Employment Law Final

Describe the key provisions of Virginia's new (2020) statute addressing worker misclassification in this Commonwealth.

-there is a presumption that if you are getting renumeration for a job, that renumeration comes from your employer, the employer can defend by saying that you are an independent contractor

Name the five principal tests used to determine whether a particular worker is an employee and the deternmination on which each is principally focused.

1) Economic Realities (Lauritzen Test): Employees are those individuals who as a matter of economic reality are dependent on the business to which they render service 2) Reid Factors: right to control the employee and the work being done 3) IRS Factors: behavioral control, financial control, type of relationship 4) Entrepreneurial Test: Move from control to whether worker has significant entrepreneurial opportunity for gain or loss 5) Dynamex: worker is free from control, performs work outside the usual course of business, independently established in the same kind of work

List the alternative categories into which a worker might properly be classified if he or she is not an employee.

1) Independent contractors 2) volunteers 3) trainees 4) interns 5) student interns

What is a consumer report?

1. "any written, oral, or other communication of any info by consumer reporting agency, bearing on a consumer's credit standing, worthiness, capacity, character, general reputation, characteristics, or mode of living which is used or expected to be used at least in whole or in part as serving in as a factor in determining consumer's eligibility for employment purposes" 1. Applies under FCRA is the employer got it from a 3rd party and is using it in an employment decision

Define the BFOQ defense and state what a defendant employer must prove in order to raise it successfully

1. A bona fide occupational qualification or BFOQ is an affirmative defense to discrimination prima facie. Bona fide occupational qualifications can be made for national origin, religion, and sex. 2. Consider: 1. Is it reasonable necessary for business/job performance to have differences between the sexes 2. What is the essence of the business? 3. Is it essential to the job to have the differences? 4. Is there an alternative? 5. Customer preference CANNOT be a driver for BFOQ: 1. Hasidic Jews driven by female bus driver: even though it was uncomfortable for the students, it wasn't enough to have her fired 2. Southwest case 3. Instances where BFOQs typically work 1. Prisons 2. Delivery room nurses 3. Erotic dances 4. Actors (for "genuineness" factor)

Describe an employer's exposure to Title VII liability on the basis of sex in cases of fitness or ability testing and state how an employer can best mitigate the risk of such liability

1. Ability testing is okay but it must be given to both sexes 1. Must show: job related and business necessity in disparate impact so just keep those in mind when using ability testing that might affect sexes differently 2. Ex. FBI agility test: 14 pushups for women, 30 pushups for men 1. 4th circuit found that men and women did not have the same physiology so you can have a different test BUT cannot be the only thing that you rely on (FBI argued that the pushups were just a small part of overall agility)

State an employer's obligation to accommodate a pregnant employee under the Virginia Human Rights Act, as amended (in 2020)

1. Accommodations are not required if they impose an undue hardship on the employer 1. Nature of the employer's operation 2. Size of the facility 3. Nature and cost of the accommodation 2. Bathroom breaks, breaks to pump, modified seating/equipment, etc. If you accommodate someone with a temporary medical condition, you should provide that to pregnant workers

Identify Price-Waterhouse discrimination as describing illegal gender stereotyping

1. Adverse action taken by employer in regard to their impression on how a woman should act 2. Price Waterhouse did not want to promote her as partner because she was too masculine, did not dress femininely, etc.

State the majority rule concerning the legal effect of a job applicant providing false information to a prospective employer in response to a legally improper interview or application question

1. Applicant cannot willfully misrepresent themselves in the application process 2. Even if the employer asks an illegal question (like are you pregnant) you cannot lie! Just say "I'm not going to answer that"

Identify the Fair Credit Reporting Act as applying to employment background checks conducted by third parties.

1. Applies whenever an employer obtains a background report from or through a third party 1. Doesn't apply if the putative employer/employer is doing its own background check 2. It's when they use a company who does background checks for a fee or ask someone to do homework and get back to them on this applicant

Identify circumstances in which Title VII prohibits discrimination on the basis of sex and distinguish them from circumstances in which it does not

1. Cannot be based on individual feelings or emotions: discriminating against someone because they are too sexy doesn't count 2. Cannot be based on jealousy 3. Cannot defend sex discrimination with religion 1. Exception: Catholics who refuse to ordain females

Describe generally what the 2012 EEOC Guidance on criminal background checks requires of private employers.

1. Concern: filtering application by conviction record may discriminate unintentionally by race in violation of Civil Rights Act 1. Need Formal validation OR Targeted screenAND individualized assessment 2. Initial burden is on the employer: Employer must show that sorting its applicants on the basis of their criminal record or conviction history is job related and consistent with business necessity 3. then burden shifts to EEOC to show less discriminatory alternative

Name the two principal tests currently used to determine whether a trainee or intern is in fact an employee and describe generally what it takes to satisfy each.

1. DOL 6 Factor Test 2. Glatt Factors/Primary Beneficiary Test

Identify the principal legal risk associated with a private employer providing an employment reference for a former employee and how to best minimize that exposure in providing such a reference.

1. Defamation: If employer gives an untrue statement it can come back to bite them! That's why most employers just give name, date, serial number 2. Intentional Interference with Employment

Describe the limits imposed on private employers by the federal Polygraph Protection Act.

1. Does not allow private employers to use polygraphs in hiring (only some extenuating circumstances) 2. Advice to employers: just don't do this

State generally what "Ban the Box" laws and initiatives prohibit.

1. Doesn't preclude the employer from asking about a criminal history at some point 2. Instead, it governs the timing, typically after a conditional offer of employment has been made, then evaluation would have to be made

What are the tests for joint employment?

1. EEOC Standard 2. FLSA Fourth Circuit Standard 3. NLRB (Browning Ferris or Hy-Brand) 4. DOL 4 Factor Test

Recite the four elements of a negligent hiring claim

1. Employee was unfit for job considering the nature of the job and who they might come into contact with 2. Employer knew or should have known about the unfitness 3. Employee's act were cause in fact of plaintiff injury 4. Employers hiring was proximate cause of the injury

Individualized assessment

1. Employer then conducts an individualized assessment and sits down with applicant and does a review: look at the scope of the facts in reference to that specific applicant and the job they will be doing 1. Facts/circumstances surrounding offense/conduct 2. Number of offenses for which they were convicted 3. How long ago was conviction/release from incarceration 4. Whether individual performed same type of work after conviction without any incidents or problems 5. Rehabilitation efforts 6. Character references

State the legal limits placed on private employers in regard to applicant and employee testing for illegal drugs.

1. For private employers the only bar to drug testing is the ADA 2. ADA does not protect illegal drug use, but does protect the status of being an addict

List the three ways an employer can lose the common law qualified privilege against liability for defamation in providing an employment reference

1. Ill will or actual malice 2. Excessive publication: can't go beyond scope of who needs information 3. Reckless disregard for the truth: can't just run your mouth

Negligent hiring in Virginia

1. Injuries must be physical for negligent hiring claim 2. No tort for negligent training or supervision 3. Tort action does exist for negligent retention (should have fired but did not)

Describe circumstances in which two or more entities may be joint employers under the contemporary American jurisprudential understanding of the term.

1. Joint employment arises when a worker has multiple employers (those who exercise control) at the same time while performing a single job. (not working multiple jobs). Co-workers could have different employers (Contractors, staffing company etc.) 2. Franchises: are not joint employers, the franchisee is the sole employer

Describe the difference in liability exposure between omitting information from an employment reference and making an affirmative misrepresentation in such a reference

1. Kadlec Medical Center: an employer cant affirmatively misrepresent someone BUT just staying silent is okay: Don't lie or embellish employee's performance 2. Once a party volunteers' information, its their duty to ensure that it is okay

Targeted Screen (guided by Green factors)

1. Nature and gravity of offense(s) that you're considering 5. Time passed since conviction or completion of sentence arising from it 8. Nature of job for which they've applied: Is it more than job title which suggests conviction would be a problem?; What are the specific duties? Functions of the job; Environment in which it is to be performed?Look at those then make judgment of what are the outer limits for what is acceptable for that job?

Which joint employment test should be used?

1. No singular test that gets used, depends on where you are and why you are asking 2. Common denominator is control 3. Politics affect these policies, depends on what party is in power because the Supreme Court has not weighed in on the issue

Glatt Factors/Primary Beneficiary Test

1. Parties understand there is no expectation of compensation 2. The internship provides training similar to that in an educational environment 3. Whether the internship is connected to a formal education program and receipt of academic credit 4. Whether the internship corresponds with the academic calendar, accommodating the student's school commitment 5. The duration of the internship is limited to the period when the intern is provided beneficial learning 6. Whether the intern's work displaces paid employees 7. Parties understand that the intern is not entitled to a job at the end of the program

State the practical and legal significance of an employee have joint employers.

1. Practical: employees were working for a scaffolding company and a staffing company, employees sued the scaffolding company because they were underreporting hours, scaffolding company went bankrupt and staffing company had to be liable for their wrongs to pay the employees their proper wages 2. Legal: determines who can be sued and who is liable

State what the Americans With Disabilities Act prohibits and requires in regard to medical testing for job applicants, at the conditional offer stage, and for existing employees.

1. Pre-offer stage: NO medical exam is permitted 1. Can only ask if they can perform the essential functions of the job which can be answered yes, no, or yes with accommodations 2. After conditional offer: CAN give medical exam IF it is given to everyone in the same category 1. i.e. welders getting an eye exam 2. keep forms and evaluations separate from supervisors because medical exam results are only on a need-to-know basis (which should be HR): supervisors will only know of job restrictions and accommodations 3. medical exam does not need to be job related, but you cannot withdraw an offer based on the exam if it is not job related: employer has to pay for medical exams if they want them done 3. After employment: only can give a medical exam if: 1. Job related 2. Consisted with business necessity 3. Can offer voluntary exams

Identify the conditions to which the Pregnancy Discrimination Act applies and describe the scope of protections afforded employees under that Act

1. Pregnancy discrimination (pregnancy, childbirth, and related medical condition) is in fact, the discrimination on sex 2. A floor not an elevator: Don't get special treatment for being pregnant, but can't be treated worse. Employers can treat pregnant workers nicer, but they don't have to. 3. It is not a violation of the law that workers prohibit pre-marital sex -- hard to apply but inevitably it turns out that only women get punished because they are the ones who get obvious result 4. Doesn't cover breastfeeding: FLSA covers this and some state statutes 5. Young v. UPS: pregnant UPS worker who was not allowed light duty 1. Supreme Court blended the McDonnell Douglas Burden shifting plus disparate impact, hard to actually apply a

Identify the principal liability risks to which an employer is exposed when conducting ability/aptitude/character testing of applicants for employment and state how best to minimize that exposure.

1. Privacy (not really applicable in VA) 2. Discrimination 1. Personality testing: just don't include religious or sexual preferences, but are really big for employers and are typically fine 2. Ability testing: task must be relevant to the job! Could get into trouble with disproportionate impact on gender or ADA disability

Why would you want a medical test?

1. See if the prospective employee is a workers compensation problem (insurance or they will be calling out of work a lot) 2. Chemical sensitivities 3. Chronic conditions can reveal hidden healthcare costs that employer would be responsible for 4. Learn about disabilities to provide accommodation 5. Potential liability exposure (i.e. a driver having epilepsy)

Describe the requirements that must be met in order for a private employer legally to implement a voluntary affirmative action program

1. The plan must be remedial: must have a problem that you are fixing 1. Cannot be permanent, needs to have something to point to to show that the program was necessary to fix an imbalance 2. Pisataway Township Schools: white teacher sued because she was fired and a black teacher was kept (for budget reasons) even though they had the exact same qualifications, court found that the school made this decision based on race/promoting diversity, cant do that because it is a decision based on race!

DOL 6 Factor Test

1. The training is like training that would be given in an education environment 2. The training is for the benefit of the trainee 3. The trainee does not displace regular employees, but works under close supervision of existing employees 4. The employer providing the training derives no immediate advantage from the trainee's activities and on accession its operations may be actually impaired 5. The trainee is not necessarily entitled to a job at the end of the program 6. The employer and the trainee understand that the trainee is not entitled to wages for time spend training

Describe the practical and legal significance of properly classifying a worker as an employee.

1. To make claims, you must be an employee. This is the first question you ask. 2. Some businesses/employers are incentivized to not have employees - avoid regulations But there are fines for miscategorizing employees

FLSA Fourth Circuit Test

1. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means 2. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to—directly or indirectly— hire or fire the worker or modify the terms or conditions of the worker's employment 3. The degree of permanency and duration of the relationship between the putative joint employers 4. Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer 5. Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and 6. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll, providing workers compensation insurance, paying payroll taxes, or providing the facilities, equipment, tools, or materials necessary to complete the work. This list is not exhaustive. The determination must consider "the circumstances of the whole activity"

Describe the factual predicate and procedural steps that USERRA requires employees to satisfy and to take before they can file suit to enforce the Act

1. must have had or have applied for a civilian job. 2. must have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when prevented by military necessity. 3. must not have exceeded a 5-year cumulative limit on periods of service. 4. must have a discharge that was other than dishonorable. 5. must report back to the civilian job in a timely manner or submit a timely application for reemployment.

State the minimum number of employees an employer must have to be subject to the ADA

15 employees

State the amount of time a charging party has in which to file suit after receiving a Right to Sue letter from the EEOC

90 days to file suit after receiving right to sue

Identify the principal risks faced by employers in connection with information sought by means of applications and applicant interviews and state how to minimize those risks.

Advice to employers: 1. Don't ask anything that isn't a factor that would relate to the job 2. Don't use borrowed or old forms because they may not relate to you 3. Don't ask about protected categories, or questions that would allude to such (age, race, sex) 4. Keep applications for about a year after getting them

Identify those employers subject to USERRA's provision

Anyone, even federal gov.

Identify the role of the McDonnell-Douglas burden-shifting test in employment discrimination practice

Applies only to disparate treatment cases: helps those employees who do not have direct evidence

DOL 4 Factor Test

Did the joint employee actually have exercise of power (the more that power is exercised, the more likely the entity is a joint employer)? Does the potential joint employer actually exercise the power to: 1. Hire or fire the employee 2. Supervise the control the employee's work schedules or conditions of employment 3. Determine the employee's rate and method of payment 4. Maintain the employee's employment records

Describe how federal courts treat sexual orientation and transgender status discrimination suits brought under Title VII.

Discrimination based on sex (Bostock)

Define disparate treatment discrimination

Disparate treatment is intentional employment discrimination. For example, testing a particular skill of only certain minority applicants is disparate treatment.

Identify the federal agency that enforces the ADA

EEOC

Identify the federal agency that enforces Title VII.

EEOC (Equal Opportunity Commission)

Identify the category of employers required to file an EEO-100 report and the information it must contain

Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to complete and submit an EEO-1 Report (a government form that requests information about employees' job categories, ethnicity, race, and gender) to EEOC and the U.S. Department of Labor every year.

State generally how the US Department of Labor determines if a given worker is a volunteer instead of an employee.

Factors to consider: 1. Are they full time? 2. Are you displacing a paid worker? 3. Are you completing an essential task? 4. Title isn't super important but can consider 5. Can get nominal pay and still be a volunteer

Describe generally "medical testing" as that term is used in connection with the Americans With Disabilities Act.

Factors: (more factors present, the more likely it is one) 1. Administered by a medical professional 2. Medical tools used 3. Results interpreted by a health professional 4. Test normally administered in a medical setting 5. Designed to reveal physical/mental health, condition, or impairment 6. How invasive? 1. i.e. temperature check vs. blood draw 7. Measure a physiological response 1. i.e. blood pressure and heart rate

Analyze, and apply USERRA to, a suitable fact pattern involving a private employer

a. Serricchio v. Wachovia i. Got back and got same position title and compensation rate as he had before he left ○ Seemed right on paper BUT - compensation took a hit because he was given worse accounts when he got back ii. Couldn't produce the kind of commissions He had to build up business again iii. Was he entitled to the same level of compensation that he was before he left (same ability?)? 1. Yes - he needs a fixed salary until he can build his business back up again 2. Needs to be able to make equivalent amount of money

Can a volunteer work at a for-profit private entity

No

State the remedies, to include the maximum amount of compensatory and punitive damages, available to a successful plaintiff under 42 U.S.C. 1981

No cap

State the basic requirements with which employers must comply under the Fair Credit Reporting Act if they obtain and use a "consumer report" as part of the hiring process.

Notice to Users 1. Notify Applicant of Check: must be in a separate document from the application; must state that it will be used for employment purposes only 2. Obtain Written Permission: Can be on the separate disclosure form; Cannot just be a signature on the application form 3. If adverse action is contemplated because of report: Notify applicant adverse action is going to be taken; Have to wait a reasonable amount of time before action is taken (usually 5 days); Must provide them with a copy of the report and their summary of rights 1. Has right to obtain and challenge it 2. Has to tell them agency contact info 3. Tell them that agency didn't decide adverse action 4. Once adverse action is taken: Have to provide a 2nd notice to applicant (Either orally, written or electronically Usually should be in writing though); Have right to dispute fact with information, but they need to go to reporting agency

Identify the federal agency responsible for enforcing employers' affirmative action obligations

Office of Federal Contract Compliance Programs within the DOL

List the categories of employees protected from discrimination under the ADA

Protects a qualified person with a disability in the terms and conditions of employment

State the scope of an employer's duty to accommodate a qualified person with a disability under the ADA

Reasonable accommodation

Describe how liability for negligent hiring differs from respondeat superior liability.

Respondeat Superior requires a finding that the employee was acting within the course and scope of his employment when the tortious act occurred, while negligent hiring requires only some connection between the plaintiff's injury and the fact of employment.

State the remedies available under the ADA and the enforcement mechanism for responding to violations of the Act

Same procedures and remedies as Title VII (have to go through EEOC)

Hy-Brand Standard

Two or more entities are joint employers of a single work force if: 1. They are both employers within the meaning on the common law and 2. They share or codetermine those matters governing the essential terms and conditions of employment (conditions of employment include hiring, firing, discipline, supervision, and direction; number of workers needed; schedule; seniority and overtime; and work assignment. Under this standard, the putative joint employer must have actually exercised the requisite control, and it must have exercised it directly)

State the majority/Virginia rule concerning the compelled self-publication doctrine in connection with employment references.

VA doesn't recognize self-publication as an element of excessive publication in defamation

Identify the categories of government contractors required to have an affirmative action plan

Workforce has an 80% tracking of what is available in local workforce so it accurately reflects the community 2. Applies to: 1. More than 10 employees 2. More than $10k of business 3. Applies to + you need a plan: 1. 50 employees 2. $50k of business for gov. contracts (usually all gov. contracts are over this) Plan: created by the company to ensure that its always 80%

Describe an individual's personal exposure to liability under USERRA. Identify the federal agency that enforces USERRA

a. Enforced by DOL: can go to DOL to complain but its not necessary, you can go straight to court (different then Title VII) You CAN be individually liable under USERRA:"If the individual defendants are held liable for violating USERRA, the Court may enjoin them from implementing a discriminatory policy in the future, and it may require them to compensate Bello for the monetary damages he incurred."

State the minimum number of employees an employer must have to be subject to Title VII.

a. 15 or more employees

State the statute of limitations applicable to filing a charge of discrimination under Title VII

a. 180 days

Recite the definition of a "qualified person with a disability" under the ADA

a. Able to perform the essential functions of the job with or without reasonable accommodation

Describe an individual's personal exposure to liability under Title VII.

a. An individual cannot have personal exposure under Title VII, all liability goes to the employer/business b. You can get fired, but you can't get sued

State the amount of time the EEOC must be given to investigate a charge of discrimination before the charging party can demand a Right to Sue letter

a. Claimant can demand a right to sue letter from EEOC 180 days after they file claim with EEOC

State the remedies available to a successful plaintiff under Title VII

a. Compensatory & Punitive (caps) b. Backpay (no cap) c. Frontpay (no cap) i. In lieu of ordering you to go back to work there, can give you a monetary cushion so that you can find new work d. Injuctive Relief e. Atty's Fees and Costs i. Plaintiff can get this if successful ii. Defendant only gets this in instances of a frivolous suit

Define disparate impact discrimination

a. Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected group. For example, testing all applicants and using results from that test that will unintentionally eliminate certain minority applicants disproportionately is disparate impact. b. Griggs v. Duke Power Co. Case: there was a facially neutral policy - requiring a high school diploma, but it fell harder on racial class of workers. Disparate impact is a viable cause of action b/c law aims to prohibit consequences not just intent c. Wards Cove Packing Co. Case: led to 1991 AmendmentsFacts: cannery workers were all minorities and non cannery workers were all white. Argued it had to have been discriminatory.Court held that racial imbalance itself was not enough to make out a prima facie case

State the duration of a servicemember's reemployment right under USERRA. Describe USERRA's "tenure" provision

a. Duration of reemployment right: 5 years b. Tenure provision: Cannot lose job right away after returning; USERRA says you cant be fired for x period of time upon return except only for good cause i. Period depends on how long you have been gone: Ex. Under USERRA, a reemployed employee may not be discharged without cause: (1) For one year after the date of reemployment if the person's period of military service was for 181 days or more; (2) For 180 days after the date of reemployment if the person's period of military service was for 31 to 180 days.

Describe an employer's obligation to accommodate employees' religious beliefs and practices under Title VII

a. Duty to accommodate unless there's an undue hardship i. Undue hardship: low standard, de minimis b. Many different flavors of discrimination against religion claims i. Disparate treatment ii. Disparate impact iii. Failure to accommodate iv. Failure to permit exercise c. What constitutes religion for purposes of Title VII Protections i. A moral and ethical belief as to right and wrong. Sincerely held with the strength of traditional religious values. ii. Doesn't have to be a standard religion, you could be the only one on earth to practice as long as you meet the above standards (sometimes even includes vegans)

State the EEOC position on English-only policies in the workplace.

a. EEOC says that English only policies are presumed illegal under Title VII because they are a proxy for discrimination based on national origin b. Different circuits disagree, find that would need to show disparate impact and not auto illegal c. If English only is a business necessity than it could be sage i. Communicating to employers and clients ii. Safety iii. Efficiency

Identify and evaluate the legal risks associated with various methods of recruiting and evaluating potential hires in the private workplace.

a. Formal: i. Federal contractors are required to use e-verify in hiring process ii. Kotch v. Board of River Port: held that the law doesn't require fairness, only prevents discrimination. Meaning that favoritism, nepotism is totally legal b. Informal: i. EEOC v. Consolidated Service System: the Korean cleaning company that hired only using word of mouth which resulted in resulted in 80% Korean employees and Koreans were only 2% of Chicago. Hiring was an entirely passive system and not actively discriminatory, and other means- like ads - were used but they didn't result in interest.

State the role of mitigating measures when determining whether someone is a qualified person with a disability under the ADA

a. Mitigating measures eliminate or reduce the symptoms or impact of an impairment. They include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications b. The ADAAA and the final regulations direct that the positive (or ameliorative) effects from an individual's use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, if a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that fact cannot be used in determining if a person meets the definition of disability.

State the circumstances under which a Title VII defendant may be liable for mixed-motive discrimination and the remedies available to a successful Title VII plaintiff in a mixed-motive case

a. Mixed motive: when an employer acted based on a protected classification but other factors were taken into consideration that were legal b. Remedies: i. Declaratory judgement ii. Injunctive relief iii. Atty's fees iv. NOTE: no compensatory, front pay or back pay for mixed motive

State the minimum number of employees an employer must have in order to be subject to liability under 42 U.S.C. 1981

a. No minimum

State generally the nature of discrimination prohibited by the Uniformed Services Employment and Reemployment Rights Act (USERRA)

a. Not only can you not get discriminated at work because you are a service member, but your job has to be waiting for you when you come back from active service

Recite the definition of a covered disability under the Americans With Disabilities Act

a. Physical or mental impairment that substantially limits one or more major life activities b. OR A record of such impairment OR Being regarded as having such an impairment *look at the individual in an unmitigated state (unless its glasses)

State the burden-shifting steps associated with the McDonnell-Douglas test

a. Plaintiff has burden to show the prima facie case: i. Show that they are in a protected class ii. Show that they were fired or not/hired iii. Show that the job was kept open or someone outside of the protected class got it who is NO MORE qualified than the plaintiff (does not have to be less qualified, can be equally qualified) b. Defendant then has to show a legitimate, non-discriminatory reason for action Plaintiff can then show that the "legitimate" reason was a pretext

State the burden-shifting steps associated with proving and defending against a disparate impact discrimination claim.

a. Plaintiff must prove that the particular policy or practice that caused impact or disparity b. Defendant then must show that the practice/policy is: i. Job related ii. AND consistent with business necessity c. Plaintiff's burden is to show that there is an alternative with less impact d. Defendant then must show that it was not feasible to adopt reasonable alternatives i. If the defendant fails to adopt reasonable alternatives then they are liable

State the employers to which the federal Rehabilitation Act applies and what the Rehabilitation Act prohibits

a. Prohibits discrimination by federal gov. agencies, federal contractors, recipiences of federal financial assistance Prohibits discrimination in employment based on disability

Identify the nature of discrimination prohibited by 42 U.S.C. 1981.

a. Prohibits racial discrimination b. With 1981 claims you can go straight to court, you do not need to EEOC to file c. Applies in at will employment as well d. Applies to all employers regardless of size e. Applies ONLY to intentional discrimination/disparate treatment f. No cap on compensatory/punitive damages g. 4 year SOL

Describe generally the protections afforded under Virginia Human Rights Act, as recently amended (in 2020) and the remedies afforded employees and sanctions to which employers are exposed under that state statutory scheme

a. Protections i. Applies to employers with 5 or more employees ii. 180 days to file complaint after incident iii. 90 days after letter to sue iv. Jury b. Remedies i. No limit on comp damages ii. Limit on punitive iii. Unlimited front and back pay iv. Atty's fees and costs Same process as EEOC claim

State the five characteristics protected by Title VII of the 1964 Civil Rights Act.

a. Race b. Color c. National origin d. Religion e. Sex

Describe the procedure Title VII requires the EEOC to follow in responding to a charge of discrimination.

a. Receives complaint b. Could dismiss the charge (usually doesn't happen) c. Require conciliation if discrimination is found: i. Conciliation is similar to mediation, where both parties agree to a solution and the mediator suggests solutions d. If mediation does not work then EEOC investigates: i. EEOC could sue on behalf of complainant: very unlikely ii. EEOC issues complainant a right to sue letter: once charging party gets a right to sue letter, they have 90 days to file suit THIS IS THE ONLY WAY YOU CAN SUE! HAVE TO WAIT FOR LETTER If e. if EEOC doesnt resolve your claim within 180 days then you can demand a right to sue letter

State the remedies to which a successful plaintiff is entitled under USERRA

a. Reinstatement b. Back pay c. Atty's fees d. If willful: double damages

Describe the operation of USERRA's "escalator clause"

a. Returning service members need to be in the same circumstances they were in before they left. b. You are treated like you never left: if before you left you would have been promoted 2 times, then you get promoted 2 times when you come back c. Employer needs to train them with new skills to catch them back up Service related disabilities need to be accommodated (under USERRA and ADA)

State generally what Executive Order 11246 requires and the employers to which it applies

a. The Executive Order prohibits federal contractors and federally‐assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. AFFIRMATIVE ACTION b. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Additionally, Executive Order 11246 prohibits federal contractors and subcontractors from, under certain circumstances, taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co‐workers.

Identify religious and national origin discrimination issues when provided a suitable fact pattern involving a private employer

a. To bring an action in national origin i. Need to identify a specific country b. Fragante Case: plaintiff did not win in discrimination based on national origin because of his accent, the employer was able to show that his thick accent would affect his job performance and that him not getting the job was not based on his national origin

Identify what USERRA requires of employers in regard to servicemembers returning from active duty

a. USERRA requires for someone whose gone, jobs to be held for up to 5 years of absence for military duties b. Cumulative - can be add up to piece (Gone for 2 weeks - then gone for 6 months.) c. Clock starts over for each new employer -- start at zero for 5 years of absence

Define a State Deferral Agency and explain its role in responding to a charge of discrimination under Title VII

a. Virginia is a "deferral state" for Title VII purposes, meaning that it has a state law prohibiting discriminatory employment practices and has a state or local agency (e.g., the Virginia Council on Human Rights) authorized to grant relief from such practices. b. If your state has a deferral agency, then you have 300 days from the last event to file

Recognize the USERRA applies in cases of both voluntary and involuntary service

a. Will protect an individual who isn't in the armed forces, but wants to join the armed forces Protects those who are called to duty and those are voluntarily join

Recognize Price-Waterhouse discrimination as describing mixed-motive discrimination

a. female was up for partner, had the best record and should've been a shoe in for partner BUT her "abrasive personality was too macho", she didn't act feminine enough. Case of sex stereotyping. = Mixed Motive b. Employer claimed that there were other reasons that she did not make partner c. Supreme Court found that is not a defense, if you act even partially based on a protected class its illegal

State the maximum amount of compensatory and punitive damages to which the largest and smallest employers subject to Title VII are exposed

i. 15-100 employees: $50k ii. 101-200 employees: $100k iii. 201-500= $200k

Formal Validation

if data about criminal conduct as related to subsequent work performance is available and such validation is possible

Describe the role played by employer/employee definitions of status in making the legal determination of whether a worker is an employee

n individual who has not been properly classified as an employee may bring a civil action for damages against his employer for failing to properly classify the employee if the employer had knowledge of the individual's misclassification. An individual's representative may bring the action on behalf of the individual. If the court finds that the employer has not properly classified the individual as an employee, the court may award the individual damages in the amount of any wages, salary, employment benefits, including expenses n individual who has not been properly classified as an employee may bring a civil action for damages against his employer for failing to properly classify the employee if the employer had knowledge of the individual's misclassification. An individual's representative may bring the action on behalf of the individual. If the court finds that the employer has not properly classified the individual as an employee, the court may award the individual damages in the amount of any wages, salary, employment benefits, including expenses incurred by the employee that would otherwise have been covered by insurance, or other compensation lost to the individual, a reasonable attorney fee, and the costs incurred by the individual in bringing the action.incurred by the employee that would otherwise have been covered by insurance, or other compensation lost to the individual, a reasonable attorney fee, and the costs incurred by the individual in bringing the action.

Identify the kind of Title VII claim to which a BFOQ defense can never successfully be raised

race