Chapter 8 (for Exam 4): Employment Law

The Elliot Larsen Civil Rights Act of 1976 is basically the same as the Civil Rights but adds

marital status, height, and weight

For any employment discrimination claim, defense will be ______ viewed and must have ______ reasoning

narrowly; bona-fide

Sex discrimination involves

treating someone (an applicant or employee) unfavorably because of that person's sex, and someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.

Color discrimination involves

treating someone unfavorably because of skin color complexion.

Race/color discrimination can also involve

treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person's connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.

Disparate Impact

when a neutral action or policy has the unintended effect of discriminating on the basis of protected class status (e.g. only hire former football players- basically discriminates women

What is Quid Pro Quo (sexual) Harassment?

when employment and/or employment decisions for an employee are based on that employees' acceptance or rejection of unwelcome sexual behavior. For example, a supervisor fires an employee because that employee will not go out with him or her.

Disability is defined by the ADA as

"..a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a ______ basis: case-by-case

Per se

"as such", "by itself", "for itself", "in isolation", "intrinsically"

The FMLA covers both: (1)_______ and (2)__________ sector employees, but certain categories of employees are excluded, including: (3)______

(1) public; (2) private; (3) elected officials and their personal staff members

Defenses applicable to per se claims of wrongful discrimination

1. Bona Fide Occupational Qualification (BFOQ) 2. Employee Performance/Merit 3. Seniority/Longevity

There were/are partial and whole exceptions to Title VII of the Civil Rights Act of 1964 for four types of employers:

1. Federal government (now changed by subsequent law); 2. Federally recognized Native American tribes; 3. Religious groups performing work connected to the group's activities, including associated educational institutions; 4. Bona fide nonprofit private membership organizations (including private clubs). o Title VII applies to (scope of Title VII): 1. Employers with 15 or more employees 2. All employment agencies 3. Labor unions with 15 or more members 4. State and local governments and their agencies 5. Most federal government employment o What two things are expressly excluded form coverage by Title VII?: Indian tribes and tax-exempt private clubs o What did the Civil Rights Act of 1964 originally not include? Government employees o Title VII applies to any term, condition, or privilege of employment including, but not limited to: 1. Hiring and firing 2. Work rules 3. Promotion and demotion 4. Payment of compensation and benefits 5. Availability of job training opportunities o What is the procedure for bringing a Title VII action?: Private complainant (complainant= plaintiff) must file a complaint with the EEOC (Equal Employment Opportunity Commission). The EEOC is given the opportunity to sue the employer on the complainant's behalf. If the EEOC chooses not to bring suit, it will issue a right to sue letter to the complainant. Complainant now has the right to sue the employer. o What is the EEOC?: The Equal Employment Opportunity Commission o Why does the EEOC exist?: to 1) handle cases where employee wants to sue employer for violation of a civil rights statute and 2) handle such cases quickly and efficiently o How many days does an employee usually have to file a complaint or use "right to sue" letter to bring employer to court? 90 days or less o What is a quick remedy for discrimination?: o What is the only type of employment discrimination where one does not have to file a complaint with the EEOC? Age discrimination

If an employee is successful in proving unlawful discrimination or retaliation, that employee has the right to seek a remedy. The remedies include

1. Reimbursing attorney's fees (enticement) 2. Placing victims in the position they would have occupied if the discrimination hadn't occurred 3. Paying compensatory damages 4. Reimbursing any benefits that were lost 5. Preventing further discrimination by stopping the specific discriminatory practices involved

Seven common tests to determine 'just cause' are as follows

1. Was the employee forewarned of the consequences of his or her actions? 2. Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? 3. Was an effort made before discipline or discharge to determine whether the employee was guilty as charged? 4. Was the investigation conducted fairly and objectively? 5. Did the employer obtain substantial evidence of the employee's guilt? 6. Were the rules applied fairly and without discrimination? 7. Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record?

The Act allows eligible employees to take up to

12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child. In order to be eligible for FMLA leave, an employee must have been at the business at least 12 months, and worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. (eg employee took leave cuz wife had cancer. When he returned to his job, everything was the same but he had night shift instead of day shift (original shift before leave) violation of FMLA - why? What are specifications of FMLA?)

ADA applies to employers with _____ employees

15 or more

How many states make in unlawful to dsiciminat in employment on the basis of sexual orientation?

20 states. (Michigan is not one of them, except for State Employees). 40 Michigan Cities Have Enacted Ordinances Making It Unlawful To Discriminate in Employment on the Basis of Sexual Orientation (including East Lansing*, Ann Arbor* and Detroit) First Two Cities In Nation to Do So in 1972.

What is the statute of limitations for whistleblowing?

90 days since the wrongful action occurred

Types of compensation for employment discrimination

?

Whistleblower Protection Law

???

What does BFOQ stand for?

Bona Fide Occupational Defense

What is the most clear way to show discrimination?

Compensation (e.g. if one person gets moved to Toledo and one employee is relocated to Miami but the two are equally paid the employer can argue they are equally paid. It is hard for employee to argue that one location is fairer than another)

Is discrimination in employment unlawful?

Discrimination in employment is not unlawful. Discrimination against certain protected clauses are unlawful (statutes about this): race, sex, color

Is discrimination unlawful?

Discrimination is not unlawful, but discrimination that violates any of the above employment discrimination statutes is unlawful

Employment At-Will Doctrine

Either the employer or the employee can terminate employment at any time with or without cause, so long as it is not for an unlawful reason. No agreement exists defining how long the employment relationship will last. The employer can terminate with cause or for no cause.

For Cause/Just Cause Employment

Employer must have bonified business reason to terminate employment contract of employee (basically guarantees employment unless bonified business reason to be fired). Employer decides neutral peer review committee. For a party to receive compensation for unjust treatment, appear review committee (neutral) decides if reason is bonified business reason for if reason is not bonified business reason, then employer is protected from being sued by employee (employee cannot take employer to court). Employers sometimes use employment "for cause" contracts to attract certain types of workers. If people are looking for stability (no upward mobility or possibility of being fired). Union contracts (negotiated in group; collective bargaining contract) are commonly employment "for cause" contracts

What are the three types of employment?

Employment at Will, Fixed term employment, and for cause (aka just cause) employment

What are the exceptions to the Employment At-Will doctrine?

Employment for cause (aka just cause), contract for a fixed period of time, and the statutory exceptions (Civil Rights Acts, Equal Pay Act, Whistleblower Acts, Labor Statutes, Wage and Hours Laws, and the Elliot Larsen Act in Michigan)

Fixed Term Contract Exception

End date that is known by employer and employee. Only way to exit contract is for both parties to agree to terminate contract or if one party breaches contract. Seasonal employees or employee on probationary period are not considered a, "contract for a fixed period of time." If breach of contract merits no compensation, both parties have reasonable expectation for . When employer breaches contract, the employer is responsible for paying employee- employee is expected to find reasonable job. When employee breaches contract, employer does not have to pay employee.

What is the Michigan Elliot Larsen Civil Rights Ac

Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

What does FMLA stand for?

Family Medical Leave Act

Who has the burden of persuasion in a for cause (aka "Just cause") employment contract?

employer has burden of persuasion to show bona fide business reason for firing employee

Just Cause/For Cause

Implies that Employer has determined a neutral process (decision maker) for behavior of employer if considered lawful, employer cannot be sued by employee

Have courts become more or less strict on age discrimination?

Less strict (through precedence) when it believes the company is committing such actions due to economic motives (e.g. A company fires long-time elderly employee who makes $150k to hire 2 young new employees at $75k each. Company may claim that it has hired the same quality worker for half the price to save money)

Longevity/Seniority Defense

Most applicable to equal pay, but applicable to any parts of Civil Rights Act of 1964 (age, sex, ___)

Under ADA, can an employer use disability as a disqualifier cannot use disability as disability?

No. The employer does not have to hire disabled candidate, just cannot have the disability as the reason for not hiring.

What is a whistleblower?

One who reveals wrong-doing within an organization to the public or to those in positions of authority. One who discloses information about misconduct in their workplace that they feel violates the law or endangers the welfare of others. One who speaks out, typically to expose corruption or dangers to the public or environment.

Burden of persuasion

dispute exists who must prove their version of the case

Freedom of contract

study of employment contract and exceptions to such contracts (3 categories of questions)

What are the categories of Sexual Harassment?

Quid Pro Quo (sexual) harassment and hostile work environment

Race/color discrimination

Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).

In an employment at will doctrine, an employer cannot terminate an employer for

Refusing to carry out an illegal activity. Exercising a legal right. (e.g. filing a worker's compensation claim); Performing a legal duty (e.g. serving on jury duty or the army reserve; Whistleblowing (reporting the employer's wrongdoing)

What does ADA stand for?

The Americans with Disabilities Act of 1990

What does PDA stand for?

The Pregnancy Discrimination Act (PDA) OF 1978

What is the most common type of employment contract?

The employment at-will contract

If you ever anything other than an employee at will, you will always know it 100% because

You will know you are fixed term because you have end date; will know if you are "for cause", so will know you are at will because you are not fixed term or "for cause"

In the workplace, just cause is

a burden of proof or standard that an employer must meet to justify discipline or discharge.

An employer cannot use a person's disability as a disqualifier for employment if

a reasonable accommodation for the employee can be made.

In Elezovic v Ford Motor Co., the Michigan Supreme Court held in 2005 that

a supervisor may be individually liable separate from his or her employer for actions toward an employee under his/her supervision that violate the Elliott-Larsen Civil Rights Act.

Just cause usually refers to

a violation of a company policy or rule. In some cases, an employee may commit an act that is not specifically addressed within the employers policies but one of which the employer believes warrants discipline or discharge. The employer must agree to be a 'just cause/for cause employer' - changes the burden of proof - and the decision must be made by a neutral arbitrator (decision maker). When an arbitrator looks at a discipline dispute, the arbitrator first asks whether the employee's wrongdoing has been proven by the employer, and then asks whether the method of discipline should be upheld or modified.

What is a hostile work environment?

a work environment created by unwelcome sexual behavior or behavior directed at an employee because of that employee's sex that is offensive, hostile and/or intimidating and that adversely affects that employee's ability to do his or her job. This environment comes from the occurrence of such actions on a consistent basis, not just one minor offense like an offensive joke. For example, pervasive unwelcome sexual comments or jokes that continue even though the recipient has indicated that those behaviors are unwelcome.

Title VII of the Civil Rights Act of 1964 applies to and covers

an employer "who has fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year" as written in the Definitions section under 42 U.S.C. §2000e(b).

Who has the burden of persuasion in an employee at-will contract?

employee has burden of persuasion to prove that employer was wrong

For any employment discrimination claim, any defense brought up must be

consistent thought business practice,

Employment

contract (worker: work to get paid, manager: pay to get workers)

The employment relationship is

contractual relationship

FMLA requires

covered employers to provide employees job-protected and unpaid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child.

Certain specific conditions are excluded as disabilities, such as

current substance abuse and visual impairment that is correctable by prescription lenses.

Title VII also prohibits discrimination against an individual because of

discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.

The Pregnancy Discrimination Act forbids

discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

Title VII of the Civil Rights Act of 1964 prohibits

discrimination by covered employers on the basis of race, color, religion, sex or national origin.

The Rehabilitation Act prohibits

discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

Under of the Civil Rights Act of 1964, some states prohibit

height (incl. state of MI), weight (incl. state of MI), marital status (incl. state of MI), and sexual orientation (not state of Michigan)

The law forbids discrimination when it comes to any aspect of employment, including

hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Each of these discrimination statutes applies to all aspects of employment

hiring, firing, wages/salaries, relocation, benefits, promotion, demotion, etc.

Employment/Merit defense

if you have a poor job performance record, then this will overshadow any employment discrimination claim that you may have. Non-compliance with company policies, insubordination, failure to complete tasks within deadlines, bad references and frequent tardiness are all valid reasons for taking an adverse action against an employee. This is the most commonly overlooked area and complainants are often shocked at how well the employer has documented their performance history.

Bono fide occupational qualification Defense

is a facial policy that says only individuals of particular class can do a certain type of job. The policy may seem to create a preference for one particular group however it represents a legitimate qualification for a job that is actually not aimed at a particular class.

Americans with Disabilities Act of 1990 is

is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

Age Discrimination in Employment Act

o Age discrimination is not always unlawful. Age discrimination (usually applies to means to be discriminatory against older people and favor younger people) o Once a person is age 40+, he/she/they cannot be discriminated solely on age o Under Affordable Health Care Act?, if employer has 50+ full-time employees he/she/they must pay all employees health insurance o Sexuality is protected clause under many states (not Michigan) and specifically municipalities (even in states like Michigan where sexuality is not a protected clause)

Each of the Statutory Exceptions

o The Statutes/Laws that act as exceptions to the Employment at Will Doctrine (aka "regulate the employment at-will doctrine; form the structure that employers work within): o Civil Rights Acts o Equal Pay Act o Whistleblower Acts o Labor Statutes o Wage and Hours Laws o Elliot Larsen Act in Michigan

What can constitute sexual harassment?

o Unwanted deliberate touching, leaning over, cornering, or pinching. o Unwanted sexual looks or gestures. o Unwanted letters, telephone calls, or materials of a sexual nature. o Unwanted pressure for dates. o Unwanted sexual teasing, jokes, remarks, or questions. o Referring to an adult as a girl, hunk, doll, babe, or honey. o Whistling at someone; Kissing sounds, howling, and smacking lips. o Cat calls and sexual comments. o Turning work discussions to sexual topics and/or sexual innuendos or stories. o Asking about sexual fantasies, preferences, or history. o Personal questions about social or sexual life. o Sexual comments about a person's clothing, anatomy, or looks.

Title VII of the Civil Rights Act of 1964 has been supplemented with legislation prohibiting

pregnancy, age, and disability discrimination (Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act, Americans with Disabilities Act of 1990)

Equal Pay Act

requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay. An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. In past, women on average earned $0.50 for every man's $1 for substantially the same job. Now, it is women at $0.81 to every man's $1. o Can use some factors (seniority/longevity, ) as argument for unequal pay so long as it is consistent across the firm (if pay man more than woman for same job because of seniority, all men who do the same job as women must be paid the same)

Reinstate

return to former/original position

Discrimination against an individual because that person is transgender is discrimination because of

sex in violation of Title VII. This is also known as gender identity discrimination. In addition, lesbian, gay, and bisexual individuals may bring sex discrimination claims. These may include, for example, allegations of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person's non-conformance with sex-stereotypes.

Employment law is the

study of employment contract and exceptions to such contracts (3 categories of questions)

When a manager gives a reason for termination of employment, it gives lawyers something to

sue (well why did you terminate Employee A for this but not Employee B who engaged in the same conduct?)--> so employers often say neutral reason even though the true (hidden) reason is discriminatory; set a standard that is not facially unlawful, but underneath is unlawful (eg must have played college football to be a football coach does not explicitly discriminate against gender but has the same effect)

One reason that employers have been hiring disabled employees is

tax incentives.

The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in

the American's With Disabilities Act of 1990.

The FMLA is administered by

the Wage and Hour Division of the United States Department of Labor

Discrimination can occur when

the victim and the person who inflicted the discrimination are the same race or color.

Under the Elliot-Larsen Civil Rights Act of 1976, a plaintiff may prove discrimination by showing that

they were a victim of either intentional discrimination or disparate treatment.

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must

treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Religious discrimination involves

treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group. Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference. The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

National origin discrimination involves

treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group. Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin. An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An "English-only rule", which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer's business and is put in place for nondiscriminatory reasons.

Disparate Treatment

treating similarly situated people differently on the basis of protected class status.

Age discrimination in employment involves

treating someone (an applicant or employee) less favorably because of his age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. Applies to Employers of 20 or more employees. Purpose: "to promote employment of older persons based on their ability rather than age and to prohibit arbitrary age discrimination in employment"