Academic

Bernt on the Reasonable Person in Employment Law

By Lawrence Solum

Lisa Bernt (John F. Kennedy School of Government) has posted Finding the Right Jobs for the Reasonable Person in Employment Law (UMKC Law Review, Vol. 77, No. 1, 2008) on SSRN. Here is the abstract:

This article examines the reasonable person's role(s) in employment law, which can be best explained as embodying either a normative standard or a descriptive expectation, depending on the context of its usage. The proper usage in any instance should depend on whether the task at hand is to determine whether the actor whose conduct is being judged has satisfied a duty. In most employment litigation, it will be the employer who has a duty to the employee, and a normative application of the reasonable person is, therefore, appropriate. When using the reasonable person device in this way, we are asking: What ought the employer have done, and has the employer done it? However, if the immediate question is not whether one has breached a duty, then a descriptive use of the reasonable person is more appropriate. When using the reasonable person device in this way, we are making an observation about the conduct of the actor whose conduct is being judged, asking: How might we expect one in that position under those circumstances to act? . . . Such differential usage of the reasonable person better comports with the remedial purposes of employment law. . . . To the extent that the reasonable person is used to assess employer conduct, courts do tend to use this approach. But when courts assess the conduct of an employee (who does not owe the employer a duty), the picture is mixed, with courts too often imposing normative requirements on employees.

Full post as published by Legal Theory Blog on February 02, 2009 (boomark / email).