Business Law - Chapter 22

Unintentional Discrimination

"Disparate Impact" Discrimination occurs when a member of a protected group is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminatory.

Intentional Discrimination

"Disparate-Treatment" discrimination. Must prove member belongs to a protected class, applied, qualified, and rejected, and employer continued to seek applicants

The Immigration Act of 1990

- Places caps on the number of visas that can be issued to immigrants every year. - I-551 Alien Registration Receipts. - The H-1B Visa Program. - Labor Certification. - H-2, O, L, and E Visas.

Exceptions to Employment at Will Doctrine (3)

1. Based on Contract Theory 2. Based on Tort Theory--> May give rise to wrongful discharge claims. 3. Based on Public Policy --> must be clearly stated in statutes governing that jurisdiction.

Defenses to Employment Discrimination (4)

1. Business Necessity 2. Bona Fide Occupational Qualification 3. Seniority Systems 4. After-Acquired Evidence

Two Types of Strikes

1. Economic strikes --> over wages 2. Unfair Labor Practice Strikes

Ellerth/Faragher Affirmative Defense Elements (2)

1. Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior. 2. Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm. If employer can prove both elements, he will not be liable for supervisor's harrassment.

Categories of Title VII of the Civil Rights Act of 1964 (7)

1. Intentional Discrimination 2. Unintentional Discrimination 3. Discrimination Based on Race, Color and National Origin 4. Discrimination Based on Religion 5. Discrimination Based on Gender 6. Constructive Discharge 7. Sexual Harrassment

Americans with Disabilities Act Defines a Disability as (3)

1. Physical or mental impairment that limits one or more of major life activities 2. A record of such impairment 3. Being regarded as having such an impairment

Two Forms of Sexual Harassment (2)

1. Quid Pro Quo 2. Hostile Work Environment

Remedies under Title VII of the Civil Rights Act of 1964 (4)

1. Reinstatement 2. Back Pay 3. Retroactive Promotions 4. Damages

Types of Income Security (5)

1. Social Security 2. Medicare 3. Private Pension Plans 4. Unemployment Compensation 5. COBRA --> Federal right to continued health insurance

Under Americans with Disabilities Act of 1990, Plaintiff must show: (3)

1. They have a disability 2. They otherwise qualified for the employment in question 3. They were excluded from employment solely because of the disability

Federal Anti-Discrimination Laws (4)

1. Title VII of the Civil Rights Act of 1964 2. The Age of Discrimination in Employment Act 3. The Equal Pay Act 4. The Americans with Disabilities Act

Working Adjustment and Retraining Notification Act

60 day notice before a mass layoff during a 30 day period. Loss of at least 33% or 500 full time employees.

Prime Facie Case

A case in which the plantiff has produced sufficient evidence of his case or her claim that the case can go to a jury; a case in which the evidence compels a decision for the plaintiff if the defendant produces no affirmative defense or evidence to disprove the plaintiff's assertion.

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.

Business Necessity

A defense to allegations 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.

I-551 Alien Registration Receipt

A document, commonly known as a green card, that shows that a foreign-born individual has been lawfully admitted for permanent residency in the United States. Persons seeking employment can prove to prospective employees that they are legally in the United States by showing the receipt.

Union Shop

A firm that requires all workers, once employed, to become union members within a specified period of time as a condition of their continued employment.

Closed Shop

A firm that requires union membership by its workers as a condition of employment. The closed shop was made illegal by the Labor-Management Relations Act of 1947.

Disparate-Treatment Discrimination

A form of employment discrimiation resulting when an employer intentionally discriminates against employees who are members of protected class.

Disparate-Impact Discrimination

A form of employment discrimination resulting when an employer intentionally.

Protected Class

A group of persons protected by specific laws becuase of the group's defining characteristics. Under laws prohibiting employment discrimination, these characteristics include race, color, religion, national origin, gender, age, and disability.

I-9 Verification

A process that all U.S. employers must perform within three business days of hiring a new worker to verify the employment eligibility and identity of the worker by completing an I-9 form.

Tangible Employment Action

A significant change in employment status, such as a change brought about by firing or failing to promote an employee; reassigning the employee to a position with significantly different responsibilities; or effecting a significant change in employment benefits.

Right-To-Work Law

A state law providing that employees may not be required to join a union as a condition of retaining employment.

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.

Strike

An action undertaken by unionized workers when collective bargaining fails; the workers leave their jobs, refuse to work, and (typically) picket the employer's workplace.

Whistleblowing

An employee's disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities.

Wrongful Discharge

An employer's termination of an employee's employement in violation of the law.

Lockout

An emplyer's act of shutting down the business to prevent employees from working. Employees counterpart to the workers' right to strike and normally is used when a strike is imminent.

Fair Labor Standards Act (FLSA)

An extension of wage and hour regulation to workers in interstate commerce. Prohibits oppressive child labor practices. Over 40 hours, employees get time and a half except executive, professional employees.

State Workers' Compensation Laws

Establish an administrative procedure for compensating workers injured on the job. Instead of suing for injuries, a worker is compensated.

After-Acquired Evidence

Evidence of misconduct, committed by an employee who is suing employer for employment discrimination. Uncovered during the process of discovery conducted in preparation for a defense against the suit.

Occupational Safety and Health Act (OSHA)

Fundamental federal law aimed toward safety in the workplace.

Bona Fide Occupational Qualification (BFOQ)

Identifiable characteristics reasonably necessary to the normal operation of a particular business. These characteristics include gender, national origin, and religion but not race.

Seniority System

In regard to employment relationships, a system in which those who have worked longest for the employer are first in line for promotions, salary increases, and other benefits. They are also the last to be laid off if the workforce must be reduced.

Sexual Harassment

In the employment context, 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.

Hostile Work Environment

Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim's employment and create an abusive working environment.

Title VII of the Civil Rights Act of 1964

Prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. Employers must reasonably accommodate an employee's religious practices. EEOC monitors.

The Age of Discrimination in Employment Act

Protects individuals over the age of 40 from workplace discrimination that favors younger workers. State Employees not covered.

Americans with Disabilities Act of 1990

Requires employers to offer "reasonable accommodation" to employees or applicants with a disability who are otherwise qualified for the job they hold or seek.

Family and Medical Leave

Requires employers with over 50 employees to provide 12 weeks unpaid leave to employees who need to care for a spouse, child or parent suffering with a serious medical condition.

Quid Pro Quo

Sexual harrassment involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits.

Workers' Compensation Laws

State statutes establishing an administrative procedure for compensating workers for injuries that arise out of - or in the course of - their employment, regarless of fault.

Walsh-Healey Act

The beginning of minimum wages.

Vesting

The creation of an absolute or unconditional right or power.

Minimum Wage

The lowest wage, either by goevrnment regulation or union contract, that an employer may pay an hourly worker.

Davis Bacon Act

The prevailing wage act.

Collective Bargaining

The process by which labor and management negotiate the terms and conditions of employment, including working hourse and workplace conditions.

Employment Discrimination

Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability; prohibited by federal statutes.