Final Quizlet Review

While interviewing for a job as a university professor, Kim's interviewer repeatedly comments that Kim looks so young that she fears students won't take her seriously in the classroom. A less qualified older woman gets the job. Can Kim (who is 30 years old) successfully sue for age discrimination under the ADEA?

No - ADEA only prohibits age discrimination against individuals who are 40 or older.

What are the seven ?'s to ask to determine if they are an employee or Independent Contractor?

1) How much control does employer exercise? 2) Is the worker engaged in an occupation distinct from employer? 3) How long is the person employed? 4) What is the method of payment? 5) Is this type of work done under employer's control? 6) Does employer supply tools necessary for the work? 7) What degree of skill is required?

What are the ways agency terminates?

1) Termination by the principal or agent 2) Lapse of time 3) Purpose achieved 4) By operation of law

Equal Pay Act

1963 law that required both men and women to receive equal pay for equal work, Disparate Treatment if proved

What are advantages and disadvantages of Workers Comp?

A: Paid quickly, very easy to do D: can't file for negligence and miss out on more money/pain and suffering money

Define Implied Authority

Agency inferred from the acts of the agents who holds a position of authority

Jane, a plumber, is hired by Microsoft to update all of the plumbing in the corporate headquarters. Jane is responsible for bringing her own tools, hiring her own assistants, and purchasing all necessary supplies. Microsoft agrees to pay Jane $250,000 at the completion of the job, and Jane's contract specifies that she will complete the job in no more than 6 months. Jane's employment relationship with Microsoft is:

An Employer to Independent Contractor

What is the BFOQ defense (provide an example) and what types of discrimination does it apply to?

BonaFide Occupational Qualification, which is used as a defense in Disparate Treatment, and is defined as one trait reasonable for business which applies to sex, religion and national origin

An office manager for Company X buys office supplies on behalf of the company because the company is running low on printer paper and toner. The office manager has never expressly been told he has the authority to enter contracts on Company X's behalf. The office supply company sends a bill to Company X. Which of the following is true?

Company X must pay the bill because the office manager has implied authority.

What are principal's responsibilities?

Compensation and Indemnification (travel expenses)

What types of damages are a successful Title VII plaintiff entitled to receive?

Compensatory or punitive damages

Define Disclosed Principal

Contract situation in which the third party is aware of the existence and identity of a principal.

Define Undisclosed Principal

Contract situation in which the third party only knows and believes the contract is with the agent; the third party is unaware of the existence or identity of the principal.

What is a disability under the ADA? Provide examples of reasonable accommodations that an employer must make under the ADA? How is an undue hardship evaluated?

Disability is a physical or mental impairment substantially limiting one or more major life activity, accommodations are getting a bigger desk or a ramp, hardships evaluated based on financial strain

What kind of benefits will an injured employee recover?

Disability, hospital/med, specific sums

What are the two theories/types of Title VII discrimination?

Disparate Treatment and Disparate Impact

What type of discrimination is sexual harassment in the workplace?

Disparate Treatment since person is subjective to different terms than others in the workplace

What is employment at will?

Doctrine under which the employer may terminate an employee at any time, and the employee can leave a job at any time, and for any reason, without facing adverse legal consequences.

What are agent responsibilities?

Duty of loyalty, obedience and care

Can employers discriminate based on religious observances or practices (grooming, clothing, refusal to work on religious holidays)?

EEOC forbids this

What is the role of the EEOC in pursuing a Title VII claim?

EEOC is the enforcement agency to weed out potential court cases, people file a claim here 1st, then they decide if it's a violation or not, can make broker settlements for people, decisions can always be appealed to federal court

What is a seasonal worker?

Employee who works less than 7 months

What are the covered entities under Title VII?

Employers employing at least 15 or more employees

What is the worker's comp process?

Employers pay state fund, then employees file claim to get $ if they can prove that they were injured on the job

What are the policy reasons for respondeat superior

Ensures that employees avoid behavior and stay on task (holds employers vicariously liable)

When are agents liable on contracts they make on their principal's behalf?

Every single time

What is FMLA leave? Who qualifies for it? What types of events qualify for FMLA leave?

Family and Medical Leave Act, employees of company that has 50 or more employees and must have worked at company for at least 12 nonconsecutive months. Used for birth/care of a new child, care of an immediate family member with a serious health condition, or an employee who has their own serious health problem. Giving 12 weeks of unpaid leave.

Pregancy Discrimination Act

Hard for women to win since employers could say it was something else, employers must accommodate them if they accommodate others who are limited

Harvard University hires Jerry to serve as a security guard for its dormitories on an independent contractor-basis. Jerry is eventually caught stealing computers from students' rooms. During a subsequent investigation, it is learned that Harvard never performed a background check on Jerry before hiring him, which would have revealed a criminal history. If one of the students sues Harvard for damages arising from the stolen computer, what will be the likely result?

Harvard is liable because it negligently-hired Jerry to be a security guard.

A Chinese restaurant wants to hire a new server and requires applicants to be from China (in other words, Americans of Chinese descent don't qualify) because many of its customers and employees only speak Mandarin. Billy, an American, files a Title VII action before the EEOC. What type of case will he bring and will he be successful?

He will bring a Disparate Treatment case and will be successful since they are discriminating based off of National Origin

What is the justification for not holding an employer responsible for the torts of its independent contractors? What are the exceptions to this rule?

IC's do their own thing and exceptions are if the act is inherently dangerous or negligently hired

When is a principal bound by contracts made by agents?

If agent has any authority, the Principal is contractually bound

When is a principal liable for the torts of its agents?

If they are an employee and are doing something that pertains to the job

How can a principal confer apparent authority on an agent?3

It arises when 3rd party believes agent has power and depends on communication by principal

A Chinese restaurant wants to hire a new server and requires applicants to speak fluent Mandarin because many of its customers and employees only speak Mandarin. Billy, an American who does not speak Mandarin, files a Title VII action before the EEOC. What type of case will he bring and will he be successful?

Language is always Disparate Impact and Billy won't be successful since it's a valid business defense

What is an employer liable for under tort liability?

Liable for employee

What does FLSA regulate?

Minimum Wage and Maximum Hour Laws (fed is 7.25/40)

How large must a company be to file a title VII

More than 15 employees.

How can ex-agents retain apparent authority to bind their former principals?

Must notify others for liability protection or the chef/kelley example in class happens

The office manager tells his current receptionist that she is in charge of hiring an attractive, thin woman to work with her as a receptionist at a female hair salon. Is this legal? Why?

No since it's Disparate Treatment against men

Why is proving a disparate impact claim more straightforward? If the plaintiff proves a disparate impact, the employer loses unless...?

Not as many defenses, Employer loses unless they can show it was job related and consistent for the business

Is sexual orientation and gender identity discrimination a form of sex discrimination under Title VII (historically and today)?

Not yet but Supreme Court is discussing it

What can a principal do to protect itself from apparent authority retention?

Notify others and be up front

What does it mean to say it is an exclusive remedy?

Once they've filed for workers compensation it is the sole remedy they can be provided. Meaning they cannot take legal action against the company.

When must a business provide reasonable accommodations for someone?

Pregnancy if other pregnant or non pregnant employees are accommodated for, disabled employees, and religion (even if business necessity) i.e. allowing religious headdresses in workplace if no hat policy.

Define Expressed Authority

Principal expressly instructs an employee to act on it's behalf

When is an employee's conduct within the scope of employment? When is it a frolic?

Principal liable even if they get into a tort at lunch or something reasonable (detour), frolic is not reasonable and the principal is not held accountable

What is indemnification?

Principal's responsibility to pay agents for expenses in carrying out principal orders.

What are the types of theories of discrimination under the ADEA? What are the defenses?

Prohibits discrimination of people who are above 40 years old, defenses are reasonable work defenses or safety issues (pilot/bus driver) or CEO. Not part of title VII

How can a plaintiff prove a disparate treatment claim? What is the burden-shifting method?

Prove that the discrimination occurred and that it wasn't business related, burden shifting method is to show discrimination by picking someone over someone else

How does the Sexual Harassment differ depending on whether it is a quid pro quo or hostile work environment claim?

Quid Pro is being fired for not being submission to something, while hostile environment work is being in an environment that is not conductive to work due to crude jokes or awkward situation

Title VII prohibits employment discrimination on what bases?

Race, color, religion, gender and national origin

When is an employer vicariously liable for an employee sexually harassing another employee?

Sexual Harassment is a form of Disparate Treatment and supervisors are vicariously liable for oversight power.

To be a lifeguard at Santa Monica beach, an applicant is required to lift 200 lbs. Susie brings a Title VII case for what type of discrimination? Will she be successful?

She will bring a Disparate Impact discrimination case against gender and won't be successful since it's a business necessity

What are exceptions to FLSA?

Tipped employees (unless tips don't add to at least minimum wage), Independent contractors and agricultural workers

When acting on a principal's behalf, what types of liability issues arise?

Tort liability and Contractual liability

What is the big question to ask for a Contract liability?

Was the person authorized to do that or not?

What is a retaliation case?

When someone hours get slashed or get fired after they take legal action against their employer, complain about harassment, or assist in an investigation about the company.

What is ratification?

When the principal retrospectively approve what the agent did without authority, creating apparent authority in the future, if the employer says its a one time thing there is no authority.

Define Unidentified Principal

When the third party knows that the agent is acting for a principal, but does not know who the principal is

Does respondeat superior encourage employers to train their employees better?

Yes. They don't want to be held liable or sued

Describe: Disparate Impact

a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected group. (A condition in which employment practices are seemingly neutral yet disproportionately exclude a protected group from employment opportunities.)

How does workers' compensation involve strict liability and eliminate the three traditional employer defenses?

bars employee from suing for injuries employee negligence

What is vicarious liability?

makes an employer liable for the torts of the employee

Describe: Disparate Treatment

people are treated differently because of there sex, race, color, religion, or national origin.

What is quid pro quo harassment?

when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits from a superior.