RPLU 11 Employment Practice Liability

Reasonable Accommodation

A modification or adjustment to a job or work environment that is required by the ADA to enable a qualified applicant or employee with a disability to perform essential job functions and that is also used in connection with discrimination claims based on religion - Note An employer must make reasonable accommodations unless such accommodations cause the employer undue hardship

What are 4 key terms in the insuring agreement that generally indicate the scope of coverage of an EPLI Policy?

Claim; Damage or Loss; Insureds or employees; Wrongful Employment Act

Retroactive Date

The date in a claims-made policy after which a wrongful act must occur in order for the policy to apply and that is typically the inception date of the insured's first claims-made policy

Aggregate Limit

The maximum amount the insurer will pay within a specific policy period for all of the claims incurred under an insurance policy

Joint Employer

Two or more employers that each exercise sufficient control over an individual to qualify as the employer

The _____________ laws are part of many federal statutes to protect workers who testify against their employers from retaliation

Whistleblower

Which agencies may enforce Whistleblower retaliation claims?

Whistleblower retaliation claims may be enforced by OSHA, the EEOC, the National Labor Relations Board or other agencies depending on the type of claim and the related federal statutes

Redlining

Illegal discrimination by banks and mortgage lenders that outline certain neighborhoods in red where loans would not be made or the costs of services would be increased and is typically excluded from 3rd coverage

What are most claims of illegal discharge based on?

Most claims of illegal discharge are based on Common Law

Claims of _______ may be difficult to prove and may involve anti-discrimination or public policy issues that protect and employer's decisions.

Negligent hiring

Do EPLI policies provide coverage for wage and hour claims?

No, the EPLI policy will not typically cover wage and hour claims

Section 503 of the Rehabilitation Act of 1973

Prohibits discrimination and requires affirmative action to recruit and advance qualified employees with disabilities; applies to all employers with a federal contract of more than $10,000

An increasing number of national origin discrimination claims involve ________ such as English-only rules. These rules may be legal if they are tailored to meet ______ regulations

language; safety

The EEOC provides a ____ program to help parties resolve charges without litigation

mediation

Most EPLI policies are claims made and reported and require ________

notification within 30 to 90 days after the insured receives the claim

Sex discrimination may involve ________, childbirth, and related conditions

pregnancy

Errors and Omissions Liability Insurance E&O

A type of insurance that protects various types of professionals and professional organizations from financial loss resulting from alleged errors, omissions, or negligent actions arising from their professional activities

Fiduciary Liability Insurance

A type of insurance that provides coverage against negligent or unintentional acts by a fiduciary (a person entrusted to manage the benefits of others) due to a breach of duty or an error or omission in managing employee benefit plans

Commercial General Liability Insurance CGL

A type of insurance that provides coverage for commercial risks for losses arising out of business operations involving bodily injury and property damage, except those specifically excluded, including professional services - Note May also include advertising injury/personal injury coverage

Vicarious Liability

A type of liability that holds a party responsible for the negligence of another based solely on the relationship between the parties

Constructive Discharge

A type of termination of the employment relationship in which the employee quits, but the employer is liable as if wrongful termination occurred because the employee was forced to resign due to intolerable working conditions

Dual-Filing

A working agreement under which a charge of discrimination that is (1) covered by both an EEOC-enforced statute and an FEPA law or ordinance and (2) filed with either the EEOC or FEPA is filed with both agencies under both laws regardless of which agency receives it

Workplace Tort

A wrongful act that results in injury or damage and on which a civil action may be based

How does the ADA define a disabled person?

ADA defines a disabled person as one who: Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such impairment or; Is regarded as having an impairment

What 3 types of EPL claims may be more prevalent with an older workforce?

ADA discrimination and accommodation claims, Claims made based on FMLA leave requirements, ADEA discrimination claims

Many 3rd parties claims involve violations of _____ and ________

ADA; Title VII discrimination

The EEOC enforces Whistleblower retaliation claims against which Federal Statutes?

ADEA, ADA, Title VII are federal statutes where the EEOC will enforce whistleblower retaliation claims

The ________ protects workers over 40 and the _________ prohibits discrimination against disabled persons

ADEA; ADA

What percentage of charges received by the EEOC allege age discrimination?

About 20% of charges allege age discrimination

What percentage of charges received by the EEO allege sex discrimination?

About 30% of charges allege sex discrimination

What percentage of charges received by the EEO allege race discrimination?

About 35% of charges allege race discrimination

What percentage of EPL claims are brought against employers with 15 to 100 employees?

About 40% of EPL claims are brought against employers with 15 to 100 employees

What are examples of age discrimination?

Age discrimination examples include: Mandatory retirement at a certain age; Assigning only older workers (or younger workers) to certain positions and types of jobs; Selecting older workers when reducing the workforce and keeping only younger workers; Refusing to hire qualified older applicants (when the decision is based on age, not on other factors such as experience, education or training)

OSHA enforces Whistleblower retaliation claims against which Federal Statutes?

Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act (Super Fund), Occupational Safety and Helath Act, Safe Drinking Water Act, Sarbanes-Oxley Act, Solid Waste Disposal Act, Toxic Substances Control Act and Water Pollution Control Act (Clean Water Act) are federal statutes where OSHA will enforce whistleblower retaliation claims

Workplace torts are not based on statutory law but on ___________ that is developed through court decisions

Common law

When are companies more likely to face an ADEA claim?

Companies are more likely to encounter ADEA claims when they are involved in layoffs, reduction-in-force actions, mergers and other similar activities

Damages for employment-related claims may include back pay, front pay and ____________ damages

Compensatory

Loss control techniques generally involves

Conducting risk assessments to identify potential loss exposures; Determining whether certain risks should be avoided such as using independent contractors for particular projects rather than employees; Developing loss prevention and reduction programs, such as employee training, policies and procedures and compliance audits; Conducting audits to monitor the program and determine whether policies and procedures are effective and enforced consistently or whether any changes or modifications may be needed

What types of claims are constructive discharge claims related to?

Constructive discharge claims are related to claims of discrimination, harassment and retaliation

Pregnancy Discrimination Act of 1978

Amended Title VII to include discrimination on the basis of pregnancy as a type of sex discrimination

Civil Rights Act of 1991

Amended Title VII to provide that employees bringing discrimination claims had the right to a jury trial and provided for compensatory and punitive damages when employers were found to have willfully violated the law

What are some employer practices that the EEOC is scrutinizing regarding unemployed job seekers?

Among employer practices that the EEOC is scrutinizing are 1) ads, job postings, and recruiter searches that discourage or bar inquiries from the jobless and 2) use of unemployment status as a negative criterion in hiring decisions

Reservation of Rights (ROR)

An insurer's letter notifying the policyholder that potential coverage issues may exist and reserving the insurer's right to not pay for a claim or part of a claim determined not to be covered under the policy

Fiduciary Duty

An obligation to act in another party's best interests, requiring the highest standards of care, good faith, loyalty and trust

Veterans Employment and Training Service (VETS)

An separate agency within the Department of Labor that is charged with investigating and resolving USERRA claims

Employers may be able to include sex as __________ for certain jobs

BFOQ

Why are tort claims often included with claims of discrimination or harassment?

Because damages may be unlimited in tort claims and damages involving claims of discrimination or harassment may be capped

Insureds are reluctant to report claims because they

Believe or hope that the potential claim will simply go away; Believe that notifying the insurer will increase premiums; Assume that the claim is not valid; Misunderstand the scope of coverage the policy provides, the definition of a claim or claim reporting requirements

How can employers prepare for and prevent retaliation claims?

By purchasing EPLI; by publishing and distributing workplace policies; by implementing training for supervisors, managers and staff and by documenting and investigating complaints and then advising employees who submitted the complaints of the results

Compensatory and punitive damages for claims alleging violation of Title VII of the Civil Rights Act of 1964 are limited based on the number of employees as follows:

15 - 100 employees/$50,000; 101 - 200 employees/$100,000; 201 - 500 employees/$200,000; 501+ employees/$300,000 Note these caps are applied per claimant; If 10 employees file a harassment lawsuit and individual damages are capped at $300,000 then the employer's liability may be $3M

What is the time frame in which an EEOC charge must be filed?

180 days of the alleged violation and can be extended to 300 days if the charge is also covered by a state or local statute.

Why was 3rd party coverage added to EPLI policies?

3rd party coverage was added because these claims were not covered under CGL policies

Immigration Reform and Control Act IRCA

A federal statute that provides eligibility and verification requirements for legal employment in the United States; Prohibits discrimination based on citizenship, national origin; Applies to all employers with 4+ employees not covered by Title VII; Enforced by Department of Justice

Claims Made

A form of liability coverage that is triggered if (1) an event occurs after the retroactive date but before the termination of coverage and (2) the claim is made against the insured while the policy is in effect

Claims Made and Reported

A form of liability coverage that requires that the claim not only be made but also reported to the insurer during the same policy period

Hostile Work Environment

A form of prohibited sexual harassment involving a pattern or practice of unwelcome conduct or working conditions that unreasonably interfere with the employee's work performance or create an intimidating or offensive work environment

Quid Pro Quo Harassment

A form of prohibited sexual harassment involving situations in which submission to or rejection of unwelcome conduct (such as sexual advance or a request for sexual favors) is used as the basis for employment decisions and/or tangible employment benefits or the conduct is used as a term or condition of employment

How can a grievance procedure create a conflict with the concept of employment at will?

A grievance procedure may be interpreted to mean an employee cannot be terminated without following all of the steps in the process. This conflicts with at will employment, in which an employee may be discharged at any time.

Protected Class

A group or member of that group that is specified in and therefore protected by anti-discrimination laws

Bona Fide Occupational Qualification BFOQ

A job requirement that permits an employer to discriminate legally based on sex, age, religion, national origin, or physical or mental condition - The requirement must be carefully justified and based on actual job needs not stereotypes

Injunctive Relief

A judicial remedy that is awarded to restrain a particular activity and that is a preventive measure to guard against future injuries, rather than one that affords a remedy for past injuries; Non-monetary relief (1) such as reinstatement or training to prevent future discrimination or harassment or (2) modification of facilities to provide access for persons with disabilities

Class Action

A lawsuit that authorizes a single person or small group of people to represent the interests of a larger group

Arbitration

A method of alternative dispute resolution that allows the disputing parties to present arguments and evidence to an independent and impartial third party (arbitrator) whose decision is usually binding

Rating Plan

A method of determining premiums that expresses any formulas used, including the base rate and modification factors, such as increased Limit Factors and experience and schedule rating plans

Mediation

A non-binding method of alternative dispute resolution in which the parties are guided by an impartial third party in resolving their differences and encouraged to develop their own solutions to settle the dispute

Office of Federal Contract Compliance Programs OFCCP

A part of the US Department of Labor's Employment Standards Administration that is responsible for ensuring that employers doing business with the federal government comply with the laws and regulations requiring nondiscrimination and affirmative action in employment

Title VII

A part of the federal Civil Rights Act of 1964 that prohibits discrimination in employment on the basis of age, color, national origin, race, religion or sex

Soft Market

A period in the insurance market cycle when coverage availability is abundant because insurers have been through a prosperous period in which new carriers have entered the marketplace and in which abundant availability or capacity exists with insurers offering broad coverage terms at competitive prices

Hard Market

A point in the insurance market cycle when coverage availability is limited because insurers have become insolvent or stopped writing coverage or affordability is limited because remaining insurers offer coverage but at prices that are unaffordable

Consent to Settle

A policy provision that requires the insurer to obtain the insured's consent before offering to settle claims made under a duty to defend policy - Note In a duty to pay policy, the insured must obtain the insurer's consent before entering into any settlement

Natural Person

A real human being that is distinguished from a corporation and that is often treated in law as a fictitious person

Progressive Discipline

A series of written warnings from an employer to an employee that advise the employee of performance deficiencies that give the employee an opportunity to correct the deficiencies and that warn of additional disciplinary action or termination if improvement is not shown

Tangible Employment Action

A significant change in employment status, such as firing, demotion, and other actions that negatively affect an employee's benefits; if an employee was hired, fired, demoted, transferred or constructively discharge due to harassment, then the employer is liable

Tangible Job Benefit

A significant job benefit such as compensation, pay, promotion, time off and pensions

Representation

A statement provided by the applicant in the insurance application that forms the basis for underwriting and rating an insurance contract

Punitive Damages

A type of damages (exemplary) that are awarded in addition to any compensatory damages to penalize a defendant for grossly negligent, malicious, reckless or intentional conduct - Note Caps may limit the amount that may be paid in respect of punitive damages

Employment Benefits Liability Insurance (EBL)

A type of insurance covering negligent or unintentional errors and omissions that occur in the course of administering employee benefit plans and that is usually written as an endosrement to a CGL polciy

Workers' Compensation Insurance

A type of insurance that protects against liability imposed on certain employers to pay benefits and furnish care to injured employees and that pays benefits to the dependents of employees killed in the course of their employment

What does the GINA prohibit?

GINA prohibits an employer or insurer from discriminating against an employee or applicant for insurance because of differences in the person's DNA that increases the person's chances of contracting a certain disease

Why is the representation or warranty statement an important part of an EPLI application?

It affirms the truthfulness of the information int he application. Coverage for a claim could be denied if the application contains false information

How would you define opposition and participation?

Opposition is when an employee contests any type of discrimination, harassment, or protected activity. It includes filing a charge but also includes complaining about these activities or threatening to file a charge. Opposition requires the employee to believe that the employer's actions are illegal. Participation is filing a charge, testifying, assisting or participating in an investigation or legal proceeding.

What percentage of charges received by the EEOC alleged retaliation based on Title VII?

Over 31% of charges received by the EEOC alleged retaliation based on Title VII

What protected groups may have potential claims regarding shunning unemployed job seekers?

Racial and ethnic minorities, including Hispanics, African Americans, Native Americans, and college-educated Asian Americans, protected by Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866; Women protected by Title VII; Disabled individuals protected by the ADA and the Rehabilitation Act of 1973; Persons over age 40 protected by ADEA

What are the four main types of Public Policy allegations?

Refused to do something illegal such as submitting false reports; Performed a duty required by law, such as jury duty; Exercised a job-related right such as filing a discrimination claim; Reported unlawful conduct (whistleblowing)

OFCCP and EEOC enforces Whistleblower retaliation claims against which Federal Statutes?

Rehabilitation Act is a federal statute where the OFCCP and EEOC will enforce a whistleblower retaliation claim

Outsourcing

The purchase by a company of labor or materials from a source outside the company, rather than using the company's labor or materials

What are the qualifications for Affirmative Defense?

The qualifications for Affirmative Defense are: No tangible employment action occurred AND The employer could show (1) Reasonable care was taken to prevent and correct the harassment and (2) The employee unreasonably failed to complain or take advantage of the corrective procedures

Base Rate

The rate per unit of insurance that is based on criteria specific to a particular line of coverage and that is a component of a PLI rating plan used to determine PLI premiums, before premiums are adjusted for the limit of liability and other considerations

Fair Employment Practices FEP

The state and local anti-discrimination statutes that are typically modeled after Title VII but that may provide expanded definitions of protected classes and cover more employers

What are the differences between how Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1886 deal with retaliation?

The statute of limitations for most Section 1981 claims is 4 times longer that that provided under Title VII of the Civil Rights Act; Under Section 1981 plaintiffs can immediately file a lawsuit and under Title VII plaintiffs are required to exhaust administrative remedies before proceeding to court; Section 1981 protects a narrower class of people (forbids racial discrimination) while Title VII ex;licitly prohibits discrimination based on race, sex, national origin, color or religion; Section 1981 has no cap on compensatory and punitive damages while Title VII caps damages at $300K

What issues are recurring with the greatest frequency under USERRA?

The two issues recurring with the greatest frequency are discrimination against employees due to their status as either current or former members of the armed forces and the reinstatement of demobilized service members returning to their civilian employment

What are some different ways in which an underwriter can evaluate a company's claim history?

The underwriter can examine the claim frequency; the costs of settlements, awards, and litigation; the trends in the claims being made; and the company's response to claims

Discrimination

The unfair treatment or denial of opportunity or privilege because of an individual's race, age, sex, nationality, religion, disability, citizenship, or other protected class

In addition to the number of employees, what other information about employees may be important to the underwriter?

They types of employees (leased, independent contractors, volunteers), the types of jobs at the company, and employee salaries an other compensation are important to the underwriter

What are the military family leave provisions under FMLA?

Under the family military leave provisions of the FMLA, an eligible employee who is the spouse, son, daughter, parent or next of kin of a "covered service member" is entitled to a total of 26 work weeks of leave during a "single 12 month period" to care for a service member; A covered service member is defined as a member of the Armed Forces who (1) is undergoing medical treatment, recuperation, or therapy, (2) is otherwise in outpatient status, or (3) is otherwise on the temporary disability retired list for a "serious injury or illness; A serious injury or illness is one that is incurred on active duty and in the line of duty

Secretary of Defense enforces Whistleblower retaliation claims against which Federal Statues?

USERRA is a federal statute where the Secretary of Defense will enforce a whistleblower retaliation claim

The EEOC notifies an employer when a charge is _____

filed

EPLI claims frequency is ____ while severity is ____

high;low

In the majority of cases, the EEOC does not file a ____ and closes the case

lawsuit

FEPAs typically provide _____ for the employee at these hearings

legal representation

Charges of discrimination based on ________ are often confused with and overlap with racial discrimination claims

national origin

Charges of __________discrimination have historically been a primary charge filed with the EEOC

race

Employers are at risk for harassment claims based on ___________

race, national origin, religion, disability or age

An employer may be required to provide a _______________ for a disabled employee if it is not an undue hardship for the employer

reasonable accommodation

If the EEOC believes discrimination or harassment may have occurred, then it may issue the employee a ____ letter

right to sue

The EEOC examines certain _____ issues before any investigation into the ____ of the charge

threshold; merits

The federal statutes enforced by the EEOC, except EPA, all contain strict _____requirements for filing charges, generally within _____ days of the alleged violation

time; 180

Disparate impact cases usually involve ____________ discrimination that is the effect of a seemingly ___________ employment policy

unintentional; neutral

Sexual harassment is

unwelcome sexual conduct that is made a term or condition of employment

What are some pitfalls to avoid in EPLI claims management?

Underestimating the claim's potential loss if litigated; Failing to realize the significance of the insured's location when evaluating the potential loss; Inadequately investigating the claim and the employee's allegations; Missing opportunities for settlement or mediation between the parties; Failing to communicate in a timely manner with the insured and defense counsel

How can workplace reengineering affect discrimination and harassment claims being filed by employees?

With less structure in management, employees may feel that they can't report harassment as easily as they could under a more traditional management structure. Older workers may feel threatened and discriminated against because of their age

Sexual harassment policies must be

Written in a manner that is legally correct but easily understood, should include a practical reporting system that give employees options for reporting harassment to someone other than their managers or supervisor, should describe the process used to investigate and resolve allegations, should included in the employee handbook, posted on bulletin boards and communicated to all new employees, all employees should sign an acknowledgement that they have received and understand the anti-harassment policy and reporting procedures, all employers should conduct annual training, the policy should be enforced

Should employers be concerned about retaliation claims? If so, why?

Yes, because there has also been a noticeable spike in retaliation claims brought under Section 1981. Of the almost 100K claims filed with the EEOC in 2010, 36.3% were retaliation claims. Over the last decade, Title VII claims rose by 56.67%

Is an employer automatically liable for harassment by a supervisor if the harassment results in a tangible employment action?

Yes, if the employee was hired, fired, demoted, transferred, or constructively discharged due to harassment then the employer is automatically liable

Do state and local laws have the potential to increase employers' liability?

Yes, state and local laws may increase an employer's liability but will never limit an employee's rights under the federal statutes

If an employer gives an employee a bad reference, then the employee may fine a __________- lawsuit

Defamation

How could the disciplinary procedure in an employee handbook affect an employee's wrongful termination claim?

Disciplinary procedures that aren't followed or documented may be seen as discriminatory. If the handbook indicates that the company follows a process, then the court may interpret this as part of an employment contract. The company could be found guilty of breach of contracts if it fails to follow this process

What are some of the businesses more prone to 3rd party claims?

Security operations, property managers, entertainment, healthcare, counseling, financing, real estate, insurance businesses, auto dealers, membership, health, country and private clubs, schools and universities, car rentals, hotels and restaurants

Offshoring

The practice of moving business processes or services to another country, particularly overseas, to reduce costs

Affirmative Action

The proactive measures an employer takes to recruit, employ and advance protected classes of employees

The EEOC and the state and local FEPAs generally have a____ agreement so both agencies are notified of a charge

dual filing

Usually an individual is protected and can file an EEOC charge only if the individual was an _____ at the time of the alleged violation

employee

Under what 2 theories could a recruiting practice, which does not openly bar or discourage applicants within a protected group, be unlawfully discriminatory?

1) Chilling which suggests that a recruiting practice may be unlawful if it is shown to be used: to intentionally prevent inquiries from persons of a protected group or despite the knowledge that the practice has the affect of barring or discouraging inquiries from persons of a protected group and 2)Skewed Applicant Pool which may render a practice unlawful, even without proof of discriminatory intent, if it is proven to result in an applicant pool in which a protected group is disproportionately and significantly underrepresented and either the employer fails to show that the practice is job related for the position in question and consistent with business necessity or it is proven that the employer refused to adopt an available alternative recruiting practice that has less disparate impact and serves the employer's legitimate needs

What is the fundamental difference between a 1st party claim and a 3rd party claim?

A 1st party claim is made by an employee and a 3rd party claim is made by a non-employee such as a client, customer or vendor

Disparate Impact

A category of employment discrimination in which an employer's actions, practices, or standards, although seemingly neutral, had an adverse effect on the employment opportunities of a protected class - Note Intent to discriminate is not necessary for this type of employment discrimination to ccur

Third-Party Claim

A claim that is filed against an insured by someone who is not a party to the insurance contract

Retention (Self-Insured Retention)

A designated amount an insure has agreed to pay before an insurer has an obligation to indemnify the insured for a covered loss and/or expenses - Note The insured is typically responsible for handling its claims within the retained amount

Employee Retirement Income Security Act ERISA

A federal law that sets guidelines and regulations for all employer-sponsored employee benefit plans

Uniformed Services Employment and Reemployment Rights Act USERRA

A federal statue that govern certain aspects of the employment and reemployment of employees who leave their jobs to perform military service; Prohibits discrimination against employees who serve in the armed forces and guarantees reemployment to employees returning from military service; Applies to all employees, limited exceptions; Possible relief/potential damages are Reinstatement, Back pay, Attorneys' fees, Liquidated damages; Enforced by Department of Labor

Americans with Disabilities Act ADA

A federal statute that protects disabled (physical or mental) individuals from employment discrimination and requires employers to offer reasonable accommodations to employees with disabilities; Prohibits discrimination in hiring, firing, recruitment, promotion, pay, benefits, conditions; Prohibits retaliation; Applies to employers with 15+ employees for 20 weeks in current or preceding year; Strict liability, no proof of discrimination or negligence required; Possible relief/potential damages are Hiring, reinstatement, promotion, Back pay, Front pay, Attorneys' fees, Injunctive relief, Liquidated damages; Enforced by EECO

Age Discrimination in Employment Act ADEA

A federal statute that protects people age 40 and above from employers' discriminatory practices based on their age; Prohibits discrimination in hiring, firing, recruitment, promotion, pay, benefits, conditions; Prohibits retaliation; Applies to employers with 20+ employees; Possible relief/potential damages are Hiring, reinstatement, promotion, Back pay, Front pay, Attorneys' fees, Injuctive relief, Compensatory and punitive damages; Enforced EEOC

Reasons to understand EEOC charge processing

An EEOC charge may be the 1st indication an insurer receives of a claim or potential claim; may also be the 1st time a company's management learns about the situation causing the claim; Employees may file EEOC charges at no cost; An EEOC charge may be required before a lawsuit may be filed (under Title VII and ADA an employee cannot file a lawsuit without first filing a charge with the EEOC and exhausting the administrative remedy; An EEOC investigation can give the employer and insurer the opportunity investigate a charge before any litigation occurs

Warranty

An affirmation that the applicant for coverage stated true and accurate information in the application and that if breached by any misrepresentation, inaccuracy, or omission in the application may potentially void coverage

Wrongful Termination

An allegation that the termination of employment violated state or federal law, breached an express or implied contract or was against public policy

Liquidated Damages

An amount of money that is agreed upon in advance by parties to a contract and this is paid in the event of a breach of contract; Additional amounts usually equal to back pay that are awarded to an employee and that are sometimes called multiplied damages

Front Pay

An award providing monetary relief for the loss of future earnings, representing the amount of money the employee would have earned if the employee were reinstated or hired into the higher-paying position from which the employee was illegally rejected

What can an investigation by the insured provide?

An early indication of liability and potential damages for a claim

Whistleblower

An employee who reports employer's illegal action or practice to the authorities and who is entitled to a number of protections under state and federal law

Collective Bargaining Agreement

An employment agreement entered into by an employer with a group of employees

Employment At-Will

An employment relationship in which, in the absence of an express agreement to the contrary, either the employee or the employer may terminate the employment relationship at any time for any reason

What is an example of disparate impact?

An example of disparate impact is requiring all applicants to have a high school diploma which may have a disproportionate impact on protected minorities.

Affirmative Defense

An explanation for a defendant' actions that justifies the defendant's behavior and provides an effective defense

Extended Reporting Period ERP

An extension of the claims-reporting provisions for a specific time period beyond the policy expiration date for any claims arising from incidents that occurred after the retroactive date and before the expiration of a claims-made policy - Note Also called Tail Coverage

Why is it important for an employer to have a policy on Internet and e-mail use?

As a defense in invasion of privacy claims, the courts have generally held that when an employer has an e-mail and internet policy, an employee cannot claim a right to privacy. The courts have also generally held that the company's business interests outweigh the employee's privacy.

What factors are usually alleged when filing charges of racial discrimination?

Charges of racial discrimination usually involve one of the following factors: Physical characteristics associated with a race, such as facial features or height; Skin color of an individual or group of person, such as discrimination against dark-skinned African-Americans; Association with a protected individual, which involves discrimination that's not based on the employee's race but on the employee's associate with another person; Stereotypes associated with race, such as athletic ability, use of alcohol or work ethic

What is claiming behavior and how does it affect the EPL claims that employees file?

Claiming behavior describes how claims are filed in batches, based on events, public opinion and publicity. Employees may file claims, many of which may be frivolous, after hearing about public events and other similar claims that have been filed

What factors should underwriters consider when assessing the risk of 3rd party claims?

Class or type of business; Interactions with clients, customers and others; Policies and procedures; Training for employees

When taking corrective action, the employer should

Consult with legal counsel and possibly the insurer to ensure the action is legal, appropriate and will not affect future claims; Inform the complaining employee of the investigation's results and inform the accused employee; Consider alternative dispute resolution as an option to resolve differences or grievances; Document any subsequent actions taken after the investigation; Monitor the workplace to ensure that the action has stopped and that no retaliation occurred against the complaining employee

What are the types of EPL Exposures?

Discrimination (Race, Sex, National origin, Religion, Disability, Age, Disparate impact or disparate treatment); Wrongful Termination (Illegal discharge/ Breach of Implied contract/Violation of public policy/Breach of implied covenant of good faith; Constructive discharge); Harassment (Sexual, Other workplace harassment such as race/national origin/religion/disability/age); Retaliation (Employees/Oppose discrimination/File claims for unpaid wages/Engage in union organizing/Exercise OSHA or FMLA rights/Whistleblower); Workplace Torts (Defamation/Invasion of privacy; Fraud/Misrepresentation/Intentional infliction of emotional distress/Interference with business relations/Negligent hiring, retention, supervision); Third Party Claims (Discrimination or harassment of a non-employee, such as customer, client or vendor)

What do disparate impact cases involve?

Disparate impact cases involve unintentional discrimination or seemingly neutral employment practices that adversely affect a protected class of people.

What is the basic premise for most discrimination claims?

Disparate treatment is the premise for most discrimination claims

What are the thresholds reviewed by an EEOC investigator to determine if the claim has merit?

Does the charge allege discrimination on a covered basis and covered issue? Does the charge allege a violation by a covered party against a covered person? Is the charge timely?

What damages are typically covered under an EPLI policy?

EPLI Policies typically cover monetary settlements, judgments, and defense costs for claims arising from employment practices. Most policies include punitive damages and multiplied damages

What damages are typically not covered under an EPLI policy?

EPLI Policies typically do not cover injunctive relief, costs of accommodation, awards based on breach of contract, loss of personal property, bodily injury, fines, taxes, workers' comp or pension benefits and costs related to labor disputes

The Federal District Court enforces Whistleblower retaliation claims against which Federal Statutes?

ERISA and Labor Management Relations Act are federal statutes where the Federal District Court will enforce whistleblower retaliation claims

What must be included in an employee's charge filed with the EEOC?

Employee's name, address, and telephone number; Employer's name, address, telephone number and number of employees (if known); Description of the alleged violation; Date of the alleged violation

Compensatory and punitive damages may be capped based on the number of __________

Employees

What are the factors examined by most EPLI underwriters?

Employees (number, types and locations of full-time and part-time employees, salaries and other compensation and turnover and termination rates); Business operations, locations, types of job, financial condition and plans for mergers, acquisitions, divestitures, layoffs, or staff reductions; Prior claims against the employer; Policies, procedures, and handbooks; Loss control and risk management programs

Which types of people/organizations are likely to file a lawsuit against an employer based on federal, state and local laws and regulations?

Employees, applicants, clients, customers and government agencies

Hiring, firing, promotion, classification and training are all parts of what are collectively called ______________ practices

Employment

Provisions that should be included in a handbook include

Employment at-will statement with an acknowledgement form signed by the employee; Disclaimer that any disciplinary procedures are guidelines and not all-inclusive and do not change the employment at-will relationship; Sexual harassment policy and complaint and resolution procedures; FMLA policies; the handbook should not contain any references to permanent, long-term, continued or probationary employment

The Department of Labor enforces Whistleblower retaliation claims against which Federal Statutes?

Equal Pay Act, Fair Labor Standards Act, FMLA, Federal Mine Health and Safety Act, Longshoreman's/Harbor Worker's Compensation Act are federal statutes where the Department of Labor will enforce whistleblower retaliation claims

What are the steps you should take when presenting EPLI to your clients?

Evaluate the client, evaluate the types of coverage, describe EPLI benefits, explain the need for coverage, explain cost of coverage vs. cost of claim, describe the supplemental benefits of having a policy, review other policies with them to show that those policies likely do not include all of the coverage that is available in an EPLI policy

How does an employer's use of contingent workers affect its potential liability under the EEOC-enforced statutes?

Even though an agency or staffing company may employ the contingent workers, the EEOC has defined a joint employer relationship in which the client employer may also be liable for EEOC charges. The employer may also need to include contingent workers in its employee count used to determine the statutes that apply to the company, such as Title VII, ADA and ADEA

What are examples of Bona Fide Occupational Qualifications?

Examples of BFOQ are: employers requiring that guards in a men's prison be male or requiring female attendants for a women's restroom

What are some examples of sex discrimination?

Examples of sex discrimination include: Hiring only men or only women for certain jobs; Allowing men, but not women to work overtime; Basing pension on actuarial table s that are based on gender

Which three federal equal employment opportunity requirements does the OFCCP enforce?

Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and Vietnam Era Veteran's Readjustment Assistance Act of 1974

Generally FEP (Fair Employment Practices) laws parallel the federal statutes but may be much more expansive due to the following factors:

Expanded protected or lifestyle classes, including marital status or sexual orientation; Expanded jurisdiction by applying to small employers with fewer employees than the federal statutes require; Increase cap or o cap on compensatory and punitive damages; Modified administrative and judicial procedures more favorable to employees

How could you address an employer's objections to the cost of EPLI coverage?

Explain that the benefits are not easily calculated in advance but the costs of a defense, settlements and judgments can be significant. A claim also disrupts normal business activities, a cost that is overlooked and hard to quantify. Coverage and deductible options may be available to reduce the premium.

The _________ provides up to 12 _______ of unpaid leave for eligible workers to care for new or adopted babies, to care for a seriously ill family member or to manage their own serious health conditions

FMLA; weeks

What are types of information you can use to describe the benefits of EPLI to an employer?

General information about the frequency and severity of potential EPLI claims, types of EPLI risks the employer may be subject to and loss of productivity the employer could experience when EPLI claims occur; Information about the employer, such as specific exposures the employer may face; risk management programs that are available and current coverage, gaps, overlaps; Policy information such as provisions, coverage, limits, premiums, deductibles, services and exclusions

The OFCCP requires certain government contractors and subcontractors to maintain written affirmative action plans. How can insurance professional use this information?

Having to comply with OFCCP regulations may increase an employer's exposure. However, reviewing OFCCP compliance may help an insurance professional assess the risk of future employment-related claims. Employers that are not in compliance face the risk of sanctions by the OFCCP and individual discrimination charges. An employer with a good record with the OFCCP may be a better risk because of the policies and procedures it has in place to meet the compliance requirements

Employment Practices that are covered by federal, state and local laws include:

Hiring and firing, Compensation and classification, Work Assignments, Promotions, transfers, layoffs and recalls, Recruitment, Testing, Training and apprenticeship programs, Retirement plans, fringe benefits and disability leave

Sources of EPL exposures

Hiring and firing; Compensation and classification/ Work assignments; Promotions, transfers, layoffs, and recalls; Recruitment; Testing; Training and apprenticeship programs; Retirement plans, fringe benefits, and disability leave

Which is the more common type of sexual harassment?

Hostile work environment is the more common type of sexual harassment

Invasion of privacy claims are based on ________ which involves searching or monitoring employees, and on ______________ which involves disclosing private or confidential information

Intrusion upon seclusion; Public disclosure of private facts

A risk management program for a company is generally used to

Identify risks to the company; Analyze the risks to assess their potential effects; Control risks through loss avoidance, loss prevention and/or loss reduction techniques; Transfer risks by purchasing insurance or implementing other techniques; Monitor the risks and continually assess current and potential exposures and the effectiveness of the programs in place

How was Section 1981 of the Civil Rights Act of 1886 expanded by the US Supreme Court in 2008?

In 2008 the US Supreme Court expanded the scope of Section 1981 to include race-based retaliation claims

How many claims were received by the EEOC in 2011 for ADEA charges?

In 2011 the EEOC received 23,465 ADEA charges and collected over $95M in recovery for individuals claiming age discrimination

How many claims were received by the EEOC in 2011 for ADA charges?

In 2011 the EEOC received 25,742 ADA charges and collected over $103M in recovery for individuals claiming disability discrimination

Why is mediation being used more often in EPLI claims?

In many claims, employees just want someone to hear their grievances and to stop the discrimination or harassment. Mediation provides a means for the parties to resolve their differences with substantially lower litigation costs

______________ relief is generally non-monetary and may include providing training, changing procedures or modifying the workplace

Injunctive relief

What are the steps for managing EPLI claims?

Insured files or reports a claim to the insurer; Claim is evaluated to determine whether coverage is available under the policy; Counsel is selected and the claim may be investigated further; Claim is resolved through mediation, settlement or litigation

Lawsuits alleging ___________ are often filed with sexual harassment claims, but the employee must prove the employer's behavior was _________.

Intentional infliction of emotional distress; outrageous

When Mary discovers that the entire office heard Mary's supervisor call her a thief, she may file a defamation claim because her reputation was damaged and also file an ___________ claim because she considers allegations to be confidential

Invasion of privacy

How could a hiring criterion which on it face does not discriminate against a protected group be unlawfully discriminatory?

It may be found unlawfully discriminatory under 1) Pretext which exists to mask intentional hiring discrimination against person from a protected group 2) Mixed motive which means an additional reason exists for the criterion, which is to limit or exclude hiring persons from a protected group and 3) Disparate Impact which the effect is to disproportionately and significantly exclude person of a protected group and either the employer fails to show that the practice is job related for the applicable position and consistent with business necessity or it is proven that the employer refused to adopt an available alternative hiring criterion that has less disparate impact and serves the employer's legitimate needs

What are 3 advantages to employers that purchase a blended policy?

Lower premiums, Ease of purchase and administration, Standard policy terms among the coverages contained in the policy

The American with Disabilities Amendments Act of 2001 ADAA

Makes it easier for individuals with disabilities to obtain the ADA's protection; Made it clear that the primary focus in ADA cases should be on whether employers complied with their obligations under the statute and whether discrimination occurred, not whether individuals are disabled under the law

Areas that should be evaluated for possible discriminatory practices include

Methods used to advertise and post open positions; Wording of application forms and releases such as those required for background or credit checks; Procedures and requirement for testing, such as drug testing or medical evaluations; Processes for interviewing and evaluating candidates; Job descriptions and job requirements; Leave policies, particularly for leave based on federal and state laws such as the FMLA; Evaluations; Disciplinary and termination procedures; Policies regarding the workplace environment and supervisor/subordinate relationships and interactions

__________ claims often involve employees who change jobs based on knowingly false promises made by their new employers

Misrepresentation

What do most FMLA claims allege?

Most FMLA claims are allegations of denial of FMLA leave, denial of reinstatement after FMLA leave or retaliation for taking FMLA leave

Under which statutes are most employment-related lawsuits filed?

Most employment-related lawsuits are filed under federal statutes

Why is it important for the insured, the agent/broker and the underwriter to analyze the coverage provided under multiple policies?

Multiple policies can create problems when determining what policies provide coverage, what policy is primary, and how deductibles and limits are applied. These problems must be addressed to understand the coverage available and to create a cohesive coverage package for the insured

The National Labor Relations Board enforces Whistleblower retaliation claims against which Federal Statutes?

National Labor Relations Act is a federal statute where the National Labor Relations Board will enforce a whistleblower retaliation claim

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or ____________

National origin

What are 4 general objections employers may give to purchasing an EPLI policy?

Need for coverage, Cost, Scope of coverage and services, Coverage under other policies

Office of Federal Contractor Compliance Programs OFCCP

Operates under the Department of Labor and is responsible for ensuring that employers with federal contract comply with the laws and regulations requiring nondiscrimination and affirmative action

What are the 5 general categories of retaliation claims?

Opposing unlawful employment discrimination; Filing claims for unpaid wages; Engaging in union organizing and other union-related activities; Exercising rights under OSHA or FMLA; Being a whistleblower

Civil Rights Act of 1866

Provides equal rights to all persons to enter and enforce contracts; Prohibits discrimination in housing and employment based on race, ancestry or ethnicity; Applies to all employers, not based on number of employees; Enforced by EEOC

What are the statutory responsibilities of the Consumer Financial Protection Bureau (created by the Dodd-Frank Act) that impose new risks for holders of EPLI Policies?

Policing unfair, deceptive, or abusive acts or practices regarding consumer financial products and services; Researching consumer behavior; Enforcing laws that outlaw discrimination and unfair treatment in consumer finance

What are 3 possible disadvantages to employers that purchase EPLI as an endorsement to a D&O policy?

Potential to exhaust D&O limits for EPL claims, Lack of entity and employee coverage, Reduced breadth of coverage and services

Vietnam Era Veteran's Readjustment Assistance Act of 1974 (VEVRAA)

Prohibits discrimination and requires affirmative actor for nearly all veterans including Disabled veterans, Vietnam era veterans, Recently separated veterans and Veterans who served on active duty during a war, campaign or expedition for which a campaign badge was authorized; applies to all employers that have a government contract or subcontract of $25,000 or more and requires an affirmative action program

Civil Rights Act of 1964

Prohibits discrimination on the basis of race, color, religion, sex or national origin; Prohibits discrimination in hiring, firing, recruitment, promotion, pay, benefits, working conditions; Prohibits retaliation; Applies to employers with 15+ employees for 20 weeks in current or preceding year; Cap on damages based on number of employees; Possible relief/potential damages are Hiring, reinstatement, promotion, Back pay, Front Pay, Attorneys' fees, Injunctive relief, Compensatory and punitive damages; Enforced by EEOC

Executive Order 11246

Prohibits employment discrimination based on race, color, gender, religion or national origin; applies to federal contractor and subcontractors with contracts in excess of $10,000

Equal Pay Act

Prohibits pay discrimination based on gender; Applies to employers with 2+ employees; With gross sales > $500,000; Engaged in interstate commerce; Strict liability does not require proof of discrimination; Possible relief/potential damages is Back Pay; Enforced by EEOC

What are the 3 elements of a retaliation claim?

Protected activity, including opposition to discrimination or participation in the complain process; Adverse employment action; Causal connection between the protected activity and the adverse action

What are 2 forms of sexual harassment?

Quid pro quo and hostile work enviornment

Steps an employer can take to avoid claims of wrongful termination

Require interviews and background check in order to hire the most qualified employee for the position; Establish employment at-will through the application, employee handbook and company statements; Establish job descriptions and evaluation procedures based on job requirements; Provide periodic consistent truthful evaluations that include areas that need improvement, action plans, time frames and consequences; Document employee problems as the occur; Provide a progressive disciplinary procedure that includes a provision to allow management to modify, interpret, and enforce policies as it sees fit, without advance notice; Apply discipline in a consistent manner; Establish a process to review termination decisions before the employee is discharged; Consider alternatives to termination such as demotion, suspension, transfer, probation, or counseling and applying these alternatives consistently; Establish termination procedures that specify who will be involved in the termination decision, who will notify the employee, and what other steps will be taken when an employee is discharged

What do workplace tort claims allow employees to do?

Seek remedies and damages for injuries, real or imagined, that fall outside the discrimination and harassment statues

Public Policy

The principle that injury to the public good or public order constitutes a basis for setting aside or denying effect to acts or transactions

Why should an employer develop specific interview questions or interview guidelines?

Specific questions that are asked of all applicants help interviewers avoid asking illegal questions that can be the basis for discrimination claims

Why is location a key factor in assessing an applicant's risk?

State and local laws often expand the legal protections for employees. An employer's location can affect the frequency and severity of EPLI claims

What are 5 items that should be included on an employer's application form?

Statement of employment at-will; Equal Opportunity Employer statement; Certification of the truthfulness of the applicant's statements; Permission from applicant to check references or perform other background investigations such as credit checks; Company policies regarding drug, alcohol, or other testing or pre-employment physical examinations

The Equal Pay Act imposes ___________ on employers which means the claimant does not have to prove discrimination by the employer

Strict Liability

How can the 12 weeks of leave provided under FMLA be takes?

The 12 weeks of leave provided under FMLA may be taken as one block of time, in small blocks as needed (intermittent leave) or as part of a reduced work schedule

What are 3 exceptions to employment at will that constitute the basis for illegal discharge?

The 3 exceptions to employment at will that constitute the basis for illegal discharge are: breach of an express or implied contract; Breach of an implied covenant of good faith and fair dealing; Violation of public policy

What are 4 factors that must be considered in determining whether an employee's disability poses a direct threat either to self or others?

The 4 factors to be considered in determining whether an employee's disability poses a direct threat either to self or others are: Duration of the risk; Nature and severity of the potential harm; Likelihood of the potential harm; Imminence of the potential harm

What is the Association Provision?

The ADA includes a provision that protects employees and applicants from discrimination based on their relationship with an individual with a disability, whether or not the applicant or employee has a disability

Systemic Discrimination

The employment policies or practices that serve to differentiate the conditions of employment of applicants or employees because of their status as members of a particular class and that involve a recurring practice or continuing policy pervasive throughout the company rather than an isolated act of discrimination - Note Sometimes called Class Discrimination

Which law created the EEOC?

The Civil Rights Act of 1964 created the EEOC

How likely is it that the EEOC will litigate against employers that shun unemployed job-seekers?

The EEOC has already filed lawsuits alleging discrimination against employers that use poor credit history and criminal background as hiring criteria. The EEOC is likely reviewing charges of discrimination against employers that exclusively recruit and hire candidates employed elsewhere. In the meantime, every employer subject to federal discrimination laws is advised to review it recruiting and hiring policies to ensure that it is not an unfortunate employer the EEOC decides to sue. Remember the burden of proving that a recruiting or hiring practice discriminates against persons of a protected group is a formidable one.

What will the EEOC look for and identify as systemic discrimination?

The EEOC looks for patterns, practices, and policies that indicate discrimination that has a broad effect on employees in a company, industry, profession or region

Equal Opportunity Employment Commission EEOC

The federal administrative agency that enforces laws prohibiting discrimination in employment

Occupational Safety & Health Administration OSHA

The federal agency charged with creating and enforcing workplace health and safety standards

Vest

The action of becoming applicable or exercisable that applies to employee benefit programs

Common Law

The body of law established by the courts in earlier cases (precedents) rather than statutory law written by a legislature - Also called case law

What are several issues that a claims professional must initially review to determine if a claim is covered under the policy?

The claim must fall within the policy's definition of a claim; the claim must be reported according to policy provisions; the policy must cover the parties to the claim; the claim should be checked against policy exclusions and the current limits of liability should be verified to see what limits are available to pay the claim

Compensatory Damages

The costs that are awarded to claimants for losses they incurred and that include both special damages (specific, out-of-pocket costs) and general damages (costs for pain and suffering) - Note Caps may limit the amount payable

Conciliation

The efforts by a third party to improve the relationship between two or more disputants

What is an important distinction between retaliation claims and claims alleging harassment or discrimination?

The employee who files a retaliation claim does not have to be a member of a protected class and is not necessarily the victim of discrimination or harassment

Family and Medical Leave Act FMLA

The federal law that requires certain employers to give time off to employees to care for their own or a family member's illness or to care for a newborn or adopted child; Provides up to 12 weeks of unpaid leave in any 12-month period; Protects employee's job, accrued benefits, health benefits; Prohibits retaliatory discharge for taking leave; Applies to employers with 50+ employees for 20 weeks in current or preceding year; Eligible employee is someone who worked 12 months for covered employer, Worked 1250 hours in the previous 12 month period and is employed at a worksite where 50 or more employees are employed within 75 surface miles; Enforced by Dept of Labor

Statutory Attorneys' Fees

The fee that is provided for under federal and state statutes when plaintiffs are successful in court and that is added to anti-discrimination statutes to ensure that plaintiffs are able to file charges even if they cannot afford the cost of an attorney to prosecute a violation

National Labor Relations Board NLRB

The independent federal agency that administers and enforces the National Labor Relations Act, which is the law the defines the relationship between employers and unions

Underwriting Cycle

The insurance business cycle over time during which rates, premiums, and profits alternately rise and fall

Directors and Officers Liability Insurance (D&O)

The insurance coverage that protects the directors and officers of corporations, and sometime the entity, against legal judgments, settlements, and related expenses resulting from allegations of wrongful acts of directors and officers committed in their individual capacities

Monitoring or Coverage Counsel

The insurer's counsel who monitors the litigation, who advises the insurer on policy coverage and obligations, and who may work with the insured's counsel to achieve more cost effective litigation and settlement

Disparate Treatment

The intentional discrimination in employment against an individual or group in a protected class - Note An intent to discriminate is a necessary element in this type of employment discrimination and may be shown by direct evidence or inferentially by statistical, anecdotal, and/or comparative evidence

What is the most common battle between insureds and insurers?

The issue of who is going to defend the claim

Strict Liability

The liability imposed without regard to fault

Per Claim Limit

The maximum amount that the insurer will pay for each claim covered by the policy and that may apply to damages only or to both damages and defense costs as specified in the policy

Alternative Dispute Resolution ADR

The methods, including mediation and arbitration, of settling disputes by means other than court trial that are typically less costly and more expeditious than the litigation process

Back Pay

The monetary relief to reimburse wages and/or benefits lost as a result of unlawful discrimination or wrongful termination;; Wages the employee would have earned but for the unlawful treatment by the employer minus any amount the employee was able to earn in the interim

Hammer Clause

The nickname for a policy provision that limits the amount the insurer will pay if an insured does not consent to a settlement offer the insurer recommends

Named Insured

The person or organization that is identified in the Declarations Page of an insurance policy and that is covered under the policy

Defense within Limits

The policy provision indicating that any legal defense costs the insurer incurs in defending the insured against a claim under the policy will be deducted from and reduce the policy's coverage limits

Deductible

The portion of a loss that the insured must bear and that may apply to the indemnity payment, defense costs, or both - Note The insurer typically pays the loss and then collects the deductible from the insured

Baby Boomers

Those individuals born during the post-WWII period of increased birth rates starting in 1946 and ending in 1964

How are EEOC charges resolved?

Through mediation, settlement, dismissal or litigation

The Civil Rights Act of 1866 provided some of the first anti-discrimination protection but ___________ of the Civil Rights Act of 1964 prohibits discrimination against additional protected classes

Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on an individual's race, color, religion, sex or national origin. What else does it prohibit?

Title VII also prohibits retaliation against an employee because the employee has opposed any practice made unlawful by the Civil Rights Act of 1964 or has made a charge, testified, assisted or participated in an investigation, proceeding or hearing

What is the purpose of the employer's investigation into an allegation?

To determine the pertinent facts: what happened, who was involved and whether the incident involved a wrongful employment practice and/or was a violation of company policy

When an employee files a charge of sexual harassment, the employee may also charge negligent supervision, which combines a statutory claim with a __________

Tort claim

Under many state and local regulations an _____ is held if the charge is found to show probable cause of discrimination or harassment

administrative hearing

Even if the EEOC _____ a charge, the employee still has the right to sue in court

dismisses

Discrimination claims can be categorized legally as _____________ and ________

disparate impact; disparate treatment

Age discrimination claims are frequently filed by employees after an employer __________the workforce

downsizes

FEPA charges may proceed to an administrative hearing with the potential for _____

damage awards

Harassment is considered a type of _________

discrimination based on the protected classes