all employers have an obligation to ensure that employees are appropriately compensated.”
This would be a general duty not to deny compensation. If such a statutory “catch all” under these statutes seems contrary to due process concepts of fair notice, then you will appreciate the growing debate about the U.S. Occupational Safety and Health Administration’s use of its General Duty Clause, which is looking more and more like the far-fetched examples above, namely, a global rule that employers must prevent bad things from happening to their employees.
Excerpted from Law360, May 11, 2011. To read the full article, click here (subscription required).