LAW 3220 FINAL EXAM

Judicial Review

¢APA sets out procedural requirements for court review ¢Jurisdiction is needed by the court to hear the case. ¢Action must be reviewable by the courts. Sometimes review is prohibited by statute, i.e. Dept. of Veterans Affairs actions regarding benefits for veterans, their dependents or survivors ¢A party must have standing to seek court review of an agency action See Lujan v. Defenders of Wildlife (within text) ¢The agency action must be final to warrant judicial review under the ripeness doctrine. ¢Parties must complete all agency appeals before turning to the courts under the exhaustion doctrine.

Administrative Law

¢Administrative law consists of legal rules that define authority & structure of an agency ¢ ¢Sources include Enabling statutes of administrative agencies Administrative Procedures Act (APA, 1946) Rules issued by administrative agencies Court Decisions: Review validity of agency actions ¢ ¢The structure of administrative law itself is created by the APA Defines procedural rules and formalities for federal agencies ¢ ¢An agency must abide by APA requirements ¢ ¢Congress may impose different requirements than the APA

Level of Disability

•ADA cases involve individual evaluation of circumstances of what constitutes a disability in relationship to particular employment. • •Disabilities are major life condition. • •Tough standard to meet. • •Partially impaired: Need not mean person is considered disabled • •For those disabled, employers need only make a reasonable accommodation. • •Employers need not retain employees who can no longer perform their jobs. • •Ex: One dock worker over 400 lbs. was dismissed - morbid obesity is not an impairment. -He couldn't go up and down ladders as needed. -Could not perform the job

Origins of Discrimination Law

•Historically, employers could discriminate on race, sex or other personal characteristics •Jim Crow laws supported segregation & labor market discrimination •National Civil Rights Movements in the 1960s began the change •1963 Equal Pay Act (first employment discrimination legislation) •Title VII of the Civil Rights Act of 1964 •1972 Equal Employment Opportunity Act (created the EEOC) •1978 Pregnancy Discrimination Act •1991 Civil Rights Act •EEOC established to enforce all of them •Discrimination in employment still exists - not as overt - more subtle

Forms of Discrimination

•Imposing differential standards on employees • •Illegal compensation differentials • •Harassment may result in constructive discharge • •Plaintiff must establish a Prima Facie Case -Burden then shifts to defendant to present evidence that claim is untrue -After employer offers non-discriminatory reason for employment decision, burden shifts back to plaintiff to show that defendant had illegal motives. - •Disparate treatment (intentional discrimination) • •Disparate impact/adverse impact (unintentional discrimination but the EFFECT is discriminatory. Proof of intent not required.)

Substance Abuse

¢Alcohol the worst ¢8% of workers are serious alcohol abusers ¢Another 3-8% of adults abuse or addicted to illegal or improperly dispensed drugs ¢One in eight of workers have substance abuse problem ¢ ¢Cocaine (illegal) and OxyContin & Ritalin (legal but obtained illegally) •Total economic cost about $400 billion per year; cost to employers ~ $100 billion per year. • •Safety Issues ~ workers under influence of alcohol or other drugs are 3.6 times more likely to be injured or to injure another • •Those who abuse alcohol, even if not under the influence - 70% greater chance of on-the-job injury •National Transportation Safety Board found that alcohol or other drug-impaired workers caused many RR accidents. • •Alcohol or other drugs are a factor in 1/3 of all accidents involving truck drivers killed in accidents. • •Insurance costs are about double for families with an alcoholic. See Issue Spotter: "What Attitude Toward Drinking and the Office?" - Re: Office parties and other festivities.

"WICKED WITCH OF THE EAST?"

¢Carole Smith is Wiccan. ¢Worked for TSA at the Albany airport for 7 months. ¢Supervisor told her that he was investigating a workplace violence claim. ¢Another employee accused Smith of casting spells on her. For example, one day the heater in her car did not work. What else could have caused it except a spell by Smith? ¢Smith was rated in the tope 10% of detecting contraband carried by passengers. ¢Complained about harassment by numerous employees because of her beliefs. ¢TSA packed her record with negative comments and fired her. Know the case and know that this IS discriminatory, and Wiccan is considered a religious and spiritual belief. (It's an ancient belief some of which is similar to the Celtic beliefs and any spells cast are always "good spells."

Creating An Administrative Agency

¢Congress gives an agency power & authority through legislative delegation ¢Congress delegates power to the agency to perform the regulatory purpose ¢Congressional statute delegates powers to the agency through an enabling statute ¢Agencies are created to have expertise and supervision over special problems about which Congress is concerned ¢If voters/businesses unhappy with regs., can pressure their representatives in Congress to make changes Note that Congress creates a statute, and then "delegates the power" (through an "enabling statute) to the agency to create regulations to conform with the purposes of a congressional statute. Know the terms on this slide for the exam, and how they work.

Dow Chemical v. US

¢Dow denies EPA entry to its complex for an on-site inspection. ¢EPA hires commercial aerial photographer who uses a precision mapping camera to view 2000-acre outdoor manufacturing facility area. ¢Dow claims there is a 4th Amendment Constitutional violation re: warrantless search & seizure. ¢District Court rules for Dow; Court of Appeals reverses for EPA. •Supreme Court HOLDS: Aerial photographs from navigable airspace are not a 4th Amendment violation. •Photographing is lawful, if area is observable by the general public. •However, cannot "penetrate walls"; that would violate trade secrets or confidentiality. •Use of highly sophisticated technology is questionable as well. •This concept is changing as technology is becoming more and more available to the public. that you can monitor from the outside and take photographs, even with infrared cameras. However, you CANNOT penetrate walls with listening devices.)

Burlington Industries, Inc.v. Ellerth

¢Ellerth worked for 15 months in sales for Burlington. She claimed that Slovik, a manager, made sexually offensive remarks, asked for liberties, & made threats to deny her of job benefits. ¢She refused his advances. There was no retaliation against her. She never told anyone about the problem until lawsuit was filed. ¢District Court granted summary judgment for Burlington. Appeals Court reversed. Burlington appealed. ¢HELD: Reversed & case remanded back to District Court. ¢Ellerth focused her lawsuit on quid pro quo claims. The District Court may decide if it is appropriate to allow Ellerth to amend her pleading to claims of a hostile work environment. ¢ER may then raise defense that includes ¢1) That Employer exercised reasonable care to prevent or correct harassing behavior and ¢2) The Employee unreasonably failed to take advantage of those opportunities or to avoid harm.

Anti-Raiding Covenants

¢Employees required to sign an agreement they will not recruit fellow employees for another company when they leave their current place of employment ¢Varies from state to state Some courts hold clauses in violation of public policy ¢Is an illegal restraint on competition Other courts hold them as enforceable New York court held that once employee leaves place of employment, continued restraints are not favored. ¢Exception: to protect things, i.e. trade secrets California & Texas have held that covenants limited in time & coverage are enforceable. In Missouri, legislature specifically held such covenants legal. employees are sometimes required to sign an agreement that they will not recruit fellow employees for another company when they leave their current place of employment. The laws concerning this vary from state to state. Some states hold these clauses are in violation of public policy and are an illegal restraint on competition. Other courts hold them as enforceable. The New York court held that once employee leaves place of employment, continued restraints are not favored. (The exception is in regard to protection of certain information such as trade secrets.)

Key Defense for Employers

¢Employer should have a clear, effective policy and procedures to reduce likelihood of discrimination cases. ¢Without policies, an employer may have a more difficult defense. ¢If manager (agent) is involved with wrongful termination, employer may be liable under vicarious liability. ¢Employer must have effective procedure to allow employees to make complaints about perceived discrimination. ¢Greater likelihood of punitive damages imposed on employer if shows lack of good-faith efforts to prevent discrimination.

Omnibus Transportation Employee Testing Act

¢Employers who operate Aircraft Public transportation or Commercial motor vehicles ¢Test their employees for use of alcohol or illegal drugs ¢Include: Pre-employment testing Random testing during employment Testing after accident

Title VII of the 1964 Civil Rights Act Amended by Equal Employment Opportunity Act of 1972 And 1991 Civil Rights Act

¢Employers/unions with 15 or more employees/members are subject to the law ¢Protected Classes (CANNOT discriminate based on) Race ¢Black or African American; White; American Indian or Alaska Native; Native Hawaiian or other Pacific Islander; and Asian Color ¢Shade of skin Religion (reasonable accommodation of religious practices w/o undue hardship on employer/employee ) ¢See later slide concerning work schedules and time off to attend religious activities Sex (does not apply to sexual preference or identity) National Origin ¢Example: Require English spoken at all times ¢May be discriminatory unless for reasons of safety, productivity or legitimate job requirement ¢May bring an action for more than one type of discrimination affecting an individual through certain actions by employers ¢ ¢Affirmative Action Programs designed to remedy past discriminatory practices (see later slides) ¢ ¢Reverse discrimination (preferential treatment to members of a protected class) is also illegal McDonald v. Santa Fe Trail ¢African-American employee reprimanded, but kept job; the white employee was fired. Held: Illegal under Title VII. ¢ ¢Many states have their own civil rights acts modeled on Title VII Some states prohibit discrimination based on sexual orientation. ¢Some cities also have civil rights laws extending to discrimination coverage Prohibition against discrimination based on sexual orientation San Francisco prohibits employment discrimination based on height or weight

Adjudicatory Hearing

¢Formal agency process under APA rules ¢ ¢Similar to those followed in a trial ¢ ¢Business must respond to a complaint that alleges violation of agency regulation. ¢ ¢Administrative Law Judge (ALJ) presides. ¢ ¢ALJ is a civil service employee who is usually an attorney. ¢ ¢Witnesses may be cross examined. ¢ ¢Less formal than a court trial ¢ ¢Hearing must meet due process guarantees of the Constitution. ¢ ¢However, there is no right to trial by jury (see next slide) •Hearings are held before Administrative Law Judge (ALJ) •ALJ is not an independent judge but an employee of the agency where case is reviewed •Question: Is there a right to trial by jury at such hearings? •Answer: The Supreme Court has held that there is no right to a jury trial since these are neither criminal nor common-law cases. regulatory agencies must provide basic constitutional procedures when dealing with businesses when assessing if there has been a violation by the business. Slide #22 discusses that "due process" is guaranteed at an Administrative Law Hearing, but there is NO right to trial by jury. (Slide # 23)

Enforcing Rules

¢Gathering of information and investigating violations ¢Broad investigative powers of agencies through Monitoring and self-reporting by business ¢Business is concerned with 5th Amendment violations re: self incrimination (see following slide) Direct observation by agency ¢See Dow Chemical v. U.S. (within text) Agency obtains information through subpoena power ¢Directs person receiving subpoena to appear and testify or to produce documents

Affirmative Action Programs

¢Purpose? To Remedy past discriminatory practices ¢Correct underrepresentation ¢Adopted ONLY on race or sex (not color, religion, national origin or age) ¢Programs are monitored and enforced by the Office of Federal Contract Compliance Programs (OFCCP) in Dept. of Labor ¢Courts may require affirmative action as a remedy in discrimination cases. •Pres. Johnson's Executive Order 11246 in 1965: government contractors must adopt affirmative action •$50,000 in federal contracts & 50 or more employees have to have written affirmative action program. -Workforce analysis: For each job in the organization -Underutilization analysis: Comparing % of minorities & women in community in each job category with % employed by contractor I often have on the exam an example of a man making about 75% on an employment application exam and a woman making 72% on the same exam, which is not much difference. If the woman instead of the man is hired by the company, you can assume all other qualifications were the same, and that in this case, there would be no discrimination under the affirmative action program. It is good that you know that there cannot be quotas in decisions of affirmative action programs.

Possibility of Retaliation for Expression of Rights

¢Retaliation for complaints of discrimination is prohibited. ¢Employers who retaliate will be punished. This occurs in about 1/3 of discrimination complaints that are filed. after a complaint if filed or a person complains of discrimination, there is retaliation against the complainant in 1/3 of the cases.

Effective company policy

¢To claim that employee failed to take advantage of in-house protections against discrimination & harassment: Firm must have credible program in place. ¢Knowledgeable person or staff in place to hear complaints ¢ ¢Process is secure and separate from normal internal communication changes. ¢ ¢Employees believe program is trustworthy. ¢ ¢To further reduce sexual harassment claims: Some companies have policies against romances between employees. What starts as consensual may end badly. Result: Claim of harassment.

Violations by Employers

¢Using standardized employment tests that screen out people with disabilities ¢Refusing to hire applicants due to history of alcohol abuse rather than currently alcohol abusers ¢Rejecting a job applicant because he/she is HIV-positive ¢Asking job applicants if they have disabilities, rather than asking if have ability to perform the job ¢Limiting advancement opportunities for employees due to their disabilities ¢Not hiring a person with a disability because the workplace does not have a bathroom to accommodate wheelchairs

Preemployment Guidance: ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

•ADA prohibits employers asking disability-related questions or requiring medical exams before the job is offered. •What you may and may not ask of applicants must relate to the job. •If disability is obvious or applicant volunteers information, questions may be asked about reasonable accommodations. •Once a job offer is made, an employer may ask 1) for documentation of a disability and 2) more questions about reasonable accommodations. •If physical exam is given to new employees, similar exams must be given to all employees in same job category. •Results must be kept confidential. •Exams must be related to ability to do the job - not to screen out employees with potential health problems. •When applicant is qualified for employment, may need a professional assessment of limitations and accommodations. •Have you ever been treated for mental health problems? •Have you ever filed for workers' compensation benefits? •Do you have a disability that would interfere with your ability to perform the job? •How many sick days were you out last year? •Have you ever been unable to handle work-related stress? •Have you ever been treated for drug addiction or drug abuse? -Past addiction is a disability; current use of illegal drugs are not. -Current alcoholism is protected disability - applicant may not be asked re: drinking habits (can ask if person has been arrested for DUI). •Other Questions: Can you ask? -Age? No -Computer skills if applicant won't use them? No -Married? Children? No -Sexual Preference? No -Been in therapy? No

1967 Age Discrimination In Employment Act (ADEA)

•About 23% of discrimination claims are in this category •Prohibits discrimination in persons over 40 •All employers with 20+ employees must comply. •Applies to hiring, promoting, terminating •May not •Force retirement •Require older works to pass physical exam as a condition of continued employment •Indicate age preference in advertising •i.e. "Young, Dynamic Person Wanted" •Require a physical exam as condition of continued employment (unless it is necessary for job performance) •Choose a younger worker because an older one will retire soon •Cut health-care benefits for workers over 65 because they are eligible for Medicare . I usually place on the exam that there is an employment ad for "an energetic, newly graduated" person is wanted for the job." Combining the idea of "energetic" which connotes youth and "newly graduated" (due to the fact that most college graduates are under the age of 40), makes this ad discriminatory under age discrimination. The "o" word (old) or the "y" word (young) are definitely never words to be used in job descriptions.

Remedies in Discrimination Cases(Courts Have Broad & Flexible Powers)

•Actual and compensatory damages •Equitable remedies -- Injunction •Place the plaintiff in the position he/she would have enjoyed but for the discrimination •Back Pay - to the date the discrimination -Employees must mitigate damages by seeking other work •Front Pay - if employee was unlawfully fired •Compensatory damages ¢Such as: Emotional distress/medical treatment, job-hunting costs, loss of reputation •Reinstatement/promotion/hiring •Attorneys fees, filing fees, expert witness fees, etc. •Punitive damages (capped from $50,000 to $300,000 depending on firm size ¢Not available in ADEA cases The courts have a lot of leeway in giving remedies, and one that is not mentioned on the slide, but that I will have on the exam, is that sometimes courts will order that company employees undergo "Sensitivity Training" to avoid actions that would be discriminatory against other employees.

Enforcement Power

•Agencies have an array of enforcement tools in civil and criminal penalties, plus the use of injunctions •Possible sanctions -Prohibitions, requirements, limitations -Withholding of relief, penalties & fines -Destruction, taking, seizing, withholding of property -Assessment of damages, reimbursements, restitution, compensation, costs, charges or fees -Requirement, revocation, suspension of license •Informal procedures (i.e. tests, inspections, permits, negotiations, advice, settlements) vs. •Formal procedures (i.e. adjudicatory hearings. Businesses sometimes request a jury at an administrative hearing.) See Issue Spotter: Contest a Regulatory Order?

Bringing a Discrimination Charge

•Amended by Lily Ledbetter Fair Pay Act of 2009 •First Step: Must file with a state or federal EEOC Office •Under federal law, within 180 (states usually extend to 300) days of alleged discrimination •Sometimes state laws have further requirements. •Dubious claims can be dismissed. •EEOC then notifies the employer of the case & investigates the claim •EEOC agent hears both parties' sides of the incident. •If no settlement, the EEOC informs the parties of the result of the investigation. •If the EEOC finds merit with the complaint, it issues a right-to-sue letter to the employee (in order to bring the action in federal court). •Sometimes the EEOC will sue an employer. • Mediation is voluntary & mediator cannot issue an order. . Know these steps well for the exam. In a question, I will bring you up to a point that the EEOC informs the parties of the result of the investigation. You will then need to answer on the exam that if the EEOC finds merit with the plaintiff's complaint, they will issue a "right to sue" letter.

"EEOC IMPACT ON GLOBAL OPERATIONS"

•American firms have operations in other counties. •Foreign firms have operations in the U.S. •Americans work for American firms - stationed in other countries. •Foreign citizens work for American firms in U.S. and other countries. •Does Equal Employment Opportunity Law (EEO) apply? •EEO Law of U.S. much tougher than in most nations. •Case: Sayaka Kobayashi was personal assistant in NY to Hideaki Otaka, Pres. Of Toyota North American operations -She complained Otaka groped her; made number of sexual advances. -She complained and was told she should meet with Otaka privately or could quit. -She sued in federal court (U.S. law applied to foreign operations in U.S. that employed foreign citizens. -President resigned and returned to Japan. •Generally, U.S. law applies to anyone working for a company in U.S. •Also applies to U.S. citizens working for U.S. companies in other countries •EEO DOES NOT apply to non-U.S. citizens working for U.S. companies in other countries. • •Example: Michigan company ran ad for secretary for its office in Mexico. -Stated it wanted woman, unmarried, aged 20-28, with "excellent presentation", that would submit to a photo. - •Example: Another U.S. firm ran ad for an attorney for a man. •Those adds were legal in Mexico. Maybe not very good for public relations in U.S.

Religion

•Balance between "reasonable accommodation" vs. "undue hardship". Employer has strict dress code to give company a certain "look". •Code need not be modified to allow certain employees to wear religious garb, such as headdress, or unshaven as a religious requirement. -However, if an employer does not have a strict code, then cannot tell an employee NOT to wear religious garb. -There are exceptions in extreme situations and/or for safety reasons. -EEOC v. Abercrombie & Fitch: Refusing to hire Muslim women who wear scarves due to religious practices not acceptable. Scarves violated company dress code, but company did not accommodate; simply barred all women in that category. Religious practices may not be a factor in employment decisions. •Employer need not make other employees change their work schedule to accommodate the religious holiday preferences of an employee. -BUT if accommodations can be made at no cost, giving opportunity of employees to switch work days, then only minimal cost is incurred. For example, wearing a hard hat with a turbine is impossible to guarantee safety of a worker. Therefore, a company can require that the turban be removed, and a hard hat worn on the plant floor for instance. This slide also talks about the "balancing" concept in regard to work schedules. Know this for the exam as well. Often, I have an extreme example of "accommodation" balancing when an employee, as a part of his religious beliefs wants to carry a snake around in the work place and bite its head off at work at a given time of day. For safety and sanitary reasons, an employer will not permit this, which is NOT discrimination.

Ballalatak v. All Iowa Agriculture Assn.

•Ballalatak worked for Hawkeye Downs as a security supervisor. •Two employees were injured in a work-related accident. •Called Ballalatak and reported injury. •Ballalatak drove to scene, helped get men to hospital & filled out accident report. •Later general manager, Nowers, told the 3 men to meet with him before returning to work. •Told the men their medical expenses would be taken care of without filing for workers' compensation. •Later, injured men told Ballalatak they were concerned they would not receive workers' compensation benefits. •Ballalatak told Nowers, and stated workers had rights to benefits. •Nowers fired him. •Ballalatak sued, saying he was fired for asking re: workers' compensation duties to the injured workers. •Nowers claimed he fired him for insubordination. •District court dismissed suit. •Ballalatak appealed. •HELD: District Court judgment affirmed. •Usually employer may fire an at-will employee at any time. •Exceptions are if discharge is contrary to public policy. •Ballalatak claims he was fired for raising concerns to his employer re: workers' compensation claims. •Ballalatak argued public policy interests should extend to supervisors (him) who advocate such benefits for other employees. •Court protects employees exercising their own statutory rights. •Ballalatak was not fired to secure his OWN right. •Nor was he fired for refusing to violate workers' compensation law. •Fired for his attempt to ensure his employer did not violate statutory right of other employees. •Iowa law does not protect internal advocates for other employees. •Law also does not protect employee who asserts other employees may contact an attorney re: workers' compensation rights. •Ballalatak loses. Ugh! For this case, know that the employee who was fired was NOT a whistleblower and therefore his supervisor can lawfully fire him under employment at will. Unfortunately, his attempt to ensure his employer did not violate statutory rights of other employees got him fired and Iowa law does not protect internal advocates for other employees. He was fired for his attempt to ensure his employer did not violate statutory right of other employees. Had he gone to an outside agency, his supervisory could not have lawfully fired him. He made the wrong choice it seems.

Lewis v. Heartland Inns of America, L.L.C.

•Brenda Lewis began working for Heartland Inns in July 2005. •Successfully filled several positions. •Was promoted; received two merit pay increases; mangers praised her work and the "good impression" she made on customers. •Shortly after promoted in December 2006, Director of Operations, Barbara Cullinan, saw Lewis for the first time. •Told Lewis's supervisor she didn't think Lewis was a "good fit" for front desk - lacked "Midwestern girl look." •Said front desk girl should be "pretty" and Lewis was not. •January 2007, Lewis's supervisor refused to remove Lewis from front desk. That supervisor was fired. •Cullinan then met with Lewis to interview her for position she already held, and told here there must be a 2nd interview - never happened. •Lewis was fired. Lewis sued for violation of Title VII. •Contended she was terminated for not conforming to sex stereotypes & in retaliation for opposing discriminatory practices. •District court granted summary judgment for Heartland Inns. Lewis appealed. •HELD: Reversed and remanded for further proceedings. •Lewis presented sufficient evidence to make a prima facie case on her claims for sex discrimination and retaliation. •S. Ct. has said that cases of sex discrimination do not compel a women to prove that men were not subjected to same challenged discriminatory conduct •For instance: "Employer who discriminates against a women because they won't wear dresses, or make-up, engages in sex discrimination, because it has to do with victim's sex." •Heartland procured video equipment so Cullinan could inspect a front desk applicant "look" before any hiring. •Termination letter to Lewis relied on January 23 meeting with Cullinan. •Later then Heartland alleged poor job performance to justify the termination. •Heartland did not follow its own written termination procedure - conducting investigation, looking at previous disciplinary record (Lewis had none), etc. • Ample evidence to support Lewis's claims.

Statutory Defenses Under Title VII

•Business Necessity: job related -Physical requirements/lifting boxes? -Flight attendants must be certain heights? - •Professionally-Developed Ability Tests -Must predict work ability - •Bona Fide Seniority or Merit System -Cannot take away seniority or merit from some workers, even though applied discriminatorily in the past - •BFOQ: Bona Fide Occupational Qualification -Only female guards at women's prisons? -Male models for female clothing? - •Early Retirement Plans (which encourage voluntary early retirement)

1990 AMERICANS WITH DISABILITIES ACT (ADA) ANDTHE 1973 REHABILITATION ACT

•Cannot discriminate against a person with a disability that "limits a major life activity," or has a record of or regarded to have "an impairment" -Manual tasks -Walking/seeing -Hearing/speaking -Breathing/learning -Working •Examples of disabilities -History of cancer -Severe disfigurements -Have had heart attacks/cancer -Must use a wheelchair -Are hearing- or vision-impaired -Crohn's disease -Epilepsy -PTSD or other psychological disorders -Fear of heights NOT covered -Being left-handed NOT covered•Compliance is in the same way discrimination suits are brought under Title VII - file with EEOC •Compliance is in the same way discrimination suits are brought under Title VII - file with EEOC •Applies to all employers with 15+ employees •Prima Facie Case: -1) Individual has disability within meaning of the statute -2) Employer had notice of disability -3) Could perform essential function of job with reasonable accommodation -4) Employer refused to accommodate •States have similar laws Know the ADA (American Disabilities Act) considers a "disability". Specifically note what is NOT covered under the ADA at the bottom of this slide. Also, mental conditions, such as ADD, ADHD, anxiety disorders, obsessive-compulsive conditions, depressive disorders, narcolepsy, etc. are considered "disabilities" under the EEOC regulations. (Slide #31) Know examples of disabilities that are covered and what also is NOT considered a disability under the statute. Pay close attention to fear of heights NOT being a disability under the ADA. A person who fails to comply with an order to work in a higher place than usual can be fired if he/she does not comply with his/her employee's request to climb the ladder, for instance.

"JURISPRUDENCE? A NEW PROTECTED CLASS?"

•Curt Storey, resident of PA, sued Burns International Security Services for wrongful discharge. • •Claimed he was fired for refusing to remove Confederate flags from his lunch box & pickup truck • •Claimed protection to display because he is a "Confederate Southern American" • •HELD: Title VII does not recognize loyalty to Confederacy as a protected class.

CONTROLS ON AGENCY POWERS

•Direct Controls -Congressional budget process -Agency Appropriations & Reporting Requirements -Cost-Benefit and Risk Analysis •Example: Office of Management and Budget may send proposed regulation back to an agency if scientific, technical and economic information standards are not met. -Presidential Executive Orders instructing tasks to be undertaken by agencies •Example: Pres. Johnson's order to agencies re: affirmative action programs • Indirect Controls -Freedom of Information Act -Privacy Act -Government in the Sunshine Act As indicated in the book, citizens can know how a company is treated under the FOIA (Freedom of Information Act). However, the citizens do NOT have the ability to know the trade secrets under the Privacy Act.

hostile environment

•Discussing sexual activities • •Commenting on physical attributes •Unnecessary touching or gestures; crude, demeaning, offensive language •Displaying sexually suggestive pictures •Trivial, isolated incidences usually do not qualify as harassment One very important difference between the two is that in "quid pro quo" discrimination, the plaintiff had to have submitted to the person discriminating against them.

Noncompetition Agreements

•Employees sign not to leave employment and compete directly with employer. •Different states differ: -Some allow them absolutely -Some states allow court to imply reasonable terms in order to save the covenant in part -Other states will eliminate these agreements entirely -Others - common law governs, allowing if restraints are reasonable in time and extent of coverage. -Other states, like CA, say that almost every contract that restrains anyone from lawful business is void. •Employers must pay attention to individual state law in this area.

Disparate Impact

•Employer used a decision rule that causes discrimination based on protected class status. •The discrimination may have been unintentional. •EFFECT of employer's policy was to limit employment opportunities for a person or group of persons. •Practices appear neutral on their fact -But have a disproportionately adverse impact on employees of a protected class.

Reasonable Accommodation

•Employers must make a "reasonable accommodation" BUT need not take on an "undue hardship" •Making existing facilities accessible? Yes •Job restructuring? Yes, if no undue hardship on employer or other workers •Special equipment & training for the disabled? Yes •Changing test, training materials or policies? Usually yes •Part-time or modified work schedules? Yes •Acquiring or modify equipment? Yes, if reasonable expense •Redesign the entire assembly line to accommodate wheelchair employees? No •Redesigning one work station for a few thousand dollars? Yes •Readers or interpreters? Yes •Completely revamp a computer system? No •Reassignment to a vacant position? Yes, if person is qualified If someone has lupus, for instance, and needs to sit at the cashier counter because the employee is easily fatigued, a reasonable accommodation would be to allow the employee to sit and do the job.

LUJAN V. DEFENDERS OF WILDLIFE"LEGAL STANDING" (IN TEXT)

•Environmental groups argued that U.S. should stop providing aid to Egypt to build dams on Nile River. •Building of dams endangers the rare Nile crocodile. •Groups asserted providing aid should comply with U.S. Endangered Species Act. •Court held: Plaintiffs lacked standing and have suffered no "injury in fact". •Concern about crocodiles in Egypt is too remote. •Disagreement with agency policy is not = to an injury. Especially note that The Defenders of Wildlife did not have "standing" to pursue a court remedy under these circumstances due to the fact that the actions in Egypt were too "remote" and that disagreement with a U.S. foreign policy did not create a harm to The Defenders. There was no "injury in fact" to this group. However, The Defenders would have had standing if the U.S. governmental actions affected something that occurred WITHIN the U.S.

Rule Making

•Formal rules and regulations • •Policy guidance documents - Assist those regulated on how to comply with the law • •Substantive or Legislative Rules -Same force as statutes of Congress -Agency usually must give public notice of these types of rules and give parties opportunity for written comment - •Interpretative Rules -Statements issued by an agency to provide guidance regarding interpretation of a substantive rule or a statute -These rules may be created without public notice - •Procedural Rules -Rules that outline the method of agency operation -Procedures used to deal with the public regarding enforcement, investigation & adjudicatory review the "Substantive and Legislative Rules" and the force of law that they have; the "Interpretive Rules" that sometimes agencies will set out to companies to help companies understand how the agency will enforce the substantive rules; and the "Procedural Rules" of how the agency operates and deals with enforcement, investigation and adjudicatory review over companies.

At-Will Employment

•Free Market Concept •Employers: Can hire and fire who they want •Employees: May work-at-will or quit when they want •Contractual limits to at-will • •Exceptions: -Refusing to commit an illegal act -Important public duty (jury duty) -Public right (filing for workers' compensation) -"Whistle Blowing" -Contracts in violation of public policy, i.e. exculpatory agreements •Dismissal: If firm dismisses employee in violation of public policy exception, employee may sue for wrongful discharge or retaliatory discharge A whistleblower must choose wisely who he or she must go to complain in order to be protected from being fired due to the complaint (Notice in the reading that a whistleblower must go to an outside agency. Know this as you refer to the next case.

Genetic Information Discrimination

•Genetic Information Nondiscrimination Act (GINA of 2009) •Illegal to discriminate in employment based on genetic information •Genetic tests or those of person's family member (including medical history) -May not be obtained by employer -May not be used in any way re: suitability for employment •Illegal for person to suffer harassment or retaliation •EEOC enforces statute. •Same procedure as for Title VII ). Notice that the genetic tests that an individual or an individual's family member has undergone, including the medical history of the applicant or a family member found in medical records, cannot be obtained or used regarding the suitability of a potential employee for employment. Also, harassment or retaliation are discriminatory.

Horse Manure Cleanup Case

•Interpretive ruling re: cleaning up horse manure in Wilderness Areas •Arco Oil and Gas (no a part of BP Amoco) send seismologists by horseback to do seismic work. •Best route to the out-of-the-way site was to go by horseback through a Wilderness Areas. •EPA interpreted "pollution" to Wilderness Areas as any horse defecation of horses within the control and use of businesses travelling through areas by horseback. •Seismologists rode horses themselves but had to bring extra cargo animals and collect the defecation, put it in plastic bags and bring it back to their home base. •When news got around the ARCO offices, the e-mails and jokes went rampant, and the interpretive rule as nick-named "The Horse Shit Interpretation" of the EPA. (continued) •However, the seismologists were not amused as they had to collect the stuff and carry it back and get rid of it properly. •They said the stench was just TERRIBLE. •They also said that the manure might have helped the natural state of the wilderness. •Apparently wild horses and bears can, as they said "shit in the woods", but grain fed horses are not allowed to. •Different "outcome" so to speak. •UGH! •Remember this is an interpretive rule, not a new regulation.

ADMINISTRATIVE REGULATORY POWERS

•Legislative (or Rulemaking) • •Investigative • •Adjudicatory • •Enforcement • •Virtually all powers of the 3 branches of the government are incorporated into an agency

Lone Mountain Processing, Inc. v. Secretary of Labor

•Lone Mountain, a mining firm, cited for regulatory violations; was mailed "notices of contest"; did not respond; did not challenge notices or respond within 30 days. •MSHA sent delinquency notices. •Later Lone Mountain filed motions to reopen civil penalties from the final order. •Agency denied motion because company "failed to establish good cause" for reopening the matter. •Lone Mountain appealed. •HELD: Court granted petition for review. Remanded the order to the Commission to reopen its final order. •Commission has much discretion to "reopen" final orders. •Lone Mountain said Commission "abused its discretion" by departing from its own precedent without explanation. •Agency did not mention/discuss prior orders of leniency in reopening their final orders. •Commission must give reasoned analysis indicting that prior policies had been changed. •Failing to supply this analysis renders agency's actions "arbitrary and capricious". see what the company did and that it wanted to reopen civil penalties from the final decision of the administrative agency in its appeal to the court. The court allowed a review of the case and ordered the Commission to reopen it. The basis for siding in favor of Lone Mountain was "abuse of the Commission's discretion" without explanation. Prior leniency in other cases was never discussed by the Commission and therefore the Commission's decision was "arbitrary and capricious".

Black Beauty Coal Company v. Federal Mine Safety and Health Review Commission

•Mine Safety and Health Administration (MSHA) inspector Franklin entered mine in Indiana - Operated by Black Beauty. •Company assigned Hammond to escort Franklin. •Franklin entered the mine; smelled burning coal; asked miners about it. •One miner, Vogel, said he had smelled about 30 minutes before. •Investigation continued; nothing found; no problem reported. •Franklin proceeded and found place where conveyor belt dumped coal on another belt. Rip in guard sheet. Pile of coal 2' x 2' x 5' was packed around transfer spot. •Franklin thought it had begun to burn. •Hammond said he would have someone fix the problem. •Franklin said shut down belts. •Hammond refused - he didn't see evidence of fire. •Franklin issued citation for "high negligence." •MSHA sent Black Beauty a proposed penalty assessment. •Black Beauty rejected proposal. Chose to contest the matter with and administrative law judge (ALJ). •ALJ agreed with the MSHA and imposed $70,000 fine due to "high negligence". •Black Beauty petitioned court for review of ALJ decision. •75.400 prohibits accumulations of coal dust, but not mere spillages. •Accumulation: "reasonably prudent person, familiar with the mining industry . . . would have recognized the hazardous condition. . . ." •ALJ found none of evidence explained the smell of burning coal that occurred 30 minutes before Franklin's arrival. •"High Negligence" finding based on: -(1) Black Beauty had been cited for several past accumulations of violations (included belt line accumulations); -(2) Burning smell existed for significant time period; -(3) Villain "should have . . . seen and noted" coal turning in the tail roller; and -(4) Vogel & others did not alert management after noticing burning smell. - •HELD: Petition for review denied. In this case, an MSHA inspector entered the Black Beauty mine and smelled burning coal. In checking things out, he found the conveyor belt problem as indicated on the slide and in the book. When a supervisor of the Black Beauty refused to shut down the belts (when the investigator demanded it) the investigator issued a citation for "high negligence" Then review the high fine imposed on Black Beauty. Know the outcome of this case on Slide #21 and that Black Beauty lost the case as the court denied a review of the fine and let the high fine stand. Note also that Black Beauty had previous violations and a lack of fixing problems, thus the "high negligence" fine was imposed on the coal company.

General Principles of 4th Amendment Search & Seizure Guidelines of Administrative Agencies

•Need Warrant - "Routine inspections" •Administrative warrants are simple to obtain •No Warrant - "Open field observation" •No Warrant - Consent by management for agency to look over or search the premises •No Warrant - Closely regulated industries, i.e. -Pharmaceuticals industry -Nuclear facility

LOVE ONLY GOES SO FAR"

•New York company United Health Programs of America had a parent company, Cost Containment Group. •Cost Containment required workers to follow a spiritual system called Onionhead while on the job. •Employees required to pray, thank God for their jobs, and say "I love you" to managers and colleagues. •Those who protested were fired. •The aunt of the company founded the Onionhead doctrine. •The EEOC sued for back pay and other damages and an injunction against his company. •Shouldn't have such religious requirements. •EEOC attorney noted the "religious and spiritual practices may indeed provide comfort & community to many people. . . ." •But companies cannot impose them on employees.

Keith v. County of Oakland

•Nicholas Keith has been deaf since birth; cannot speak verbally but can communicate using American Sign Language (ASL). •Took and passed all portions of Oakland county's lifeguard training •Applied for employment as lifeguard •Head of hiring, Stavale, approved his employment subject to accommodation that Keith requested. -Presence of an ASL interpreter at staff and instructional meetings •Keith passed a physical exam, but physician said Keith would require constant accommodation. •Matters delayed - consultant was called •Consultant was dubious about Keith's ability to perform. -But had no experience regard ability of deaf people to work as lifeguards •Stavale was sure Keith could do the job. -Set out elaborate plan of accommodation •Consultant was concerned the plan might not work. •Offer of employment was withdrawn. •Keith sued for disability discrimination. •Trial Court: Summary judgment to County. Keith appealed. •HELD: Reversed and remanded. •Keith is disabled under the ADA. •Issues: -Whether Oakland County made an individualized inquiry -Whether Keith is otherwise "qualified for the position with or without reasonable accommodation" -Whether Oakland County engaged in interactive process •People with disabilities "ought to be judged on basis of their abilities . . . not judged . . . based on unfounded fear, prejudice, ignorance or mythologies . . . ." •ADA requires employers to make decisions that are NOT based on stereotypes & generalizations. •There is evidence that jury could find he can communicate effectively despite his deafness. -He can adhere to 10/20 standard of zone protection - scanning technique -Scan in 10 seconds; reach a part of their zone in 20 seconds •Ability to hear is unnecessary to perform essential lifeguard functions. •He is "otherwise qualified" to perform the job. •World record for most lives saved (900) - Leroy Colombo -- a deaf man

Reverse Sexual Discrimination and Same-Sex Discrimination

•Oncale v. Sundowner Offshore Services, Inc. (in text) •Male-on-male sexual harassment •Male worker sued his employer •Suffered verbal and physical abuse of sexual nature, by other male workers •Held: Same-sex harassment is prohibited •Prohibition of sexual harassment is not based on asexuality or androgyny in the workplace. •Title VII forbids behavior so offensive as to "alter the 'conditions' of the victim's employment". •Distinguish between simple teasing or roughhousing vs. conduct that is severely hostile or abusive. •Court says use common sense. •Use sensitivity •Courts use the "reasonable person" standard: Would "a reasonable person in the plaintiff's position . . ." find the behavior "severely hostile or abusive?" This was one of the first "same-sex discrimination" cases. It does not matter whether the person who has discriminated is of the same sex, is male/female, is a superior in the workplace, is a subordinate in the workplace or is on the same level in the workplace as the person that discriminated against the plaintiff.

Employee Substance Abuse Policies

•Pre-employment screening usually OK -- (Many states say testing after job offer is extended) •Testing employees on annual basis or part of occasional physical exams usually legal -Examination must be voluntary OR directly related to ability to perform job •Safety sensitive jobs •Random drug test -When announced as a condition of employment (Notification) •After accidents - OK •"Reasonable suspicion" - document this well in employee file -Announced policy of such tests and -Safety is an issue •Use Certified Labs for drug testing results •Give all employees copy of company policy and keep a signed receipt from employee •Make policy clear •Check with attorney

Rulemaking Procedure

•Proposed rule drafted by the agency staff •Internal review of the rule •Rules approved by the head of the agency for public consideration •Publishing of the proposed rules in the Federal Register •Interested parties may submit written comments to agency •After public comment period (60-90 days), agency reviews comments and finalizes the rule •Once agency issues final rule, it may be appealed through agency, then to the U.S. Court of Appeals. •Courts will respect rule as long as it is reasonable under language of Congressional statute.

Drug-Free Workplace Act

•Requires all companies of more than $25,000 worth of business with the federal government to certify they have "drug-free" workplace: -Publish policy statement -State what action taken against employees who violate policy -Establish drug awareness program -Make known availability of program -Require employees to notify employers of any drug-related convictions

Reviewability

•Review of Substantive Determination -Usually the courts yield to an agency's judgment unless decisions are arbitrary, capricious, or an abuse of discretion or rulemaking is vague or unduly burdensome on business. •Review Prohibited by Statute •Congress may specify in the statute which court has jurisdiction for review. •Can prohibit certain judicial review. •Review of Statutory Interpretation -Courts determine if the agency has gone beyond Congressional authority. •Review of Procedural Requirements -Courts will ensure that an agency has not acted unfairly or disregarded procedures (has not violated "procedural fair play").

Harris v. Forklift Systems

•Teresa Harris is a rental manager; her boss, Charles Hardy, insults her in front of others •She is a target of sexual suggestions. •"You're a woman, what do you know?" •Called her a "******** woman" •"Go to the Holiday Inn to negotiate [her] raise" •"What did you do, promise the guy . . . [sex] Saturday night?" •Hardy asks women to get coins from his front pants pocket •Hardy throws things on the ground •Asks women employees to pick them up; makes sexual comments about clothing •Harris quits & sues, claiming a "hostile work environment" •Lower courts: Say there is no sexual harassment •U.S. Supreme Court Reverses: "Employee's psychological well-being is relevant to determine if the environment is abusive and has a discouraging effect on the employee's staying on job." This was one of the first cases that recognized the concept of "hostile work environment" in sex discrimination cases.

Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.

•The Clean Air Act requires states with "nonattainment" (dirty air) areas to create permit program. •Program regulates "new or modified major stationary sources" of air pollution. •EPA regs. state a plant with multiple sources of pollution are treated as one source of pollution. •This is the "Bubble Concept" - it's as if multiple sources are under a "bubble". •The whole "bubble" is measured (rather than each source). •National Resources Defense Council (NRDC) challenged EPA's "Bubble Rule" •Said rule was inconsistent with Clean Air Act •Court of Appeals overturned the EPA regulation. Decision was appealed. •HELD: Reversed. Regulation is appropriate. •Two questions are asked: -1. Has Congress directly spoken to the precise question at issue? -2. If statute is silent or ambiguous re: an issue, was the agency's answer based on permissible construction of the statute? •Agencies are allowed to fill gaps left by Congress •Unless agency decisions are "arbitrary, capricious or manifestly contrary" to statute, regulations will be given controlling •weight. •Legislative delegation may be implicit or explicit - often implicit •Court usually defers to administrative interpretations. •EPA's use of the concept is reasonable policy for it to make. •The Bubble Program stays! Note the reasoning of the court in upholding that Bubble Concept. Specifically, if Congress grants an agency such as the EPA the right to regulate but leaves "gaps" concerning specifics of carrying out the statute (here the Clean Air Act), the Agencies are allowed to fill gaps left by Congress. Further if an agency "fills gaps" left open by a statute, the regulations filling those gaps are valid unless the agency decisions are "arbitrary, capricious or manifestly contrary" to statute. Here they were not. And lastly courts will usually defer to the administrative interpretations of a Congressional statute.

"ADMINISTRATIVE AGENCIES IN JAPAN"

•Very regulated •Administrative "guidance system" (gyosei shido) •They only give "guidance by direction" (shiji) or "suggestions" (kankoku) •Have "requests" (yobo) •Give "warnings" (keikoku) •Give "encouragement" (kansho) •Theoretically, businesses are not forced to comply •If businesses don't comply, however, there may be subtle, unrelated ways that make doing business more difficult •"Voluntary" nature of the system "saves face" for everyone. •Unlike the U.S., a Japanese agency does not actually confront violators. •The Japanese judiciary has a "hands-off" policy toward this administrative guidance system and its effects on businesses. Notice how different the Japanese regulatory agencies function from the U.S. regulatory agencies. It's interesting that theoretically businesses are not forced to comply with what a Japanese agency wants of them or asks of them. However, if a company doesn't comply as requested or ordered or warned, the agency will be subtle in the difficulty it will make for the business to do its work, for instance in re-licensing some activities of the business.

Perez v. Mortgage Bankers Association

•The Fair Labor Standards Act (FSLA) regulates requirements for overtime pay. •Department of Labor sets the details of the requirement. •In general managerial positions are exempted from the rule of overtime pay. •The Department of Labor's Wage and Hour Division issued opinion letter. •2001 Interpretive Rule: Stated mortgage-loan officers were to receive overtime pay •2006 Division issued Opinion Letter: Mortgage-loan officers fall under managerial exception -Need not be paid overtime. •2010 Division changed interpretive rule back to 2001 position that they should be paid for overtime. •MBA sued, contending that 2010 interpretive rule was invalid. -Because agency did not use notice-and-comment procedures when rule changed -Said this was a violation of APA. •District Court: Dismissed the suit. •Court of Appeals Reversed: Held that notice-and-comment should have been used. •Department of Labor appealed. •Section 4 of APA: 3-step procedure for "notice-and-comment" rulemaking. •1) Agency issues "general notice of proposed rule making" -Ordinarily published in Federal Register. •2) If "notice [is] required," agency must "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments." -Agency then considers and responds to significant comments. •3) Agency promulgates final rule -It must include in the rule text "a concise general statement of [its] basis and purpose." •Rules issued through this notice-and-comment process: "Legislative rules" - have "force and effect of law." •Not all "rules" must be issued through this process. •APA states that notice-and-comment requirement "does not apply" to "interpretive rules, general statements of policy. . . ." •The absence of notice-and-comment duty makes issuing interpretive rules easier for agencies that legislative rulemaking -BUT interpretive rules "do not have the force and effect of law and are not accorded the weight in the adjudicatory process . . . ." •If 1st interpretive rule doesn't use notice-and-comment procedures, -Then amendments or repeals of interpretive rule don't either. •HELD: Reversed. No need for notice-and-comment. This deals with the Fair Labor Standards Act and exemptions granted to financial institutions for overtime pay of general managerial positions in a company. Notice that there was a back-and-forth change in the exemptions of this overtime pay for mangers in the administration's opinion letters and interpretive rules over a period of time. The crux of this case is whether an opinion letter or an interpretive rule must be given notice to companies for their comment. That is true of substantive rules, but as this case indicates, the notice and comment requirement is NOT applicable to opinion letters or interpretive rules. Therefore, in this case, the agency did a lot of waffling back and forth about the exemptions, but they can do this in these circumstances when there are opinion letters and interpretive rules sent to companies.

The Rise of Administrative Agencies

•The first federal agency: The Interstate Commerce Commission (ICC,1887) • •In the early 1900s: Came the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) • •1930s: Brought Securities & Exchange Commission (SEC) and the Federal Communications Commission (FCC) • •1960s & 1970s: Created Environmental Protection Agency (EPA) and the Equal Employment Opportunity Commission (EEOC) • •The 1980s: Placed more emphasis on the important functions of the Environmental Protection Agency (EPA) and the Occupational Safety & Health Administration (OSHA) • •Agency: Tool for local, state & federal regulatory functions

EMPLOYMENT DISCRIMINATION IN EUROPE AND JAPAN"

•These countries are behind the U.S. in treatment of women and minorities. •Europe: Employees can be forced to retire between the ages of 55 and 65. • •Japan: First sexual harassment case in 1992 - remedy was for only $12,500, plus an apology, but considered a landmark case. •Europe: Immigrants treated as 2nd-class citizens, i.e. immigrants in France face blatant discrimination in job market. • •Japan: Women traditionally have been kept out of higher-level jobs and are not always paid as much for equal work. •Both: Generous maternity benefits encourage employers not to hire women because of high costs of such benefits. This is most likely due to the fact that we are "melting pot" when it comes to our backgrounds because of the immigration and slavery issues of our ancestors. Note the interesting result in Japan and Europe that those countries' generous maternity benefits actually encourage employers not to hire women due to high costs and benefits to women.

5th Amendment Self Incrimination Concerns of Businesses

•This privilege applies to individuals •Privilege does not apply to corporations or other legal entities •Corporations MUST produce documents requested by an administrative agency -If business doesn't comply, it will receive fines and penalties for non-reporting under the law. -If they do comply, information may incriminate business or persons within an organization. ¢Sometimes compliance places business "between a rock and a hard place" . there is NO 5th Amendment protection to business entities regarding concerning "self-incrimination". The 5h Amendment applies only to persons.

Pregnancy Discrimination

•Title VII was amended by the Pregnancy Discrimination Act. •Cannot discriminate against women because of pregnancy, childbirth or related medical conditions. •Women must be treated the same for all purposes including fringe benefit programs. •Examples: -Denying a woman a job, assignment or promotion because she is pregnant or has children -Requiring a pregnant woman to go on leave, when she can still do her job -Treating maternity differently than other leaves for temporary disabilities -Discriminating re: fringe benefits, such as health insurance, that discourages women of childbearing age from working Sometimes in an effort to protect pregnant women, employees unwittingly discriminate. As a pregnant friend of mine answered when asked by a co-worker in a very concerned way, "Are you okay? Are you feeling okay?", my friend kindly replied, "I'm not sick; I'm just pregnant." Note the examples of areas that employees have discriminated. One example I often put on the exam is that an employee will not allow a pregnant female reporter to go into a country which poses threats and dangers to reporters sent to that country. The employer cannot make that decision for the employee. The employee has the right to decide not to go on the dangerous mission, but if she wishes to go, the employer cannot stop her merely because she is pregnant.

Discrimination Based on Military Service

•Uniformed Services Employment and Reemployment Rights Act of 1994 •Based on Person's membership in or "obligation to perform service in a uniform service . . ." •It is: Illegal for employer to deny "employment, reemployment, retention in employment, promotion, or any benefit of employment" •Straub v. Proctor Hospital •Hostility to a member of the military was improper and is a tort under federal law •Is a form of discrimination that does not follow EEOC process. Also know the Straub v. Proctor Hospital case, noting that hostility against a military worker was a basis for the discrimination lawsuit under federal law.

Quid Pro Quo

•Unwelcome sexual advances; requests for sexual favors • •Verbal or physical conduct of a sexual nature • •Purpose: To promote, change condition of employment, salary, place on project, etc. • •Submission is the basis for the employment decision • •Promise of reward or threat of punishment in exchange for providing sexual favors

"I HAVE THE RIGHT TO HARASS WOMEN "

•Winston (teacher) was fired over sexual misconduct. •He kissed an 18-year-old female student "after a sexually suggestive conversation." •Winston sues the school, claiming he had a "mental handicap of sexual addiction." •Expert witness testified he had this disorder, which had led to seeking services of prostitutes and was a permanent condition. • •Held: Complaint dismissed. •ADA excludes "sexual behavior disorders" from the term disability. This is in fact a bona fide addiction and a difficult one to treat according to psychologists. However, note the ADA excludes "sexual behavior disorders" from the term "disability" for fear that those who sexually harass will use this as an excuse for their harassment.

EEOC v. Dial Corp.

•Workers at Dial plant needed to lift 35 lbs. of sausage at a time to a height from 30 to 60 inches. •Doing this over and over meant injuries to some workers. •Company began a Work Tolerance Screen (WTS) test for potential employees. -Candidates had to demonstrate strength ability. •Usual work force was ½ men and ½ women. •After WTS introduced, number of women hired dropped to 15%. •One applicant took test, passed it, but wasn't hired. •She complained to EEOC. •EEOC brought suit on behalf of 54 women who applied at Dial and were rejected despite passing WTS. •Trial Court said Dial did not demonstrate that WTS was a business necessity. •Awarded back pay to women ranging from $920 to $120,000. •Dial appealed. ¢HELD: Affirmed. ¢Expert testimony indicated that WTS was more difficult than the sausage-lifting jobs. ¢In WTS, the applicants had to perform 4x as many lifts as the current employees were doing and had no rest breaks. ¢ ¢Dial claimed WTS resulted in decreased injuries. ¢HOWEVER, sausage plant injuries started decreasing before WTS was implemented. ¢AND the injury rate for women employers was lower than that for men in 2 of the 3 years BEFORE Dial implemented the WTS. ¢Defense did not prove that WTS was related to the specific job and the required skills and physical requirements of the position.