Chapter 51

The ADA defines a disability as...

(1) A physical or mental impairment, (2) a record of impairment, or (3) being regarded as having an impairment.

What are the 4 defenses Title VII provides employers.

1) Same-Decision Defense - Employer proves that it would have taken the same action in the absence of the unlawful motivating factor 2) Seniority 3) Merit Defenses - A system basing earnings on quality or quantity produced 4) BFOQ Defense - Bona fide occupational qualification that is reasonably necessary to the business in question (business requires certain class).

If the two jobs are substantially equal and they are paid unequally, an employer must prove on one of the EPA's four defenses which are?

1) Seniority 2) Merit 3) Quality of production 4) Other factors than sex

Statute of limitations for ADEA is ___ years for WILLFULL violations and ____ years for NONWILLFUL violations.

3,2.

Drug and Alcohol testing by public employees can be attacked under the __ Amendment's search and seizure provisions. However...what?

4th; However such tests are generally constitutional where there is a reasonable basis for suspecting that an employee is using drugs or alcohol, or drug use in a particular job could threaten public interest or public safety.

Like Title VII, the ADEA includes both what?

Disparate treatment and separate impact theories.

The Doctrine of Employment at Will (Explain)

Either party can terminate an employment contract of indefinite duration.

Workers compensation protects only _____, not ______.

Employees, Independent Contractors.

T or F: "Sexual Harassment" appears in the text of Title VII.

F; however it falls under disparate treatment of sex.

Before one can sue in ones own right under ADEA, a private plaintiff must do what?

File a charge with the EEOC or appropriate state agency.

Private parties with a Title VII claim have no automatic right to sue. So what must they do?

File a charge with the EEOC, or with a state agency in states having suitable fair employment laws.

Section 1981 (Def)

Forbids public and private employment discrimination against blacks, people of certain racially characterized national origins such as Mexicans, and ethnic groups such as Jews. Since title VII limits awards, plaintiffs often include a Section 1981 claim along with Title VII.

Equal Pay Act (Def)

Forbids sex discrimination regarding pay. The typical EPA case involves a woman who claims that she received lower pay than a male employees performing substantially equal work for the same employer.

Promises by Employers (Explain)

If the employer fails to follow those promises when it fires an employee, it is liable for breach of contract. At least 2/3rds of the states recognize this exception to employment at will.

If intentional discrimination has caused lost wages, what can employees obtain?

Lost pay. Also at the court's discretion, successful private plaintiffs may also recover reasonable attorney's fees as well as compensatory and punitive damages. However, Title VII caps the sum of the plaintiff's recoverable compensatory and punitive awards to certain amounts that vary with the size of the employer. Minority preferences also may appear in the consent decrees courts issue when approving the terms on which the parties have settled a Title VII case.

The Occupational Safety and Health Act (Explain)

Most important measure directly regulating workplace safety. The OSHA applies to all employers engaged in a business affecting interstate commerce; exempted however, are the U.S. govt, the states and their political subdivisions, and certain industries regulated by other federal safety regulation. An employee cannot sue his employer for a violation of OSHA. No private right of action.

State Antidiscrimination Laws (Def)

Most states have statutes that parallel Title VII, the EPA, the ADEA, and the ADA. These statutes sometimes provide more extensive protection than their federal counterparts. In addition, some states prohibit forms of discrimination not barred by federal law.

Collective Bargaining and Union Activity (Explain)

National Labor Relations Act gave employees the right to organize by enabling them to form, join, and assist labor organizations. It also allowed them to bargain collectively through their own representatives.

To establish a prima facie case to challenge a hiring decision under Title VII what must you do?

Plaintiff has to prove that she applied for the job and was minimally qualified for it. That she is a member of the protected class that she claims was the unlawful motivating factor that the employer considered. That she was rejected. That the employer continued to attempt to fill job or filled it with someone who is not a member of the relevant protected class.

What did the Wagner Act do?

Prohibited certain unfair labor practices that were believed to discourage collective bargaining.

The Age Discrimination in Employment Act (Explain)

Prohibits age-based employment discrimination against employees who are at least 40 years of age. The ADEA covers individuals, partnerships, labor organizations and employment agencies, and corporations that (1) engage in industry affecting interstate commerce, and (2) employ at least 20 persons.

American with Disabilities Act (Explain)

Prohibits discrimination against people who have disabilities. The ADA forbids covered entities from discriminating agains qualified individuals with a disability because of that disability. ADA protects both individuals who can perform if reasonable accommodation is provided. HOWEVER, employers need not to make reasonable accommodation where such accommodation would cause them to suffer undue hardship.

Uniformed Services Employment and Reemployment Rights Act (Def)

Prohibits employees of any size from discrimination against members of the uniformed military service, including reservists and members of the National Guard. Also grants such employees the right of reemployment following an absence from the workplace for military derive, for up to five years. As long as the employee provides the employer with notice of the leave, the employer must reinstate the employee to his rightful position upon return.

Immigration Reform and Control Act (Def)

Prohibits employers with four or more employees from refusing to hire or terminating an employee on the basis of national origin or citizenship. This prohibition overlaps with Title VII's ban on national origin discrimination. IRCA also prohibits employers from knowingly employing or rerouting unauthorized immigrants.

Genetic Information Nondiscrimination Act (Def)

Prohibits the use of genetic information by insurance agencies. GINA also prohibits employment discrimination on the basis of an individual's genetic information and prohibits employers from requesting, collection, or purchasing genetic information.

The Employee Retirement Income Security Act of 1974 (Def)

Protects employee's expectations that promised pension benefits will be paid. ERISA's remedies include civil suits by plan participants and beneficiaries, equitable relief, and criminal penalties.

What is the public policy exception to employment at will?

Recognized by over 4/5ths of the states, is the most common basis for a wrongful discharge suit. In public policy cases, the terminated employee argues that his discharge was unlawful because it violated the state's public policy.

ADA Amendments Act of 2008 expressed Congress's intent that what?

That the ADA should be "constructed in favor of broad coverage" and that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis".

Employee Privacy (Explain)

The Employee Polygraph Protection Act mainly regulates lie detector tests, which include polygraph tests and certain other devices for assessing a person's honesty.

In 1947, Congress amended the NLRA by passing the Labor Management Relations Act. What did this do?

The act declared that certain acts by unions are unfair labor practices.

Implied Covenant of Good Faith and Fair Dealing (Def)

The employee argues that her discharge was unlawful because it was not made in good faith and did not amount to fair dealing. For instance, an employee who is terminated just before she would haver received a bonus, and who can prove her termination was intended to deny her bonus payment would have a claim.

The employer must rebut the presumption of discrimination by producing evidence that the challenged employment decision was taken for legitimate, non discriminatory reasons. If the employer refuses or fails to produce such evidence, _____.

The plaintiff automatically wins.

Read this. The Labor Management Reporting and Disclosure Act amended the NLRA by adding to the LMRA's list of unfair union labor practices.

U.S. involvement in labor unions has steadily decreased.

Another basic feature of of workers' comp is that employees recover only for ___-______ injuries.

Work related injuries

Explain the two primary theories of discrimination that Title VII incorporates.

1) Disparate treatment - claims involve allegations that an employer treated an employee differently because of the employees protected status 2) Disparate impact - claims involve allegations that an employer's policies or practices that are seemingly neutral with regard to protected statuses have a disproportionate negative impact on members of one of those groups.

Certain employers are exempt from Employee Privacy, which 4?

1) Federal, State, and Local government employers 2) Certain National defense and security related tests by the national government 3) Certain tests by security service firms 4) Certain tests by firms manufacturing and distributing controlled substances

Workers' Comp recoveries usually include what things?

1) Hospital and medical expenses 2) Disability benefits 3) Specified recoveries for the loss of certain body parts 4) Death benefits to survivors and/or dependents.

States use what two tests to define the work-related injury relationship?

1) Increased Risk - Employee recovers only if the nature of her job increases her risk of injury above the risk to which the general is exposed. Under this test a factory worker assaulted by a trespasser probably would not recover, while a security guard assaulted would. 2) Positional Risk - More liberal test where an employee recovers if her employment caused her to be at the wrong place at the wrong time. The factory worker would recover under this test.

The states fund workers' comp by compelling covered employers to do one of what 3 things?

1) Purchase private insurance 2) Self-Insure 3) Make payments into a state insurance funds.

Fair Labor Standards Act (Explain)

- Regulates wages and hours by entitling covered employees to (1) a specified minimum wage whose amount changes over time and (2) a time-and-a-half rate for exceeding 40 hours per week. - Forbids oppressive child labor by any employer engaged in interstate commerce or in the production of goods for such commerce. Oppressive child labor includes: (1) most employment of children under 14 (2) employment of children 14-15 unless in approved by department of labor (3) employment of children 16-17 who work in occupations declared hazardous. Violations of the act's child labor provisions may result in civil penalties. Other FSLA remedies include injunctive relief and criminal liability for willful violations.

4 Reasons for leave in FLMA?

1) Birth of a child and the need to care for that child 2) The adoption of a child 3) The need to care for a spouse, child, or parent with a serious health condition 4) Employee;s own serious health injury.

What are the employer's three traditional defenses regarding workers' comp?

1) Contributory Negligence 2) Assumption of Risk 3) Fellow-Servant Rule

What is an example where the employee can sue outside of work's compensation when the employer was acting in a dual capacity in relation to the employee?

A case in which an employee is injured on the job by a defect in a product manufactured by the employer.

Title VII (Def)

A wide-ranging employment discrimination provision. It prohibits discrimination based on race, color, religion, sex (gender not homosexuality), and national origin. Title VII covers all employers employing 15 or more employees and engaging in an industry affecting interstate commerce.

Unemployment Compensation (Def)

Another way that the law protects employees after their employment ends is by providing unemployment compensation for discharged workers.

The Family and Medical Leave Act (Explain)

Applies to those employed for at least 12 months, and for 1250 hours during those 12 months, by an employer employing 50 or more employees. Under FMLA, covered employees are entitled to a total of 12 workweeks of leave during a 12-month period for certain reasons.

Quid Pro Quo (Def)

Sexual harassment in which a supervisor makes some express or implied linkage between an employee's submission to sexually oriented behavior and a tangible job consequence.

Social Security (Def)

Social security is mainly financed by the Federal Insurance Contribution Act (FICA). FICA imposes a flat rate percentage tax on all employee income below a certain base figure and requires employers to pay a matching amount.

Injured employees are allowed to recover under what?

Strict Liability, thus removing any need to prove employer negligence.

Retaliation (Def)

Title VII prohibits retaliation against individuals who oppose any practice the statute makes unlawful or who make a charge, testify, assist or participate in any manner in a Title VII investigation, proceeding, or hearing. A manger should tread carefully in taking any arguably negative action against an employee who alleges a violation of the employment laws, regardless of how feeble the manager believes the complaint to be.