Business Law Module 7

What is the seniority System defense?

A legal defense under 4 conditions: systems are considered bona fide and are thus not illegal 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; and (4) the system is maintained free of any illegal discriminatory purpose.

How are employees fired in the 18th and 19th century?

During the eighteenth and nineteenth centuries in the United States, employees had no protection in the workplace. In fact, an employer could fire a worker for no reason at all. This termed as "at-will employment".

What is the Electronic Communications Privacy Act of 1986?

Employees' privacy rights were extended to electronic forms of communication, including email and cellular phones. ECPA outlaws the intentional interception of electronic communications and the intentional disclosure or use of the information obtained through such interception.

What are the process for proving Disparate Impact?

I. Established statistically that rule restricts employment for those in a protected class. II. Articulate why the policy or practice is a business necessity. III. Show that the alleged business necessity is a mere pretext.

What is Discrimination based on Marriage?

I. On June 26, 2015, in a historic 5-4 ruling, the Supreme Court of the United States found bans on marriage equality to be unconstitutional—and that the right to marriage is a fundamental right for everyone. The case is called Obergefell v. Hodges.

What are Worker's compensation laws?

I. Workers' compensation laws ensure that covered workers who are injured on the job can receive financial compensation through an administrative procedure rather than having to sue their employer.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act (ADEA) of 1967 was 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. The language describing the prohibited conduct is virtually the same as that of Title VII, except that age is the prohibited basis for discrimination. ADEA applies to employers having 20 or more employees.

What is the Occupational Safety and Health Act of 1970?

The federal government regulates workplace safety primarily through the Occupational Safety and Health Act (OSHA) of 1970, which requires every employer to "furnish to each of his employees ... employment ... free from recognized hazards that are likely to cause death or serious physical harm." The Occupational Safety and Health Administration (abbreviated OSHA, the same as the act) is the agency that is responsible for promulgating workplace safety standards, inspecting facilities to ensure compliance with the standards, and bringing enforcement actions against violators.

Define Americans with Disabilities Act

The goal of the Americans with Disabilities Act (ADA) is preventing employers from discriminating against employees and applicants with disabilities. ADA attempts to attain this objective by requiring 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.

How are employees fired today?

Today, any employee who is not employed under a contract for a set duration or under a collective bargaining agreement is considered an at-will employee. This means that the employee may quit at any time for any reason or no reason at all, with no required notice to the employer. Similarly, an employer may fire the employee at any time, with no notice, for almost any reason.

What is Family and Medical Leave Act?

When the Family and Medical Leave Act (FMLA) went into effect in 1993, it was hailed by its supporters as a breakthrough in American law and feared by its opponents as an unwieldy encumbrance on business. FMLA covers all public employers and private employers with 50 or more employees. It guarantees all eligible employees (those who have worked at least 25 hours a week for each of 12 months prior to the leave) up to 12 weeks of unpaid leave during any 12-month period for any of the following family-related occurrences: I. The birth of a child. The adoption of a child. II. The placement of a foster child in the employee's care. III. The care of a seriously ill spouse, parent, or child. IV. A serious health condition that renders the employee unable to perform any of the essential functions of his or her job.

What is the equal pay of 1963?

Although we generally think of Title VII as the primary means of protecting women from discrimination, an earlier law actually was designed specifically to protect women from wage discrimination: the Equal Pay Act (EPA) of 1963. II. When EPA was passed, the average wages of women were less than 60 percent of those of men. The primary purpose of the law was to eliminate situations in which women, working alongside men or replacing men, would be paid lower wages for doing substantially the same job.

What are the minimum issues which the employer private policies should cover?

At a minimum, employer privacy policies should cover the following issues: Employer monitoring of telephone conversations. Employer surveillance policies. Employee access to medical and personnel records. Drug testing policies. Lie detector policies. Ownership of computers and all issues unique to the electronic workplace.

What is the civil rights act - title VII

Federal law (amended by the Civil Rights Act of 1991) that protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories. There are two ways to prove discrimination under Title VII—disparate treatment and disparate impact.

What level of protection does federal and state law protect the employees?

Federal law may be described as a minimum level of protection for all workers. State laws may give employees more, but not less, protection than federal laws.

What is Disparate-Impact under Title VII of the Civil Rights Act?

I. A form of discrimination that arises when an employer's policy or practice appears to apply to everyone equally but its actual effect is that it disproportionately limits employment opportunities for a protected class. II. Disparate-impact cases are sometimes called unintentional-discrimination cases. III. Disparate-impact cases arise when a plaintiff attempts to establish that although an employer's policy or practice appears to apply to everyone equally, its actual effect is that it disproportionately limits employment opportunities for a protected class.

What are remedies under Title VII?

I. A plaintiff may seek both equitable and legal remedies for violations of Title VII. Courts have ordered parties to engage in diverse activities ranging from publicizing their commitment to minority hiring to establishing special training programs for minorities. A successful plaintiff may recover back pay for up to two years from the time of the discriminatory act. II. A plaintiff who was not hired for a job because of a Title VII violation may also receive remedial seniority dating back to the time when the plaintiff was discriminated against; compensatory damages, including those for pain and suffering; and, in some cases, punitive damages. III. In cases based on discrimination other than race, however, punitive damages are capped at $300,000 for employers of more than 500 employees, $100,000 for firms with 101 to 200 employees, and $50,000 for firms with 100 or fewer employees. An employer will not be held vicariously liable for punitive damages as long as it made good-faith efforts to comply with federal law. IV. Attorney fees may be awarded to a successful plaintiff in Title VII cases. They are typically denied only when special circumstances would render the award unjust. If it is determined that the plaintiff's action was frivolous, unreasonable, or without foundation, the courts may award attorney fees to the prevailing defendant.

What is the omnibus crime control and safe streets act of 1968?

Employers cannot listen to the private telephone conversations of employees or disclose the contents of these conversations. They may, however, ban personal calls and monitor calls for compliance as long as they discontinue listening to any conversation once they determine it is personal. Violators may be subject to fines of up to $10,000.

What are unemployment compensation?

I. Although FMLA in some cases helps employees retain their jobs, what happens if they lose their jobs? The Federal Unemployment Tax Act (FUTA), passed in 1935, created a state system to provide unemployment compensation to qualified employees who lose their jobs. II. Under this law, employers pay taxes to the states, which deposit the money into the federal government's Unemployment Insurance Fund. Each state has an account from which it can access the money in the fund in accordance with the rules the state establishes for eligibility. States have different minimum standards for qualifying for unemployment compensation, although almost all states require that the applicant did not voluntarily quit or get fired for cause.

Names some examples for Federal Legislations that serve to protect employees.

I. Civil Rights Act (CRA) of 1964—Title VII (as amended by the Civil Rights Act of 1991) Protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories II. Pregnancy Discrimination Act (PDA) of 1987 Amends Title VII of the CRA, expanding the definition of sex discrimination to include discrimination based on pregnancy III. Age Discrimination in Employment Act (ADEA) of 1967 Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee or applicant being age 40 or older IV. Americans with Disabilities Act (ADA) of 1990 (as amended in 2008) Prohibits discrimination against employees and job applicants with disabilities V. Equal Pay Act of 1963 Prohibits an employer from paying workers of one gender less than the wages paid to employees of the opposite gender for work that requires equal skill, effort, and responsibility

What is harassment by nonemployees under Title VII?

I. Employers may be held liable for harassment of their employees by nonemployees under very limited circumstances. If an employer knows that a customer repeatedly harasses an employee yet the employer does nothing to remedy the situation, the employer may be liable. II. For example, in Lockhard v. Pizza Hut, Inc., the franchise was held liable for the harassment of a waitress by two male customers because no steps had been taken to prevent the harassment.

What is Sexual Harassment under Title VII of the civil rights act?

I. Harassment first developed in the context of discrimination on sex and it evolved to become applicable to other protective classes. II. The definition of sexual harassment stated in the Equal Employment Opportunity Commission (EEOC) guidelines and accepted by the U.S Supreme Court is "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of sexual nature" that implicitly or explicitly makes submission a term or condition of employment; makes employment decisions related to the individual dependent on submissions to or rejection of such conduct; or has the purpose or effect of creating an intimidating , hostile, or offensive work environment.

What do the plaintiff need to show to enforce ADA?

I. Has a disability II. Was otherwise qualified for the job III. Suffered an adverse employment decision because of that disability. Remedies for ADA violations are similar to those available under Title VII. A successful plaintiff may recover reinstatement, back pay, and injunctive relief. In cases of intentional discrimination, limited compensatory and punitive damages are also available. An employer who has repeatedly violated the act may be subject to fines of up to $100,000.

What are harassment of other protective classes under title VII

I. Hostile-environment issues have also been used in cases of discrimination based on religion and race. II. For example, in a 1986 case, Snell v. 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 sheriff's department had done nothing to prevent the abuse. III. The white employees had continually used racial epithets and posted racially offensive materials on bulletin boards, such as a picture of a black man with a noose around his neck, cartoons favorably portraying the Ku Klux Klan, and a "black officers' study guide," consisting of children's puzzles. White officers once dressed a Hispanic inmate in a straw hat, sheet, and sign that said "spic." Such activities were found by the court to constitute a hostile work environment.

What is the pregnancy discrimination act of 1987?

I. In 1987, Title VII was amended by the Pregnancy Discrimination Act (PDA). This law expanded the definition of discrimination based on gender to include discrimination based on pregnancy. II. "Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII."12 Under the act, temporary disability caused by pregnancy must be treated the same as any other temporary disability.

May an employer discriminate against a smoker?

I. In the Case Opener, Jennifer discovered that Brad was a smoker. Later, she fired him. One of Jennifer's given reasons for terminating Brad's employment was that he was a smoker. May Jennifer and So Clean! legally fire an employee for smoking outside the workplace? The answer is, "It depends!" II. A recent trend has been for employers to consider a potential employee's lifestyle when deciding whether to hire that person. Employers argue that smokers have higher health care costs and miss more work, lowering productivity. III. As a result, some companies either won't hire smokers or are threatening to fire current employees who will not or are unable to quit smoking. In 2005, Michigan-based Weyco Inc. announced that it would terminate all workers who did not stop smoking. Many states have passed laws preventing companies from engaging in such action. IV. If Brad works in Michigan, Jennifer and So Clean! may legally terminate him for smoking outside the workplace. Conversely, if Brad works in the District of Columbia or any of the 29 states with smoker's rights laws, he could not be legally terminated for smoking outside the workplace. V. Finally, employers should be aware that giving breaks on health care plans to employees who are nonsmokers could be in violation of a smoker's rights law.

What happened to the same-sex harassment case Oncale v. Sundowner Offshore Services, Inc?

I. Oncale, a male, was forcibly subjected to sex-related, humiliating actions against him by other male employees. He was physically sexually assaulted and threatened with rape. II. He complained, to no avail, so he filed a lawsuit alleging discrimination based on sex. The district court granted a motion for summary judgment for the defendant employer, holding that a male had no cause of action under Title VII for harassment by male co-workers. III. The case was appealed to the U.S. Supreme Court, which concluded that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court reversed the appellate court's order and remanded the case for further proceedings.

What are the process of proving disparate-treatment?

I. Plaintiff (the employee) must demonstrate a prima facie case of discrimination. II. Defendant (the employer) must articulate a legitimate, nondiscriminatory business reason for the action. III. Plaintiff (the employee) must show that the reason given by the defendant (the employer) is a mere pretext.

What is Consolidated Omnibus Budget Reconciliation of 1985?

I. The Consolidated Omnibus Budget Reconciliation Act (COBRA) ensures that employees who lose their jobs or have their hours reduced to a level at which they are no longer eligible to receive medical, dental, or optical benefits can pay to continue receiving benefits for themselves and their dependents under the employer's policy. The employee must pay the premiums for the policy, plus up to a 2 percent administration fee, to maintain the coverage for up to 18 months, or 29 months for a disabled worker. II. Conditions: - The employee is fired for gross misconduct - The employer decides to eliminate benefits for all current employees.

What is the Employee Retirement Income Security of 1974

I. The Employee Retirement Income Security Act (ERISA) is "a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans. II. Conditions -Plan information (i.e., features and funding). -Assurances of the fiduciary responsibility of those in charge of managing and controlling the plan assets. -A grievance and appeals process for participants to get benefits from their plans. -The right to sue for benefits and breaches of fiduciary duty.

What is the fair labor standards act?

I. The Fair Labor Standards Act (FLSA) requires a minimum wage of a specified amount to be paid to all employees in covered industries. Congress raises the specified amount periodically to compensate for increases in the cost of living caused by inflation. The current federal minimum wage is $7.25.

What is bona fide occupational qualification?

I. The bona fide occupational qualification (BFOQ) defense allows an employer to discriminate in hiring on the basis of sex, religion, or national origin (but not race or color) when doing so is necessary for the performance of the job. II. For Example, if the job requires lifting heavy objects, an employer may select an employee who can perform the task. it will not violate the title VII.

What is the merit defense?

I. The merit defense is usually raised when hiring or promotion decisions are partially based on test scores. II. Professionally developed ability tests that are not designed, intended, or used to discriminate may be used. Although these tests may have an adverse impact on a class, as long as they are manifestly related to job performance, they do not violate the act.

What are defenses to claims under Title VII?

I. The three most important defenses available to defendants in Title VII cases are the bona fide occupational qualification, merit, and seniority system defenses.

What were the majority opinion of the supreme court's ruling Obergefell v. Hodges

I. Under the Due Process Clause of the Fourteenth Amendment, no state shall deprive any person of life, liberty, or property, without due process of law. The fundamental liberties protected by this clause include most of the rights enumerated in the Bill of Rights. In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. II. In interpreting the Equal Protection Clause, the U.S. Supreme Court has recognized that new insights and societal understandings can reveal unjustified inequality within the United States's most fundamental institutions that once passed unnoticed and unchallenged. III. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have a fundamental right to marry.

Use of Social Media in Firing decisions

I. What happens if an employer wants to use information obtained from social media to fire an employee? The answer depends on the manner in which the employee is using social media. As an example, the National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter. II. Employees are permitted to use social media to initiate group action and employers are prohibited from restraining those rights. However, personal grievances not aimed to induce group action would not be protected. Over the last several years, there have been a number of National Labor Relations Board (NLRB) lawsuits filed, with mixed outcomes. III. In response to employer requests for guidance, the NLRB's Acting General Counsel released three memos in 2011 and 2012 detailing the results of investigations in dozens of social media cases. IV. Several discharges were found to be unlawful because they flowed from unlawful social media policies. In one case, however, a discharge was upheld despite an unlawful policy because the employee's posting was not work-related. The report underscored two main points regarding the NLRB and social media: -Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. -An employee's comments on social media are generally not protected if they are mere gripes, not made in relation to group activity among employees. V. In September 2012, the NLRB issued a decision that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. At issue was whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which did not involve fellow employees, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired. The Board agreed with the Administrative Law Judge that the salesman was fired solely for the photos he posted of a Land Rover incident, which was not concerted activity and so was not protected. VI. On December 14, 2012, the NLRB found it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a co-worker who intended to complain to management about their work performance.

How are same-sex marriage treated before Obergefell v. Hodges?

I. a same-sex couple could marry in a state where such unions were legal, but if they moved to a state that did not recognize same-sex marriage, they were legally treated as if their marriage did not exist. II. This was because of section 2 of the Defense of Marriage Act (DOMA), a federal law passed in 1996 providing that no state "shall be required to give effect" to same-sex marriages granted by other states. As a result, some states chose to recognize same-sex marriage, and other states chose not to. III. However, the Supreme Court's 2015 ruling struck down section 2 of DOMA, effectively ending the unequal treatment of the marriages of same-sex couples. Same-sex couples are now able to exercise the right to marry in all states, and there is no longer any basis for any state to refuse to recognize lawful same-sex marriages performed in other states.

What are the two forms of sexual harassment?

I. quid pro quo occurs when a supervisor makes a sexual demand on someone and this demand is reasonably perceived as a term or condition of employment. II. The second form of sexual harassment involves the creation of a hostile work environment.

How does an employee sue for disparate treatment under Title VII of the Civil Rights Act?

I. the plaintiff must be a member of a protected class as listed in CRA. In other words, the employee must have been discriminated against on the basis of race, color, national origin, religion, or sex (i.e., gender). II. If the employee has been refused work, fired, denied a promotion, or the like, based on membership in a protected class, this is a form of intentional discrimination and qualifies the employee to sue for disparate-treatment discrimination.