BLAW Chapter 21.1

Seniority system

A defense that apparent discrimination is a result of past hiring practices and will eventually correct itself.

Business necessity

A defense to charges of illegal discriminations that the discrimination was required for legitimate job-related reasons.

BFOQ

A defense to illegal discrimination that the discrimination should be allowed so that the business may operate normally and within bounds of societal expectations. Race is not allowed in this defense.

6. The primary law dealing with disability discrimination is the:

ADA

Bail Bonds Inc. (BBI) advertises for a bilingual receptionist (Spanish and English) because 60% of the people who utilize their services speak only Spanish. Lisa applies for the job and is given an oral and written Spanish test. She fails both and is not hired for the position. She intends to sue BBI for employment discrimination. Who is likely to prevail in court?

BBI will prevail if it can demonstrate that written and spoken Spanish is necessary for job performance.

The _____ is the federal agency that monitors compliance with Title VII.

EEOC

Disparate-treatment discrimination

Intentional discrimination against a class of employees or potential employees based on a trait that is protected under federal law.

For many years, the University System of Georgia (USG) practiced discriminatory hiring practices to limit the number of black employees in administrative and faculty positions. Since 1980, the University has utilized an Affirmative Action Program to remedy the past discrimination. Currently, the USG has reached a level where the number of blacks in administrative and faculty positions mirror that of the population in Georgia. What should the USG do now that they have reached the goal of their Affirmative Action Program?

It should change or eliminate the program as it has accomplished its goals.

Marie, an employee of Nickel Tool Company, files a sexual-harassment suit against Owen, her supervisor. Marie wins. Nickel may also be liable if it had effective harassment policies and complaint procedures, and:

Marie followed them

Under the Americans with Disabilities Act of 1990, a person with a physical impairment that "substantially limits" everyday activities is disabled.

True

Min applies for a job as a receptionist at an accounting firm. If she is denied a job because she is of Asian origin, she may be a victim of:

a. disparate-treatment discrimination.

Eastminster Presbyterian Church has an opening for a new head pastor. Mohammed, who is a Muslim, applies for the job. The church declines to hire him and continues to look for other applicants. If Mohammed files a claim of illegal discrimination against the church, the church:

c. may assert a bona fide occupational qualification (BFOQ) defense.

Melanie and Beau both work in comparable jobs at Technology Impact, Inc. Melanie is paid 15 percent less than Beau. Which of the following is not a legitimate defense to this pay inequality?

d. The company pays Melanie less, because she has a husband who is a highly successful businessperson.

Julio lives in an area with a high percentage of Hispanic workers. Many of these workers are legal immigrants who have relatively little college training. If, when Julio applies for his job, he is given an examination designed for a college graduate, and if he and most Hispanic applicants fail to pass the test, the employer:

d. might be engaged in disparate-impact discrimination.

Rhonda is not hired for her dream position and believes that she is the victim of gender discrimination. She is angry and wants to file a lawsuit immediately in the closest courthouse she can find. Rhonda:

d. must first file a complaint with the EEOC.

Melissa works as a computer data-entry operator at VeraSign. Melissa informs VeraSign that she was just diagnosed with carpal tunnel syndrome, which causes pain in her wrists, rendering her unable to use a keyboard. Melissa requests as an accommodation that VeraSign hire a data-entry employee to enter the information on her behalf. VeraSign refuses to do so. VeraSign has:

d. not violated the ADA, because the requested accommodation is an undue hardship on the employer.

9. One of the possible legal challenges to affirmative action programs is that they violate the _______ clause of the ______ Amendment. Because this amendment is at play, any affirmative action program that uses race or ethnicity as a basis for decision making is reviewed by the courts using _____ scrutiny.

equal protection; Fourteenth; strict

10. Because discrimination law is primarily federal, states are not allowed to pass laws that ban affirmative action or protect classes other than those in the federal laws.

false

6. Title VII originally required all employers to implement affirmative action programs if they had a record of discrimination.

false

8. Unlike Title VII, the ADA does not require the plaintiff to first file with the EEOC.

false

9. An employer cannot discriminate against a disabled person but can refuse to hire a caretaker of a disabled person.

false

3. Hostile work environment is what type of discrimination prohibited by Title VII?

gender

7. Affirmative action programs _____ than Title VII by attempting to _________ past discrimination.

go further; make up for

5. Hostile work environment __ created when the working environment becomes abusive.

is

12. Why? Sexual harassment ______ occur with members of the same sex.

may

5. Sometimes employers discover evidence of employee _____ after someone has sued them for discrimination. Employers may try to use this evidence to completely _____ liability for the wrongful discrimination. While they cannot eliminate liability with this information, they may be able to _____ the amount of damages they might have to pay.

misconduct; avoid; limit

Title VII of the Civil Rights Act of 1964:

neither requires nor prohibits affirmative action.

5. If the employer gives a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff then can show that the reason given is not the real reason but is a ________

pretext

9. What must a supervisor do when informed of sexual harassment?

prevent and promptly correct any sexually harassing behavior

In order to show the ____ case of discrimination under Title VII, the plaintiff must show membership in a _______ class, application and _______ for the job in question, _______ by the employer and an inference of discrimination, such as the hiring of a person not in the same protected class or continuation of the search.

prima facia, protected, qualification, rejection

Employers are not allowed to discriminate based on certain protected traits. Employees or potential employees who share those traits are part of a ______ class.

protected

3. To establish the prima facie case of age discrimination, the plaintiff must show membership in a ____ class, meaning the plaintiff is at least ___ years old. In addition, the plaintiff must show _______ the position and that age was ____ cause of the adverse employment action.

protected; 40; qualification for; "but for"

2. Title VII prohibits discrimination in employment based on:

race, color, religion, national origin, gender

11. The ADA requires that employers ____ accommodate disabilities unless it will create a(n) ______. In addition, employers are required to modify their _____ for applications.

reasonably; undue hardship; processes

4. An employer may want to promote from within based on performance and time in position. For those employers who used to discriminate, this ____ system would be a valid defense to charges of discrimination so long as discrimination is not still occurring at the entry level.

seniority

In addition to Title VII, victims of racial discrimination may also have a cause of action under

42 U.S.C. Section 1981

Sexual Harassment Ingrid Reeves was a sales representative at C.H. Robinson Worldwide, Inc. (CHRW). The only woman working in her part of the office, sexually offensive language permeated the work environment nearly every day. Sexually explicit radio programming was also played on a daily basis and Reeves was once exposed to a pornographic image of a woman on a co-worker's computer. Reeves complained to co-workers and her supervisor on several occasions that the language was offensive and made it difficult for her to work, but the environment did not change. Reeves eventually filed a complaint against CHRW alleging that the use of sexually offensive language and commentary created a hostile work environment in violation of Title VII.

...

WHAT IF THE FACTS WERE DIFFERENT? Assume that CHRW had anti-harassment policies and reporting procedures designed to detect and prevent sexual harassment. When CHRW supervisors learned of the sexually offensive language permeating the work environment, the behavior was immediately halted and the individuals responsible for the language were punished. Supervisors also offered to transfer her to another location in the company and not work with the offenders again. Reeves did not report the inappropriate behavior, declined the transfer, and sued CHRW anyway.

...

Title VII applies to employers with at least how many employees?

15

1. For the ADEA to apply to an employer, that employer must have at least how many employees?

20

Dan has severe myopia, which is correctable with lenses. Eve is blind. Both Dan and Eve work for First National Bank. Who is considered disabled under the Americans with Disabilities Act (ADA)?

Dan and Eve

Disparate-impact discrimination

Discrimination against a class of employees or potential employees that may be unintentional but is the result of a practice or procedure that negatively affects the ability of one group of people to be hired, retained, or promoted.

13. Workers with disabilities may be given modified health-insurance plans to reduce the expense to other employees.

False

After-acquired evidence of employee misconduct bars any recovery by the employee even if he or she can prove that discrimination occurred.

False

An employer cannot be liable for an employee's online harassment.

False

An employer must modify its job-application process so that those with disabilities can compete for jobs with those who do not have disabilities.

False

The Americans with Disabilities Act of 1990 (ADA) requires that a disabled applicant be hired even if he or she lacks a necessary job qualification.

False

______________ can be a bona fide occupational qualification.

Gender

1. Would CHRW normally be held liable to Reeves?

No

10. Did the supervisor take immediate remedial action to stop the harassing conduct?

No

11. Does it matter whether Ingrid Reeves was a man or a woman?

No

13. Does the fact that the offensive behavior was not directed specifically at Reeves prevent her sexual harassment claim?

No

3. Is Reeves left without recourse?

No

5. Could DCBS fire Reeves in response to her allegations of sexual harassment in order to maintain workplace civility?

No

If a Hispanic student sues the University of Michigan because she was not accepted into their incoming freshman class, can she successfully sue on the basis of affirmative action claiming that due to past racial discrimination against Hispanics, she should now be granted preferential treatment?

No, because Michigan voters passed an initiative to amend the state's constitution to prohibit publicly funded colleges from granting preferential treatment, which was upheld by the U.S Supreme Court.

6. Who routinely engaged in offensive sexual behavior on the job?

Reeves' co-workers

Sinclair applied for a job that required a bachelor's degree in computer science plus 5 years of related experience. She did have a bachelor's degree, but lied about her work experience. She was fired 3 months into her 6-month probation because the manager felt she was distracting the male employees by the way she dressed. Sinclair sues the company and during discovery, the company learns she lied on her application about her work experience. Who will likely prevail in court?

Sinclair will prevail as long as she can prove that discrimination occurred and the employer cannot justify the discrimination claiming one of the three defenses to discrimination.

To establish a prima facie case of discrimination (and retaliation) under the USERRA, the plaintiff must establish what?

That the employer took an adverse employment action based in part on the employee's connection with the military.

Jon, a male, applied to Wedding Fashions, a wedding dress retail store, for an advertised position. He was not hired for the job. He wants to sue Wedding Fashions for discrimination under Title VII. What is the best defense Wedding Fashions could raise?

That the job required a female because the position involved assisting women in the dressing rooms and was therefore a bona fide occupational qualification

Greg is a military veteran and was disabled as a result of military service. Which of the following statements is true in connection with Greg's situation?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides additional protections for Greg.

There is no statute of limitations for bringing a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

True

1. Hostile work environment sexual harassment is prohibited under what law?

Title VII of the Civil Rights Act of 1964

The most important federal statute prohibiting employment discrimination against members of a protected class is:

Title VII of the Civil Rights Act of 1964

12. Substance addiction is considered a disability under the ADA, but the act does not protect those who are using illegal drugs.

True

2. In an age-discrimination lawsuit, the employee has the burden of establishing that age was the actual reason for the discrimination.

True

Constructive discharge occurs when the employer causes the employee's working conditions to be so intolerable that a reasonable person in the employee's position would feel compelled to quit.

True

In a retaliation claim, an individual asserts harm was suffered as a result of making a Title VII complaint or testifying or participating in an investigation or proceeding.

True

Monica is a fifty-six-year-old factory worker with no managerial responsibilities who was terminated by her employer under a mandatory retirement plan. The Age Discrimination in Employment Act (ADEA) prohibits such actions.

True

14. Is a court likely to find that hostile environment sexual harassment did occur at CHRW?

Yes

4. Would her co-workers still be liable for sexual harassment?

Yes

7. Was the conduct of CHRW employees sexually offensive to at least one co-worker?

Yes

8. Was the sexually offensive conduct continuing?

Yes

Hyacinth Company is an American company that operates a manufacturing plant in the Netherlands. Hyacinth Company employs Dutch employees, but also employs a number of American employees who live and work in the Netherlands for Hyacinth Company. One of their employees is Hank—a member of the military. When Hank is called into service, Hyacinth fires him. Hank sues Hyacinth for this under the USERRA. Is Hank allowed to sue Hyacinth under the Uniformed Services Employment and Reemployment Rights Act?

Yes, because the USERRA covers United States employers operating in foreign countries.

3. Discrimination that is not based on ability to perform the functions of the job, but that is societally necessary (meaning the class of people being denied employment could perform the functions of the job but for some reason, society requires that they not be hired) is justified by:

a BFOQ

4. Hostile work environment is created when ___ of sexually offensive conduct occurs.

a pattern

Affirmative action

a program that uses past discrimination to justify present decisions by giving some sort of consideration to protected status.

James was a thirty-eight-year-old man in good health. One of his hands shook slightly for no apparent reason. The doctors could not find a medical cause for it. James's employer worried about the potential for early-onset Parkinson's disease or another neurological disorder, so he fired James. Under the ADA:

a. James can bring a claim as being "regarded" as having a disability.

Carter University has an admissions policy that requires a certain number of points to be automatically awarded to minority applicants. This type of policy may violate which clause of the U.S. Constitution?

a. the equal protection clause.

The U.S. Supreme Court has held that:

any federal, state, or local affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to strict scrutiny by the courts.

8. Affirmative action programs:

are controversial, because they are seen as reverse discrimination

People recovering from alcoholism:

are protected by the ADA.

Carl tells Jenny that he will give her a raise if she agrees to have a romantic relationship with him. In legal terms, this is known as:

b. quid pro quo harassment.

Rheingold Supply has a seniority system by which employees who have worked the longest are first in line for promotions and last to be laid off. As a result, most of the senior managers at Rheingold Supply are men. If Jane files a claim of illegal discrimination, Rheingold Supply:

b. will have a legitimate defense, because Rheingold Supply has a seniority system in place.

2. A legitimate requirement of a job that discriminates against a protected class of people would be considered a(n)

business necessity

Byron runs a business cleaning gutters. Lance, who is in a wheelchair, applies for a job working for Byron as a cleaner. Byron does not hire Lance and is very frank about the reason: Lance's disability. If Lance sues Byron,

c. Byron will win, if he can show that being able to climb a ladder is a requirement of the position.

Norm worked as a sales person for his firm. When he turned fifty, the office had a party for him. His boss made a lot of jokes about Norm getting too old to keep up with the younger staff. Those comments continued past the party for several months. Norm was fired six months later. When he filed a complaint for age discrimination, the boss defended his actions by saying Norm was fired for not meeting sales quotas. Norm had missed his quota for only one month, and he provided evidence that younger employees who had missed up to three months of the quotas were not terminated. Norm is attempting to show that:

c. the employer's defense was a pretext.

Kurt is 52 years old and, until recently, worked for a company covered by the Age Discrimination in Employment Act (ADEA) of 1967. He wants to bring a claim of age discrimination against his employer, because he was replaced by a younger, lower-paid worker. To make out a prima facie case of age discrimination, Kurt does not have to establish that he:

c. was replaced by someone younger than 40 years old.

10. Whether a plaintiff is disabled is determined on a(n) _____ basis.

case-by-case

Wally is blind and would like to work for Dairy Times writing articles on the dairy industry. Wally uses voice-recognition software that allows him to dictate articles to his computer. His computer is specially designed for visually impaired individuals. Dairy Times interviews Wally but offers the job to a sighted person instead. Dairy Times may have violated:

d. the ADA.

Kay runs a business with a target customer population of twenty- to forty-five-year-olds. Because she wants her employees to be "in tune" with the younger crowd, she requires all of her front staff to quit or retire from her company at the age of fifty. This:

d. violates the Age Discrimination in Employment Act.

If a returning service member sues an employer for violations of USERRA, and is successful, he or she can receive:

damages, reinstatement and a promotion.

To succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a _________ factor in the employment decision.

determining

2. Why? DCBS _________take reasonable care to prevent and promptly correct any sexually harassing behavior and Reeves __________ failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.

did; unreasonably

7. To show the prima facie case under the ADA, a plaintiff must show the presence of a _____ that falls under the ADA, ______ for the position, and that the disability was _____ reason for the adverse employment action.

disability; qualification; the sole

Phanna Xieng came to the United States in 1974. When the Cambodian government fell in 1975, Xieng remained in the United States and in 1979 was employed by Peoples National Bank of Washington. In performance appraisals from 1980 through 1985, Xieng was rated by his supervisors as "capable of dealing effectively with customers" and qualified for promotion, although in each appraisal it was noted that Xieng might improve his communication skills to maximize his possibilities for future advancement. Xieng applied for many different jobs in the bank, including several that did not require communication with customers. In spite of being qualified for these jobs, he was never promoted. In 1986, he filed a complaint against the bank, alleging employment discrimination based on national origin. The employer argued that its refusal to promote Xieng because of his poor communication skills did not amount to discrimination based on national origin. The court most likely held that the bank:

discriminated against Xieng, because he was not promoted to jobs for which he was qualified and that did not require unaccented speech.

Rashid had been with his employer for more than a year, and had received good reviews for the quality and quantity of his work. But then he got a new boss, who made it clear that he did not like people of Rashid's ethnic and religious background. The new boss fired Rashid. This is an example of:

disparate treatment discrimination.

For an employer to be held liable for a supervisor's sexual harassment of a subordinate, the supervisor normally must take a(n) _______ employment action against the employee. This is defined as a(n) ______ change in employment status. The Ellerth/Faragher defense allows an employer to decrease or eliminate liability if the employer took _______ care to prevent and correct the behavior and if the plaintiff ________ failed to take advantage of any employer-provided opportunities to avoid the harm.

tangible, substantial, reasonable, unreasonably

Under the Age Discrimination in Employment Act (ADEA), a plaintiff must show:

that the unlawful discrimination was not just a reason but the reason for the adverse employment action.

4. Once the plaintiff in an ADEA case has demonstrated the prima facie case, the employer has:

the burden to raise a legitimate reason for the action.

An employer may defend against a claim of disparate-impact discrimination by asserting that:

the discrimination against the protected class is essential to a job.

Affirmative Action Programs may violate the equal protection clause of the Fourteenth Amendment because:

they can be inherently discriminatory in nature.