Ch. 42& 43
Same Sex Harassment
- initially same sex harassment was not covered by Title VII
Prima Facie
- latin for "at first view" - means that the evidence is sufficient to raise a presumption that discrimination ocurred
Enforcement Procedures under ADA
- to bring a successful claim under ADA, the plaintiff must show that he or she meets all of the following: 1. had a disability 2. was otherwise qualified for the job 3. was excluded from the job solely b/c of that disability
2 recognized forms of sexual harassment
1. quid pro quo 2. creation of a hostile work environment
To determine if a company is "American", EEOC considers..
1. where the company is incorporated if not incorporated: 1. company's principal place of business 2. nationality of controlling shareholders 3. nationality and location of management - no one factor is considered determinative
federal laws governing employers
- "minimum" level of protection for all workers
Amendments to ERISA
- COBRA - HIPAA (Health insurance portability and accountability act)
reasonable expectation to privacy
- ECPA protects individuals communications against gov't surveillance conducted without a court order, from third parties without legit authorization to access the messages, and from carriers such as the internet service providers
EEOC right to sue letter
- If EEOC decides not to sue, it notifies plaintiff his or her right to file an action and issues the plaintiff a right- to- sue letter-> a statement that the plaintiff has followed the proper initial procedures and therefore may file a lawsuit - plaintiff must have this letter in order to file private action - letter may be requested any time after 180 days have elapsed since the filing of the charge
Workers Compensation Laws
- a result of the abuses that injured employees often suffered on the job - in return for the right to recover for injuries incurred on the job, the employee gives up the right to bring negligence claims - purely state law - covered workers injured on the job can receive financial compensation through an administrative procedure, rather than having to sue their employer
Drug Free Workplace Act
- employers that receive federal finance assistance or have federal contracts worth over $25,000 must develop an antidrug policy for employees, provide drug free awareness programs for them, and warn them of penalties for violating company drug policies
Benefits under state workers' compensation
to receive benefits, the injured party must demonstrate that he/she is: 1. an employee 2. both employer and employee are covered by the state workers' compensation program 3. the injury occurred on the job - accident leading to injury must have taken place during the time and within the scope of the claimant's employment
After Prima Facie is raised..
burden of proof transfers to def to articulate a legit, nondiscriminatory reason for firing
FLSA cont..
- mandates that employees who work for more than 40 hours per week be paid no less than 1.5 times their regular wage for all the hours they work beyond 40 during a given week - 4 categories of employees are excluded: 1. executives 2. administrative employees 3. professional employees 4. outside salespersons - UK, like US, has no laws requiring paid or even unpaid holidays - US does not mandate any minimum annual vacation time for employees
state laws governing employers
- may give more, but not less, protection than federal laws
claim is denied
- most states provide an agency appeals process followed by a provision for a appeal to the courts
disparate impact
- often referred to as unintentional discrimination - an employer sets a requirement for employment that inadvertently precludes large numbers of a protected class from employment in a particular job
Burden of proof in an EPA claim
- on plaintiff to show that the defendant pays unequal wages to men and women for doing equal work at the same establishment
Under ADA..
- plaintiff may file a charge with the appropriate state agency or with EEOC w/in 180 days of act - if a claim has been filed with state agency, an 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
Remedies for Violation of FMLA
- plaintiff may recover damages for unpaid wages or salary, lost benefits, denied compensation, and actual monetary losses up to an amt equivalent to the employees wages for 12 weeks, as well as attorney fees and court costs - reinstatement or promotion
Remedies under Title VII
- plaintiff may seek both equitable and legal remedies - successful plaintiff may recover back pay for up to two years from time of discriminatory act - a plaintiff who was not hired for a job b/c of title VII may also receive remedial seniority dating back to the time when the plaintiff was discriminated against, compensatory damages (pain and suffering), and sometimes punitive damages
public policy exception
- prohibits employers from firing employees engaged in activities that further the public interest - ex: serving on jury duty, doing military service, whistle blowing, and filing for or testifying at hearings for workers' comp
implied contract exception
- provides that an implied contract may arise from statements the employer makes in an employment handbook, length of service, statements by the employer indicating long term employment, or materials advertising the position
Typical Accommodations for those with mental disabilities include...
- providing a private office - flexible work schedule - restructured job - time off for treatment
Merit Defense
- raised when hiring or promotion decisions are partially based on test scores - Uniform Guidelines on Employee Selection Procedures (UGESP) -> have guided gov't agencies charged with enforcing civil rights, and they provide guidance to employers and others interested about when ability tests are valid and job related
Penalties under OSHA
- range from $0- $70,000 per violation depending on likelihood the violation will lead to serious injury to an employee - penalty may be reduced if an employer has a small number of employees, has demonstrated good faith, or has few or no previous violations
Harassment of other protected classes under title VII
- religion and race - Snell v Suffolk County
Occupational Safety and Health Act (OSHA)
- requires that every employer "furnish to each of his employees...employment...free from recognized hazards that are likely to cause death or serious physical harm" - regulates workplace safety standards, inspects facilities for compliance, and brings enforcement actions against violators - employers with 11 or more employees must keep records of work relates injuries and illnesses except in low hazard industries such as retail, service, finance, insurance, and real estate
DOMA cont...
- sect. 2 specifies that no state "shall be required to give effect" to same sex marriages granted by other states (still in effect) - sect. 3 limits federal def of marriage to being between one man and one woman (deemed unconstitutional in 2013)
charge
- sworn statement that states the name of the charging party, the name of defendant, and the nature of the discriminatory act
Proving Age Discrimination Under ADEA
- termination is the most common cause for ADEA cases - plaintiff must show that he or she: 1. belongs to the statutorily protected class 2. was qualified for the position held 3. was terminated under circumstances giving rise to an interference of discrimination - burden of proof then shifts to the defendant to prove there was a legit, nondiscriminatory reason for the discharge - plaintiff may recover only if he or she can show by a preponderance of the evidence that the employers alleged legit reason is a pretext to discrimination
Discrimination based on sexual orientation
- there is currently no federal legislation that prohibits discrimination based on sexual orientation - individual state laws do exist that prohibit such discrimination based on both sexual orientation and gender identity - only 21 states have laws protecting against discrimination based on sexual orientation
employment at will doctrine
- unless an employee belongs to a union or has an employment contract with his or her employer, the employment relationship is governed by the employment at will doctrine - doctrine provides that a contract of employment for an indeterminate period of time may be terminated at will of either party, at any time, for any reason - gender - no, race- no, political party- yes, no reason- yes
Damages under Title VII
- up to 2 yrs of back pay, compensatory damages, punitive damages, attorney fees, court costs, court orders, and remedial seniority
EEOC conciliation attempts
- w/in 10 days of receiving the charge, EEOC must notify the alleged violator of the charge - EEOC investigates the matter to determine if there is a "reasonable" cause to believe that a violation has occurred - tries to negotiate a settlement between the two parties - if unsuccessful, EEOC may file suit against alleged discriminator in fed district court
Equal Pay Act of 1963 (EPA)
- when EPA was passed, women's wages were less than 60% of those of men -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, responsibility, and which are performed under similar working conditions
Types of Validation in accordance with standards established by American Psychological Association
1. criterion related validity -> statistical relationship between test scores and objective criteria of job performance 2. content validity -> isolates some skill used on the job and directly tests that skill 3. construct validity -> wherein a psychological trait needed to perform the job measured
Ways to prove discrimination under Title VII
1. disparate treatment 2. disparate impact
COBRA benefits do not arise if:
1. employee is fired for gross misconduct 2. employer decides to eliminate benefits for all current employees
employer privacy policies should cover:
1. employer monitoring of telephone conversations 2. employer suveillance policies 3. employer access to medical and personnel records 4. drug testing policies 5. lie detector policies 6. ownership of computers and all issues unique to the electronic workplace 7. workplace dating policies
Steps to proving a disparate impact case
1. establishing statistically that the rule disproportionately restricts employment opportunities for a protected class 2. burden of proof -> to def -> avoid liability y demonstrating that the practice or policy is a business necessity 3. plaintiff -> recovers by proving that the "necessity" was promulgated as a pretext for discrimination
Filing a Claim Under Title VII
1. filing a charge with the EEOC (Equal Employment Opportunity Commission) 2. EEOC conciliation attempts 3. EEOC right to sue letter
2. creation of a hostile work environment
1. he or she suffered intentional, unwanted discrimination because of his/ her sex 2. harassment was severe or pervasive 3. harassment negatively affected the terms, conditions, or privileges of his or her work environment 4. harassment was both subjectively and objectively unwelcome 5. management knew about the harassment, or should have know, and nothing to stop it
Exceptions to this doctrine
1. implied contract exception 2. public policy exception 3. implied covenant of good faith and fair dealing exception
Employers must provide participants with all the following:
1. plan information (features and funding) 2. assurances that those in charge of managing plan assets have fiduciary responsibility 3. A grievance and appeals process for participants to get benefits from their plans 4. the right to sue for benefits and breaches of fiduciary duty
An implied contract can arise if...
1. the employment handbook contains steps for progressive discipline leading to discharge 2. the handbook makes no mention of the words "employment at will" 3. the employee relies on that handbook
Extra Duties must be..
1. the extra duties are actually performed by those receiving the extra pay 2. extra duties regularly constitute a significant portion of the employee's job 3. extra duties are substantial, as opposed to inconsequential 4. extra duties are commensurate with the pay differential 5. extra duties are available on a nondiscriminatory basis - also, different, comparable additional duties are not imposed on the parties not receiving the additional pay
Federal Unemployment Tax Act (FUTA)
- 1935 - created a state system to provide unemployment compensation to qualified employees who lose their jobs - employers pay taxes to the states, which deposit the money into the federal govt's unemployment insurance fund
Family and Medical Leave Act (FMLA)
- 1993 - covers all public employees as well as private employers with 50 or more employees - guarantees all eligible employees (those who have worked at least 25 hrs per week for each of 12 months before the leave) up to 12 weeks of unpaid leave during any 12 month period for any of the following family related occurrences:
Defense of Marriage Act (DOMA)
- 1996 - prevented same sex couples whose marriages were recognized by their home state from receiving the hundreds of benefits available to other married couples under federal law
Americans with Disabilities Act (ADA)
- Prohibits discrimination against employees and job applicants with disabilities - requiring that employers 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
Seniority System Defense
- a bona fide seniority system is a legal defense under Title VII - employees are given preferential treatment based on their length of service - not illegal if: 1. system applies equally to all persons 2. seniority units follow industry practices 3. seniority system did not have its genesis in discrimination 4. system is maintained free of any illegal discriminatory practices
Who is protected under ADA?
- a disabled person is defined as a person who meets one of the following criteria: 1. has a physical or mental impairment that substantially limits one or more of the major life activities of such individual 2. has a record of such impairment 3. is regarded as having such an impairment
Remedies for violations of ADA
- 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
Employee Retirement Income Security Act of 1974 (ERISA)
- 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"
Proving Disparate Impact under Title VII
- aka unintentional discrimination cases - plaintiff tries to establish that while an employers policy or practice appears to apply to everyone equally, its actual effect is that it disproportionately limits employment opportunities for a protected class
Bona Fide Occupational Qualification Defense (BFOQ)
- allows an employer to discriminate in hiring on the basis of sex, religion, or national origin (but not race or color or customer preference [except sexual privacy]) when doing so is necessary for the performance of the job - necessity must be based on actual qualifications, not stereotypes about one group's abilities - ex: being a female to model female clothing -
Pregnancy Discrimination Act of 1987 (PDA)
- amended title VII of the CRA to expand the definition of sex discrimination to include discrimination based on pregnancy - temporary disability caused by pregnancy must be treated the same as any other temporary disability - illegal questions: "how many children do you have?", "are you pregnant?", etc - employer may not force a woman to take time off during pregnancy
Filing a complaint
- an employee injured on the job must notify the employer of the injury and file a claim with the state workers' compensation board usually within 30 to 60 days - board will verify the claim and determine the appropriate benefits - if the employer contests the claim, a hearing takes place before the state workers' compensation board
ADEA cont..
- applies to employers having 20 or more employees - employment agencies and to unions that have at least 25 members or that operate a hiring hall - does not apply to state employers
implied covenant of good faith and fair dealing (least common exception)
- assumes that every employment contract contains an implicit understanding that the parties will deal fairly with one another
Remedies For Violations of EPA
- back pay in the amt of the diff between what they make and what is paid to members of the opposite sex, plus attorney fees
Laslty...
- burden of proof shifts back to plaintiff to prove that the def's reason for firing was mere pretext - "despite his qualifications"..he was fired
employment discrimination internationally
- civil rights act of 1991 extended the protections of title VII and ADA to US citizens working abroad for American Employers or for foreign corporations controlled by a US employer - exception: if title VII would violate foreign law
Fair Labor Standards Act (FLSA)
- covers all employers engaged in interstate commerce or the production of goods for interstate commerce - a minimum wage of a specified amt be paid to all employees in covered industries - specified amt is periodically raised by Congress to compensate for increases in cost of living caused by inflation
ERISA cont..
- does not apply to health plans for govt or church employees or to plans maintained to comply with disability, workers' comp, or unemployment laws
FUTA cont..
- each state has an acct from which it can access money in accordance with state eligibility rules - states have diff min standards for qualifying for unemployment comp, although most require that the indiv did not quit or get fired for cause
executive exemption
- employee may be mandatorily retired after age 65 if two conditions are met: 1. he or she has been a employed as a bona fide employee for at least two years immediately before retirement 2. on retirement, he or she is entitled to nonforfeitable annual retirement benefits of at least $44,000
Proving Disparate Treatment under VII
- employee must have been discriminated against on the basis of race, gender, color, national origin, religion - 3 step process: 1. plaintiff (employee) must demonstrate a prima facie case of discrimination 2. def (employer) must articulate a legit, nondiscriminatory business reason for the action 3. plaintiff (employee) must show that the reason given by the def (employer) is a mere pretext
at will employment
- employee who is not employed under a contract or collective bargaining agreement - employee may quit at any time for any reason or no reason at all, with no required notice to the employer - employer may fire employee at any time, with no notice, for almost any reason
employee privacy in the workplace
- employees do not have a reasonable expectation of privacy when using their employer's email system, even during non working hours
ECPA
- employees' privacy rights were extended to electronic forms of communication including email and cell phones - outlaws intentional interception of electronic communications and intentional disclosure or use of info so obtained
exception to at will rule
- employer may not fire employee for an illegal reason - breaches of implied contracts with employees on the basis of the employee handbook
Omnibus Crime Control and Safe Streets Act of 1968 (amended by the Electronic Communications Privacy Act (ECPA) of 1986)
- employers cannot listen to or disclose the contents of private telephone conversations of employees - may ban personal calls and monitor for compliance as long as they discontinue listening as soon as they realize it is a personal call
Harassment by Nonemployees under Title VII
- employers may be held liable for harassment of their employees by nonemployees under very limited circumstances
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
- ensures that employees who lose their jobs or have their houses reduced to a level at which they are no longer eligible to receive medical, dental, or optical benefits can continue receiving benefits for themselves and their dependents under the employers policy - employee must pay premiums for the policy plus up to 2 percent administration fee to maintain coverage up to 18 months or 29 months if disabled - an employee has 60 days after coverage would ordinarily terminate, to decide whether to maintain it
Penalties for violation of ECPA
- fines up to $10,000
FMLA cont..
- highly complex piece of legislation contains 6 titles divided into 26 sections - to exercise rights under FMLA, an employee whose need is foreseeable (birth of a child) must advise employer at least 30 days before the leave needs to begin - if the leave is unforeseeable, employee must give notice as soon as practicable (1 or 2 business days after the need becomes known) - employees must be restored to the same position they held or one with substantially equivalent factors - if employee is unable to return at end of 12 week period, employer need not hold the position open any longer
Punitive Damages Cap
- in cases based on discrimination other than race, punitive damages are capped at $300,000 for employers of more than 500 employees - $100,000 for firms with 101 to 200 employees - $50,000 for firms with 100 or fewer employees
Harassment in CyberSpace
- in some situations, employers have a duty to monitor their employees' use of email and Internet
Filing a charge with the EEOC
- in states that do not have a state EEOC may file with the fed EEOC within 180 days of the alleged discriminatory act - in states that do have such agencies, charge must be filed within the time limits prescribed by local law (cannot be less than 180 days) - if initially filed with local agency, charge must be filed with federal EEOC w/in 300 days of the discriminatory act or within 60 days of receipt of notice that the state agency has disposed of the matter
May an employer discriminate against a smoker?
- it depends - employers argue that smokers have higher health care costs and moss work more- lowering productivity - so, some companies wont hire smokers or are threatening to fire current employees who will not or are unable to quit smoking - 30 states + district of columbia protect a smokers right to smoke outside the workplace
Title VII
applies to employers who have 15 or more employees for 20 consecutive weeks within one year and who are engaged in a business that affects commerce
CHAPTER 43
EMPLOYMENT DISCRIMINATION
CHAPTER 42
EMPLOYMENT LAW
burden of proof
preponderance of evidence (more likely than not)
"equal" means
- "substantially similar" NOT perfectly equal - the same in terms of all 4 factors listed in the act: 1. skill 2. effort 3. responsibility 4. working conditions - factors are looked at individually - if one job requires greater effort, whereas the other requires greater responsibility, and the other two factors are exactly the same, the jobs are NOT equal
Sexual Harassment under Title VII
- "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that implicitly or explicitly makes submission a term or condition of employment - makes employment decisions related to the individual dependent on submission to or rejection of such conduct - has purpose or effect of creating an intimidating, hostile, or offensive work environment
same sex marriage
- 12 states plus district of colombia now issue marriage licenses to same sex couples - 35 states that ban same sex marriage and 2 states that neither ban or legalize same sex marriage
premises rule
-if an employee is on company property, the courts generally find that she was on the job -if an employee travels for work and is injured on a business trip, many states will find that he is entitled to compensation for reasonable injuries suffered
Defenses under ADEA
1. "reasonable factors other than age" 2. bona fide occupational qualification defense (BFOQ) -> def must establish that he or she must hire employees of only a certain age to safely and efficiently operate the business in question
FMLA occurrences include:
1. birth of a child 2. adoption of a child 3. placement of a foster child in the employee's care 4. care of a seriously ill spouse, parent, or child 5. serious health condition that renders the employee unable to perform any of the essential functions of his or her job
Defenses to Claims under title VII
1. bona fide occupational qualification 2. merit 3. seniority system - these defenses are raised by def once plaintiff has established a prima facie case of discrimination based on either disparate treatment or impact
Defenses Under EPA
1. bona fide seniority system 2. bona fide merit system 3. a pay system based on quality or quantity of output 4. factors other than sex
back pay
difference between amt of money plaintiff earned since the discriminatory act and the amt of money she would have earned had the discriminatory act never occurred
Age Discrimination in Employment Act of 1967 (ADEA)
prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee's or applicant's being 40 or older
Cicil Rights Act (CRA) 1964- title VII
protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories
disparate treatment
sometimes referred to as intentional discrimination- > when an employee is treated differently on the basis of being a member of a protected class
1. quid pro quo
when a supervisor makes a sexual demand on someone of the opposite sec and this demand is reasonably perceived as a term or condition of employment