PHIL Final

Caveat emptor (let the buyer beware)

Under this theory, all products are bought as is, and the dealer has no responsibility to carry safe products. All of the safety burden is placed on the customers, who are expected to make sure the product is safe before they pay for it and assume ownership of the product.

ADA (key provisions)

1- To receive protection under the ADA, even disabled workers must be able to perform the ESSENTIAL DUTIES of their job 2-Disabled workers who are hired must receive REASONABLE ACCOMMODATIONS for them to do their jobs, including such reasonable accommodations as wheelchair ramps, accessible bathrooms, modified work schedules, interpreters, etc 3-However, employers are not required to undergo any UNDUE HARDSHIP to accommodate disabled workers, and the burden is less on smaller firms or ones with less revenue

4 forms of regulation that restrict advertising

1-Self-regulation 2-Peer-regulation 3-Government regulation 4-Consumer regulation

(Norman Bowie) 5 steps if you are in a situation considering blowing the whistle

1. Make sure you have a morally good motive for blowing the whistle. 2. Start your action at the lowest level of command and go up as necessary. 3. Collect enough evidence to make your charges convincing to the public. 4. Complete a moral analysis to make sure your action is morally justified. 5. Proceed only if your action has a reasonable chance of success. (The business ethics professor, Norman Bowie, recommends that you follow these (5) steps if you are in a situation where you are considering blowing the whistle) Bowie's recommended steps are merely advice from this one writer and do not constitute public policy. That is, you are not required by law to warn the public of dangers at your place of employment, even if your action is morally indicated Ultimately, you must make the decision yourself, and you should bear in mind that whistle-blowers may lose their jobs (even though the law offers some protection from retaliation) or suffer other harms from corporations that obviously do not appreciate having their crimes exposed

PHIL Final

12/13/17 @ 11

Business necessity

A business can refuse to hire women if being forced to add women to its workforce would drive it into bankruptcy (note, not just cost it more, or even a lot more, but actually into bankruptcy or a complete business failure).

Bona fide occupational qualification (BFOQ)

A business can refuse to hire women if it is genuinely impossible for women to perform the type of work, meaning the great majority of women, with the allowance for an occasional rare exception.

Fraud

A crime against property that is prohibited under the law

Case 6.2. Hot Coffee at McDonald's

A customer named Stella Liebeck was severely injured, requiring hospitalization and surgery, when she spilled a hot cup of McDonald's coffee in her lap. Even though she initially asked the restaurant for only $10,000 to help pay for her hospital bills, the jury awarded Liebeck nearly three million dollars in compensatory and punitive damages. The jury believed that McDonald's was negligent to serve Liebeck such a hot cup of coffee (186ºF) without warning her of the danger

The Environmental Protection Agency (EPA)

A federal agency in the United States with the Congressionally-mandated power to regulate the environment, placing a CAP on the amount of pollution that can be emitted by each manufacturer If manufacturers exceed the cap, they face the possibility of heavy fines. On the other hand, if they can manage to go below the cap, they qualify for emission reduction credits (ERCs).

Loyalty (noun)

A feeling of attachment to certain other parties such as friends, family, and country, where the object of loyalty is given special regard and consideration Some business ethicists (such as Shaw and Barry, the authors of your textbook) frown on most cases of whistle-blowing because they regard it as a breach of LOYALTY to your employer When you are loyal to someone (for example, to a friend), you tend to have great respect for that person's confidentiality, and you may feel motivated to help them conceal their faults from others, just as you may do this for yourself. So you might be less likely to "blow the whistle" on your friend if you discover some issues. (If you feel loyal to your employer, you may extend them the same courtesy) But Ronald Duska says that the relationship with your employer is purely COMMERICIAL, meaning that the employer is not entitled to your loyalty According to Duska, all you owe your employer is honest work in exchange for your wage. Therefore, you should not let a misguided belief that you owe loyalty to your employer to deter you from blowing the whistle

EMIT (enzyme multiplied immunoassay technique)

A urine test that looks for waste products (metabolites) of drugs that pass through the urine Although the EMIT is cheap and 99% effective at catching people who have recently used a wide variety of popular drugs, there is about a 10% chance that this exam will falsely accuse workers of using illegal substances The EMIT also may confuse illegal drug use with the use of substances that are perfectly legal, cross-reactants such as poppy seed bagels and herbal tea There are also problems with chain-of-custody where urine samples from workers are accidentally switched, leading to false accusations, so, in their efforts to detect and exclude drug users from the workplace, nonusers may have their careers wrecked, being fired for a stated reason (drug use) that makes it almost impossible for them to find another job

Hypothetical competence (Dorit Bar On)

According to Bar On, candidates should be hired, not according to their actual competence, but according to how competent they would have been if they had not been the victims of racial and gender bias. This view has the drawback that incompetent workers may be given crucial positions. Bar On considers diversity a more important moral goal than having competent workers, and she also says that our concept of competence has so much inherent racial and gender bias that he cannot be used without perpetuating discrimination.

Due Care

According to this theory, the only responsibility of the dealer is to take all "due care" in manufacturing and distributing the product, which is just another way of saying that dealers must avoid negligence in making the product If you are injured by a product, to win on the due care theory, you must prove that the dealer was negligent, and that this negligence caused the defect in the product that led to your injury

PETA (People for the ethical treatment of animals)

Adopting the position that animals have the same rights as human beings (with obvious exceptions such as the right to vote) Peter Singer, a philosophy professor at Princeton University, argues that people who refuse to accept the equality of the other animals are little better than racists, and he calls those who regard animals as inferior to humans, "speciesists."

Advertising Ethics

Advertising is a form of speech intended to promote and sell commercial products Code of Ethics of the AAAA (five forms of disapproved ads). Forms of government regulation (FDA, FTC, FCC, BATF etc.). Lanham Act. Consumer regulation (Phillip Nelson's view). Racial targeting: definition and purpose, acceptable unless the product is negative. Powermaster case (malt liquor). Although advertising is a form of speech or public expression, it receives very little First Amendment protection While advertising can never be censored solely because it is offensive (provided it is not actually obscene), there are many legal restrictions on advertising speech due to the fact that such speech has a commercial goal, which is to sell products This makes advertising speech susceptible to fraud, and fraud is a crime against property that is prohibited under the law

Chico Dairy Company, Store #22 v. WVHRC and Terrah Elynn Alfred (1989) Facial discrimination

Alfred was a convenience store clerk in Fairmont, WV, who applied for a promotion to district manager. When she learned that she had been denied promotion because of her facial disfigurement (caused by a bout of head cancer when she was a girl), Alfred sued the owner of the Chico Dairy Company for discrimination against the disabled Her case first went to the West Virginia Human Rights Commission (WVHRC), which ruled in her favor even though the Americans with Disabilities Act (ADA) defines a "disability" as "a physical or mental impairment that substantially limits one or more major life activities." According to this definition, a facial disfigurement does not count as a disability because it merely creates an unacceptable facial appearance but not interfere with any major life activities such as walking, seeing, or reasoning, but the WVHRC believed that Alfred's boss who had denied her the promotion had REGARDED HER AS DISABLED and that this was the reason she was denied a promotion that she deserved because of her long service at Chico Dairy. When Chico Dairy contested the finding of the WVHRC in court, Alfred's victory was overturned, and the court accused the WVHRC of trying to rewrite the law. However, one year later, Alfred got the last laugh when the ADA (1990) was revised by Congress to extend protection to workers who are regarded as disabled

Meritor Savings Bank, FSB, v. Vinson Et. al. Supreme Court of the United States: 477 U.S. 84 (1986) (3)

Although the District Court concluded that respondent had not proved a violation of Title VII, it nevertheless went on to consider the question of the bank's liability. Finding that "the bank was without notice" of Taylor's alleged conduct, and that notice to Taylor was not the equivalent of notice to the bank, the court concluded that that the bank was therefore not liable for Taylor's alleged actions. The Court of Appeals took the opposite view, holding that an employer is strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct. The court held that a supervisor, whether or not he possesses the authority to hire, fire, or promote, is necessarily an "agent" of his employer for all Title VII purposes, since "even the appearance" of such authority may enable him to impose himself on his subordinates The EEOC, in its brief as amicus curiae, contends that courts formulating em-ployer liability rules should draw from traditional agency principles. Examination of those principles has led the EEOC to the view that where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them. ...Thus, the courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew or should have known, or approved of the supervisor's actions The EEOC suggests that when a sexual harassment claim rests exclusively on a "hostile environment" theory, however, the usual basis for a finding of agency may disappear. In that case, the EEOC believes, agency principles lead to -a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment, and, if available and utilized, whether that procedure was reasonably responsive to the employee's complaint. If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment (obtained, e.g., by the filing of a charge with the EEOC or a comparable state agency). In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials As respondent points out, this suggested rule is in some tension with the EEOC Guidelines, which hold an employer liable for the acts of its agents without regard to notice. The Guidelines do require, however, an examination of the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity We hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. For the same reason, absence of notice to an employer does not necessarily insulate the employer from liability Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner's general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to the employer's interest in correcting that form of discrimination. Moreover, the bank's grievance procedure apparently required an employee to complain first to her supervisor, in this case Taylor. Since Taylor was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from responsibility might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward

Protection of disabled workers

Americans with Disabilities Act (ADA) provisions and terms: definition of disability, essential duties, reasonable accommodation, undue hardship for employers. Case: Chico Dairy v. Alfred. Alfred was denied a promotion she deserved because of facial disfigurement. In 1990, ADA's definition of disability was enlarged to include workers who are regarded by their employer as having a disability.

Drug Tests

Among the most controversial business policies is the use of drug tests as a requirement for obtaining and retaining a job. According to our definition of workplace privacy adapted from Mill, any violation of a worker's privacy by their employer must have a legitimate business purpose If this definition is accepted, workers should not have to take drug tests as a condition of employment unless the employer can provide a justification that amounts to a legitimate business purpose. In the textbook, DesJardins and Duska contend that drug testing cannot be justified on the pretext of sustaining a high level of work performance because performance can be measured directly without any need for drug testing. DesJardins and Duska believe that drug testing of workers is justifiable only for occupations such as driving a school bus where drug use represents a clear danger to lives or property

Blanket Drug Testing

Blanket drug testing, where every worker is subject to being tested, is sometimes challenged as a violation of the 4th Amendment, which says that there must be some reason, or probable cause, to conduct a search

Other views on Animal Rights

But not everyone accepts Baxter's harsh view, and most people do believe that animals have at least a few, minimal rights such as the right not to be confined and starved to death In fact, there are laws in the United States against animal cruelty, and people who cause harm to animals, either intentionally or through negligence, may be subject to heavy penalties, including imprisonment Other individuals take a stronger stance in favor of animal rights, with some, such as Ingrid Newkirk, the head of the People for the Ethical Treatment of Animals (PETA)

Business and the Environment

Cap and trade program: purpose, benefits, and use of ERCs. Efficiency of cap and trade program.

Affirmative Action Continued

Civil Rights Act of 1964 prohibits job discrimination based on race, gender, and other traits that do not affect job performance Intent and purpose of affirmative action, protected categories. Application standards: (1) outlawing discrimination but no positive help for protected candidates, (2) automatic hiring of protected candidates who tie for the most qualified in the short list of applicants, (3) hiring unqualified workers if necessary to achieve diversity, (4) hiring unqualified candidates whose lack of qualification is due to discrimination (Dorit Bar On); and (5) hiring in proportion to numbers from each group in the hiring pool Case: Bakke decision: permitted affirmative action only for diversity; ruled out strict quotas but encouraged continued use of affirmative action with soft quotas and goals

Peer-regulation

Congress passed the Lanham Act, which encourages corporations who are marketing the same product to sue each other if one corporation believes the other has posted advertising that contains false or misleading content. Corporations are eager to raise these court challenges in order to protect their share of the market from rivals who could steal their customers if they are permitted to circulate false advertising. In the 1980s, Coca-Cola (on behalf of their frozen orange juice brand Minute Maid) sued Tropicana for claiming falsely that their juice was pasteurized inside the orange, implying that it would be fresher than Minute Maid. Coca-Cola won, and Tropicana had to replace this ad, benefitting the public by removing some false advertising from the airwaves

Discrimination against homosexual workers

Corvino argues that discrimination in homosexual workers is rarely justified because one's sexual orientation hardly ever affect job performance, meaning the discrimination does not have a legitimate business purpose. Discrimination against homosexual workers is largely a reflection of the broad range of discrimination against homosexuals throughout society, generally led by religious groups and traceable to the harsh attitude toward homosexuality found in Bible times.

Case Study: Potter v. The Village Bank of New Jersey (1985)

Dale Potter was hired to run the Village Bank of New Jersy in 1982 at a salary of about $65,000 a year. This bank, with a single location, was owned by the Em Kay Group of Panama, two foreign owners who shared the initials M.K., Mory Kraselnick and Moises Kroitoro (hence their company name) Kraselnick frequently asked Potter to make large loans to shadowy persons in Panama, while, at the same time, employees of the Em Kay Group living in the New Jersey area made frequent, almost daily, large cash deposits, usually around $9,000, at the bank The U.S. Treasury Code at that time required banks to report cash deposits of more than $10,000. When Potter resisted authorizing the large loans going out of the country and reported a cash deposit above $10,000 (actually $50,000, deposited by the local Em Kay office manager), he was constructively fired for blowing the whistle Potter sued for wrongful dismissal, claiming that we was fired for refusing to violate a public policy on cash handling at banks. Potter won a settlement of over $160,000 in punitive and compensatory damages

Daniell v. Ford Motor Company (1984)

Daniell attempted to commit suicide by shutting herself up in the trunk of her Ford LTD. When she discovered that the trunk was not airtight, preventing her from suffocating, she attempted to exit the trunk to search for a more effective method of committing suicide But she soon discovered that there was no internal release mechanism on the inside of the trunk. Daniell was trapped in the trunk for a miserable nine days before she was finally rescued She sued Ford for negligence in marketing an unsafe vehicle Ford prevailed in the lawsuit because the judge accepted their claim that Daniell's action of entering the trunk was UNFORESEEABLE by Ford, relieving them of the duty to take safety precautions for this particular eventuality Even though Ford won this case, they later added internal release mechanisms on all their new cars. Ford had been put on notice by the Daniell case and would no longer be able to claim that entering the trunk was unforeseeable

Privacy rights at work

Definition of workplace privacy: any action that does not harm or adversely affect the work (Mill) Privacy of workers can be restricted only for a legitimate business reason Cases where worker's privacy was not respected: Michael Thomasson (gay stripper);; Deal v. Spears (owner violated privacy of liquor store clerk by listening to Deal's personal telephone conversations and violating her right to confidentiality in personal information not related to her work)

Animal Rights

Do animals have rights? No, according to William Baxter, author of the article, "People or Penguins." Baxter claims that the category of RIGHTS applies only to humans or other beings who are capable of understanding the meaning of rights, how to contract with others to determine which rights are to be respected, and to accept the obligations to others that go along with the recognition of one's own rights Because the animals (meaning in this context, nonhuman animals) have no ability to understand and adapt their behavior to the climate of rights, they have no rights If Baxter is correct, then you have no limits on your treatment of animals, and nothing you do to any animal could possibly be wrong (even if, for example, you kill or torture animals solely for your amusement). However, since humans do have rights (something which even Baxter admits), you cannot harm animals if your action has the side effect of interfering with the rights of a human being. For example, even though you could kill wild boars, you could not kill Farmer Brown's pigs because this would interfere with Farmer Brown's property rights But in these cases, the restrictions are due to the rights of a human being who owns the animal, and the animal itself, regardless of whether it is wild or domestic, HAS NO RIGHTS OF ITS OWN

Drug Testing of Workers (Privacy Issues)

Drug testing of workers: EMIT exam issues: low specificity (only 90%), cross-reactivity with legal foods and substances DesJardins and Duska: drug testing at work is justified only to prevent workplace accidents (only for jobs that are genuinely dangerous Justifications for refusing drug testing: right against illegal searches and seizures (4th Amendment); right against self-incrimination (5th Amendment); right to personal privacy (when refusing to submit to a monitored urine test) Luedtke case (oil driller fired for refusing to take a drug exam after samples from his medical kit were used for drug testing without his permission)

ERC (Emission Reduction Credits)

ERCs are sometimes referred to as "pollution credits," because manufacturers who have been awarded ERCs can refund them to the EPA in lieu of paying fines when they go over the pollution cap. But if a manufacturer does not wish to hold onto the ERCs for their own use, they can TRADE (sell) them to other manufacturers who are facing fines Because the ERCs can be used to avoid fines, they have economic value, making them a security that can be traded on the stock market Some individuals who are not in manufacturing may purchase ERCs on the stock market as an investment instrument, and for years, ERCs had a tendency to increase in value over time, making them a good investment Some environmental groups also purchase ERCs and destroy them to prevent them from falling into the hands of manufacturers who prefer to pay for ERCs rather than cut down on their pollution

Ellison v. Brady (1991)

Ellison v. Brady is a case of unwanted attention This appeal presents two important issues: (1) what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment, and (2) what remedial actions can shield employers from liability for sexual harassment by co-workers. The district court held that Ellison did not state a prima facie case of hostile environment sexual harassment. We reverse and remand Both issues require a detailed analysis of the facts, which we consider in the light most favorable to Ellison, the non-moving party sexual harassment action brought under Title VII of the Civil Rights Act of 1964 Kerry Ellison was an employee of the Internal Revenue Service (IRS) at their office in San Mateo, California. A coworker (Sterling Gray) sent Ellison a number of notes and long letters imploring her to go out with him on a date, making it clear that he had a strong crush on her. However, nothing in the communications was threatening, and the Treasury Department, the EEOC, and a district court all ruled that Ellison's complaint was "genuinely trivial," not enough to meet the threshold of making a reasonable person feel like quitting their job. However, when this case eventually reached the USSC, there was a reversal and the Court decided that if they looked at Ellison's complaint from the point of view of the reasonable woman (as opposed to that of a reasonable person, which is gender neutral), the notes might have been enough to make Ellison feel like quitting her job, even if she was not idiosyncratic or hyper-sensitive. This decision implies that the threshold of harassment for women would be lower than for men, entitling women to more protection in the court system from sexual harassment, on the grounds that women can be easily more frightened by unwelcome sexual attention Congress added the word "sex" to Title VII of the Civil Rights Act of 1964

Ellison v. Brady (1991)

For a case, a woman must prove enough harassment to make a reasonable woman feel like quitting her job

Commercialization of medicine

Human health is becoming something to be enjoyed only by the wealthy, as various efforts to reduce astronomical health care costs have all failed (HMOs, where the added efficiency was used to increase profits for the health care providers. Universal health care has been rejected in the United States, using instead a policy that forces citizens to purchase private health insurance. Milton Friedman recommends that we remove the licensure requirement for physicians--the increased supply of physicians should drive down health care costs due to increased competition for patients (market solution).

Johnson Controls Policy Change

In 1977, Johnson Controls changed its policy and began to hire female workers, but the company required women who were hired to sign a waiver promising not to hold them responsible if their babies were born with lead damage This policy continued for five years, until 1982. But, in 1982, Johnson Controls began to fear that the waiver would not be enough protection if they were sued by mothers whose children were born with birth defects caused by lead exposure at their plant The waiver was not a binding contract, because it served the interests only of the company and had been signed under duress, by women who were forced to sign as a condition of being hired. The waiver was also a problematic instrument because it was intended to limit the rights of the unborn, who naturally had not signed on to the waiver So, in 1982, Johnson Controls reversed its course and returned to its old policy of not hiring women. All women who had been hired between 1977 and 1982 were fired, with the exception of those who had a note from a physician stating that it was medically impossible for them to bear children

Privacy (John Stuart Mill)

In his classic "Essay on Liberty." Mill defines the right to privacy as the right to do anything unless your action is harmful to others As defined this way, the right to privacy is a very substantial right that could be used to support other rights such as the right to wear condoms, possibly the right to abortion (at least in the early stages), the right to use drugs, not to wear a helmet while driving a motorcycle, etc. Arguably, none of these actions are harmful to others, even if they may cause harm to the one who is performing the action Mill's definition of privacy can be adapted to the workplace -Workers have a right to privacy, even while at work, if what they are doing is not harmful to their work, that is, if their actions do not have any harmful effects on their job performance This definition adapted from Mill implies that employers should not interfere in the privacy of their workers unless they have a legitimate business purpose, and then the interference should be no more than necessary to achieve this purpose.

Regents of the University of California v. Bakke

In 1978, the United States Supreme Court considered a challenge to affirmative action, in a landmark case, Regents of the University of California v. Bakke The medical school of the University of California at Davis used affirmative action in their admissions program Each year, Davis admitted one hundred (100) new medical students and sixteen (16) of these openings were set aside for minorities, with a stress on black, Hispanic, Asian, and Native American applicants. If an applicant from any of the protected groups did not get admitted under the regular admission program, they could reapply for a second chance to get one of the sixteen set aside positions A white male, Allan Bakke, was rejected from Davis, and when Bakke attempted to apply under the set aside program, he was notified that these positions were reserved for minority students Bakke's grades and MCAT scores were higher than some of the minority students who were admitted under the set aside program, and he contended that the preference shown to the minority students was a violation of his right under the 14th Amendment to receive equal protection under the law The medical school admitted that Bakke was discriminated against but argued that the discrimination was benign, or for a legitimate social purpose, including the goals of reducing the deficit of minorities in the medical profession, countering discrimination, and increasing the number of physicians in underserved communities The Court ruled that none of these particular goals justified the affirmative action program at Davis. The Court did, however, permit Davis to continue to use affirmative action but only for the limited purpose of increasing DIVERSITY at their medical school But since this goal could be achieved without a set aside program, the Court also ruled that Davis would have to implement affirmative action without using the sort of STRICT QUOTA represented by their set aside program, which guaranteed a certain number of slots each year for minorities. The school could not absolutely exclude non-protected candidates from any seat, but it could apply affirmative action as a positive factor in every admission. Because Bakke was specifically challenging the setaside program as a special case of affirmative action and the Court ruled this program unconstitutional, Bakke technically won the case On the other hand, affirmative action was given the green light and continues to be in very wide use to this day, frequently upheld by the United States Supreme Court ONLY STRICT QUOTAS WERE RULED OUT, programs that set aside a specific number of positions for protected candidates, but using "soft quotas" is highly encouraged by the Court to make American institutions and professions more diverse

Deal v. Spears (1992), 8th Circuit Court of Appeals

In Camden, Arkansas, a liquor store clerk named Sibby Deal was employed at the White Oak Package Store by the owner, Newell Spears. Spears suspected that Deal was behind a big robbery at his liquor store, and he secretly attached a device to his store telephone to record and listen in on all the telephone calls made by Deal from the liquor store during her working hours. After Spears had listened to many hours of Deal's calls, he decided that she was not responsible for the robbery, but he did learn that Deal had given one of the customers an unauthorized discount on a keg of beer. Deal was fired and warned not to apply for unemployment benefits. When Deal disregarded this warning and signed up on unemployment benefits, Spears retaliated by revealing the contents of Deal's calls to the wife of the man that Deal had been talking to on the telephone, exposing the fact that Deal and this man had been engaged in an adulterous relationship Deal sued Spears for invasion of privacy. Deal won on the grounds that her employer had secretly listened in to portions of her telephone calls W/O A LEGITIMATE BUSINESS PURPOSE. Your employer has a legal right to listen to your telephone calls at work and also to read your email, but only for a legitimate business purpose. They are supposed to keep out of any personal aspects of your correspondence, and if they do unintentionally hear anything personal that is unrelated to your work, they are required by law to keep this information confidential

Market-Based Solutions to High Health Care Costs

In Case 4.2: Licensing and Laissez Faire (pp. 176-178), Milton Friedman presents a solution to the high cost of health care in the U.S., which is based on the law of supply and demand According to Friedman, health care costs began to escalate in the 1980s when the American Medical Association (AMA) intimidated medical schools into cutting their class sizes, threatening not to board certify their graduates unless they cut way down on admissions Since the demand for health care continues to rise because of population increases, when the number of physicians providing health care was reduced, the result was inevitably higher incomes for physicians To drive the incomes back down, the obvious response to simply to INCREASE the number of physicians, allowing the number to fluctuate with demand Friedman recommends that we create this increase by dropping the requirement that physicians must go to medical school or have a license to practice medicine This would break the stranglehold of the AMA and lead to a rapid increase in the number of persons offering health care, sending the average income of health care providers sharply downward as supply would rise to meet demand Friedman argues that the result would actually be a rise in the average quality of heath care, because everyone would then be able to afford health care (unlike now, where millions are deprived of health care completely, driving down the average quality of health care actually being received, even if the ones at the top are enjoying care of high quality)

Privacy Cases

In Texas, the owner/manager of a security company had a strict policy against smoking by his employees. They were not allowed to smoke on company premises, and not even during their unpaid lunch hours. One female employee smoked in her car on her way back from lunch, only to be fired when cigarette smoke was detected on her clothing. She sued the owner for wrongful dismissal, claiming that her firing was the result of an invasion of her privacy and was awarded a settlement by the court In New York City, Michael Thomasson, an employee of Bank of America, was fired from his job as a legal secretary when the bank manager discovered that Michael was working at night as a gay stripper. Mill's definition implies that this firing was the result of an invasion of Thomasson's right to privacy because his second job did not have any apparent harmful effect on his work for the bank (he received good evaluations at the bank)

Self-regulation

In order to make intervention by the government less likely, the advertising industry attempts to regulate itself, through private organizations like the American Association of Advertising Agencies (AAAA). The AAAA, which passed a Code of Ethics in 1924 (modified in 1990) discourages its members from releasing advertising that contains (1) false or misleading content (2) dishonest testimonials (3) misleading price claims (4) unproven scientific claims (5) indecent or racially offensive content. The AAAA is an organization inside the industry, not an official government agency, and it enforces its regulations through informal means, such as threats to expel agencies from this professional organization.

Meritor Savings Bank, FSB, v. Vinson Et. al. Supreme Court of the United States: 477 U.S. 84 (1986) (4)

In sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII, that the District Court's findings were insufficient to dispose of respondent's hostile environment claim, and that the District Court did not err in admitting testimony about the respondent's sexually provocative speech and dress. As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case Accordingly, the judgment of the Court of Appeals reversing the judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this opinion

Health Care Ethics

In the United States, the cost of health care has risen rapidly, with physicians becoming the highest paid professional workers, often enjoying annual incomes of several hundred thousand dollars or more Even though physicians are highly-trained professionals who spend a lot of time and money preparing for their careers, their high incomes have made it impossible for many Americans to afford health care To many, it is immoral for the wealthiest country in the world to permit a situation where millions of its citizens cannot afford to pay for health care, which obviously is a necessary good without which people may have to endure unnecessary pain, loss of bodily functions, and even death

Unwanted attention

In this form of sexual harassment, a person in the workplace or other institution is being subjected to undesired attention of a sexual or amorous nature This attention could be coming from anyone in the institution, including supervisors, co-workers, and others An example of unwanted attention that fits into this category of sexual harassment would be continual pressure to go out on a date or to engage in sexual activities; another example could be frequent, personal or overly familiar remarks that appear to be signs of sexual attraction If the target of the unwanted attention doesn't approve of this behavior, they have a legal duty to inform the harasser that their attention is unwanted, indicating this clearly in words or in some other clear manner If the attention continues after the party has been informed that their attention is unwanted, then the target has a cause of action. In general, the unwanted attention should be aggravating enough to make a reasonable person feel like quitting their job, which is how unwanted attention rises to a form of job discrimination

Quid pro quo ("this for that," or reciprocity)

In this form, a person with power in an institution such as a business owner, supervisor, boss, or teacher attempts to extort sexual favors from someone under their control by offering some work-related punishment or reward Punishments may include a threat to fire an employee unless they agree to have sex with the boss or comply with some request of an amorous nature such as to go out on a date or some other action having sexual connotations An example of a reward might be a raise or a promotion. Because this form of harassment involves work-related punishments or rewards, it can be conducted only by authorities since they are the only ones with the power to enact such punishments and rewards

Reading 11.3: "Job Discrimination and Gay Rights" by John Corvino

John Corvino is opposed to job discrimnation against homosexuals on the grounds that a person's sexual orientation is not relevant to job performance, except in rare cases, e.g., in hiring a peer counselor at a gay and lesbian community center Corvino rejects the view of Michael Levin, who claims that the employer can consider any characteristic relevant when engaging workers. The only traits, according to Corvino, that should be considered are THOSE THAT AFFECT JOB PERFORMANCE Corvino also disputes the view of Colin Powell, former U.S. Secretary of State, who opposed discrimination based on race yet supported the discrimination against homosexuals in the military, defending this inconsistency by saying that the analogy between race and sexual orientation is not valid Powell said that the main difference between the two was that race is a benign, non-behavioral trait while sexual oriention affects behavior (and, presumably, is not benign). But even if sexual orientation is behavioral, it still does not affect job performance. Therefore, it should not, replies Corvino, be the basis of job discrimination

Sexual Harassment Law

Judges have considerable discretion in handling the cases brought before them, and they may not necessarily recognize the categories of sexual harassment described in Lecture 31 Below, however, is an example of an influential court case falling under each of the three categories of sexual harassment as described in this course, using the definitions from the ECU Faculty Manual -Meritor Savings Bank v. Vinson (1986) -Ellison v. Brady (1990) -Rabidue v. Osceola (1986)

Sexual Harassment Continued

Legal categories of sexual harassment: unwanted attention (romantic attention which the target has rejected but continues to the point where the target feels like quitting their job); quid pro quo (threats of punishment (such as firing) or offers of work benefits to extort sexual favors from workers or students); hostile atmosphere (harassment of people based on gender which is bad enough to make a reasonable person feel like quitting) Legal requirements to prove cases in each category. Cases: Lisa Olson (hostile atmosphere in a professional athletes' locker room); Ellison v. Brady (unwanted attention); Vincent v. Meritor (quid pro quo leading to hostile atmosphere); Rabidue v. Osceola (hostile atmosphere)

CASE: Lisa Olson v. The New England Patriots

Lisa Olson was a sports reporter for the Boston Herald, and one of the major athletic teams she covered for this newspaper was the New England Patriots Olson asked the owner of the Patriots, Victor Kiam, if she could admitted into the locker room after football games to interview players Male reporters were permitted to go into the locker room while Olson was required to wait outside because of her gender Olson believed that this constituted gender discrimination, and that having to wait outside for interviews was hindering her ability to get the quotes and storylines needed to write entertaining and competitive sports articles for her newspaper Kiam eventually permitted Olson to go into the locker room. While Olson was attempting to interview the quarterback, three naked athletes surrounded her in what she considered a hostile manner (in her terms, a "mind rape") Olson sued the Patriots for creating a hostile workplace atmosphere for women. She won the case and was awarded compensatory damages

Government regulation

Many agencies in the federal government, including the FDA, FCC, FTC, BATFE, etc., have the power to regulate the advertising of various products. For example, the FDA regulates advertising of food, drugs, and blood. In 2004, the FDA (the Food and Drug Administration) sent a letter to Pfizer, the giant pharmaceutical company, complaining about their TV ad for Viagra, a very popular impotence drug. The FDA accused Pfizer of exaggerating the benefits of Viagra, falsely implying that it would restore a youthful interest in sex. When this letter reached Pfizer, the TV commercial soon disappeared from the air

Environmental Ethics

Many business products cause pollution and other negative impacts on the environment. This may occur when these products are being manufactured, transported, or consumed Coal, for example, is often mined in ways that are very destructive to the environment, as strip mining and mountaintop removal destroy the forests, alter the landscape, and create hazards for local river systems. At the same time, the giant trucks that transport coal cause a lot of damage to roads needed for public transportation Once the coal is sold and burned as fuel by the consumers, this fossil fuel produces HYDROCARBONS, the leading cause of global warming. Therefore, coal is an environmental hazard all along the chain from production to consumption

Government Solutions to High Health Care Costs

Most countries (including our closest peers, Canada and Great Britain) now have state-sponsored health care, meaning that all health care for citizens in these countries is a free service provided by the state, paid for out of public funds In most cases, these public funds have been raised by the use of taxation, so citizens are actually paying for their own health care, only indirectly However, when the government is the only payer, it has the power to lower health care costs to any level simply by refusing to pay any more than it believes the health care is worth. Physicians, whose only source of income is payments from the government, would have no choice but to accept whatever the government is willing to pay them (putting them, in this regard, in the same category as other public employees such as policemen and schoolteachers, whose incomes have not escalated). However, in the United States, instead of providing universal health care, we have elected to turn to the PPACA (Patient Protection and Affordable Care Act), informally known as Obamacare, where everyone is forced to have some form of health insurance. For those who do not qualify for Medicare or have insurance through their employer, there is a fine unless they purchase their own private health care. If a person on a limited income is required to buy private health coverage, the federal government will pay a portion of their premiums. Predictably, Obamacare has not led to lowered health care costs, but has more so caused the cost of health care insurance to go even higher

Negative products

Negative products are products like alcohol, tobacco, firearms, and explosives, which, although legal for sale, have negative social consequences

(Morally Controversial) Arguments given against Affirmative Action as a social policy

One argument is that the preferences given to protected candidates in hiring and admission are themselves DISCRIMINATORY and unfair to those who are not covered by affirmative action programs—present-day citizens who were not even alive during the period when the discrimination against blacks and others was at its worst. According to this argument, innocent people who have not discriminated against anyone are being forced to bear the burden of correcting a past injustice for which they are not in any way responsible Another argument against affirmative action is that it has a tendency to cause a decrease in competence in American institutions and professions When positions are set aside for minority candidates, or when minority candidates are given preference in hiring, there is a danger that even more qualified candidates are being passed over for these positions Any time the most qualified person for a position is not hired (even if this is for a reason that can be justified on other grounds), there is a loss in competence, and if this occurs frequently, over time, there could be a noticeable loss of competence in the staff of the institution

Health Maintenance Organizations

One solution to the unacceptably high cost of health care was to try to make the medical industry more EFFICIENT Health Maintenance Organizations (HMOs) were established to cut down on the cost of delivering health care. Instead of each physician operating his or her independent office, large groups of physicians were united in an HMO, enabling them to share office space, equipment, staff, and utility costs The physicians were also placed under supervision and instructed to cut costs by cutting down on diagnosis time, denying care to all but the most desperate patients, and by prescribing the cheapest medicines. Physicians who saved the most were awarded bonuses by the HMO. However, none of these cost-saving measures resulted in any reduction in the fees charged to the patients who used the services of the HMO; instead, predictably, all the savings were turned into higher profits for the HMO. One health care CEO, Jeffrey Barbakow, for example, was found to be earning $22,785 an hour, his reward for becoming more efficient, all at the expense of the patients

Work and reproductive rights

PDA (Pregnancy Discrimination Act) prohibits employers from discriminating against women because they are or may become pregnant Johnson Controls, a battery manufacturer, fired women because of fear the lead used in making batteries might cause birth defects The women sued for gender discrimination, and won. Only two causes are accepted by the Courts for refusing to hire women: (1) women cannot meet a BFOQ (or bona fide occupational qualification for the type of work available) or (2) being forced to hire women would drive the business into bankruptcy Neither of the reasons applied in the Johnson Controls case, where the concern was merely the health of unborn carried by female workers

Parent definition of Privacy

Parent defines privacy as "the right not to have personal, undocumented information about yourself possessed by others." But this definition is too limited, making privacy a condition that covers only the control of INFORMATION Most people believe that the right to privacy also covers the right to engage in certain forms of BEHAVIOR.

Landmark court case: Luedtke v. Nabors Alaska Drilling, Inc. (1989)

Paul Luedtke was a driller working for Nabors on an oil rig on the North Slope in Alaska. When his supervisors suspected Luedtke of using alcohol and drugs but could not obtain any good evidence, they asked Luedtke to take his annual physical on his next shore leave Without Luedtke's permission, Nabors removed a urine sample from his medical kit and tested it for drugs When Luedtke turned up positive for marijuana, Nabors ordered him to take a drug test within 15 days. Luedtke refused, claiming that the intrusion into his medical kit, which was intended only for the evaluation of his health, was an INVASION OF PRIVACY. Luedtke was fired for refusing to take the drug test, and then sued Nabors for invading his privacy. The Alaska court agreed that Luedtke's privacy had been invaded, but sided with the big oil company on the grounds that Luedtke's right to privacy was less important than the right to safety of the other workers, when these two conflicting rights were weighed and balanced

Speciesists

People who refuse to accept the equality of the other animals and who regard animals as inferior to humans

Consumer regulation

Potentially, this is the most potent form of regulation of advertising for the obvious reason that no company would spend much on ads that were displeasing to the customers, instigating them to boycott the products being promoted in the ads. One libertarian, Phillip Nelson, opposes the other forms of regulations and argues that all the regulation of ads should be by the consumers

The Reagan rule

President Ronald Reagan believed that no candidates should get any positive consideration or preference because their race or gender, or other factors. Instead, Reagan believed that affirmative action required merely that our society should make discrimination illegal and open all positions to everyone. If someone could prove that they were the most qualified for a position but that they were denied or passed over for this position because of their race or gender, they could sue to recover damages for discrimination.

Racial Targeting

Racial targeting, where advertisers concentrate solely on attempts to sell their product to customers from a single racial minority, is forbidden by federal law when the product being promoted is classified as negative By way of contrast, products such as hair straighteners like UltraSheen Permanent Cream are not classified as negative products, and so may be (in fact, usually are) racially targeted One negative alcohol product, the malt liquor Powermaster, was racially targeted to black males so successfully that black males were drinking almost 30% of this malt liquor (very high, considering that black males make up only about 6% of the population) The brewer of Powermaster, G. Heileman, was forced to diversity their advertising campaign to prevent this vulnerable population from receiving more than its fair share of advertising for a negative product

Whistle-blowing

Refers to situations where an employee publicly reveals hidden dangers inside their company that threaten the welfare of the public. For example, a worker at a slaughterhouse may inform the public (for example, by contacting the local newspaper or perhaps by calling the health department) that his company is secretly dumping its waste into the local rivers. Potter v. Village Bank of New Jersey (Primary Case)

Sexual harassment

Sexual harassment is a TORT or civil infraction that is deemed a form of job discrimination when it occurs inside the work setting or other organized settings such as colleges, news organizations, and churches Because sexual harassment is a tort and not a crime, those who believe they have been sexually harassed must bring their complaint to civil court if they wish to receive compensation There are 3 forms of sexual harassment recognized by the courts 1-Quid pro quo ("this for that," or reciprocity) 2-Hostile atmosphere (or hostile environment) 3-Unwanted attention

The 9 yards rule

Sometimes, employers are so committed to finding a more diversified work force that they will offer positions to unqualified candidates. The protected candidate may get the position if they are anywhere "within nine yards" of being qualified, even when there are fully qualified candidates. In this case, diversity is given more priority than having a competent work force. This use of affirmative action is not officially sanctioned.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act of 1978 made it illegal to discriminate against working women because they were or might become pregnant There were special circumstances, however, that led a company called Johnson Controls (in Bennington, Vermont) to discriminate against female workers This company made automobile batteries for Sears and other companies, and the lead used in its batteries was a serious health hazard to unborn children. Children exposed to lead in the fetal stages can be born with a wide range of mental and physical defects, including environmental retardation To protect itself from potential lawsuits from female workers whose unborn children could be exposed to lead if they became pregnant while at work, and also out of concern for the welfare of the unborn, Johnson Controls instituted a strict policy of not hiring any women at its battery-making plant. It continued this policy until 1977, at which time it began to fear that it might be sued for gender discrimination

Meritor Savings Bank v. Vinson (1986)

The US Supreme Court gave guidelines for suing an institution for sexual harassment by its employees This can be considered a quid pro quo case, where a bank supervisor (Taylor) threatened to fire a female teller, Mechelle Vinson, unless she submitted to his sexual advances The courts, however, have generally treated this case as an example of hostile atmosphere, reasoning that Taylor's repeated demands for sex and threats to fire Vinson created a hostile work environment Fearful of losing her position, Vinson had sex with this supervisor on 40-50 occasions in various locations inside the bank. Later, when Vinson was fired for excessive use of sick leave, she sued the bank for sexual harassment Although this is a standard quid pro quo case, where a person in authority inside an institution uses their power as an agent of the institution to extract sex from persons under their supervision, using either threats or rewards, the case became noted for tackling the issue of whether an employee can sue the institution itself for sexual harassment by its agents In the meaning used in this case, an "agent" of an institution (such as a bank) is a supervisor in the institution with power over some other workers, such as the power to grant raises or promotions, or the power of dismissal. In this case, Taylor qualifies an agent. The USSC ruled that for a successful case against the whole institution (where a much more lucrative settlement is possible), the person who is claiming to be harassed must prove that the harassment was by an agent of the institution and that the institution itself somehow contributed to the harassment Examples of such contributions could include knowledge of the harassment, with no attempt being made to prevent it from recurring, and the creation or toleration of an atmosphere at the institution that made cases of sexual harassment more likely to occur. But these are only guidelines, and in particular cases, it might be possible to win a judgment against the institution even if all of these factors are not present

Cap and Trade

The cap and trade program makes cutting pollution more EFFICIENT Argument: Suppose the EPA has printed an ERC for one pound of hydrocarbons worth $1,000 on the stock market. Suppose that Corporation A and Corporation B are both at the present cap for hydrocarbons. Therefore, to qualify for this ERC, each corporation must reduce its emission of hydrocarbons by one pound To reduce its hydrocarbon output by one pound, Corporation A would have to pay a chimneysweep $800 to clean its smokestack. But suppose that Corporation B would have to pay the same chimneysweep $1,200 to clean its smokestack (maybe it's a tighter fit or has gone a much longer time without being cleaned) Corporation A can save $200 by having its smokestack cleaned and qualifying for the ERC, whereas Corporation B would lose $200 if it attempted to qualify for the same ERC Therefore, Corporation A would be the one to reduce the pollution. Since Corporation A can also cut the pollution more efficiently (the same reduction in pollution at a cheaper price), the cap and trade policy can be seen to encourage reduction in pollution by those companies who can do this more efficiently

Proportionality

The first step in hiring based on proportionality is to calculate the demographics of the hiring pool, determining how many people from each group are in the pool, based on their race and/or gender. Suppose the hiring pool has 50% black population, 40% white, and 10% others (Hispanic, Asian, etc.). Then, if 100 workers are to be hired, the hires should include 50 black workers, 40 white workers, and 10 others. The most competent will be hired from each group.

Work & Reproduction

The massive influx of women into the American workforce beginning in the 1960s made it necessary for society to enact laws to accommodate and protect the rights of women who became pregnant while trying to hold down a job - Pregnancy Discrimination Act

Automatic tie-breakers

The official position of the Equal Employment Opportunity Commission (EEOC), the agency created by Congress to enforce affirmative action. In many cases, especially for competitive positions, employers make up a short list of the candidates who, based on the employer's own criteria, are most qualified for the position. If any protected candidates make a short list, the job must be offered to one of them first: the tie is automatically broken in their favor. This policy is intended to increase diversity without any loss of qualifications.

Rabidue v. Osceola Refining Company (Sixth Circuit Court of Appeals, 1986)

The plaintiff was a capable, independent, ambitious, aggressive, intractable, and opinionated individual. The plaintiff's supervisors and co-employees with whom plaintiff interacted almost uniformly found her to be an abrasive, rude, antagonistic, extremely willful, uncooperative, and irascible personality. She consistently argued with co-workers and company customers in defiance of supervisory direction and jeopardized Osceola's business relationships with major oil companies. She disregarded supervisory instruction and company policy whenever such direction conflicted with her personal reasoning and conclusions. In sum, the plaintiff was a troublesome employee The plaintiff's charged sexual harassment arose primarily as a result of her unfortunate acrimonious working relationship with Douglas Henry (Henry). Henry was a supervisor of the company's keypunch and computer section Occasionally, the plaintiff's duties required coordination with Henry's department and personnel, although Henry exercised no supervisory authority over the plaintiff nor the plaintiff over him. Henry was an extremely vulgar and crude individual who customarily made obscene comments about women generally, and on occasion, directed such obscenities to the plaintiff Management was aware of Henry's vulgarity but had been unsuccessful in curbing his offensive personality traits during the time encompassed by this controversy. The plaintiff and Henry, on the occasions when their duties exposed them to each other, were constantly in a confrontational posture The plaintiff, as well as other female employees, were annoyed by Henry's vulgarity. In addition to Henry's obscenities, other male employees had from time to time displayed pictures of nude or scantily clad women in their offices and/or work areas, to which the plaintiff and other women employees were exposed For seven years plaintiff worked at Osceola as the sole woman in a salaried management position. In common work areas plaintiff and other female employees were exposed daily to displays of nude or partially clad women belonging to a number of male employees at Osceola. One poster, which remained on the wall for eight years, showed a prone woman who had a golf ball on her breasts with a man standing over her, golf club in hand, yelling "Fore." And one desk plaque declared "Even male chauvinist pigs need love". In addition, Computer Division Supervisor Doug Henry regularly spewed anti-female obscenity. Henry routinely referred to women as "whores," "c*nt," "p*ssy," and "tit*s"...Of plaintiff, Henry specifically remarked "All that bitch needs is a good lay" and called her "fat a*ss." Plaintiff arranged at least one meeting of female employees to discuss Henry and repeatedly filed written complaints on behalf of herself and other female employees who feared losing their jobs if they complained directly. Osceola Vice President Charles Muetzel stated he knew that employees were "greatly disturbed" by Henry's language. However, because Osceola needed Henry's computer expertise, Muetzel did not reprimand or fire Henry. In response to subsequent complaints about Henry, a later supervisory, Charles Shoemaker, testified that he gave Henry "a little fatherly advice" about Henry's prospects if he learned to become "an executive type person To prove a claim of abusive work environment premised upon sexual harassment, a plaintiff must demonstrate that she would not have been the object of harassment but for her sex. It is of significance to note that instances of complained sexual conduct that prove equally offensive to male and female workers would not support a Title VII sexual harassment charge because both men and women were accorded like treatment Sexually hostile or intimidating environments are characterized by multiple and varied combinations and frequencies of offensive exposures which require the plaintiff to demonstrate that injury resulted not from a single or isolated offensive incident, comment, or conduct, but from incidents, comments, or conduct which occurred with some frequency. To accord appropriate protection to both plaintiffs and defendants in a hostile and/or abusive work environment sexual harassment case, the trier of fact, when judging the totality of the circumstances impacting upon the asserted abusive and hostile environment must adopt the perspective of a reasonable person's reaction to a similar environment under essentially like or similar circumstances. Thus, in the absence of conduct which would interfere with the hypothetical reasonable individual's work performance and affect seriously the psychological well-being of that reasonable person under like circumstances, a plaintiff may not prevail. The plaintiff must also demonstrate that she was actually offended by the defendant's conduct and that she suffered some degree of injury as a result of the abusive and hostile work environment. The trier of fact should also consider such objective and subjective factors as the nature of the alleged harassment, the background and experience of the plaintiff, her co-workers and supervisors, the totality of the physical environment of the workplace both before and after the plaintiff's introduction into its environs, coupled with the reasonable expectation of the plaintiff upon voluntarily entering that environment. As Judge Newblatt aptly stated in his opinion in the district court -Indeed, it cannot seriously be disputed that in some work environments, humor and language are rough hewn and vulgar. Sexual jokes, sexual conversation, and girlie magazines may abound. Title VII was not meant to—or can—change this. It must never be forgotten that Title VII is the federal court mainstay in the struggle for equal employment opportunity for the female workers of America. But it is quite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers Henry's obscenities, although annoying, were not so startling as to have affected seriously the psyches of the plaintiff or other female employees. The evidence did not demonstrate that this single employee's vulgarity substantially affected the totality of the workplace. The sexually oriented poster displays had a de minimus effect on the plaintiff's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other places. In sum, Henry's vulgar language, coupled with the sexually oriented posters, did not result in a working environment that could be considered intimidating, hostile, or offensive. It necessarily follows that the plaintiff failed to sustain her burden of proof that she was the victim of a Title VII sexual harassment violation

Meritor Savings Bank, FSB, v. Vinson Et. al. Supreme Court of the United States: 477 U.S. 84 (1986) (1)

This case presents important questions concerning claims of workplace "sexual harassment" brought under Title VII of the Civil Rights Act of 1964. In 1974, respondent Mechelle Vinson ... started as a teller-trainee, and thereafter was promoted to teller, head teller, and assistant branch manager. She worked at the same branch for four years, and it is undisputed that her advancement there was based on merit alone. In September 1978, respondent notified her superior, Sidney Taylor that she was taking sick leave for an indefinite period. On November 1, 1978, the bank discharged her for excessive use of sick leave Respondent brought this action against Taylor and the bank, claiming that during her four years at the bank, she had "constantly been subjected to sexual harassment" by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney's fees At the 11-day bench trial, the parties presented conflicting testimony about Taylor's behavior during respondent's employment. Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions. These activities ceased after 1977, respondent stated, when she started having a steady boyfriend Respondent also testified that Taylor touched and fondled other women employees of the bank, and she attempted to call witnesses to support this charge. But while some supporting testimony apparently was admitted without objection, the District Court did not allow her "to present wholesale evidence of a pattern and practice relating to sexual advances to other employees in her case in chief, but advised her that she might well be able to present such evidence in rebuttal to the defendants' cases." Respondent did not offer such evidence in rebuttal. Finally, respondent testified that because she was afraid of Taylor she never reported his advances to any of his supervisors and never attempted to use the bank's complaint procedure Taylor denied respondent's allegations of sexual activity, testifying that he never fondled her, never made suggestive remarks to her, never engaged in sexual intercourse with her, and never asked her to do so. He contended instead that respondent made her accusations in response to a business-related dispute. The bank also denied respondent's allegations and asserted that any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval The District Court denied relief and ... ultimately found that respondent "was not the victim of sexual harassment and was not the victim of sexual discrimination" while employed at the bank. Although it concluded that respondent had not proved a violation of Title VII, the District Court nevertheless went on to address the bank's liability. After noting the bank's express policy against discrimination, and finding that neither respondent nor any other employee had ever lodged a complaint about sexual harassment by Taylor, the Court ultimately concluded that "the bank was without notice and cannot be held liable for the alleged actions of Taylor." The Court of Appeals for the District of Columbia Circuit reversed ....The court stated that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment .... Believing that "Vinson's grievance was clearly of the [hostile environment] type," and that the District Court had not considered whether a violation of this type had occurred, the court concluded that a remand was necessary. The court further concluded that the District Court's findings that any sexual relationship between respondent and Taylor "was a voluntary one" did not obviate the need for a remand As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known about the misconduct. The Court relied chiefly on Title VII's definition of "employer" to include "any agent of such a person," as well as on the EEOC Guidelines. The court held that a supervisor is an "agent" of his employer for Title VII purposes, even if he lacks authority to hire, fire, or promote, since "the mere existence—or even the appearance—of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees." ... In accordance with the foregoing, the Court of Appeals reversed the judgment of the District Court and remanded the case for further proceedings

The primary body of the circuit opinion

The primary body of the circuit opinion is written by Circuit Court Judge Krupansky, the prevailing judge who issued the opinion against the plaintiff Rabidue. The bracketed portion of the case is from the Circuit Court Judge Keith, a dissenting judge who was sympathetic to Rabidue's complaint and did not support the majority verdict of the court; his comments have been included merely to clarify Rabidue's issues with her work environment. Certain sections of this case have been abridged

Affirmative Action, continued

The strongest moral argument for affirmative action is based on the idea of JUSTICE, appealing to the principle that when acts of injustice are uncovered, there is a moral obligation to repair or correct the lingering effects of this injustice For example, a thief who admits that their action was unjust should return the stolen money. So, in this sense, affirmative action is an attempt to atone for the past mistreatment of certain groups, and, in the process, to create a diverse and respectful society where prejudice and discrimination based on race and gender are no longer common Affirmative action is intended to correct our history of past injustices against groups such as Native Americans and black Americans by using a system of preferences in order to create a MORE FAIR society where everyone has an equal chance to succeed in our professions and institutions But affirmative action is morally controversial, and there are many arguments given against its use as a social policy

Constitutional-based arguments to oppose certain forms of drug testing

There are some constitutional-based arguments to oppose certain forms of drug testing. Monitored urine exams have sometimes been characterized as an invasion of personal privacy, or as an affront to modesty, with one judge describing monitored urine exams (where a supervisor watches the worker urinate to ensure the integrity of the sample) as "humiliating and degrading." -Blanket drug testing

Hostile atmosphere (or hostile environment)

This form of sexual harassment contrasts with the other two forms in that the presence of a hostile atmosphere is not to obtain sex or sexual favors but to drive women (or men) out of the workplace or other institution Like unwanted attention, the hostile atmosphere, if there is a legitimate cause of action, must be bad enough to make a reasonable person feel like quitting their job Consequently, there usually must be repeated acts of hostility before there can be a strong case Examples of hostility could include disparaging remarks about one gender that question the ability of persons from that gender to perform their jobs, sexist comments and posters (whether or not directed specifically toward the person who raises the complaint), and a refusal to accommodate the special needs of women (or men) The recognition of this form of sexual harassment is associated with Catharine MacKinnon, a professor at Harvard Law School, who has encouraged the courts to take it seriously

Strict Liability

This is the theory where dealers have the greatest responsibility On this theory, dealers are strictly (completely) reliable for all injuries caused by defects in their products The only way for the dealer to avoid responsibility is to prove that the customer misused the product or did not follow the safety instructions

International Union, UAW v. Johnson Controls

This mass firing of women led to a civil lawsuit, International Union, UAW v. Johnson Controls, which eventually reached the United States Supreme Court in 1991 The Court found Johnson Controls liable for gender discrimination against women and chastised the company for attempting to interfere in the private reproductive rights of women In the ruling, the Court accepted only 2 legal justifications for refusing to hire women 1-Bona fide occupational qualification (BFOQ) 2-Business necessity Neither of these justifications applied in the Johnson Controls case: women could do the work (i.e., make batteries) and the occasional lawsuit Johnson Controls might have to fight, and possibly lose, was not considered by the Court to be likely to drive them into bankruptcy, because their business of making batteries was generating a lot of revenue

Ethics of Product Safety

Three (3) theories of responsibility for product safety: (1) caveat emptor (no responsibility), due care (avoid negligence), and strict liability (full responsibility, unless product is misused by the customer. Cases: McDonald's coffee, Resistol glue, rat poison, Ford LTD. Know these cases and be able to apply the three theories of responsibility

Meritor Savings Bank, FSB, v. Vinson Et. al. Supreme Court of the United States: 477 U.S. 84 (1986) (2)

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges for employment, because of such individual's race, color, religion, sex, or national origin." Respondent argues, and the Court of Appeals held, that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex First, the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment Second, in 1980 the EEOC issued Guidelines specifying that "sexual harassment," as there defined, is a form of sex discrimination prohibited by Title VII In defining "sexual harassment," the Guidelines first describe the kinds of work-place conduct that may be actionable under Title VII. These include "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited "sexual harassment," whether or not it is direct-ly linked to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." In concluding that so-called "hostile environment" (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment. Respondent's allegations in this case—which include not only pervasive harassment but also criminal conduct of the most serious nature—are plainly sufficient to state a claim for "hostile environment" sexual harassment The fact that sex-related conduct was "voluntary," in the sense that complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntar

Tom Regan (Animal Rights)

Tom Regan, sometimes called the intellectual leader of the international animal rights movement -Another philosophy professor who considers animals to have the same rights as humans Regan advocates 3 radical changes in our treatment of animals 1. An immediate end to all hunting, fishing, and trapping of wild animals 2. The closure of all animal agriculture where animals are raised for human use 3. An end to all painful research on animals where the animal has no chance to benefit Beyond the realm of academia, there are also animal rights advocates who aggressively interfere with those who are harming animals for profit or other reasons For example, the leader of the Sea Shepherd, Captain Paul Watson, attempts to protect seals by making it harder for sealers to reach the sea herds, sometimes by scuttling a vessel in the route being used to access and bludgeon the baby seals (whose fur is prized more because it is fresher and less mottled than older seals) Captain Watson also may threaten to disable whaling ships if they refuse to stop whaling and return to port Activists argue that the law is more designed to protect the commercial interests and that if we always respected the law, we would eventually (and not to far into the future) be living in a world where all the whales and other seal mammals have been driven into extinction by human greed, with the full cooperation of legislators who side with the profiteers

Gay Rights at Work

Unlike categories which receive job protection, one category which does not always receive legal protection is sexual orientation. In some states, including North Carolina, it is still legal for employers to discriminate against homosexuals, and a person could be fired simply for exposing their orientation Traditionally, in the U.S., homosexuals—both male and female (lesbians)—have been subjected to a wide range of social discrimination. For example, homosexuals were often rejected by their own families, something which obviously never was a danger in the cases of race and gender; at least these groups could expect to be supported from within their own families. But homosexuals also received a lot of bad reactions from society at large. They were barred from military service, excluded from the supervision of children (e.g. by the Boy Scouts), prohibited from donating blood (Red Cross), classified as insane or mentally ill by the American Psychiatric Association (APA), and subjected to a harsh condemnation by the Catholic Church and other prominent U.S. denominations, described in the Bible as abominable and vile, deserving death and unfit to enter Heaven. Homosexual relationships were considered worthless and not entitled to any form of social recognition; homosexual intercourse was considered unnatural and was often punished by long prison sentences; and the homosexual lifestyle was considered so despicable that the very mention of its existence was considered inappropriate in front of schoolchildren. Society clearly intended for homosexuals to remain hidden, if they expected to receive any degree of toleration

Rabidue v. Osceola (1986)

Vivienne Rabidue sues the oil refinery where she works for hostile atmosphere sexual harassment. A female, Vivienne Rabidue, sued the Osceola Refinery Company for permitting an environment that she alleged to create a HOSTILE ATMOSPHERE for the small number of women working at their refinery Her complaint centered on some vulgar language directed toward her personally by a man with whom she occasionally interacted in the refinery's computer section as well as a large number of sexist cartoons and photos of naked women taped up around the refinery This case went to 6th Circuit Court, and Rabidue did not get much sympathy from the judge (Krupansky) writing the majority opinion. Primarily, Krupansky ruled against Rabidue based on the fact that she herself was a hostile person, raising the possibility that the hostility she had encountered at the refinery was a response to her as an individual and not to her gender Krupansky also noted that the conditions she described at the refinery (vulgar language and pictures from men's magazines) were more a reflection of the conditions normally to be expected at a blue-collar work station, rather any sign of hostility toward women Krupansky further noted that the conditions Rabidue described have to a large extent permeated practically all of society, meaning that vulgarity must endured by everyone with no entitlement to compensation from those who perpetrate this atmosphere

ICI, Americas, v. Banks (1994)

When the Boys Club in New York City began to experience trouble from an infestation of rats, they asked a volunteer at the club to take care of the problem. The volunteer used Talon-G, a slow-acting but potent rat poison manufactured by ICI, to thin down the rats, but, contrary to the instructions on the rat poison container, he left a few of the unused poison pellets in an unmarked cardboard box standing in an unlocked closet at the Boys Club. Marlo Banks, aged nine, a boy who frequented the Boys Club, mistook the pellets for jelly beans and ate several. A few days later, Banks became sick and died. The father of Marlo Banks sued ICI for putting out a poison product that looked like a familiar form of candy without doing something to make the poison safer for children. The plaintiff argued that ICI should have added a taste fouler to their product (so children would spit it out before digesting it) or an emetic (so the child would vomit up the poison before it could take effect), either of which would have left the poison just as effective in killing rats while making it safe for children. The judge ruled, however, that the law did not require ICI to take either of these measures, so they were legally blameless in the death of Marlo Banks

Product Safety

When we purchase a product, we expect it to be safe, or at least as safe as is reasonable given the type of product. But how much responsibility do manufacturers and dealers have to their customers for injuries or illnesses caused by their products There are 3 legal theories about the degree of responsibility 1-Caveat emptor (let the buyer beware) 2-Due care 3-Strict liability

Business and animal rights

William Baxter, animals have no rights, only humans. Animal rights advocates: Tom Regan (three moratoriums to stop abuse of animals), Peter Singer (disapproval of "speciesism," which he compares to racism), Paul Watson (direct action)

Privacy

a condition where a person is free from intrusion or interference by others, hence able to exercise full discretion over their actions and choices While there is no right to privacy granted—or even mentioned—in the U.S. Constitution, most judges do accept a right to privacy in matters such as sex, reproduction, and health When some area is recognized as legally private, then the rest of society, including the government, must leave the control of this area to the individual. For example, if sexual activity is private, then each individual should be permitted to act independently in sexual matters, choosing their sex partners based on their own sexual preferences, as well as deciding whether or not to use contraception, etc., all without requiring social approval But NO area is absolutely private and there may be some justifications for interference by the government, for example, to make sure that no one is coerced into participating or to ensure that everyone involved is old enough to give legal consent to such activities

Privacy (Harvard Law Review, Warren and Brandeis)

defined the right to privacy as "the right to be left alone." But this classic definition implies that privacy is something that can be enjoyed only in seclusion, perhaps only in one's own home or living space, and does not seem broad enough to encompass the total realm of privacy In particular, the definition does not seem revelant to privacy at work, primarily because it does not seem reasonable to ask to "be left alone" at work when one is being paid to engage in tasks assigned by the supervisor. A better conception of privacy is provided by John Stuart Mill

Affirmative action

sometimes called positive or reverse discrimination, consists of steps or legally-enforced policies intended to offset the lingering effects of past discrimination in a society or to create diversity in the society's professions and institutions In the U.S., affirmative action is required by the Civil Rights Act of 1964 and other legislation The groups or categories who qualify for affirmative action include blacks, Hispanics, Asians, Native Americans and other non-white groups, as well as all women of any ethnicity Protection is also extended to people from minority religions or political parties, recent immigrants, the disabled, and to people over forty years of age Protected candidates, or people who qualify for affirmative action, are entitled to preference over non-protected candidates in hiring, retention, and promotion; admission to colleges and scholarships; and in the distribution of federal grants and contracts But there are conflicting opinions or policies about how much protection should be given to protected candidates, those who are legally entitled to affirmative action. There are five (5) opinions that have received some support 1-The Reagan rule 2-Automatic tie-breakers 3-The 9 yards rule 4-Hypothetical competence (Dorit Bar On) 5-Proportionality