Business Law 4th test
defenses under EPA
-a bona fide seniority system -a bona fide merit system -a pay system based on quality or quantity of output -factors other than sex
to attempt to legitimize pay inequalities, you need to ensure that the duties are
-actually performed by those receiving extra pay -regularly constitute a significant portion of the employee's job -substantial -commensurate with the pay differential -available on a nondiscriminatory basis
to bring a successful claim under ADA, the plaintiff must show that he or she meets all of the following
-had a disability -was otherwise qualified for the job -was excluded from the job solely because of that disability
who is protected under ADA
-has a physical or mental impairment that substantially limits one or more of the major life activities of such individual -has a record of such impairment -is regarded as having such an impairment
3 conditions must be met for implied or implied-in-fact contract
-plaintiff provided some property or service to the defendant -the plaintiff expected to be paid for such property or service, and a reasonable person in the position of the defendant would have expected to pay for it -the defendant had an opportunity to reject the property or service but did not
to prove hostile environment sexual harassment:
1-he or she suffered intentional, unwanted discrimination because of his or her sex 2-the harassment was severe or pervasive 3-the harassment negatively affected the terms, conditions, or privileges of his or her work environment 4-the harassment was both subjectively and objectively unwelcome 5-management knew about the harassment, or should have known, and did nothing to stop it
proving disparate-treatment discrimination in employment under title vii is a 3 step process
1-plaintiff (the employee) must demonstrate a prima facie case of discrimination 2-defendant (the employee) must articulate a legitimate, nondiscriminatory business reason for the action 3-plaintiff (the employee) must show that the reason given by the defendant (the employer is a mere pretext)
covenant not to complete
A contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specified geographical area.
lack of genuine assent
A defense to the agreement of a contract in which the offeree claims that the offeror secured the agreement through improper means, such as duress, fraud, undue influence, or misrepresentation.
contract
A promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. every time you purchase something it is a transaction so its a contract
kimmel v florida board of regents
ADEA does not apply to state employers
pregnancy discrimination act of 1987
Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy you have to provide a woman a place to give breastmilk you cannot ask a women how many kids they have etc in interviews cause it is discriminatory
Where can you cannot refuse to hire someone because they smoke
VA
Lucy v. Zehmer
Zehmer owned a piece of property that Lucy wanted to buy. One night at Zehmer's bar, Lucy made an offer which Zehmer allegedly accepted. He and Lucy both signed a napkin which had specific details concerning the price and title of the land. Zehmer also had his wife sign it. Zehmer later contended that he was joking and that he didn't really want to sell. Doesn't matter. Mental reservations that aren't manifested don't impair obligations he purports to take. question here is were they joking? if they were joking then they can't do anything because he didn't make it clear that it was a joke, he lost. the price was appropriate and there was no evidence he was joking
hostile work environment
a form of sexual harassment in which unwelcome and demeaning sexually related behavior creates an intimidating and offensive work environment just because there is bullying going on doesn't mean there is a hostile work environment. there needs to be harassment based on sex, race, etc. if someone wants to touch your hair because youre black, they say go back to your country bc of your religion, stuff like that
valid yet unenforceable contract
a law prohibits the courts from enforcing it. statute of frauds requires that certain contracts must be evidenced by a writing before they can be enforced. also the statute of limitations mandates that an action for breach of contract must be brought within a set period of time, thereby limiting enforceability
bilateral contract
a promise in exchange for a promise
4 elements to a contract
agreement acceptance capacity legality (legal object)
cyber harassment - NJ appellate court has ruled that
airline pilot sued continental airlines for sexual harassment and it focused harassment on an electronic bulletin board employers have a duty to remedy online harassment when they have notice that employees are engaged in a pattern of retaliatory harassment using a work-related online forum. court ruled that bc the electronic board was not a physical location in workplace it was outside of the workplace environment employers have to protect people from online harassment
bona fide occupational qualification defense
allows an employer to discriminate in hiring on the basis of sex, religion, national origin, or age when doing so is necessary for the performance of the job no race, color, and customer preference if a woman wants to hire a caregiver to bathe her, she can only want a woman, because of BFOQ
same sex harassment
always going to be sexual harassment no matter sexual orientation
executive exemption
an individual may be mandatorily retired after age 65 if two conditions are met: -he or she has been employed as a bona fide executive for at least 2 years immediately before retirement -on retirement, he or she is entitled to nonforfeitable annual retirement benefits of at least $44,000
harassment in cyberspace
an organization can be held liable for the 3rd party action if they knowingly allow employees to be harmed by people who don't even work for them
the most common use of getting genetic information from employees is using
apple watches, fit bits they use this information in selective termination illegal under GINA
implied contracts
arise from words but from the conduct of the parties
executory contract
as long as some of the terms have not yet been performed pending
civil rights act of 1964
assured everyone in the nation of certain basic rights. the act is divided into sections, called titles.
prima facie
at first view the evidence is sufficient to raise a presumption that discrimination occurred
remedies for violations of EPA
back pay, potential damages
defenses to title 7 claims
bona fide occupational qualification defense merit defense seniority system defense
what is an exception to contract orally
buying and selling a house. it has to be written
express contracts
clearly set forth in either written or spoken words
sources of contract law
common law uniform commercial code bilateral versus unilateral contracts
acceptance
conformity that involves both acting and believing in accord with social pressure
title vii (7)
deals with discrimination in employment prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment opportunities on the basis of their race, color, religion, sex, or national origin need 15 employees 2 ways to prove discrimination: disparate treatment and disparate impact
back pay
difference between the amount of money the plaintiff earned since the discriminatory act and the amount of money she would have earned had the discriminatory act never occurred
the seniority system defense
employees are given preferential treatment based on their length of service legal if 1-the system applies equally to all persons 2-the seniority units follow industry practices 3-the seniority system did not have its genesis in discrimination 4-the system is maintained free of any illegal discriminatory purpose
griggs v duke power
employer-defendant required that all applicants have a high school diploma and a successful score on a professionally recognized intelligence test for all jobs except laborer. the stated purpose of these criteria was to upgrade the quality of the workforce
age discrimination in employment act of 1967
enacted to prohibit employers from refusing to hire, discharging, or discriminating in terms and conditions of employment against employees or applicants age 40 or older ADEA applies to employers having 20 or more employees, and agencies and unions with at least 25 members of that operate a hiring hall bc of his, an employer can refuse to promote an employee under 40 because he or she is too old or young to prove a prima facie case, you have to prove that you -belong to the statutorily protected class (those above 40) -was qualified for the position held -was terminated under circumstances giving rise to an interference of discrimination
sexual harassment
equal employment opportunity commission unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
lockhard v pizza hut
franchise was held liable for the harassment of a waitress by two male customers because no steps had been taken to prevent the harassment
unilateral contract
gift, unenforceable until given don't use a unilateral contract on something that you have to have done best example of this is a lost dog- you equally want your dog home
equal opportunity harasser
harasses men and women in similar ways
snell suffolk county
hispanic and black corrections workers demonstrated that a hostile work environment existed by proving that they had been subjected to continuing verbal abuse and racial harassment by co-workers and that the county sherriff's department has done nothing to prevent the abuse
hunt v nebraska public power district
hunt had been a clerk for 17 yrs in district office. office also had 2 other clerks, district supervisor, district superintendent, and office manager. district manager retired, so she took on the job and her own but she did much more - was told she would receive pay raise and title change but she didnt get paid enough and court agreed
men are more so victims of caregiving discrimination because
if a man has to leave to take care of his kids, people say "don't you have a wife for that" bc they expect the women to do the caregiving
plain-meaning rule
if a writing, or a term in question, appears to be plain and unambiguous on its face, we must determine its meaning from just "the four corners" of the document, without resorting to outside evidence, and give the words their ordinary meaning
harassment by nonemployees
if an employer knows that a customer repeatedly harasses an employee yet the employer does nothing to remedy the situation
voidable contract
if one or both parties has the ability to either withdraw from the contract or enforce it
disparate treatment
intentional discrimination. occurs when an employee is treated differently on the basis of being a member of a protected class
defenses to the enforcement of a contract
lack of genuine assent if contract lacks proper form (or lacks writing)
illusory contract
looks like a contract but its not illusion of a promise arbitration cannot be held against them
what state protects obese people from discrimination
michigan
void contract
not a contract at all. Either its object is illegal or it has some defect so serious it is not a contract
what kind of theory is used in contract law
objective
agreement
offer by one party, called the offeror, to enter into a contract and an acceptance of the terms of the offer by the other party, called the offeree
what needs to be present to have an agreement
offer is properly communicated by the offeror to the offeree
no fraternization policy
often are used to try to prevent lawsuits for sexual assault people are going to find a way to do it anyways
executed contract
once all terms of the contract have been fully performed
valid contract
one that will be enforced
brennan v townsend & o'leary enterprises
plaintiff received an email with derogatory term - not intended to be public was discriminated against in the workplace based on her gender in violation of the fair employment and housing act not a hostile work environment bc it was an email and not too pervasive
americans with disabilities act
preventing employers from discriminating against employees and applicants with disabilities. requires employers to make reasonable accommodations to the known physical or mental disabilities of an otherwise qualified person with a disability unless the necessary accommodation would impose an undue burden on the employer's business
spelled out stuff wins over
printed numerals
two types of sexual harassment
quid pro quo and hostile work environment
remedies to ADA violations
reinstatement, back pay, and injunctive relief if intentional, then limited compensatory and punitive damages are available if repeated you can get fined up to 100,000
preliminary negotiations
request or invitation to negotiate is not an offer when they make you an offer, you need to say you're excited but don't negotiate or make counter offer because you have now rejected their offer you need to say - thank you! is there any leeway in the salary, benefits. etc. Is any part of this offer negotiable? That way you are not rejecting not technically negotiating, its getting ready to negotiate
statues of limitations
requires you to have certain things in writing
the #1 discrimination in the workplace
sexual harassment - gender discrimination
equal work definition
skill effort responsibility working conditions
equal opportunity harasser
someone who is awful to everyone. harasses men and women, treating people the same. this means its not gender discrimination and therefore not harassment
procedure for fining a claim under title 7
step 1- file a charge with the EEOC -employee must file a charge with the EEOC within 180 days of the alleged discriminatory act -alternatively, employee may file a charge with a state agency (assuming one exists) step 2- EEOC conciliation attempts -EEOC notifies the employer of the charge within 10 days -EEOC investigates and attempts to negotiate a settlement between employer and employee -EEOC may file a lawsuit in federal court on behalf of the employee -If no settlement is reached and no lawsuit is filed by EEOC, the commission issues a "right-to-sue" letter to the employee step 3- EEOC right-to-sue letter -right to sue letter: statement that the plaintiff has followed the proper initial procedures and therefore may file a lawsuit step 4- employee lawsuit against employer
consideration
the bargained-for exchange or what each party gets in exchange for his or her promise under the contract
uniform comercial code
the body of laws governing commercial transactions in the US. became law in each state that adopted it in whole or in part as an element of its state code if the contract is for the sale of a good, it falls under Article 2 of the UCC; if it's anything else, it falls under common law
Hodgson v. Greyhound Lines, Inc
the employer refused to hire applicants age 35 or older bc the safest drivers were 50-55, with 16-20 yrs of experience driving greyhound, court agreed
affirmative action is legal only if
the government puts it in place to prevent a prior occurrence to happen again. a company cant do it for itself. quotas are illegal some states made it illegal
contractual capacity
the legal ability to enter into a binding agreement
uncleaned hands
the most unclean your hands are, the more bad you are, therefore the more the court cares less about you
intent
the offeror must show intent to be bound by the offeree's acceptance
even though oral contracts are lawful
they are not wise don't use it with family
disparate impact
unintentional discrimination. occurs when an employer sets a requirement for employment that inadvertently precludes large numbers of a protected class from employment in a particular job often result of employer trying not to discriminate but ends up discriminating
the merit defense
usually raised when hiring or promotion decisions are partially based on test scores 3 types of validation are acceptable: 1-criterion-related validity: statistical relationship between test scores and objective criteria of job performance *typically the company creating the test will already have the testing done* 2-content validity: isolates some skill used on the job and directly tests that skill (accounting test) 3-construct validity: a psychological trait needed to perform the job is measured (personality test)
objective theory of contracts
we base the existence of a contract on the parties' outward manifestations of intent and we base its interpretation on how a reasonable person would interpret it
quid pro quo
when a supervisor makes a sexual demand on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment
gender pay disparity as of 2020 was
women earned .81 for every 1.00 a man earned
are oral contracts allowed
yes because
why you cant sue if someone promises bringing you to the movies but then says no
you can sue for breach of contract if they are enforceable, but not if its a gift
analyzing the intentions of parties of a contract
• A judge should interpret a contract so as to give effect to the parties' intentions at the time they entered into the contract and to ensure the agreement makes sense as a whole. If possible, the court should ascertain the parties' intentions from the writing. If multiple interpretations are possible, the court should adopt the interpretation that makes the contract lawful, operative, definite, reasonable, and capable of being carried out. If the contract contains ambiguity, the judge should interpret it against the interests of the drafter. After all, the drafter is the one who could have prevented the ambiguity in the first place. If there is a conflict between preprinted and handwritten terms, the handwritten ones prevail. If numerals and numbers written out in words conflict, the written words prevail. If there is a conflict between general terms and specific ones, the specific terms apply. The court should interpret technical words in a contract as they are usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense
quasi-contracts
NOT a contract legal fiction, something the court has constructed to breach equity and fairness if you have never spoken with the person in your life, how could you have a contract? you don't if someone comes to your house out of the blue to resurface driveway, and you go downstairs until they left, you will still be billed for the driveway even if you've never met them before. It's wrong because he saw what they were doing cause technically they are trespassing and they actually went to the wrong house. His hands would be clean if he wasn't home.
restatement of the law, contracts
Not the law itself, drafters often explain what the law about a particular matter is in the majority of states and then provide alternative approaches other states have adopted
recovery in quasi-contract may be obtained when
1. a benefit is conferred by the plaintiff upon the defendant 2. the defendant has knowledge of the benefit that is being bestowed upon her 3. the defendant retains the benefit under circumstances in which it would be unjust to do so without payment
elements of the offer
1. serious intent by the offeror to be bound to an agreement 2. reasonably definite terms 3. communication to the offeree
Crystal Dixon v. University of Toledo
1030-1035
how many sexual assault claims a year
12,000
under ada, the plaintiff can file a charge withing
180 days of discriminatory act then EEOC charge must be filed within 300 days of the discrimination or within 30 days of receiving notice of the termination of state proceedings, whichever comes first
equal pay act
1963 law that required both men and women to receive equal pay for equal work except: -seniority -merit -measuring earnings by quantity/quality of production -differential based on any factor other than sex
GINA
Genetic Information Nondiscrimination Act least likely thing someone will be suing for
Title 7 applies where
Internationally
oncale v sundowner
Supreme Court ruled that harassment may occur between people of the same sex
