MGMT 311 chapter 21

Prima facie

, the plaintiff must establish that the employer took an adverse employment action based in part on the employee's connection with the military. The connection to the military may be through the plaintiff's membership, service, or application for service, or it may be through providing testimony or statements concerning the military service of another.

Undue hardship

- A reasonable attempt to accommodate does not necessarily require the employer to make every change an employee requests or to make a permanent change for an employee's benefit. - An employer is not required to make an accommodation that would cause the employer undue hardship. Undue hardships include: 1. excessively expensive 2. causing the employer to violate their own personnel policy 3. causing them to violate another law

Title VII of the Civil Rights act

- prohibits job discrimination against employee, applicants and union members on the basis of: 1. Race 2. Color 3. National origin 4. Religion 5. Sex/Gender

Disability

1. A physical or mental impairment that substantially limits one or more of the major life activities of the affected individual. 2. A record of having such an impairment. 3. Being regarded as having such an impairment.

Health conditions considered disabilities

1. Alcoholism 2. AIDS 3. blindness 4. cancer 5. cerebral palsy 6. diabetes 7. heart disease 8. muscular dystrophy 9. paraplegia

Equal protection issues

1. Any federal, state, or local government affirmative action program that uses racial or ethnic classifications as the bases for making decisions is subject to strict scrutiny by the courts- the highest standard to meet 2. Government employers make employment based on gender- intermediate scrutiny test applied

Defenses to employment discrimination

1. Business necessity- employer must show a definite connection between job requirement and job performance 2. Bona Fide occupational qualification- when a particular trait is essential to the job: only gender and religion can be used 3. seniority system- where promotions and other job benefits are distributed to workers with more years of service first

Substance abuser

1. Drug addiction is considered a disability; casual users are not protected as they are not addicts 2. ADA only protects former drug abusers- those who have completed or are in supervised rehab programs (cannot be currently using) 3. Alcoholics are also protected by the ADA 4. Employers can prohibit the use of alcohol in the workplace and require that employees not e under the influence of alcohol while working 5. Employers can fire or refuse to hire a person who is an alcoholic if: 1. the person poses substantial risk of harm to himself or herself or to others, and 2. the risk cannot be reduced by reasonable accommodation

Burden-shifting procedure

1. Plaintiff must prove the prima facie case 2. Burden then shifts to employer to show a legitimate reason for not hiring plaintiff 3. Burden shifts back to plaintiff to prove that the employer's reason was a mere pretext

Burden of proof

1. Plaintiff proves Prima facie case 2. burden shifts employer to prove a legitimate reason; and 3. plaintiff can then try to prove the employer's reason is a mere pretext If the employer offers a legitimate reason for its action, then the plaintiff must show that the stated reason is only a pretext. The plaintiff is required to prove that the plaintiff's age was the real reason for the employer's decision.

Prima facie case

1. Plaintiff was a member of the protected age group 2. Plaintiff was qualified for the position from which he was discharged 3. Plaintiff was discharged under circumstances that give rise to an interference of discrimination

Sexual harassment

1. Quid pro quo 2. Hostile working environment

Discrimination based on race, color, and national origin

1. Race is interpreted broadly to apply to the ancestry or ethnic characteristics of a group of persons, such as native Americans 2. National origin refers to discrimination based on a person's birth in another country or his or her ancestry or culture, such as hispanic

Reasonable accomodation

1. The ADA does not require that employers accommodate the needs of job applicants or employees with disabilities who are not otherwise qualified for the work. 2. If a job applicant or an employee with a disability, with a reasonable accommodation can perform essential job functions, however, the employer must make the accommodation 3. Employer's obligation includes: a. make existing facilities accessible and usable b. Job restructuring. modified work schedules, and buying or modifying equipment

wage discrimination

1. The Equal Pay Act requires equal pay for male and female employees working at the same establishment doing similar work. To determine whether the Equal Pay Act has been violated, a court looks to the primary duties of the two jobs—the job content rather than the job description controls. If a court finds that the wage differential is due to "any factor other than gender," then it does not violate the Equal Pay Act. 2. Four exceptions: 1. A seniority system 2. Merit system 3. A system that measures earnings by quantity of production or 4. A differential based on any factors other than sex

Prima Facie case: unintentional

1. The employer has a facially neutral employment practice or job requirement; 2. Policy is neutrally applied; and 3. Policy has a significantly adverse impact on a protected class

Broad application and provisions

1. military plaintiffs can sue not only the employer but also individual employees who were acting in an official capacity for the employer 2. Veterans can be terminated from their employment only "for cause" 3. no statute of limitations for bringing a lawsuit; this cause of action could have arisen 10 weeks or 10 years before the suit was filed

Proving disparate impact

A. Pool of applicants 1. as a result of educational or other job requirements or hiring procedures, 2. the percentage of nonwhites, women, or members of other protected classes in the employer's workforce 3. does not reflect the percentage of that group in the pool of qualified applicants. B. Rate of hiring 1. the protected class selection rate is less than 4/5ths or 80% of the group with the highest rate of hiring

Disclosure of confidential medical information

ADA requires employers to keep their employees' medical information confidential. If an employee discovers that an employer has disclosed their confidential information they have the right to sue the employer- even if the employee was not technically disabled

The Lilly ledbetter fair pay act

Act made discriminatory wages actionable under federal law regardless of when the discrimination began. Previously, plaintiffs had to file a complaint within a limited time period. Today, if a plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is practically unlimited.

Proving constructive discharge

An employee must present objective proof of intolerable working conditions. The employee must also show that the employer knew or had reason to know about these conditions yet failed to correct them within a reasonable time period. - courts generally require the employee to show causation—that the employer's unlawful discrimination caused the working conditions to be intolerable

Reasonable accommodation

An employer must "reasonable accommodate" the religious practices and sincerely held religious beliefs of its employees, unless to do so would cause undue hardship to the employer's business

Post-pregnancy discrimination

An employer must continue to reasonably accommodate an employee's medical conditions related to pregnancy and childbirth, even after the pregnancy has ended.

Application of title VII

Applies to employers with 15 or more employees and labor unions with 15 or more members. It also applies to labor unions that operate hiring halls - prohibits discrimination in most federal government employment; when it applies to the employer, any employee-including an undocumented worker can bring an action for employment discrimination

Reverse discrimination

Discrimination against members of a majority group, such as white males

Discrimination based on sex/gender

Employers are forbidden from discriminating against employees on the basis of sex, or gender. 1. Employers cannot classify jobs as male/female unless gender is Bona fide occupational qualification 2. Height, weight, physical ability requirements can have disparate impact on women 3. Employers cannot have separate male and female seniority lists and cannot refuse to promote employees based on their gender To succeed in a suit for sex discrimination, a plaintiff must demonstrate that gender was the determining factor in the employer's decision to hire, fire, or promote him or her

Retaliation by employers

Employers sometimes retaliate against employees who complain about sexual harassment or other Title VII violations. - demote or firing - change the terms, conditions, and benefits of employment This is prohibited by title VII and employees can sue their employers; in a retaliation claim, an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a title VII investigation or proceeding

Undue hardship

Employers who do not accommodate the needs of persons with disabilities must demonstrate that the accommodations would cause undue hardship in terms of being significantly difficult or expensive for the employer

Pregnancy discrimination act

Expanded title VII's definition of sex discrimination to include discrimination based on pregnancy. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other person not so affected but similar in ability to work

Harassment by supervisors

For an employer to be held liable for a supervisor's sexual harassment, the supervisor normally must have taken a tangible employment action against the employee.

Disparate-Treament Discrimination

Intentional discrimination by an employer. Because intent may sometimes be difficult to prove, courts have established certain procedures for resolving disparate-treatment cases - A plaintiff who sues on the basis of disparate treatment discrimination must first make out a prima facie case

Affirmative action

Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination 1. Title VII of the CRA- neither requires or prohibits this

Prima Facie case

Latin for "at first sight" or "on its face"; legally it refers to a fact that is presumed to be true unless contradicted by evidence 1. Plaintiff is a member of the protected class; 2. Plaintiff applied and was qualified for the job; 3. Plaintiff was rejected by the employer; 4. Employer continued to seek applicants for the position or filled the position with a person not in a protected class - A plaintiff who can meet these requirements has made out a prima facie case of illegal discrimination in hiring and will win in the absence of a legally acceptable employer defense - to establish a prima facie case, the plaintiff must show that he or she was fired or treated adversely for discriminatory reasons

The equal employment opportunity commission

Monitors compliance with Title VII - An employee alleging discrimination must file a claim with the EEOC before a lawsuit can be brought against the employer - the EEOC may investigate the dispute and attempt to obtain the parties' voluntary consent to an out-of-court settlement. If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf.

Constructive discharge

Occurs when the employer causes the employee's working conditions to be so intolerable that a reasonable person in the employee's position would feel compelled to quit. When this is claimed, the employee can pursue damages for loss of income, including back pay. These damages ordinarily are not available to an employee who left a job voluntarily. - is most commonly asserted in cases involving sexual harassment.

Association with disabled person

Prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities. An employer cannot refuse to hire the parent of a child with a disability based on the assumption that the person will miss work too often or be unreliable

Discrimination based on religion

Prohibits government employers, private employers, and unions from discriminating against persons because of their religion a. Accommodation by employer

Burden of proof

Shifts to employer who tries to justify the practice or requirement; employer defenses include: job-related reason or a business necessity; but can also be justification like insubordination, lack of work experience - it is not a defense that the employer did not intend to discriminate

Discrimination based on age

The Age Discrimination in Employment Act (ADEA), as amended, prohibits employment discrimination on the basis of age against individuals forty years of age or older. The act also prohibits mandatory retirement for nonmanagerial workers. In addition, the ADEA protects federal and private-sector employees from retaliation based on age-related complaints. For the act to apply: a. an employer must have 20 or more employees, and b. the employer's business activities must affect interstate commerce

Discrimination based on disability

The Americans with Disabilities Act (ADA) prohibits disability-based discrimination in all workplaces with 15 or more workers - ADA requires the employers "reasonably accommodate" the need of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship"

Bostock v. Clayton co georgia

The US Supreme Court in June of 2020 held for the first time in history that sex discrimination under the CRA of 1964, Title VII includes discriminating against a worker based on their being transgendered or based on them being homosexual

Ellerth/Faragher Affirmative Defense

The defense has 2 elements: 1. The employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior (by establishing effective harassment policies and complaint procedures, for instance). 2. The plaintiff-employee must have unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm - an employ that can prove both elements normally will not be liable for a supervisor's harassment

Procedures under the ADA

To prevail on a claim under the ADA, a plaintiff must show that he or she: 1. has a disability 2. is otherwise qualified for the employment in question, and 3. was excluded from the employment solely because of the disability The plaintiff must pursue the claim through the EEOC before filing an action in court for a violation of the ADA Plaintiffs may seek remedies: 1. reinstatement 2. pay back 3. limited amount of compensatory and punitive damages

Plaintiff may be entitled to promotions

Under the USERRA, returning service members are to be reemployed in the jobs that they would have attained had they not been absent for military service. Reinstatement could affect their seniority, status, pay, and other rights and benefits (such as health-care and pension plans). In essence, this means that if a returning service member sues an employer for violations of the USERRA and is successful, she or he could receive not only damages and reinstatement but also a promotion.

Discrimination based on Military status

Uniformed services employment and reemployment rights act (ESERRA) prohibits discrimination against persons who have served in the military; it makes military services and status a protected class and gives members of this class a right to sue an employer for violation

Harassment by co-workers and others

When harassment by co-workers, rather than supervisors, creates a hostile working environment, an employee may still have a cause of action against the employer. - Normally, though, the employer will be held liable only if management knew or should have known about the harassment and failed to take immediate remedial action.

Mitigating measures

Whether a plaintiff fits a definition of disability is determined without regard to corrective measures. Exception: glasses and contact lenses for ordinary impairment. Employers are free to use/have uncorrected vision standards as a basis for hiring in a position if there is a business necessity or job related reason

Harassment by nonemployees

a court may also hold an employer liable for harassment by nonemployees if the employer knew about the harassment and failed to take corrective action.

Burden of proof under ADEA

a plaintiff must show that the unlawful discrimination was not just a reason but the reason for the adverse employment action. In other words, the employee has the burden of establishing but for causation—that is, "but for" the employee's age, the action would not have been taken.

Replacing older workers with younger workers

discrimination cases have been brought against employers who, to cut costs, replaced older, higher-salaried employees with younger, lower-salaried workers. In such situations, whether a firing is discriminatory or simply part of a rational business decision to prune the company's ranks is not always clear. - The plaintiff must prove that the discharge was motivated by age bias. - The plaintiff need not prove that she or he was replaced by a person "outside the protected class" (under the age of forty). - The replacement worker need only be younger than the plaintiff. Nevertheless, the greater the age gap, the more likely the plaintiff will succeed in showing age discrimination.

Remedies under title VII

if the plaintiff successfully proves that unlawful discrimination occurred, may be awarded: - reinstatement, - back pay, - retroactive promotions, - front pay - compensatory damages are available only in cases of intentional discrimination. - punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference to an individuals rights.

Same gender harassment

in other words does it matter if the harasser and the alleged victims are the same gender

Tangible employment action

is a significant change in employment status or benefits. Such an action occurs when an employee is fired, refused a promotion, demoted, or reassigned to a position with significantly different responsibilities, for instance. Only a supervisor, or another person acting with authority of the employer can cause this sort of harm

Hostile environment harassment

occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it. Such harassment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult, and this harassment is so severe or pervasive that it alters the conditions of employment.

Quid pro quo harassment

occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits. Quid pro quo is a Latin phrase that is often translated as "something in exchange for something else."

Disparate-impact discrimination

unintentional discrimination that occurs when a protected group of people is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminatory - Complaining party must show a prima facie case