1.1 Introduction to Law

The Constitution has two main functions: First, it establishes the three branches of the federal government and allocates the division of powers between them. Second, and more importantly in the context of employment law, the Constitution enumerates fundamental rights of citizens—in the Bill of Rights—and protects them from the government’s ability to restrict those rights.

The three branches of the federal government are the legislative branch, the executive branch, and the judicial branch. The legislative branch is made up of the two houses of Congress—the Senate and the House of Representatives. These bodies are tasked by the Constitution to make laws for the “general welfare” of the people. The executive branch is composed of the president and other executive leaders, such as the vice president and the Cabinet. The president and the vice president are elected by the people, while cabinet members, who lead major departments in the federal government, are appointed by the president. The executive branch conducts foreign affairs and ensures that sound laws are created and enforced. The executive branch also has the power to create Executive Orders, which act as law for the federal government and its agencies. The judicial branch is the court system of the country and comprises the United States Supreme Court and other federal courts. Through actual legal controversies, the courts explain and define the meaning of the Constitution and laws passed by Congress. The Supreme Court is the highest court in the land; its decisions are final and cannot be overruled by any other court. Its decisions may only be altered by constitutional amendment or by a new ruling of the Supreme Court itself.

Each branch of the federal government plays a role in employment law. For example, in 1963, President John F. Kennedy invited Congress to draft civil rights legislation to eliminate employment discrimination.

On September 24, 1965, President Lyndon B. Johnson issued Executive Order 11246, prohibiting employment discrimination based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts. More recently, on June 25, 2021, President Joseph Biden signed Executive Order 14035, titled Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce. Executive Order 14035 mandates a thorough review and enhancement of diversity, equity, inclusion, and accessibility policies within federal agencies. Moreover, it requires establishing strategic plans to promote diversity, equity and inclusion (DEI) values at all levels of government operations. The executive branch, through the Equal Employment Opportunity Commission (EEOC), ensures that the Civil Rights Act of 1964 is enforced. Most employment law has its origin in the legislative branch—Congress. For example, Congress passed the Civil Rights Act of 1964, which will be addressed in later topics.

The judicial branch interprets laws related to employment once they are passed. For example, the courts, through cases brought by the EEOC and private parties, interpret and define the scope of the Civil Rights Act.

The Supremacy Clause of the ConstitutionArticle VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. mandates that the Constitution, federal law, treaties, and federal regulations are the highest laws of the land and have priority over state law. As we shall see in the coming sections, this doctrine is important in the employment law context because many laws and regulations governing employment are federal laws.

Finally, the legal construction of employment has its roots in the traditional master/servant relationship under the common law. The legal principles surrounding that relationship grew into modern contract and agency law, to which we now turn.