Ch. 22 L &S for Fog

What is a disability?

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

Federal law prohibits employers from discriminating on account of gender in many different situations such as:

-Can't discriminate against applicants/employees on account of gender -Can't classify jobs as male or female -Can't advertise jobs as designated male or female UNLESS UNLESS UNLESS the employer can prove that gender is essential to the job in question

Title 7 applies to employers with ______ __ _______employees, labor unions with ____ __ ____, and labor unions that operate as ____ _____.

1-2. 15 or more employees 3. Hiring halls

Defenses that are commonly used by employers when defending a charge of employment discrimination include:

1. Business necessity 2. Bona fide occupational qualification (BFOQ) 3. Seniority

Pool of applicants analysis-looks at who's available. If 10% of bee keeping people have phds in bee keeping it would be expected?

10% of staff would be bee keeping.

How many employees are required for an employer to follow the Americans with Disabilities Act?

15 or more

For a employer to comply with age discrimination act how many employees must there be?

20 or more

What is a rule courts use to determine if one type of disparate impact discrimination has occurred?

4/5 rule

What looks at the selection rate of protected vs non-protected classes for that employer?

4/5 rule

The 4/5 rule is failed when ?

A protected class of job applicants is selected at a rate less than 80% of the rate at which nonprotected applicants were selected

What are adopted as an effort to overcome present effects of past discrimination?

Affirmative Action

What are hiring/promotion policies that give special consideration to members of protected classes?

Affirmative Action

What prohibits discrimination in hiring, promotion, and discharge against persons with disabilities?

Americans with Disabilities Act (ADA)

Private employers that don't do business with the government nor receive fed fund aren't required to implement affirmative actions programs, but?

Are allowed to do so, if desired

In order to win under the ADEA, Plaintiff must prove 3 things:

At the time of the employment decision/action, 1. s/he as a member of the protected age group 2. S/he was qualified for the position 3. S/he was not hired, not promoted, discharged, etc., because of age discrimination

What are practices or procedures which, although not intentionally discriminatory, have the effect of discriminating against members of a protected class Is when the employer's practices, procedures or tests are discriminatory in effect?

Disparate impact (unintentional)

What is intentional discrimination against people of protected classes (women and minorities)Intentional, against employees who are members of a protected class not promoting due to religion or race?

Disparate treatment (intentional)

Employers must reasonably accommodate their employees religious beliefs?`

Doing so would cause "undue hardship" to the employer's business

What if an employee/job applicant has a disability?

Employer should first determine if the employee/job applicant is otherwise qualified If so, the employer should then determine if the employee/job applicant can, with REASONABLE ACCOMODATION, perform essential job functions If so, employer must make such accommodations, UNLESS doing so would create an undue hardship for the employer

Employer doesn't have to hire anyone who isn't qualified if?

Employer's workforce does not reflect the % of members of protected classes that characterizes qualified individuals in the local market

Pregnancy Discrimination Act applies to?

Employers with 15 or more employees also it is illegal to discriminate against pregnant woman

What is treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, disability or other basis prohibited by federal law?

Employment discrimination

What does the EEOC stand for?

Equal Employment Opportunity Commission

What Federal law prohibits gender-based differences in wages for equal work ?

Equal Pay Act

True or False: COBRA requires that an employer have health insurance plans for its workforce.

False

True or False: HIPAA deals with confidentiality of employee health information.

False

True or False: If a business that employs 100 or more workers is going to have a mass lay-off, the law requires it to provide at least ninety days notice to affected workers or their union representative.

False

True or False: Workers compensation laws do not allow employees who were injured because they were negligent while working to recover workers comp benefits.

False

Is gender essential if fitting room attendant or restroom attendant such as man to clean bathroom or woman to clean bathroom?

Gender is essential

Mr. Dees was african american who worked for rental company and job was to make sure things were ready to go. First 2 years went smoothly and employer said attitude and work wasn't up to standard. Renting things out that wasn't up to standard and company said if you continue to do this you will be fired. He did and he was fired. What is he supposed to do?

Go to EEOC because can't file immediately and proved the 4 things and about race and age discrimination acts. (its prima facie case and will win unless defendant comes up with really good reason.

What is a business necessity?

Have to have minimum educational requirements. Must be reasonable

What should the employer do to help prevent harassment and other work place infractions?

Have written code of conduct. Most also have procedure for employees to report violation of code.

This 4/5 rule is used to determine:

If employment practice/procedure is illegal on its face

Discrimination in employment with regard to race is always?

Illegal, Applies to both disparate treatment and disparate impact DON'T DO IT!!!!

More men pass automobile pass test than women to become mechanic. (If woman sued would go to unintentional discriminatory) Why?

It eliminates more women than men. (unequal impact on women) If an employers standards or policies for selecting or promoting employees have a discriminatory effect on employees or job applicants inn these protected classes, then a presumption of illegal discrimination arises.

What does the EEOC do?

It is a Federal agency; Charged with enforcing various federal statues and regulations prohibiting employment discrimination

employer has pre exam for employment and more non protected pass than protected pass then?

It is a depends on whether it is discriminatory or not

Makes discriminatory wages actionable under federal law Clarified the time frame for bringing a lawsuit (is 180 days from the last act of discrimination, not the date when the discrimination began or was discovered)

Lilly Ledbetter Fair Pay Act of 2009

What is Quid pro quo sexual harassment?

Literally translated, means "this for that" Hostile environment sexual harassment ("constructive discharge") Same-gender sexual harassment Online harassment

Truck driver must lift 200lb tires to be a truck driver. More women than men would be unable to lift 200lbs. But the employer could have defense to say must be able to lift 200lbs. Is this discriminatory?

No because the the employer has a defense of must be able to lift 200lbs.

Once plaintiff proves these things does it mean they will win?

No doesn't mean they will win, but does shift burden from plaintiff to defendant for non discriminatory reason.

Men who are barbers and women who are beauticians. This company pays the barbers more than the beauticians. Can this employer do this?

No, Can't pay differently by same company.

Hertz suspends Muslim shuttle drivers for praying on company time. Hertz says they can pray but must clock out while praying this a good faith reasonable accommodation. Will the drivers win?

No, EEOC said no it is unreasonable for employees to want to be paid for praying 7 times a day.

PSU hiring is hiring for a bee keeping position. Fog applies but she can't get it because she's not qualified is this disparate treatment?

No, Fog must have degree in bee keeping to have disparate treatment.

Fog gets hired by PSU and her first pay check she was discriminated against. She said their was discrimination 35 years ago and she could sue PSU?

No, because starts from most recent act. (Statute of limitations has run out)

Nurses aides (female nurses) and orderlies (male nurses) were paid different. Orderlies helped males and nurses aides helped females. Can this employer pay them differently?

No, can't pay differently

worker works selling sunglasses. Goes to boss and says working 7 am is advantageous and employer says you could move to either different days and employees sues because of religion and not being able to come in. The employer says you can work these different hours but employee says I don't want to work those hours. Did the employee win?

No, the Employee lost.

Who has the burden of proof in discrimination cases?

Plaintiff

Civil rights act: 5 protected classes under title 7. What were the 5 protected classes?

Race, color, religion, national origin, and gender.

To win a case, Plaintiff must prove each of 4 things:

S/he is member of a protected class S/he applied for & was qualified for (or was employed in) the position in question S/he was rejected, demoted, or terminated by the employer Employer then filled position with one not in a protected class

400 nonprotected applicants take an employment test, and 100 pass & are hired 200 protected applicants also take the test What is the minimum number of protected-class applicants who would have to pass the test & be hired in order to pass the EEOC's 4/5 rule?

STEP ONE: based on the facts given, what % of NONprotected applicants passed & were hired? --25% STEP TWO: multiply 25% (from Step 1) times the number of PROTECTED applicants -- 25% X 200 = 50 STEP 3: multiply 50 (from Step 2) times 80% (the 4/5 Rule)—gives us 40. So did at least 40 protected applicants pass & get hired? Yes 100 did, test PASSES 4/5 rule

Suppose that 100 nonprotected applicants take an employment exam; 50 pass and are hired Then 20 protected applicants take that same employment exam; 5 pass & are hired. DID THE TEST "pass" 4/5 rule?

STEP ONE: based on the facts given, what % of NONprotected applicants passed & were hired? --50% STEP TWO: multiply 50% (from Step 1) times the number of PROTECTED applicants -- 50% X 20 = 10 STEP 3: multiply 10 (from Step 2) times 80% (the 4/5 Rule)—gives us 8. So did at least 8 protected applicants pass & get hired? No only 5 did, test FLUNKS 4/5 rule and is PRIMA Facie (presumed to be) discriminatory

If members of nonprotected classes are selected for employer's work force at substantially higher rate than protected classes it is?

Selection rates analysis

Fog gets attacked by dog Saturday.

Statute of limitations starts then.

Federal law requires employers to treat women who are pregnant or have recently given birth the same as any other employee who is?

Temporarily unable to perform some or all job functions

Who has the burden of proof in discrimination cases? BUT once the plaintiff establishes that discrimination has occurred,

The burden SHIFTS to the defendant to justify the discriminatory policy/practice

If the selection rate for protected classes is less than 80% of the rate for the group with the highest rate, there is generally evidence of disparate impact, which means?

The selection rate is discriminatory "on its face"

Agnes goes to work and the employer makes it very intolerable to work there because constant harassment to Agnes. What is this considered and what can Agnes do?

This is a hostile environment. Constructive discharge is something Agnes could do. (Employer let get so bad I quit)

True or False: Employer contributions to employee pension plans must vest in no longer than 5 years.

True

True or False: Employers with 50 or more employees are required by the Family and Medical Leave Act to give most of its employees up to 12 weeks of family or medical leave in a 12 month period.

True

True or False: Joe is an at-will employee for Ace Corporation, and he has been offered a better job at Betta Corporation. He tells Ace that he will be quitting work at Ace in two weeks. Under these circumstances Joe is not liable to Ace for breach of contract.

True

True or False: Ms. Smith was employed by J & J Pharmaceutical as "Senior Sales Representative," which position required her to travel to various hospitals and doctor's offices. Her job was to "talk up" the benefits of the firm's drugs, although she did not directly sell the drugs to the doctors. J & J gave her a budget for these visits, and left to her discretion the itinerary and order of her visits to the target doctors. She was unsupervised 95% of the time. Under these circumstances she was not entitled to overtime pay when she repeatedly worked over 40 hours per week.

True

True or False: The Genetic Information Test Act makes it illegal for covered employers to discriminate against employees and job applicants based on those individuals genetic tests.

True

True or False: Under the business extension exception to the Electronic Communications Privacy Act, it is legal for an employer to monitor employees' communication if those communications were made in the ordinary course of business.

True

Myrtle goes to an interview and the interview and the employer goes I'll hire you if you go on a date with me. Is this sexual harassment?

Yes, big time

Can constructive discharge occur if supervisor didn't know?

Yes, supervisor can be liable if didn't know

Truck driver must lift 200lb tires to be a truck driver. More women than men would be unable to lift 200lbs. But the employer could have defense to say must be able to lift 500lbs. Is this discriminatory?

Yes, this is discriminatory Good faith requires 200lbs can't hire someone who lifts 500 but not necessary.

Is it illegal have sign that says male help wanted or female help wanted?

Yes, very illegal