BLA Ch. 18

disparate-impact discrimination

*unintentional* discrimination that results from certain employer practices or procedures that, although not discriminatory on their face have a discriminatory effect - when a protected group is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminatory - the complaining party must first show statistically that the employer's practices, procedures, or tests are discriminatory in effect - once they have made out a prima facie case, the burden of proof shifts to the employer to show that the practices or procedures in question were justified *2 ways to prove this exists* 1. pool of applicants: by comparing the employer's workforce with the pool of qualified individuals available int he local labor market 2. rate of hiring: by comparing the employer's selection rates of members and nonmembers of a protected class (whites and nonwhites) - four-fifths rule: a selection rate for protected classes that is less than four-fifths or 80% of the rate for the group with the highest rate will generally be regarded as evidence of this

sexual harrassment

- the demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment - title VII protects this *2 forms* - quid pro quo - hostile environment harassment

quid pro quo

Latin phrase meaning "something in exchange for something else" - when sexual favors are demanded in return for job opportunities, promotions, salary increases and the like

prima facie case

a case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces no evidence to rebut it - a plaintiff who sues on the basis of disparate-treatment discrimination in hiring must first make out this - Latin for "at first sight" - a fact that is presumed to be true unless contradicted by evidence *must show 4 things* 1. the plaintiff is a member of a protected class 2. the plaintiff applied and was qualified for the job in questions 3. the plaintiff was rejected by the employer 4. the employer continued to seek applicants for the position or filled the position with a person not in a protected class - if shown, this person will win in the absence of a legally acceptable employer defense - burden then shifts to the employer-defendant who must articulate a legal reason for not hiring the plaintiff

employment at will

a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise - unless doing so would violate an employee's statutory or contractual rights - still in widespread use - Montana does not apply it - exceptions based on contract theory, on tort theory, and on public policy

business necessity

a defense to an allegation of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance - an employer may defend against a claim of disparate impact discrimination with this - earth fix requires that its employees be fluent in a least one foreign language

disparate-treatment discrimination

a form of employment discrimination that results when an employer *intentionally* discriminates against employees who are members of protected classes - title VII prohibits both intentional and unintentional discrimination - because intent can be hard to prove, courts have established certain procedures for resolving these cases

protected class

a group of persons protected by specific laws because of the group's defining characteristics including race, color, religion, national origin, gender, age and disability

seniority system

a system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced

constructive discharge

a termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave - to prove this, an employee must present objective proof of intolerable working conditions - must also show that the employer knew or had reason to know about the conditions yet failed to correct them within a reasonable period - courts generally require the employee to show *causation*: that the employer's unlawful discrimination caused by the working conditions to be intolerable - resignation must be a foreseeable result of the employer's discriminatory action

whistleblowing

an employee's disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities - normally seek protection from retaliatory discharge under federal and state statutory laws

wrongful discharge

an employer's termination of an employee's employment in violation of the law or an employment contract - even if an employer's actions do not violate any provisions in an employment contract or a statue, the employer may still be subject to liability under a common law doctrine (tort theory or agency) - an employment contract may be established or modified via e-mail exchanges

bona fide occupational qualification (BFOQ)

an identifiable characteristic reasonably necessary to the normal operation of a particular business - such characteristics can include gender, national origin, and religion, but *not race* - courts have restricted this defense to instances in which the employee's gender is essential to the job - a women's clothing store might legitimately hire only female sales attendants if part of the job is assisting clients in the stores dressing rooms - federal aviation administration can impose age restrictions for pilots

hostile environment harrassment

occurs when a pattern of sexually offensive conduct permeates the workplace and is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment - courts evaluate this on a case by case basis

workers' compensation laws

state statutes that establish an administration process for compensating workers for injuries that arise in the course of their employment, regardless of fault - instead of suing, an injured worker files a claim with the administrative agency or board that administers local workers' compensation claims - no state covers all employees - minors are covered *2 requirements must be met for an employee to receive benefits* - the existence of an employment relationship - an *accidental* injury that occurred on the job or in the course of employment and hence is not covered

minimum wage

the lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker - $7.25 when a state or citiy's minimum wage is greater than the federal minimum wage, the employee is entitled to the higher wage

I-9 verification

the process of verifying the employment eligibility and identify of a new worker - it must be completed within three days after the worker commences employment to check the forms accuracy and to review and verify documents establishing the prospective worker's identity and eligibility for employment in the US - to comply with the immigration reform and control act (IRCA) - includes those hired as contractors or day workers if they work under the employer's direct supervision - show passport or other documentation