B-Law Test III Unit C
o To whom must an employee report in order to be protected? (SOX)
Appropriate law enforcement official Supervisor or any other employee who has authority to investigate claim
Under the Dodd Frank Wall Street Reform and Consumer Protection Act: Who is protected from retaliation for whistleblowing? For what specifically are they protected?
Employees in the financial services industry protected from retaliatory action
o For what specifically are they protected? (SOX)
"provide information, cause information to be provided, or otherwise assist in an investigation regarding a violation of SEC regulation or any law relating to fraud against shareholders
How can an employer mitigate the risk of liability for harassment based on the Faragher defense analysis?
Employer should implement written anti-sexual harassment policies including accessible grievance procedures o Immediately and thoroughly investigate complaints o Implement reasonable remedial action o Carefully screen, train and monitor supervisors
Who is subject to Title VII?
Employers with 15 or more members, labor unions that operate hiring halls, employment agencies, and state and local governing agencies
What is whistleblowing?
Someone who sees illegal/unethical activities and reports it- may report in-house or outside of the business
Describe the bounty program.
Whistleblowers who provide original info to the SEC or the CFTC may recover 10%-30% or monetary sanction in excess of $1 million collect by the agency
What must an employee prove to establish failure to accommodate his religious practices?
o 1. Prima Facie Case Has a bona fide religious belief that conflicts with an employment requirement Informed the employer of this belief Was disciplined for failure to comply with the conflicting employment requirement o 2. Defendant must offer reasonable accommodation o 3. Establish undue hardship If accommodation would require an undue hardship—no accommodation is required
What does the prohibition on race discrimination ban?
o Applies to all racial groups (not just minorities) o Includes discrimination based on the race of an applicant's or employee's spouse, and racial harassment
What does the prohibition on gender discrimination ban?
o Based on sex, includes that based on pregnancy, childbirth and related medical conditions, and sexual harassment o Equal pay issues o Does not prohibit discrimination based on sexual orientation, but some state anti-discrimination statutes do
What does the Americans with Disabilities Act ("ADA") prohibit?
o Disability-based discrimination in all work-places with fifteen or more workers o Employers reasonably accommodate the needs unless to do so would cause the employer to suffer an "Undue hardship"
Understand and be able to apply the analysis for establishing disparate treatment. Understand the specific requirements as well as the purpose of each step in the analysis.
o Employee's Prima Facie Case—the employee must prove He is a member of a protected class He was qualified for the position at issue He suffered an adverse employment decision Others not in the same protected class did not suffer similar adverse employment decisions o Employer's Defense—the employer may offer a legitimate, non-discriminatory reason for his employment decision or he may rebut an element of the prima facie case o Employee's Rebuttal—the employee may rebut the employer's proffered reason for the employment decision by offering evidence that it is a pretext for a discriminatory motive
Understand and be able to apply the analysis for establishing disparate impact. Understand the specific requirements as well as the purpose of each step in the analysis.
o Employee's Prima Facie Case—the employee must prove that an employment policy or practice has a disparate impact on a protected group using statistical evidence o Employer's Defense—employer must establish there is a business necessity for the policy/practice o Employee's Rebuttal—if the employee can prove that less discriminatory means of satisfying the business necessity were available and the employer refused to adopt them, the employee will prevail
Does an employer have an absolute duty to accommodate an employee's religious practices?
o Employees must reasonably accommodate an employee's or applicant's religious practices
What is the Equal Employment Opportunity Commission?
o Monitors compliance with Title VII o Employee must file claim with EEOC before a lawsuit can be brought against the employer o May investigate the dispute and attempt to obtain parties' voluntary consent out-of-court settlement
Understand how the National Labor Relations Board enforces employees' Sec. 7 rights in the context of employers' policies restricting the use of social media, discharge or discipline based on social media posts, and employers' "be nice" policies.
o Oversees union elections and prevents employers from engaging in unfair and illegal union-related labor practices o Social media policies put in place Don't speak on behalf of the company, don't speak poorly about the employer Productivity issue o The majority of the NLRB's charges regarding employers' social media policies allege that the policies restrict discussions permitted by the NLRA such as discussions regarding wages, corrective actions, discharge of co-workers, employer investigations, etc.
What protection does Title VII afford to women who are pregnant?
o Pregnant women have to be treated the same as other who are not so affected but similar in their ability to work
What does the Age Discrimination in Employment Act ("ADEA") prohibit?
o Prohibits discrimination based on age if you are 40 years old or over o Also prohibits mandatory retirement for non-managerial workers o Protects federal and private sector employees from retaliation based on age-related complaints o Must have 20 or more employees, business activities must affect interstate commerce
What are the prohibited bases of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII")? (S.C.O.R.R.)
o Prohibits job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender at any stage of employment o Prohibits discrimination in the hiring process, discipline procedures, discharge, promotion, and benefits
When is a whistleblower protected under the Federal Whistleblower Protection Act?
o Protects federal employee who reports alleged illegal activity to the appropriate law enforcement official from retaliatory action
Explain thoroughly the Faragher defense to harassment—if employer can prove both elements, will not be liable for a supervisor's harassment
o Question 1: did plaintiff suffer tangible job detriment? If yes then yes liable, if no then employer has defense o If harassing employee was a supervisor... 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) 2) the plaintiff/employee must have unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer to avoid harm o If harassing employee was a co-worker... Employer might be liable if he should have known about harassing behavior and failed to take remedial action
What are the two types of harassment?
o Quid Pro quo: this for that, exchange of sexual favors for tangible job benefit o Hostile Environment: does not necessarily involve tangible job benefit/detriment • Unwelcome by the victim • Based on gender • Sufficiently severe or pervasive to create an abusive working environment • Affect a term, condition or privilege of employment
List the five theories of discrimination. (RDDHF)
o Retaliation o Disparate treatment o Disparate impact o Harassment o Failure to accommodate
From what do whistleblower protection statutes protect employees?
o Retaliatory action o Not being welcome back—termination or taking away major clients or talking away someone's office
What must a plaintiff prove to establish retaliation? Be able to discuss each part of the analysis thoroughly.
o Retaliatory conduct Something the employer does that is materially adverse to the employee • Reducing work hours, reducing pay, physical threats, terminating cooperating witness o Retaliatory motive Difficult to prove Factor often considered is timing—can indicate motive o Causal link "But for" • Without the employee action, the employer would not have engaged in the retaliatory action • If the employer can establish that the employee would have been terminated otherwise • If the employer has mixed motives he will not be liable for retaliation
Describe the National Labor Relations Act's ("NLRA's") protection of employees for engaging in concerted activity for mutual aid. Employees' Sec. 7 rights
o Right of employees to engage in collective bargaining and to strike o Defines employer practices as unfair to labor o Prohibits an employer from taking an adverse action against an employee because the employee is engaged in protected concerted activity o Labor law issues rather than employment law
Generally, what do state Workers' Compensation statutes provide? How do they mitigate an employer's risk of liability for negligence to an employee?
o State statutes o Administrative procedure for compensating workers who are injured on the job o In exchange for worker's compensation benefits, an employee may not sue the employer for negligence o Shifts risk to insurance company o Elements Must be an employee Must be injured during the scope of employment
When is a whistleblower protected under the Texas Whistleblower Protection Act?
o The Texas Whistleblower Act provides legal rights for public (not private) employees who report certain violations of laws by the employing governmental entity or another public employee to an appropriate law enforcement authority. o Applies to federal, public, Texas employees
Under a disparate treatment analysis, what is the effect of a mixed motive for an employment decision?
o The employer must prove that the reason for discharge was legitimate
Discuss the administrative process that a prospective plaintiff must take before filing a lawsuit for a violation of Title VII, the ADA or the ADEA?
o Title VII File a claim with the EEOC EEOC can file a lawsuit on behalf of the claimant Procedure • If plaintiff shows that the employer was motivated by unlawful discrimination • Burden of proof shifts to the employer to articulate legitimate nondiscriminatory reason for the challenged action o "Mixed-reason" for discharging the employee—employer must prove its reason was legitimate o ADA 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 Plaintiff must pursue the claim through the EEOC before filing an action in court for a violation of the ADA o ADEA Plaintiff must show that the unlawful discrimination was not just a reason, but the reason for the adverse employment action Employee has the burden of proof of establishing but for causation—"but for" the employees age, the action would not have been taken To establish the prima facie case • Plaintiff must show that she or he (1) was a member of the protected age group, (2) was qualified for the position from which she or he was discharged, and (3) was discharged because of age discrimination • Then, burden shifts to the employer o Employer offers legitimate reason for its action, the plaintiff must show that the stated reason is only a pretext for the employer's decisions
What is gender stereotyping?
o Title VII does protect against decisions based on gender stereotyping o Title VII does not protect based on sexual orientation o When someone is classified based on gender EX: Price-Waterhouse—woman denied partnership Macho, overcompensated for being a woman, walk and talk more femininely On what bases does Title VII prohibit harassment?
Explain the theoretical difference between disparate treatment and disparate impact discrimination.
o Treatment—intentional discrimination (involves some sort of employment decision) Employer cannot make employment decision based on one of the protected basis o Impact—unintentional discrimination Deals with policy and practices of the company—grooming policies, dress code Employment policy/procedure—disproportionate negative effect on people in specific class—looks at effect Applies to everyone
How does the Lily Ledbetter Fair Pay Act amend Title VII?
o Victim of pay discrimination must file claim of gender discrimination 180 days after.... The discriminatory decision The implementation of discriminatory decision The plaintiff is effected by the discriminatory decision (day she gets compensated) Employer Defense: employee can only receive pay discrepancy for 2 years of the pay discrimination
What are English Only policies?
o When an employer has a workplace policy stating that they will only hire English speaking employees o Require English only on the work premises Must establish as a business necessity—safety, employee morale, etc.
Under the Sarbanes Oxley Act:
o Who is protected from retaliation for whistleblowing? Employees of publicly traded companies Employees of mutual funds Employees of privately owned entities who contract with publicly traded companies or mutual funds
What must a plaintiff prove to establish harassment based on a hostile environment?
o must prove supervisor took a tangible employment action against employee o if no tangible job detriment, employer is liable if he failed to take reasonable remedial action or if he should have known
What does the prohibition on national origin discrimination ban?
physical, cultural, and linguistic characteristics of a group o Does not prohibit discrimination based on citizenship
