Ch. 41 BLAW

N.I.S. promoted John, a forty-two-year-old employee, to a supervisor's position while passing over James, a fifty-eight-year-old employee. N.I.S. told James he was too old for the job and that it preferred a younger man. Discuss whether James will succeed if he brings a cause of action.

-Violation of age discrimination employment act -still is a violation even if both people are over 40

Comparable worth

-Women should be paid salaries equal to men for SAME JOB REQUIREMENTS, SKILLS, AND VALUE -doesn't have to have same job title ex.) Ex: City of Neverland has positions for Occupational Health Nurse and Mechanic. Both require comparable levels of education, skill, and experience. These would probably be comparable (especially if the City has identified them in a same category)

Executive Order

-applies to federal contractors -prohibits discrimination on basis of race, color, gender, religion, or national origin on any work the contractors perform during the period of a federal contract

WARN

-fed. law - applies to big companies with 50 or more employees -requires er to notify ee 60 days in advance of plant closing or mass layoff -tries to avoid massive layoffs and act in the employees best interests

Lie Detector tests

-generally unavailable -only can be used for current investigations or economic loss or injury to company -specific questions

Remedies

-injunction, affirmative action by er; -reinstatement and promotion of ees, back pay, and money damages

Workers' compensation

-insurance purchased by an employee that would cover them in the case that they get injured during the course of their employment **Can receive benefits (pay, medical expenses, etc.) even if ee was at fault in getting injured but cannot sue er -ee could sue TP if injured due to defective equipment (Waco Court case) -wouldn't recover 100% of his pay

present effects of past discrimination

-must make changes based on prior discrimination er's conduct appears "neutral" but actually perpetuates past discriminatory practices. Ex.) promotions based on seniority within certain positions within company, but in the past, minorities had not been hired in those positions, so therefore would not have seniority, and could not be promoted.

Disparate Impact

-neutral rules that adversely affect a protected class and are not justified as being necessary to the business. -employer has a rule that sounds neutral but has a discriminatory effect ex.) You must be 5'8" tall to be a truck driver; usually based on height, weight, strength requirements that may eliminate women or national origins from certain jobs (police, fire)

Age Discrimination in Employment Act of 1967 (ADEA)

-prohibits discrimination on the basis of age in hiring, firing or compensating -usually prohibits mandatory retirement -mainly protects people over 40 -Applies to private employer's with 20 or more ees and all govt units

Rehabilitation Act of 1973

-purpose is to assist handicapped in obtaining rehab training, access to public facilities and employment -Prohibits discrimination in federal programs and those receiving fed'l $

Professionally developed ability test

-test shows that employee has necessary skills or attributes to do the job; -if don't pass test, er does not have to hire ex.) IQ test

Disparate Treatment

-using proscribed criteria to make their decision -making Decision based off Difference -Employer typically intentionally discriminated ex.) not hiring a man for a receptionist

Limitations to Termination at Will

1. Violation in contract 2. Statute Limitations 3. Judicial Limitations

Employee Privacy includes what 4 torts?

1. intrusion 2. public disclosure of private facts 3. false light 4. appropriation

Darla, an employee of First Bank, has brought an action against the bank based upon the alleged sexual harassment of Doug, her co-worker. What must she establish in order to prevail in this action?

5. Darla would need to prove that the conduct of Doug did in fact constitute sexual harassment within the EEOC guidelines and that First Bank did not take immediate action when it knew or should have known of the harassment. The courts have generally held that sexual harassment that creates a hostile or offensive working environment, even if it does not condition employment benefits upon sexual favors, is a violation. Also, when the employee engaging in sexual harassment is an agent of the employer or is in a supervisory position over the victim, the employer may be liable without knowledge or reason to know of the harassment.

Types of Discrimination

Disparate Treatment Disparate Impact Present Effects of Past Discrimination

What are the protected principles in the Civil Rights Act?

Race Color Gender Religion Origin

The Civil Rights Act of 1964 applies to employers engaged in an industry affecting commerce and having 15 or more employees.

True

The Fair Labor Standards Act regulates the employment of child labor.

True

The Family and Medical Leave Act of 1993 applies where there are 50 or more employees.

True

The Pregnancy Discrimination Act extends the benefits of the Civil Rights Act to pregnant women.

True

The Social Security system is financed by taxes paid by employers, employees, and self-employed individuals.

True

Title VII does not prohibit discrimination based on age.

True

The Americans with Disabilities Act provides assistance to the handicapped in which of the following? a. Rehabilitation training b. Access to public facilities c. Employment d. All of the above

d. All of the above

Which of the following is a protection accorded an employee relating to the job? a. Right to a safe and healthy workplace b. Compensation for injuries sustained in the workplace c. Some financial security upon retirement d. All of the above

d. All of the above

Which of the following is a valid discrimination defense under the Civil Rights Act of 1964? a. A bona fide seniority or merit system b. A professionally developed ability test c. A bona fide occupational qualification d. All of the above

d. All of the above

Under the Labor-Management Relations Act which of the following union activities would be considered an unfair labor practice? a. Causing an employer to discriminate against a nonunion employee b. Coercing an employee to join a union c. Levying excessive dues d. All of the above are unfair labor practices.

d. All of the above are unfair labor practices.

Which one of the following defenses may be used by an employer to avoid responsibility for paying an employee's claim for workers' compensation? a. The employee assumed the risk of the injury. b. The employee was contributorily negligent. c. A co-worker actually caused the injury. d. The injury did not occur on the job.

d. The injury did not occur on the job.

An employee who sues an employer under a workers' compensation statute for injuries arising out of and in the course of employment is subject to the defense of: a. contributory negligence. b. assumption of the risk. c. the fellow servant rule. d. none of the above.

d. none of the above.

bona fide seniority system or Merit System

ee has preference if has been at job longer than other ees; courts have generally upheld

Reverse Discrimination

employment decisions taking into account race or gender in order to remedy past discrimination

Equal Employment Opportunity Commission (EEOC)

enforces Title VII actions.

Pregnancy Discrimination Act of 1978

extended Title VII protection to pregnant employees. Must treat like temporary disability

If a state government's affirmative action plan is challenged, it is subject to strict scrutiny under the Equal Protection Clause.

True

Sexual Harassment

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment "you have to _______ to get a raise" 2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or "you did not ____ so you're not getting a raise" 3. such conduct has the purpose or effect of reasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

Fair Labor Standards Act

- "Wage and Hour" law - Includes: Minimum wage, Overtime, and Child Labor restrictions

Americans with Disabilities Act of 1990 (ADA) - forbids er discrimination based on disability; requires accessible facilities; er must make "reasonable accommodations" Cannot require physical exam prior to being hired; can only inquire if applicant could do the requirements of the position, with or without a reasonable accommodation. Also, requires public sector to be handicap accessible, such as theatres and restaurants.

- forbids er discrimination based on disability -requires accessible facilities -er must make "reasonable accommodations" (ex. raising a desk for a wheelchair receptionist) -Cannot require physical exam prior to being hired; can only inquire if applicant could do the requirements of the position, with or without a reasonable accommodation -requires public sector to be handicap accessible, such as theatres and restaurants

Vietnam Veterans Readjustment Act of 1974

- if firm has >$10K in federal contracts must do affirmative action for disabled vets

Overtime

- if work over 40 hours per week, get 1 ½ times normal pay -only for workers on hourly pay not salary

Social Security

- includes: Old-age and Survivors Insurance Disability Insurance Hospitalization Insurance (Medicare) Supplemental Security Income (SSI) - Both ee and er contribute - concerns about if it will continue

Child Labor restrictions

- no one under 14, plus other restrictions

Drug & Alcohol Testing

- random vs rzble cause -depends on if public sector or private -starting to become difficult with changes in marijuana

Family & Medical Leave Act of 1993

- requires some ers to grant ees leave for "serious health conditions" or certain other events (ex. maternity leave) -Leave is NOT required to be paid by er - Er must have 50+ ees and ee must have worked at least 12 months/1250 hrs.

Unemployment Insurance

- tax paid by employers - Pays benefit to ee who loses his job and cannot find other employment - Pays % of your wages for a limited period of time

Occupational Safety and Health Act (OSHA)

-1970 federal law and an administrative agency -purpose is to ensure workers a safe and healthful work environment -Can develop standards -Conduct inspections (requires warrant) -Monitor compliance -Institute enforcement actions -Can be both civil and criminal violations.

Affirmative action

-A policy designed to redress past discrimination against women and minority groups through measures to improve their economic and educational opportunities -"affirmative action is lawful only when it is designed to respond to a demonstrated and serious imbalance in the workforce, is flexible, time-limited, applies only to qualified workers, and respects the rights of non-minorities and men." ex.) company discriminated against race and needs engineers, they should send a recruiter to pre-dominantly minority university to find qualified applicants

Bona fide occupational qualification (BFOQ) (except NA for race) -

-English fluency -Must be limited, reasonable and business related. Ex.) Employee has much communication with clients; teacher with thick accent - students could not understand

Equal Pay Act

-Er cannot discriminate on basis of gender by paying unequal wages for the "substantially equal" work -first shot at trying to reach equality -limited -woman wages=men wages for the SAME JOB TITLE

Violation of contracts

-If you have a contract or company has a personnel procedure, must comply with those -cannot be fired if it violates previous contract

Defenses to Discrimination

-Merit system or Bona Fide seniority -Professionally developed ability test -Bona Fide Occupational Qualification (BFOQ) -Business Necessity

Title VII of the Civil Rights Act of 1964

-Prohibits employment discrimination on the basis of race, color, gender, religion, or national origin -Includes all aspects of the employment process such as hiring, firing, compensating, promoting, and training -required by companies with 15 or more employees -DOES NOT INCLUDE AGE OR DISABILITY

At Whirlpool's manufacturing plant in Ohio, overhead conveyors transported household appliance components throughout the plant. A wire mesh screen was positioned below the conveyors in order to catch falling components and debris. Maintenance employees frequently had to stand on the screens to clean them. Whirlpool began installing heavier wire because several employees had fallen partly through the old screens, and one had fallen completely through to the plant floor. At this time, the company warned workers to walk only on the frames beneath the wire but not on the wire itself. Before the heavier wire had been completely installed, a worker fell to his death through the old screen. A short time after this incident, Deemer and Cornwell, two plant employees, met with the plant safety director to discuss the mesh, to voice their concerns, and to obtain the name, address, and telephone number of the local Occupational Safety and Health Administration representative. The next day, the two employees refused to clean a portion of the old screen. They were then ordered to punch out for the remainder of the shift without pay and received written reprimands, which were placed in their employment files. Does Whirlpool's actions against Deemer and Cornwell constitute discrimination in violation of the Occupational Safety and Health Act? Explain

-Violation of OSHA -employers cannot tell employee not do something and cannot retaliate

Does Sexual Harassment include same-sex harassment?

Yes, since 1998

Common law employer defenses such as the fellow-servant rule, contributory negligence, and voluntary assumption of the risk are eliminated by workers' compensation statutes.

True

Judicial limitations

COURT imposed limits based on contract law, public policy or tort law -Refusing to violate a statute (being told to dump waste in a river) -Performing a statutory obligation (reporting a child with bruises) -Reporting a violation of a statute that is of public interest - but better be sure you are right

By presidential executive order, federal contractors are exempt from affirmative action in recruiting.

False

Sexual harassment is not covered by the federal discrimination laws.

False

The Equal Pay Act prohibits an employer from discriminating between employees on the basis of race, color, sex, religion, or national origin by paying unequal wages for equal work.

False

The customers at Chez Chic Restaurant prefer to be served by male waiters. The restaurant owner can refuse to hire women based upon gender being a bona fide occupational qualification.

False

The Equal Pay Act applies to different jobs that are comparable as well as to jobs that are equal jobs.

False; must be the same job title

Ed, an employee of Ace Delivery, was injured in a car accident while making a delivery. The wreck was due to the negligence of Wes, the other driver. If Ace Delivery is covered by workers' compensation, what is the result?

If Ed can establish that he was in fact injured and that the injury arose out of and in the course of his employment, he can recover workers' compensation. Because a third party, Wes, caused the injury, Ed may also bring a tort action against Wes.

Statute Limitations

LEGISLATIVE limits -cannot violate any laws of federal government and some states restrict terminations -can't use discrimination or retaliation ex: can't fire someone as retaliation for exercising their legal rights (filing worker's comp claim)

What should someone do if they experienced Disparate Treatment

Make a Prima Facie Case -shows he applied for open position, was qualified, was denied, and er continued to try to fill the position.

Johnson, president of the First National Bank of A, believes that it is appropriate to employ only female tellers. Hence, First Nation refuses to employ Ken Baker as a teller but does offer him a maintenance position at the same salary. Baker brings a cause of action against First National Bank. a. Is FNB illegally discriminating against gender?

Yes, they are discriminating against gender and violating Title VII

Can an employer be liable of harassment even without knowledge?

Yes, they can still be vicariously liable

Janet, a twenty-year-old woman, applied for a position driving a truck for Federal Trucking, Inc. Janet, who is 5'4" tall and weighs 135 pounds, was denied the job because the company requires that all employees be at least 5'6" and 150 pounds. Federal justifies this requirement on the basis that its drivers are frequently forced to move heavy loads in making pickups and deliveries. Janet brings a cause of action. Has Federal Trucking violated the Civil Rights Act?

Yes. This rule is a neutral sounding rule but eliminates most woman and is not a legitimate reason

minimum wage

a minimum price that an employer can pay a worker for an hour of labor -increases periodically

Which of the following employees would not be covered by the Rehabilitation Act of 1973? a. An alcoholic b. A victim of AIDS c. A victim of tuberculosis d. A polio victim in a wheelchair

a. An alcoholic

Under the provisions of the Americans With Disabilities Act of 1990, in which of the following areas is a disabled person protected from discrimination? Privately transportation vs. Public operated public accommodations a. Yes Yes b. Yes No c. No Yes d. No No

a. Yes Yes

Termination at Will

also referred to as "At will employment" - someone can be fired for "good cause, bad cause or no cause at all" -But cannot be for a discriminatory reason

The federal statute that prohibits the mandatory retirement of most employees: a. Rehabilitation Act of 1973. b. Civil Rights Act of 1964. c. Age Discrimination in Employment Act of 1967. d. Executive Order of 1965.

c. Age Discrimination in Employment Act of 1967.

Under which of the following conditions is an onsite inspection of a workplace by an investigator from the Occupational Safety and Health Administration (OSHA) permissible? a. Only if OSHA obtains a search warrant after showing probable cause b. Only if the inspection is conducted after working hours c. At the request of the employees d. After OSHA provides the employer with at least 24-hours' notice of the inspection

c. At the request of the employees

The __________ is responsible for enforcing federal antidiscrimination laws. a. NLRB b. OSHA c. EEOC d. Social Security Administration

c. EEOC

Under the common law, employers may dismiss their employees at will: a. for good cause. b. for no cause. c. both of the above. d. none of the above.

c. both of the above.

Handicapped person

individual who (1) has a physical or mental impairment that substantially affects one or more of her major life activities (2) has a history of major life activity impairment or (3) is regarded as having such an impairment. -Not included: alcohol and drug abuses

random drug testing

must require sufficient cause to believe ee using drugs ex.) seeming under the influence at work

Random D&A testing

only allowed for public health, safety or national concern or similar occupations (police).

Business necessity

only in disparate impact cases Ex.) legitimate job requirement reasonably necessary for the employer's particular business, such as Chinese restaurant who wants Chinese chef to preserve authenticity or ambience •compensation system based on performance