Employment Law Exam 2 Study Guide

In California, employers must comply with three overlapping statutes:

In California, employers must comply with three overlapping statutes: The federal Family and Medical Leave Act ("FMLA") The California Family Rights Act ("CFRA") California Pregnancy Disability Leave ("PDL")

Back Pay

The court may award back pay to a successful plaintiff

Disparate Treatment Claims

Claims of disparate treatment involve allegations of intentional discrimination in employment. A plaintiff alleging disparate treatment must establish that he or she was subjected to less favorable treatment because of his or her race, color, religion, gender, or national origin.

CA FEHA - GOVT. § 12940

-"It is an unlawful employment practice . . . -"(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract." -(j)(3) "An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action."

Definition of Disability

-A physical or mental impairment that substantially limits one or more of the major life activities of such individual -A record of such an impairment; or -Being regarded as having such an impairment

Other Federal Anti- Discrimination Laws

-Age Discrimination in Employment Act (ADEA) -Americans With Disabilities Act (ADA) -Citizenship -Genetic Information -Uniformed service member status -Veteran status -Note: Many states, including California, have adopted more expansive lives of protected classes.

Bona Fide Occupational Qualification (BFOQ):

-An exception that allows an employer to hire employees of a specific gender, religion, or national origin when business necessity (the safe and efficient performance of the particular job) requires it -Note: Race is not listed in the statute.

Basic Approach to Disability Accommodation

-As a general rule, it is the responsibility of employee to request a reasonable accommodation -Employer should be cautious about unsolicited offers of accommodation -Address performance issues, wait for employee re raise issue of disability of possible accommodation.

California Law- Discrimination in Employment

-California Fair Employment and Housing Act ("FEHA") -Department of Fair Employment and Housing ("DFEH") -California does not haver separate laws governing different types of discrimination. Virtually all types of discrimination are covered by FEHA

Ways to Violate Title VII

-Disparate treatment happens when plaintiff is intentionally treated differently based on a reason that is illegal under Title VII. -Disparate impact occurs when plaintiff is victim of unintentional discrimination; on its face, employment criteria appears to be neutral but, in reality, the result is different treatment based on a reason that is illegal under Title VII.

Affirmative Action and Reverse Discrimination

-Giving preference in hiring or promotion to qualified female or minority employees. -Employees who are not members of this group may therefore be at a disadvantage for hiring or promotion.

CFRA leaves largely identical to original FMLA leaves, except

-Leave to care for domestic partners and domestic partner's children are covered under CFRA but not FMLA (moot?). -Military caregiver and exigency leaves are covered under FMLA but not CFRA. -Disability for pregnancy, childbirth, or a related medical condition is not a serious health condition under CFRA.

Serious Health Condition:

-Means an illness, injury, impairment or physical or mental condition that involves: -inpatient care or -absence of three or more days from work or school, or -absences to receive multiple treatments from a health care provider -includes pregnancy

Fuller v. Edwin B. Stimpson Co. Inc.

-No. The court found that Fuller failed to establish a prima facie case of race discrimination. -As for the four comparators Fuller identifies on appeal, only employee Jack Shuck was identified in Fuller's motion for partial summary judgment as a comparator regarding attendance. -In any event, Fuller was either late to work or left early on 57 occasions in 2008, whereas none of the four individuals identified here had more than 16 total late arrivals and early departures that year, so they are not valid comparators.

Due Process and Equal Protection

-Primary constitutional provisions used to attack discrimination and are found in the Fifth and Fourteenth Amendments -Fifth Amendment applies to the federal government -Fourteenth Amendment applies to state and local governments

Coverage of Title VII

-Prohibits the refusal or failure to hire any individual, the discharge of any individual, or the discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of that individual's race, color, religion, sex, or national origin. -Title VII, as amended, applies to employers, labor unions, and employment agencies. -State and local governments are also covered by Title VII; the federal government and wholly owned U.S. government corporations are covered under separate provisions of Title VII. -The 1991 amendments to Title VII extended the coverage of the act to American employers that employ U.S. citizens abroad. -Labor unions with at least 15 members or that operate a hiring hall are subject to Title VII.

The Equal Pay Act (cont.)

-Provisions: A plaintiff claiming violation of the Equal Pay Act must demonstrate that the employer is paying lower wages to employees of the opposite sex who are performing equal work in the same establishment -Equal, or substantially equivalent, work involves equal -Effort -Skill -Responsibility -Working conditions Defenses: Pay differentials do not violate the act if they are due to... -Seniority system -Merit pay system -Productivity-based pay system -A "factor other than sex"

FMLA Coverage

-Public sector employers are covered without regard to the number of employees -Private sector employers with 50 or more employees within 75 miles of a workplace -Employees of covered employers are eligible for leave under the act if -they have been employed for at least twelve months -have worked at least 1,250 hours of the twelve-month period immediately preceding the leave

Title VII covers discrimination based on

-Race - ethnicity, not country of origin (Chapter 6). Color - skin (Chapter 6). -Sex - including sexual harassment (Chapter 7). -National origin - country of origin, not citizenship; (Chapter 8). -Religion - beliefs or practices (Chapter 8). There can be some "overlap" between types of discrimination; e.g., race and color.

Possible Reasonable Accommodations include:

-Restructuring jobs/ changing job duties -Changing work schedules -Modifying or relocating the work area -Providing mechanical or electrical aids -Providing readers or interpreters -Providing leave for medical care

California Fair Employment and Housing Act

-State law that prohibits discrimination in the sale, rental or financing of practically all types of housing. -FEHA applies to public and private employers, labor organizations, apprentice training programs, employment agencies, and licensing boards. -Employers of five or more employees are subject to the FEHA's prohibition against employment discrimination -Employer does not include the federal government or a non-profit religious association or corporation.

Undue Hardship (Factors to consider)

-The nature and cost of the accommodation needed; -Possible outside funding sources; -the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; -the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); . . . -the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; -the impact of the accommodation on the operation of the facility

"Gender Plus" Discrimination

-This is employment discrimination based on gender plus another factor such as marital status or being parent of young child(ren) -Note that discrimination based solely on marital status is expressly illegal under California's FEHA.

Coverage of Title VII cont.

-Title VII covers all levels and types of employees. -U.S. citizens employed anywhere in the world by American employers are protected by Title VII. -However, non-U.S. citizens employed by American employers are covered by Title VII only in the U.S.

Examples of Harassing Physical Conduct

-Unnecessary touching, rubbing, or invasion of personal space -Unnecessary brushing against an individual's body or hair -Standing or sitting too close to someone -Patting a person on the buttocks or touching an individual's breasts, thighs or genitals -Exposing portions of the body to another person -Following closely behind someone -Giving unwelcome gifts -Blowing into someone's ear -Blocking or impeding an individual's movement -Winking, blowing kisses, licking lips -Rubbing or touching oneself sexually in the presence of another -Unwelcome hugging or kissing Imitating others movements in derogatory way

Examples of Harassing Verbal or Visual Conduct

-Unwelcome flirtations, advances, or propositions (e.g., whistling, leering, staring, cat calls) -Repeated requests for a date with someone who has not expressed interest -Jokes, slurs, epithets or stories of a sexual nature (or racial, religious, ethnic, etc.)—often with innuendo -Sexually suggestive or inappropriate remarks or innuendos: "Wow, nice legs!" or "You should really wear more tight-fitting tops!" or "You people are so lazy!" -Making or using derogatory comments, epithets, slurs, and jokes

An employee may take up to 26 weeks of unpaid leave to care for a family member who is a member of the armed forces and who is

-undergoing medical treatment, recuperation, or therapy -in outpatient status -on the temporary disability retired list because of a serious illness or injury

Who are the types of people that are not protected by the ADA?

1) Impairments that are not transitory 2) Homosexuality, bisexuality, or sexual behavior disorders 3) Compulsive gambling, kleptomania, and pyromania

Pregnancy Discrimination Act of 1978:

Amended Title VII to include pregnancy discrimination in the definition of sex discrimination. -women affected by pregnancy, childbirth or related medical conditions shall be treated the same as others not so affected but similar in their ability or inability to work. -Overruled U.S. Supreme Court decision in General Electric v. Gilbert (1976). -Must treat pregnancy same as any other temporary disability.

The 2008 National Defense Authorization Act

Amended the FMLA so that employers must grant eligible employees an unpaid leave of up to 12 weeks during a 12-month period for qualified exigencies

Employer Liability for Supervisors

An employer is strictly liable for harassment by a manager or supervisor because such conduct is related to the supervisor's or manager's job status

Bona Fide Occupational Qualifications (BFOQs)

An exception to the civil rights law that allows an employer to hire employees of a specific gender, religion, or national origin when business requires it

Hostile Environment Harassment

Employees alleging harassment creating a hostile environment in violation of Title VII must file their complaint with the EEOC within 180 days (if there is no state or local agency involved) or 300 days (it there is an appropriate state and local agency) of the most recent discrete incident of harassment

Essential Functions

Essential functions are basic job duties that employee must be able to perform, with or without reasonable accommodation, considering: -whether the reason the position exists is to perform that function, -the number of other employees available to perform the function or among whom the performance of the function can be distributed -the degree of expertise or skill required to perform the function.

Quid Pro Quo Sexual Harassment cont.

Examples of "something of a sexual nature" can include a sex act, date, disrobing, etc. Examples of "job-related benefit" can include getting or keeping the job, getting a promotion, preference in granting requested assignments, vacation time or work conditions, etc.

Hostile Environment Sexual Harassment

Examples of what is not a hostile environment include Screenwriters' sexually-themed "brainstorming" sessions before which employee was warned - Lyle v. Warner Bros., 38 Cal.4th 264 (2006) ("Friends" case). Isolated comments, jokes and/or touching of a sexual nature - unethical and unfortunate but not illegal. S.B. 1300, signed into law by Governor Brown last year, rejects the "stray remarks" doctrine

Griggs v. Duke Power Company

Griggs claimed Duke's policy discriminated against african american employees in violation of title VII of the 1964 Civil Rights Act. The intradepartmental transfer policy did violate the act. The standardized test prevented a number of African Americans from being hired and the court concluded that it was illegal for the Duke power company to give job preferences to whites (1971)

Add'l Protected Classes - FEHA Law

Marital status Sexual orientation Gender Gender identity Gender expression Pregnancy Breastfeeding and related medical conditions Ancestry Genetic information Medical condition (cancer) Military and veteran status

Employer Liability for Punitive Damages Under Title VII

Punitive damages may be recovered if there is an intentional discrimination with malice or reckless indifference to the federally protected rights of an individual

Uniform Guidelines on Employee Selection Procedures

Regulations adopted by the EEOC and other federal agencies that provide for methods of demonstrating a disparate impact and for validating employee selection criteria

Reasonable Accommodation**

The definition of a "qualified individual with a disability" includes the individual who is capable of performing the essential functions of a job with or without reasonable accommodation on the part of the employer The ADA imposes on employers the obligation to make reasonable accommodations for such individuals or employees, unless the accommodation would impose undue hardship on the employer Failure to make such reasonable accommodation or failure to hire an individual because of the need to make accommodation for that individual, is included in the definition of illegal discrimination

Quid Pro Quo Sexual Harassment

The employer (perpetrator) demands that the employee (victim) provide something of a sexual nature in exchange for a job-related benefit. In other words, the employer makes something of a sexual nature (instead of merit, seniority, etc.) a condition of getting a job-related benefit . . Or avoiding a job-related detriment. Can be based on one incident though can also be based on a series of events.

Jacobs v. N.C. Administrative Office of the Courts

Under the expanded definition of "disability" created by the ADAAA, is Jacobs a covered person with a qualifying disability? "A person need not live as a hermit in order to be 'substantially limited' in interacting with others.

Medical Inquiries and Examinations

The ADA limits the ability of an employer to inquire into the disabilities of job applicants and employees -Employers are prohibited from asking about the existence, nature, or severity of a disability -An employer may ask about the individual's ability to perform the functions and requirements of the job

Qualified Individual with a Disability

The ADA, the term "discriminate" is defined as including "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity."

The Family and Medical Leave Act

The Family and Medical Leave Act allows eligible employees to take up to twelve weeks' unpaid leave in any twelve months because of -the birth, adoption, or foster care of a child -the need to care for a child, spouse, or parent with a serious health condition -the employee's own serious health condition makes the employee unable to perform functions of his or her job

Individual Liability

The courts have held that individual employees are not liable for damages under Title VII; this means that the employee doing the harassing will not be held personally liable for damages under Title VII. However California law provides for personal liability on the part of the individual harasser(s).

Coordination of FMLA/CFRA and PDL

-CFRA and PDL are separate and distinct -FMLA and PDL run concurrently -CFRA begins after PDL ends -Maximum entitlement in California for both pregnancy disability leave (FMLA and PDL) and CFRA leave for reason of the birth of a child is four months for mother's disability and 12 workweeks for baby bonding

The Civil Rights Act was aimed at discrimination in a number of areas of society:

-Housing -Public accommodation -Education -Employment

Discrimination on the Basis of Citizenship

-National origin discrimination under Title VII does not include discrimination on the basis of citizenship -The Immigration Reform and Control Act of 1986 (IRCA) prohibits employment discrimination because of national origin or citizenship against applicants or employees Exceptions: -necessary to comply with other laws -necessary to comply with -government contracts If two applicants or employee are "equally qualified."

Harassment May Be:

-Physical -Verbal -Visual

Prima Facie Case:

A case "on the face of it" or "at first sight", often used to establish that if a certain set of facts is proven, then it is apparent that another fact is established.

PDL - Leave Entitlement

A pregnant employee who is actually disabled by a pregnancy-related condition is entitled to a leave of absence for a reasonable period of time not to exceed four months -Pregnancy leave does not have to be taken in one consecutive period of time -Accumulated periods of leave may be totaled in computing up to four months of leave -Employer must pay for health insurance benefits on standard terms

If the waivers are part of an (i) exit incentive or (ii) other employment termination program relating to a group or class of employees, Employer must give the employees forty-five (45) days to consider the waiver. Employer must provide written disclosures to employees:

Any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program;

Disparate Treatment

results when employees from protected groups are intentionally treated differently

Equal Employment Opportunity Commission v. WC&M Enterprises

Facts: Mohammed Rafiq was born in India and was a practicing Muslim. He was a car salesman at a Honda dealership. After the September 11, 2001 terrorist attacks, Rafiq began to be subjected to ongoing harassment based on his religion and national origin by his managers and co-workers. He filed a complaint with EEOC against the employer. Decision: The court found that Rafiq was subjected to a hostile work environment on the basis of religion and national origin.

A Growing Number of Cities and States Mandate Paid Family Leave

In 2004, the state of California became the first state to provide for temporary paid family leave through the state's disability insurance program. In 2015, California, Rhode Island, and New Jersey lead the nation in offering broad paid family and medical leave insurance programs for their residents, with significant positive impacts. In addition, Ohio, Virginia, and Illinois offer paid parental leave for state employees, while Washington, D.C.; St. Paul and Brooklyn Park, Minnesota; St. Petersburg, Florida; San Francisco, California; Chicago, Illinois; and Austin, Texas offer these benefits for their municipal employees.

Title VII of the Civil Rights Act deals with discrimination in employment

It became the foundation of modern federal equal employment opportunity (EEO) law

California Deadlines

One year to file claim with DFEH One year to file civil action, after DFEH issues Right-To-Sue Letter

Retaliation under Title VII

Plaintiffs must show that -They were engaged in an activity protected under Title VII or opposed a practice prohibited by Title VII -They suffered an adverse employment decision or employment action -There was a causal link between the protected activity and the adverse employment decision

Note: California law is generally more restrictive than Federal law:

Privacy considerations (covered next week) More protected classes Restrictions on salary history Restrictions on criminal background

ADEA Coverage

The ADEA applies to Employers, labor unions, and employment agencies: Employers involved in an industry affecting commerce, with twenty or more employees (v. Title VII - 15 or more employees). U.S. firms that employ American workers in a foreign country Employment agencies Labor unions, if they operate a hiring hall or if they have twenty-five or more members and represent the employees of an employer The definition of "employer" under the ADEA includes state and local governments (but not federal)

Early Retirement and Work Force Reductions

The ADEA does not prohibit voluntary retirement as long as it is truly voluntary The Older Workers Benefit Protection Act of 1990, which amended the ADEA, contained several provisions concerning work force reductions Employers seeking to reduce their work force may offer employees early retirement incentives such as -Subsidized benefits for early retirees -Paying higher benefits until retirees are eligible for social security -Severance pay

Duty of Reasonable Accommodation

The EEOC Guidelines indicate that the following factors will be considered in determining what a reasonable accommodation is and whether it results in undue hardship: -Size of the employer's work force and number of employees requiring accommodation -Nature of the job(s) that present a conflict -Cost of the accommodation -Administrative requirements of the accommodation -Whether the employees affected are under a collective bargaining agreement -What alternatives are available and have been considered by the employer

Legal Fees

The court may award reasonable attorney's fees under Title VII

Discrimination Based on Religion

Title VII prohibits employment discrimination against any applicant or employee because of religion Title VII states that "'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business"

Dress Codes and Grooming Requirements

Title VII prohibits imposing different working conditions or requirements on similarly situated male and female employees because of the employee's gender

Section 631(c) of the ADEA allows the mandatory retirement of executive employees who are over the age of sixty-five

To qualify under this exemption the employee -must have been in a bona fide executive or high policy-making position for at least two years -upon retirement, must be entitled to nonforfeitable retirement benefits of at least $44,000 annually -An employee who is within the executive exemption can be required to retire upon reaching age sixty-five

Lilly Ledbetter Fair Pay Act

U.S. act that creates a rolling time frame for filing wage discrimination claims and expands plaintiff field beyond employee who was discriminated against.

reasonable accommodation for religion

Under Title VII, an employer's duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer.

Title VII of the Civil Rights Act of 1964

is legislation that outlawed discrimination in terms and conditions of employment based on race, color, sex, religion, or national origin

FMLA Coverage (Contd)

-Leave may be unpaid -Employees may use PTO, vacation or sick leave as appropriate -Employers may require use of paid leave under certain circumstances (i.e., fully unpaid leave) -May require medical certification -Must pay for employee's health insurance coverage on the same terms as if the employee were actually working

Individuals Not Protected by ADA

An employer is not required to hire a person with a disability who is not capable of performing the duties of the job, with an accommodation

Constitutional Prohibitions Against Discrimination

Apply only to government employers and private employers acting under government support or compulsion

Harris v. Forklift Systems, Inc.

Decision: -The U. S. Supreme court reversed the judgment of the Court of Appeals, finding the sexual harassment of Harris to constitute hostile environment -"When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Meritor Savings Bank v. Vinson (1986). -This standard . . . takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. -But Title VII comes into play before the harassing conduct leads to a nervous breakdown.

Price Waterhouse v. Ann B. Hopkins

Decision: The Supreme Court affirmed the trial court and court of appeals' decision that employment decisions based on sex stereotypes may constitute sex discrimination in violation of Title VII.

compensatory and punitive damages

If the plaintiff can demonstrate that a private sector defendant has engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an individual, the plaintiff can recover compensatory and punitive damages, subject to statutory caps [see p. 244]

Front Pay

Monetary damages awarded to a plaintiff instead of reinstatement or hiring

Administration of Title VII

-Administered by the Equal Employment Opportunity Commission (EEOC). -Regulations and guidelines require that employers, unions, and employment agencies post EEOC notices summarizing the Act's requirements. -The Act further requires that those covered keep records relevant to the determination of whether unlawful employment practices have been, or are being, committed. -Covered employers must maintain payroll records and other records relating to applicants and to employee promotion, demotion, transfer, and discharge

Fourteenth Amendment to the Constitution

-All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. -No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; -nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Department of Fair Employment and Housing

-California agency that enforces anti-discrimination laws

Pregnancy Discrimination

-Pregnancy and Hazardous Working Conditions On-the-job exposure to harsh substances or potentially toxic chemicals may pose a hazard to the health of employees -Employers cannot attempt to avoid potential health problems for pregnant employees by prohibiting women of childbearing age from working in hazardous jobs

What is a "suspect classification"?

-The class must have experienced a history of discrimination, must be definable as a group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society. -The Court has consistently found that classifications based on race, national origin, and alienage require strict scrutiny review.

Disparate Impact

-The discriminatory effect of apparently neutral employment criteria or selection devices; does not require intention to discriminate on the part of the employer -The employment criteria or selection device disproportionally disqualifies employees based on race, color, sex, religion, or national origin

Effect of Other Laws on the FMLA

-Americans with Disability Act/ FEHA -Employee may be entitled to additional unpaid leave as a "reasonable accommodation" for a disability. -No clear guidelines for how long is reasonable.

The ADEA allows employers to differentiate between employees when the differentiation is based on a reasonable factor other than age

-An employer may use a productivity based pay system, even if older employees earn less than younger employees because they do not produce as much as younger employees -When a work force reduction is carried out pursuant to an objective evaluation of all employees, it does not violate the act simply because a greater number of older workers than younger workers were laid off -The employer is permitted to discipline or discharge employees over forty for good cause

The Age Discrimination in Employment Act ("ADEA")

-Prohibits the refusal or failure to hire, the discharge, or any discrimination in compensation, terms, conditions, or privileges of employment because of an individual's age (40 and older) -One effect: generally prohibits mandatory retirement ages. -Provides for some limited exceptions

Section 702(a)

-Provides an exception under Title VII to all -religious societies -religious corporations -religious educational institutions -religious associations -For employment of individuals of a particular religion -to perform work connected with the carrying on the activities of such entity

Pre-Employment Inquiries

-Some inquiries are made illegal by statue or regulation, e.g., pre-offer inquiries about disability. -Other inquires, although not illegal per se, may be used as evidence of an employer's intent to discriminate on the basis of the protected class. -If the answer will not be a factor in hiring decision, why are you asking? -Employers should limit requests for information during the pre-employment process to those details essential to determining a person's qualifications to do the job (with or without reasonable accommodations).

Bona Fide Seniority or Benefit Plan

-The ADEA allows an employer to observe the terms of a such as a retirement or pension plan, bona fide seniority system or employee benefit plan, as long as the plan or system is not "subterfuge to evade the purpose of this Act" -No seniority system or benefit plan "shall require or permit the involuntary retirement of any individual"

Bona Fide Occupational Qualification (BFOQ)

-The ADEA does recognize that age may be a BFOQ for some jobs -A BFOQ must be reasonably necessary to the normal operation of the employer's business -In the case of Hodgson v. Greyhound Lines, Inc., the court held that Greyhound could refuse to hire applicants for bus driver positions if the candidates were over thirty-five years old because of passenger safety considerations

Amended the ADEA to require that any differential treatment of older employees under benefit plans must be "cost-justified"

-The employer must demonstrate that the reduction in benefits is only to the extent required to achieve approximate cost equivalence in providing benefits to older and younger employees -The employer must show that the specific level of reductions for older workers in a particular benefit program is no greater than necessary to compensate for the higher cost of providing such benefits for older workers

Section 623(j) of the ADEA allows state and local governments to set, by law, retirement ages for firefighters and law enforcement officers

-Where the state or local retirement age law was in effect as of March 3, 1983, the retirement age set by that law may be enforced -Where the state or local legislation setting the retirement age was enacted after September 30, 1996, the retirement age must be at least fifty-five

A plaintiff alleging a violation of the ADEA must

-establish a prima facie case that the employer has discriminated against the employee because of age -demonstrate that age was " the determining factor" in the employer's action -"Mixed-motives" claims are unavailable for plaintiffs alleging disparate treatment discrimination under the Age Discrimination in Employment Act. Gross v. FBL Financial Services, Inc. (US Sup. Ct. 2009).

Webb v. City of Philadelphia

Decision: The Third Circuit held that the uniform requirements were crucial to the safety of officers, to their morale and esprit de corps, and to public confidence in the police and therefore ruled in favor of the city. -"A paramilitary law enforcement unit, such as the police, has many of the same interests as the military in regulating its employees' uniforms." -"Safety is undoubtedly an interest of the greatest importance" to the police department and that uniform requirements are crucial to the safety of officers (so that the public will be able to identify officers as genuine, based on their uniform appearance), morale and esprit de corps, and public confidence in the police

Oubre v. Entergy Operations, Inc

Decision: The release cannot bar the ADEA claims because the employee's mere retention of monies amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did.

Undue Hardship

Defined as significant difficulty or expense

E.E.O.C. v. Exxon Mobile Corporation

EEOC failed to address the fact that Part 121 covered a wide range of operations and to distinguish Exxon's operations. Instead, the EEOC's evidence compared only commercial piloting to Exxon piloting or corporate piloting generally. When compared to commercial pilots, the EEOC was correct that corporate pilots might fly fewer hours, operate on a varying schedule, and only fly in certain weather conditions. However, these distinctions were "distinctions without difference." Exxon's operations functioned in much the same manner as commercial, commuter, or cargo operations, all types of piloting covered by Part 121. Thus, the EEOC had not shown that the occupations lack congruence.

English-Only Rules

Employer work rules requiring that employees speak English in the workplace during working hours Blanket English-only rules violate Title VII unless they are required by business necessity

Waivers

Employers may require employees receiving special benefits upon early retirement, or any other employee, to execute a waiver of claims under the ADEA if: -The waiver is knowing and voluntary -The employees receive additional compensation for the waiver, over and above that to which they are already entitled Requirements -Waivers must be in writing and must specifically refer to ADEA rights -Employees must be advised to consult an attorney about the waiver -Employees must be given at least twenty-one (21) [or 45--see below] days to consider the matter before deciding whether to execute the waiver -Employees must be allowed to revoke the waivers up to seven days after signing

English-Only Rules -- California

FEHA - Government Code § 12951 (a) It is an unlawful employment practice for an employer . . . to adopt or enforce a policy that limits or prohibits the use of any language in any workplace, unless both of the following conditions exist: (1) The language restriction is justified by a business necessity (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction (b) . . . "business necessity" means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

Harmon v. Earthgrains Baking Companies, Inc.

Facts: Michael Harmon, a manager at Eathgrains, was fired after failing to follow Earthgrains' accident reporting protocol. Earthgrains did not fill the vacancy created by Harmon's termination; rather, it assigned Mark Carter, an existing district manager in Glasgow, Kentucky, who was 10 years younger than Harmon (aged 58 at the time), to manage the area previously supervised by Harmon. Carter not only absorbed permanently all of Harmon's job responsibilities, but he also continued to serve as district manager in Glasgow, thereby increasing his workload. Decision: The court of appeals had no hesitancy to rule for the defendant on these facts. Because Harmon was not replaced by Carter, the appellate panel held that he failed to present a prima facie case of age discrimination. Nor did the judges buy the plaintiff's contention that the company's so-called "reorganization" was a pretext to disguise its discriminatory termination of the plaintiff in favor of his younger counterpart, Carter.

Castillo v. Wells Fargo Bank, N.A.

Facts: The Wells Fargo Team Member Handbook states, "English is the business language for Wells Fargo's U.S. operations." Plaintiff Martha Castillo challenged this Wells Fargo rule on the basis of national origin discrimination. Decision: No. The court found that Wells Fargo's language policy was a "limited, reasonable and business-related English-only rule" that Wells Fargo enforced against "an employee who can readily comply with the rule [but] voluntarily chooses not to observe it as a matter of individual preference."

Trans World Airlines v. Hardison

Facts: Trans World Airlines (TWA) operates 24 hours per day, 365 days per year. A seniority system dictates which employees work which shifts. Larry Hardison, an employee of TWA, practiced a religion that required observing the Sabbath and other religious holidays by refraining from work on those days. Hardison's manager changed his shift hours to accommodate his religion. Hardison then took a different position, where his seniority was not high enough to allow him to choose his shifts. He refused to report for work on Saturdays and was consequently fired. Decision: The court held that TWA made reasonable efforts to accommodate Hardison's religious needs. The Court commended the seniority system as "a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off." Alternate plans constituted an "undue hardship" on the employer that the law did not require. "Absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences."

If the waivers are part of an (i) exit incentive or (ii) other employment termination program relating to a group or class of employees, the employer must provide written disclosures to employees:

Job titles and ages of all individuals eligible for the program, and Ages of all individuals in the same organizational unit not eligible for the program.

Exceptions for Religious Preference

Ministerial Exemption under Title VII -Federal courts have created a "ministerial exemption" under Title VII when a discrimination complaint involves personnel decisions of religious organizations regarding who would perform spiritual functions and about how those functions would be organized. Statutory Provisions for Religious Preference -Religion as a BFOQ: -Section 703(e)(1) of Title VII includes religion within the BFOQ exception

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos

No. Where government acts to lift a regulation that burdens exercise of religion, no requirement that secular entities be given the same benefit.

ADEA Defenses

The following are not violations: -Actions pursuant to a bona fide seniority system, retirement, pension or benefit system -For good cause -For a "reasonable factor other than age" The Act also -Recognizes that age may be a BFOQ -Permits the mandatory retirement of certain executive employees at age sixty-five The ADEA was amended in 1990 to provide an additional defense for employers -Where the employer employs American workers in a foreign country and compliance with the ADEA would cause the employer to violate foreign law, the employer is excused from complying with the ADEA.

Discrimination Based on National Origin

Title VII also prohibits discrimination or harassment because of national origin; this includes: -The place of origin of an applicant/employee (or his/her spouse or ancestors) -The physical, cultural, linguistic characteristics of an ethnic group -Marriage or association with persons of a particular ethnic group -Membership or participation in organizations associated with ethnic groups (schools, churches, temples, mosques, etc.) -The person's (or person's spouse's) name if associated with an ethnic group -National origin may be a BFOQ

Smith v. City of Jackson, Mississippi

disparate impact approach to a case brought under the Age Discrimination in Employment Act

Sexual Harassment

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment." (http://www.eeoc.gov/facts/fs-sex.html). Two Types of Harassment: Quid pro quo: Latin meaning "this for that." Hostile work environment.

Strict scrutiny test

A constitutional analysis used by courts hearing equal protection claims involving governmental discrimination based on a "suspect class." -This test requires the government to demonstrate that the discriminatory treatment was necessary to achieve a compelling government purpose and -that the governmental action was "narrowly tailored" to achieve the compelling purpose -It must also show that it did not unduly harm those who were not given the preferential treatment

Four-Fifths Rule

A mathematical formula developed by the EEOC to demonstrate disparate impact of a facially neutral employment practice on selection criteria

California Pregnancy Disability Leave (PDL) Overview

Covered Employers -Employers with 5 or more full or part-time employees Eligible Employees -All female employees, regardless of length of service, who are disabled by pregnancy, childbirth or medical conditions

Ambat v. City And County of San Francisco

Decision: The justifications offered by the county in support of the policy each spoke to extremely important concerns, according to the court, which added that "the Sheriff is to be commended for his attention to the welfare of female inmates in San Francisco's jails." However, continued the appellate judges, the fact that the policy sought to advance such important goals as inmate safety was not, by itself, sufficient to permit discrimination on the basis of sex.

McDonnell Douglas Corp. v. Green

Green laid off as part of RIF. While unemployed, took part in protest activities against MD. Later applied for advertised job and company rejected him. He sued and demonstrated "prima facie" case of disparate treatment. Criteria established: belong to protected group, applied for posted job, rejected despite qualified, rejected and employer kept looking.

The Equal Pay Act of 1963:

Federal legislation that requires that men and women performing substantially equal work be paid equally

Employer Liability for Coworkers & Nonemployees

For both quid pro quo harassment and hostile environment harassment by nonsupervisory or nonmanagerial employees, an employer will be liable if it: (1) knew of, or should have known of, the harassing conduct and (2) failed to take reasonable steps to stop it.

Examples of Harassing Verbal OR Visual Conduct (cont'd)

Graphic verbal commentaries about an individual's body, degrading words to describe an individual, suggestive or obscene letters, notes or invitations Using expressions which can be belittling such as "honey", "dear", "sweetheart", "little lady", "lady manager" or "lady supervisor." Using offensive terminology in other languages Inappropriate photos, displays, paraphernalia— (i.e. Sports Illustrated swimsuit calendar, nude photos, dildos, etc.) Inappropriate e-mails, text messages, postings on social networking websites of a sexual or derogatory nature Imitating others in a derogatory manner

"Unwelcome" Conduct Element of Sexual Harassment

In order for a sexual harassment case to prevail, the employee must show that the employer's conduct was "unwelcome" Since consensual ("welcome") conduct cannot be the basis for a sexual harassment case. Conduct is "unwelcome" or "unwanted" if the person subjected to it considers it as such (whether they express it or not)

What Is Hostile Work Environment Harassment?

In order to constitute environmental harassment, four elements must be met: 1)The conduct must be unwelcome. 2)The conduct must be connected with a protected status (e.g. sex, race) 3) The conduct must be offensive to the recipient (subjective standard) and to a "reasonable person" (objective standard) 4) The conduct must be severe or pervasive.

Employer's Liability for Another's Sexual Harassment

In this PowerPoint presentation, generic reference has been made to "employer" as the perpetrator of sexual harassment. However, the employer may not be the perpetrator (or may not even be a person such as a corporation); instead, the perpetrator may be a supervisor, co-worker, vendor or customer. What should be the employer's liability for sexual harassment committed by a supervisor, etc.?

Qualified exigencies

Include the following issues arising from the call to active duty status of a family member: -short notice deployment -military events and related activities -certain child care and related activities -making or updating financial or legal arrangements -attending counseling -taking up to five days of leave to spend time with a family member who is on short-term, temporary rest and recuperation leave during deployment -attending certain postdeployment activities

The ADA Amendments Act of 2008

Individuals can establish that they are "regarded as having such an impairment" if they show that they have been subjected to discriminatory treatment because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity

Sexual Orientation Discrimination

Is discrimination based on sexual orientation covered by Title VII? The courts are split so the Supreme Court will likely consider the issue. E.g., "Title VII Bars Sexual Orientation Discrimination, 2nd Circuit Decides." Many state statutes (including California) bar sexual orientation discrimination.

The "Interactive Process" **

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.

Employer's Liability for Sexual Harassment

One way for an employer to avoid or limit sexual harassment liability is to have policies and procedures in place which either prevent or remedy sexual harassment. Training is also mandatory in California Example: Leadership from the top

How Do I Know What a "Reasonable Person" Is?

The objective severity of the harassment is judged from the perspective of a reasonable person in the complainant's position, considering "constellation of surrounding circumstances, expectations, and relationships" The inquiry is intended to be guided by "common sense, and an appropriate sensitivity to social context." Key Element Unwelcome conduct

Gender Plus Discrimination

This kind of discrimination can serve as "justification" for preferring to hire man instead of woman Example - woman would have to leave work earlier in order to cook dinner for her husband or pick up children from school or day care.

Gender as a BFOQ

Title VII does allow employers to hire only employees of one sex, or of a particular religion or national origin, if that trait is a BFOQ

Sex Discrimination

Title VII prohibits any discrimination in terms or conditions of employment because of an employee's sex

Same-Sex Harassment

Title VII prohibits discrimination because of sex in terms or conditions of employment, including sexual harassment by employees of the same sex as the victim of the harassment.

Remedial Seniority

Victims of discrimination must be placed in the position they would have been in had no illegal discrimination occurred

Gender Stereotyping

When a person is treated differently because he/she does not conform to the typical social norms expected of his/her gender -Examples: Overly aggressive women; effeminate men

Continuing Violation

Where the plaintiff alleges a continuing violation of Title VII, the plaintiff need only file within 180 or 300 days (depending on whether there is an appropriate local or state agency involved) of the latest incident of the alleged continuing violation.

"Unwelcome" Conduct Element of Sexual Harassment cont.

Whether conduct is "unwelcome" can be hard to prove - what if the employee does not object or actually participates in or approve of subject conduct, such as Employee's participation in sexually-themed conversations. "Consenting adults" defense. Provocative clothing = consent?

Humphrey v. Memorial Hospitals Association

Women always came late because she had OCD. The decision was that she was a qualified person with disability.

Business necessity

the safe and efficient performance of the business or performance of a particular job requires that employees be of a particular sex, religion, or national origin