Employment Law Midterm Review

What are the elements of the legal plans and laws requiring affirmative action? (pg 122-123)

-Executive Order 11246: requires companies with contracts worth at least $10,000 to have a nondiscrimination clause in their contracts & take affirmative action to promote equal employment -Rehab Act of 1973 -Vietnam Era Veterans Readjustment Assistance Act of 1974 -Consent decree: judicially approved settlement btwn parties (pg 249) In constitutional cases, courts subject the use of racial preferences in affirmative action plans to strict scrutiny. To survive a constitutional challenge to its affirmative action plan that uses racial preferences, an employer must show that the plan: -serves a compelling gov. interest -measures employed are narrowly tailored

You are the Office Manager of a branch of a sizable international firm. A new directive has just come down from headquarters telling you that you should use a certain ability test in screening all applicants for jobs in your office. You've reviewed the test, and come to the conclusion that it will likely have an adverse impact on applicants who speak English as their second language, people who constitute a significant portion of your labor pool, and your current employees. What would you do? (PP 6)

-Recognize that tests of ability must not be discriminatory, unless they are required by business necessity. Before they talk to headquarters about the test, they will need proof of its unsuitability. -One easy measure would be to have current employees who do not speak English as their first language take the test, to see if content validity can be established. -If these employees who are doing the job well fail the test, a lack of validity would be established. -The branch manager would then plan how best to relay this information to headquarters.

You are interviewing for a customer service manager position at your firm and have scheduled interviews sequentially all day one week from today. You believe you have a diverse group of applicants and want to be sure that each has an equal opportunity. What would you do? (PP 7)

-Recognize that they should prepare interview questions ahead of time to be asked of all applicants. -consider using structured interview format so that all applicants are asked the same questions. -consider using at least two interviewers, hopefully of differing races and genders. -All of this may avoid any perception of discrimination in the selection process

Keller v. Miri Microsystems (IC v employee) pg 42

-SCOTUS held that IC's can receive overtime pay -economic realities test was performed: - no permanent relationship was found (pointing to IC) -unable to determine based on skill -the district court should re-decide how the IC's investments demonstrate he was economically independent -district court should reconsider if the IC had an opportunity for profit or loss -it seems like employer had control over the IC The appellate court deemed that the IC was actually an employee

What is BFOQ? (pg 233)

-a defense to facially discriminatory cases of disparate treatment (discriminating against a protected class on the face). -it is not a defense for discrimination on the basis of race or color

What are the elements of a prima facie case of disparate impact? (pg 96)

-a neutral employment requirement or practice has the effect of disproportionately limiting the employment opportunities of a protected class group of which the plaintiff is a part -The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance -if the plaintiff successfully establishes a prima facie case, the employer must prove that the requirement is job related and consistent with business necessity. -if the employer successfully defends the requirement/practice, the plaintiff can still prevail by showing that a feasible alternative exists that would have less discriminatory impact and the employer refuses to adopt it.

Hiring practices: What's allowed and what's not? (pg 261-

-a systematic and structured interview process has legal and practical benefits for employers. -employers should use multiple interviewers, preferably differing in race and sex. -impressions should only be given weight if they are clearly grounded in statements or actions of job candidates. -employers should put offers in writing- should specify if employment at will is being offered.

What are defenses to defamation claims? (pg 177)

-consent: if a former employee consents to her former employer providing a reference, statements that might be otherwise defamatory will not subject the employer to liability. Therefore, any request for a reference should be accompanied by a release of information form from an employee as required by the employer. -informed consent: employer and employee can negotiate and agree on letters of reference. -privilege: employer's are protected from many defamation claims by "qualified privilege" which I s conditional rather than absolute. This privilege can be lost if false statements are made with malice, reckless regard for the truth, or overly broad publication.

What are the legal requirements for drug testing procedures? (pg 200)

-employees must have written notice of required test -employees must be provided with employer's drug testing policy (goes along with the Drug-Free Workplace Act) -employers must use licensed labs -confirmatory tests must be performed if requested or allow employee to have their own tests done -test results given in writing -employees with positive test must be given opportunity to explain -samples collected with due regard for employees privacy -chain of custody must be established -confirmatory tests must be done -qualified medical review officer must interpret results

What are the laws around temporary workers? (pg 48)

-employers must not exclude some workers from benefits of employment by designating them as temps when they are employed on a long-term basis, do the same work as regular employees, and meet other legal criteria for establishing employee status -Microsoft case

What are the types of disparate treatment cases? (pg 79-81)

-facially discriminatory: employer admits to making employment decisions based on protected class characteristics but says theres a justifiable business reason for doing so. Therefore they must show that the required protected class characteristic is a bona fide occupational qualification (BFOQ) for the job in question. -reverse discrimination: hiring minorities over others and the others suing. The employer agrees to this but says that it was based on a lawful affirmative action plan. -pretext: essentially when an employee feels that they didn't receive a job bc of a protected class characteristic and the employer says that their decision was based on a lawful factor other than the protected class characteristic. Pretext cases are named this bc if the employee's allegations are true, the employer has been covering up their true discriminatory motive. Based on a single motive: either discriminatory reasons OR lawful reasons. -Mixed motives: Strong evidence exists of both discriminatory and lawful motives affecting an employment decision (and not just conflicting claims like in a pretext case) the employer is guilty of discrimination. -pattern or practice: Evidence of intentional discrimination against individuals in the larger affected group. -harassment: the victim of harassment is subjected to inferior working conditions bc of her sex, race, etc.

What are the differences between breach of contract and fraud? (pg 146)

-fraud: intentional misrepresentation -involves false statements made about current or preexisting facts -breach of contract: a failure to live up to binding promises, regardless of intent -involves promises made about future terms and conditions of employment

What are laws around student workers and interns? (pg 49-54)

-grad teaching and research assistants are employees -grad students can be students and employees -no decision on whether student athletes are considered employees -advice for employers offering unpaid internships: -college should oversee internship and provide academic credit -internship should provide intern with general skills, intern should not perform work of business on regular basis, business shouldn't be dependent on work of intern, intern shouldn't be used as substitute for employees, intern should have close supervision, intern should be job shadowing, internship should be for a brief period, internship shouldn't be used as a trial period for eventual hiring.

What makes medical exams legal or illegal? (pg 203)

-individuals cannot be required to take an exam unless it's been given to all other ppl in the same job -ADA governs this -should be the last test performed after a conditional offer of employment has been accepted (conditional upon tests) -current employees can only take tests if they're relevant to job necessity (this isn't the same for those agreeing to conditional employment) -cannot deny disabled ppl based on results unless they'd be unable to perform job -GINA requires that conditional offers of employment be restricted from genetic exams that take family history

What are the laws around independent contractors? (pg 47-48)

-needs to be signed agreements of this -firms have to relinquish control over how the work is done to use IC's -need to provide their own tools and equipment/pay business expenses -hire their own assistants -get a flat fee rather than hourly rate -different work being done than employee work -no benefits or PTO -can offer services to other companies

What are the three basic elements of affirmative action plans? (pg 123-125)

-reasonable self analysis: determine whether employment practices exclude, disadvantage, restrict, or result in disparate impact or disparate treatment of previously excluded or restricted groups or leave uncorrected the effects of prior discrimination and determine why. -reasonable basis for concluding that action is appropriate: Underutilization exists when the percentage of women or persons of color in one or more of an employers job groups is smaller than the percentage of women or persons of color with the necessary skills for that type of employment (the % of women and persons of color working in jobs should roughly match the % of women and persons of color available in the relevant labor market). -reasonable actions: identify goals for improvement in the utilization of women and minorities and timetables for achieving these goals. This is where good faith reports can be utilized.

Example: A good employee with a nearly flawless attendance record has missed work for 4 days in a row. Her supervisor has called to speak to her (since she has not called in, as required), but gets only her voicemail. Now, the supervisor wants to fire her, but has come to you to ask you to do it. As the Human Resources Manager (you are the person in charge), what should you do? (PP 1)

-should not take action until you know what has happened to her -The HR manager should speak first to the supervisor, then to the employee, when she is contacted, to determine the reason for her absence, and offer help, if needed; depending on the nature of the problem, it may be appropriate at some point to advise the employee that her conduct must improve -Both the HR manager and the supervisor should document these difficulties and their actions in order to protect the firm

What happens if a prima facie case of disparate treatment is shown? (pg 83-84)

-the employer must provide evidence of a lawful & nondiscriminatory motive -if this is successful by the employer the plaintiff can provide evidence of a pretext and/or a discriminatory motive by proving the employer to be not credible or giving additional evidence of discriminatory intent. -explanations for employment decisions are pretext if they are cover-ups for discrimination

What are the elements of disparate impact? (pg 94-95)

-there is a neutral (not protected class) requirement that posses an unnecessary obstacle to employment opportunity and harms a protected class group much more than others. -the employer's discriminatory requirements and policies rather than employees intent are at the core of this claim. -precedent was set by SCOTUS in Griggs v. Duke Power -Has now been amended into Title VII of CRA

You are the HR manager of a technology firm that has grown significantly in recent months. One recent hire was the breakthrough - a bio-engineer who seems to have a creative genius for manipulating living organisms to enable them to clean up toxins. But a chemist in his department has been harassing the bio-engineer, you suspect because of the bio-engineer's sexual orientation. The chemist is a big fellow who has previously made disparaging remarks about gay people. The bioengineer has not complained to you, but others have on his behalf. What would you do? (PP 8)

-there is no federal law protecting gay workers, although there may be in the city or state where the business is located. But both pragmatism and ethics would counsel taking action to stop the harassment. Various methods may be proposed for doing this, including talking to the chemist and to the bio-engineer, and perhaps anti-harassment training. -an anti-harassment policy should be created for the firm, and it should include a policy against harassment of gays.

What is the difference between an employee and an independent contractor? (pg 40-42)

-they both perform work in exchange for pay -economic realities test is used by courts to distinguish btwn them, usually the Fair Labor Standards Act (wage and hour) cases. -common law test is also used to distinguish btwn -right of control - who has it? If a worker has it than they are considered an IC -if someone is an employee, they get taxes withheld for income taxes and insurance purposes

What is the legality of drug testing? (pg 198)

-they differ with various state drug-testing laws -laws in 10 states prohibit random drug-testing -representation of employees from a labor union can cause the employers to negotiate with the union about the tests. -U.S Constitution Fourth Amendment protects against "unreasonable search and seizure" and SCOTUS has consistently held that drug testing constitutes a "search." -drug testing an employee with aberrant behavior is reasonable and constitutional, but there has to be a reasonable suspicion (not in pre-hire cases).

When are employers vicariously liable for harassment? (pg 297)

-when someone whose position allows him or her to speak and act for the company (an owner, president, partner, or corporate officer) engages in harassment the company is vicariously liable. -if harasser is a supervisor, the firm is vicariously liable BUT can avoid if the supervisor didn't make their decision making authority affect harassment -if harasser is NOT a supervisor, the employer is only liable if they were negligent in allowing harassment to occur -if managers or supervisors engage in conduct that results in a hostile environment for employees, employers can avoid liability by establishing both "prongs" of affirmative defense -employer is liable for harassment by coworkers or third parties if plaintiff can prove the negligence standard (pg 308)

What are examples of neutral requirements that can SOMETIMES be shown in disparate impact cases? (pg 96)

-written employment tests -height, weight, language requirements -physical strength tests -type of military discharge -limitation based on arrests and convictions -educational attainment requirements

Ambat v. City and County of San Fransisco (pg 237)

A bona fide occupational qualification case in which the appellate court reversed the summary judgement from the district court that ruled in favor of the city.

What are substantive unconscionable contracts? (pg 23)

A contract is substantively unconscionable when it is unjustifiably one-sided to such an extent that it "shocks the conscience." Terms are largely one-sided. Found in the contents of the contract. -unilateral modification provision can support

What is employment at will? (pg 6)

A legal doctrine holding that employees do not have any right to be employed or to retain their employment. In the absence of a contract promising employment for a specified duration, the employment relationship can be severed at any time and for any reason (unless the reason is prohibited by law). -starting point for determining substantive rights

EEOC v. Management Hospitality of Racine (pg 297) Hardrage v. CBS (pg 304)

A restaurant is unsuccessful in its attempt to use the affirmative defense to avoid liability for a manager's sexual harassment of teenage employees. An interesting example of a harassment case in which an employer successfully invoked the affirmative defense.

What is severe or pervasive harassment? (pg 288)

A standard to deem a hostile environment harassment. -severity is the harm posed by particular acts -pervasiveness addresses the frequency and regularity of harassment -a trade-off exists btwn the 2

What are arbitration agreements? (pg 20)

An agreement requiring employees to use arbitration rather than the courts as a means of resolving employment law claims. -governed by the Federal Arbitration Act (FAA) -generally enforceable -subject to contract defenses such as procedurally unconscionable and substantively unconscionable

What is the economic realities test? (pg 40)

An approach used by courts to distinguish btwn employees and independent contractors. The focus is on whether the person doing work is in business for herself and not dependent on a particular employer to engage in this line of work. -who has right to control where, when and how work gets done? -who provides tools/materials needed for work to be done? -does the method of payment afford opportunity for profit or loss? -what is the duration of the working relationship? -does the work require special skill? -how integral to the business is the work that's being performed? -how dependent is the person performing the work overall?

Spears v. Amazon.com KYDC LLC (pg 143)

An example of a fraud claim stemming from negotiations with a job candidate in whom another employer was apparently also interested. The court denied amazons motion for summary judgement based on the fact that it is Amazon's knowledge of the offer of employment for Spears, not the employee that Spears negotiated with, which is relevant to fraud. The court believed that Spears had created a genuine issue of material fact for fraud and the negligent misrepresentation.

What is integrated enterprise? (pg 58)

An intricate network of relations that exists btwn parent companies, subsidiaries, divisions, affiliates, and other entities. The EEOC uses these to determine whether separate entities should be considered an integrated enterprise: -interrelation btwn operations -entities share common management -centralized control of HR and labor relations policies (given the greatest weight) -common ownership/financial control over entities

When can employees be forced to sign arbitration agreements? (pg 20)

Arbitration agreements are generally enforceable. - SCOTUS ruled in a case involving NYSE and a broker that the broker would have to use the company's arbitration procedure rather than the courts to pursue an age discrimination claim. The court minimized the differences btwn arbitration and litigation. -arbitration agreements btwn employers and employees are covered under FAA so they are usually enforceable -many nonunion employers are requiring arbitration agreements as a condition of employment. To get/keep their jobs employees have to surrender the right to go to court prior to any issues arising.

What is a protected class and what are the protected classes under the CRA? (pg 75)

Characteristics of persons such as race, sex, and age. CRA protects: -race, color, sex, national origin, and religion Criteria/standards that's applied to one employee must be applied to all.

What is an employer's legal compliance strategy? (pg 33)

Choices of whether or not: -employers should aim to do no more than what is strictly required or should they take a broader view of their legal obligations. -how should issues on which the law is currently unclear be handled -how proactive should employers be in seeking to avoid legal problems -how far should employers go in settling claims rather than litigating them

What is an unconscionable contract? (pg 21)

Contracts are unconscionable when the process of the contract formation essentially involves a "take it or leave it" offer of an agreement drafted by a more powerful party (a contract of adhesion) and when the contents of the agreement unreasonably favor the more powerful party. Falls under arbitration agreements.

Gerald v. University of Puerto Rico (pg 289)

Court decides whether the alleged harassment experienced by a college professor was legally actionable, either bc it constituted a hostile environment or resulted in tangible employment action.

What about sex-stereotyping with gender + issues?

Courts have been far from an agreement in holding that the sex-stereotyping theory reaches discrimination against trans ppl.

Your firm is located in an area of the city where many minorities live, but few apply to work at your firm, even though there are positions for which they would qualify. You know that, as a result, your applicant pool is not representative of the relevant labor market. What would you do? (PP 4)

Create an affirmative action program for the firm: -have reasonable self-analysis -reasonable basis that action is appropriate -reasonable action You could also: -hold job fairs -put ads in minority owned newspapers -use social media

What is the scope of employment? (pg 58)

Employer liability is usually limited to employee actions taken within the scope of their employment. The actions relate to the kind of work the employee was hired to perform, take place substantially within the work place and during work hours, and serve the interests of the employer.

What is word of mouth recruiting? (pg 116)

Employers depend on current employers to spread the word about jobs to their friends, family members, and other associates.

What are H-1B dependent employers? (pg 127)

Employers for which H-1B visa holders make up 15% or more of their total workforce. -they have to attest that they have not displaced U.S workers by hiring H-1B visa holders.

What is adverse employment action? (pg 74)

Encompasses harassment that does not directly alter a person's employment status, but makes it more difficult to perform well and stay on the job.

What are defamation claims? (pg 176)

False statements that reflect badly on a person are communicated to others, which results in damage to the person's reputation. It's not just something that's harsh and negative, but must be false. In this case, it refers to any information that a former employer provides to a prospective new employer.

What is nepotism? (pg 115)

Favoritism toward family members and other relatives.

When are affirmative action plans required? (pg 122-123)

For most employers, the decision to adopt an affirmative action plan is voluntary. Although affirmative action is required of most companies that have contract to sell goods or services to the federal gov. Many states also have affirmative action requirements for their contractors. Also required when a discrimination suit results in a settlement or court order that includes affirmative action as a remedy.

What is the process for hiring foreign nationals versus U.S citizens? (pg 126)

Foreign nationals who do not have permanent resident status must obtain visas that will permit them to work in the U.S. The visas are: -H-1: for ppl of distinguished merit/ability -H-2: for temporary workers -L-1: for intracompany transfers -TN: for highly skilled employees from Canada and Mexico -F-1 or J-1: students can be employed for up to 12 months -H-1B: 6 year stay granted to ppl in specialty occupations requiring a bachelors degree

What is the Omnibus Transportation Employee Testing Act? (pg 200)

General statutory requirement for drug testing. Federal law that requires drug and alcohol testing of employees in transportation related occupations; airline, railroad, trucking, and public transport workers.

Who is an employer? (pg 57)

Generally determines who will be held liable if an employee's rights are violated. Employers are legally responsible for the actions of their employees. -has to do with scope of employment, integrated enterprise, and joint employers

What is quid pro quo harassment? (pg 286)

Harassment that results in tangible employment actions often involves a sexual advance or demand for sexual favors that can be traded for some employment outcome. -this for that -quid pro quo means "what for what"

What is promissory estoppel? (pg 266)

Harm that occurs from reasonably relying on another's promises that there would be a contractual relationship for employment. -when applied to the withdrawal of a job offer, it could be argued that the employers offer was unambiguous promise to employ on which the new hire reasonably relies by relocating or turning down other job offers.

What makes job tests defensible? (pg 216)

If an employer can show that the test is job-related and consistent with business necessity. -content validation: test requires the performance of the same behaviors and skills as the job in question. -criterion validation: demonstration of statistical association btwn performance on a test and performance on the job.

What is the definition of an employee? (pg 39)

In Title VII of the CRA of 1964, Congress defined employees as "an individual employed by an employer."

What is negligent hiring? (pg 156)

It extends employers liability for harm caused b their employees beyond actions undertaken within the scope of employment to harmful actions that lie outside the scope of employment but for which the careless hiring of an unfit employee set the stage. If under these circumstances, an employer fails to meet its duty to conduct an adequate background check and hires an unfit employee who uses his or her position to inflict harm on others, that employer may be liable for negligent hiring.

What are joint employers? (pg 59)

Maintain employment relationships with some of the same employers, not parts of the same larger org. Sometimes found to exist when: -companies get their workers from temporary staffing firm -companies agree to share staff -companies subcontract with others -companies operate through the sale of franchises

What is the doctrine of respondeat superior "let the master answer"? (pg 155)

Makes employers directly liable for harm to others caused by employees acting within the scope of their employment. -ex: while stocking shelves a stock clerk drops an item and injures a shopper, the employer is liable.

What method did SCOTUS provide for deciding pretext cases? (pg 81)

McDonnell Douglas Analysis: Focuses on ruling out nondiscriminatory explanations for employment decisions as a way of showing that discrimination is most likely the explanation (making it indirect). Oriented toward hiring decisions.

What are the issues with nepotism? (pg 115)

Nepotism results in hiring people who are similar in certain protected class characteristics to the people who already work in the company. -ex: in a school, ads for teachers were posted throughout the school and not to the public. Therefore, current teachers relatives were more likely to learn about the availability of jobs and were preferred in the selection process. This excluded African Americans as job candidates. The court found against the school district on a disparate impact claim.

Can employers ask any medical information to any applicant? (pg 140)

No! Disabled or not, employers must refrain from seeking medical info from all applicants. Medical inquiries include questions about disabilities, medical and psychological conditions, medical histories, meds taken, and workers compensation claims filed. This only holds true with preemployment inquiries, once the candidate is hired the employer can seek any medical info/perform med exams.

Does the fact that a person performs work for another person distinguish them as either an employee or an IC? (PP 2)

No!!!

What is the issue with word of mouth recruiting? (pg 116)

People tend to associate with others who are like them, especially in terms of race. If an employer's workforce is racially diverse, current employees referring persons of their own race is not a problem because persons of all races will be referred. Although if the employer's current workforce is racially homogenous, word of mouth recruiting will result in a racially skewed workforce.

What are the elements of a prima facie case of retaliation? (pg 98)

Plaintiff must show that: -the plaintiff engaged in a protected activity (participation & opposition) -plaintiff was subject to materially adverse action -there is a casual link btwn engaging in the protected activity and the materially adverse action taken by the employer If the plaintiff successfully establishes a prima facie case, the employer has the opportunity to produce evidence of non-retaliatory motive for the adverse action. If the employer articulates a non-retaliatory motive, the plaintiff has the opportunity to: -provide evidence that sheds doubt on the credibility of the employer's claimed motive -provide other evidence that supports the claim that retaliation is the most likely explanation for the adverse action

What are procedural unconscionable contracts? (pg 23)

Procedural unconsionability concerns the matter in which the contract was negotiated and the respective circumstances of the parties at that time, focusing on the level of oppression and surprise involved in the agreement. Oppression addresses the weaker party's absence of choice and unequal bargaining power that results in "no real negotiation." Surprise involves the extent to which the contract clearly discloses its terms as well as the reasonable expectations of the weaker party. Involves the fact that the contracts was offered by a more powerful party.

What is retaliation? (pg 78)

Punishing employees for seeking to assert their rights under antidiscrimination laws or assisting others in doing so. -similar to disparate treatment, but different bc it's not based on the protected class but instead the employees actions. -ex: a woman doesn't get a promotion and takes it up with the EEOC bc she feels her sex/race are a factor. She is fired shortly after for being a "troublemaker." She would have a strong retaliation case here.

Your security firm, which has sensitive, proprietary information about the companies it serves, has an immediate need for a night janitor. Sometimes, confidential information on work in progress is visible in offices which the new janitor would have to clean. The new hire must start tonight and you have had no opportunity to do a background check. What would you do? (PP 5)

Recognize that a background check must be done with a focus on honesty and confidentiality. The new hire can start on the condition that a background check be done, and if disqualifying information is discovered, the new hire will be fired. In addition, it would be prudent to make certain that no confidential information is visible until eligibility is verified. Other options include hiring a temporary service worker, or simply letting the offices go without cleaning until the background check can be done. (The firm might also want the new hire to sign a confidentiality agreement.)

What is subjective criteria? (pg 258)

Relies heavily on intuition and gut reactions, rather than systematic observation and measurement. The standards and means of assessing candidates vary across decision makers and are not clearly specified. -they can result in disparate impact discrimination -employers are advised to use objective criteria when it is feasible

What is a prima facie case of disparate treatment? (pg 81)

Showing in the claim some facts that suggest possible discrimination. Must establish this in a pretext case. Plaintiff must show: -protected class characteristic of plaintiff is relevant to the case -employment opportunity was applied for and available -plaintiff was qualified for opportunity and was denied -employer continued to consider other candidates or selected someone with contrasting protected class characteristics Most evidence of discriminatory motive is circumstantial (hints at the possibility of discrimination)

What is sex-stereotyping? (pg 252)

Stereotyping against men and women as how they "should" dress, talk, and act. The court is not consistent with their rulings regarding sex stereotyping. -the court ruled that ppl are not allowed to use stereotypes to impose a professional disadvantage on one sex or the other or punish one sex for having a trait that is praised in the other sex.

EEOC v. Target Corp. (pg 132)

The EEOC charged that Target violated Title VII of the CRA by discriminating against African American applicants for managerial positions. The court ruled that the case be re-tried in district court bc there is convincing evidence of a prima facie case of disparate treatment based on the information presented.

What are issues around criminal background checks? (pg 166)

The U.S incarcerates many more people than any other country, therefore limiting employment based on criminal histories stand to affect significant numbers of people. -distinguish btwn arrests and convictions (someone can be arrested but never convicted) -distinguish btwn felonies vs misdemeanors -EEOC cautions employers to not make employment decisions based on arrest records -failing to check for a criminal record is probably the surest route to negligent hiring

Harrison v. Benchmark Electronics Huntsville (pg 138)

The appellate court reversed the summary judgement granted by the district court to Benchmark Electronics. Here's why: -Harrison had epilepsy & takes barbiturates to control it (not a disability defined under ADA). He applied for a permanent position at Benchmark & had to take a drug test which came back positive. After explaining himself (with boss Anthony in the room) the medical testers and HR staff gave the company the green light to hire Harrison. Although Anthony told the company that he did not need to be hired bc he had an "attitude problem and had threatened Anthony" so he was not hired back. -Benchmark asked disability related questions following the positive drug test, which are prohibited from EEOC guidelines and ADA regulations. -Anthony's presence in the room violated ADA regulations as a jury could find that Anthony was trying to get info about the disability -focused on ADA regulations of applicants in deciding on this case

DeMasters v. Carilion Clinic (pg 99)

The court decided that DeMasters actions on behalf of another employee experiencing harassment constituted protected activity

Navarete v. Psychiatric Ventures (pg 160)

The court decides whether a company that operated mental health treatment facilities is liable for negligently hiring a staff person who sexually assaulted a patient. The court reversed the district courts summary judgement for the psychiatric facility and granted further proceedings. There were cases that set precedent for negligent hiring that were presented to the court in which the court denied the connection.

Glatt v. Fox Searchlight Pictures (interns that were doing the work of employees and not being paid)

The court held that the district court should decide again and denied the district courts ruling of partial summary judgement (pg 51-53)

Thompson v. Bosswick (pg 178)

The court sorts through numerous statements allegedly made by a former employer to identify those that are actionable in a former employee's defamation claim. Defendant was granted in part and denied in part the motion for summary judgement.

How to apply BFOQ's? (pg 235)

The courts have recognized 3 general grounds for establishing BFOQ's: 1. Authenticity: A director limiting a female role in a movie to female actors. OR Hooters girls as waitresses for sex appeal. 2. Public safety: When hiring employees with certain protected class characteristics is necessary to protect the safety of others. 3. Privacy: relates to requirements for employees of a particular sex. ex: switching off shifts between men and women every hour in a psych facility bc patients may only be willing to converse with one sex.

What is disparate impact? (pg 77)

The disproportionate limitation or denial of employment opportunity for some protected class group that results from some use of a "neutral" requirement or practice that cannot be adequately justified. -ex: Employer only hires managers that are 6 ft tall bc they feel that they gain more respect. Many women would lose the opportunity to be managers. This does not exclude women, but it can be expected to exclude many more women than men. -focus is on discriminatory effects: The "neutral requirement" is the height standard in this example. Employer must present substantial evidence that the connection btwn height and managing abilities exist or they will be guilty of discrimination.

You are the VP of Human Resources; the Director of Human Resources reports to you. You have received a complaint from the co-worker of a Pakistani employee working in IT, that he is being harassed by the head of the IT department because of his religion. The employee telling you has also notified the Director of Human Resources, but she has taken no action. What would you do? (PP 3)

The firm will be held liable since the Director of HR has taken no action against the IT employee. Unless the employee reporting this incident to you is wrong, the Director of HR may need to be retrained, demoted, or fired. In addition you should make sure everyone is avoiding discrimination, making sure policies are enforced consistently, determining whether the employee's religious practices require reasonable accommodation, checking and maintaining documentation, and making certain no employment decisions are based on the employee's religion.

What is employment discrimination? (pg 73)

The limitation or denial of employment opportunity based on or related to the protected class characteristics of persons. -adverse employment actions: the effects of bias on employment decision subject employers to liability, not prejudice alone

What are the elements of sexual harassment cases? (pg 281)

The plaintiff must show that he or she was subjected to harassment because of his or her sex. -must show that the opposite sex would not have been subjected to harassment

What are the elements of a harassment claim because of sex? (pg 282)

The plaintiff must show that he/she : -was subjected to harassment based on a protected class characteristic -the harassment resulted in a tangible employment action or was sufficiently severe or pervasive to alter working conditions and create a hostile environment -harassment was unwelcome -there is a basis for attributing liability to employer

What is affirmative action? (pg 122)

Those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. Careful recruitment aimed at diversifying a company's workforce and eliminating unnecessary obstacles to employment.

When is an employer liable for negligent hiring? (pg 157)

To prove negligent hiring, a plaintiff must show: -a standard of conduct or duty to others existed with respect to taking reasonable steps to avoid hiring unfit employees. The extent to such duty is based on: a. Foreseeability of harm to others if an unfit person is hired for a particular job. b. knowledge of unfitness that the employer had or should have had if proper hiring procedures were used. c. public policy -the employer failed to exercise the proper degree of care and hired an unfit employee -a coworker or another third party was harmed by an unfit employee -the employers failure to exercise the proper degree of care in hiring was the approximate cause of the harm or injury that occurred. Typically negligent hiring cases often hinge on the first element, whether the employer had a duty to do more to screen out an unfit employee. Depends on public policy, foreseeability, and knowledge.

Example of integrated enterprise: (pg 58-59)

U-haul international argued that it wasn't liable for sex discrimination that was engaged in by employees of U-haul company in Maine. The court identified numerous grounds for concluding that the two entities were closely intertwined.

What is disparate treatment? (pg 76)

Unequal treatment based on one or more protected class characteristics that results in the limitation or denial of employment opportunity. There is disparity or inequality in how employees are treated and the difference in treatment is due to the employee's race, sex, etc. -key element is discriminatory intent: the decision maker based decision on a protected class characteristic of employee. -ex: 60 yr old woman told that she is not suited for a job with physical requirements, offered her a different position, and then withdrew offer to hire younger males instead. This creates a strong impression that the employer engaged in disparate treatment based on age or sex.

Jones v. Oklahoma City Public Schools (pg 87)

illustrates importance of showing a pretext in disparate treatment cases and the meaning of "but-for" causation

Examples of independent contractor vs employee from the court

pg 40-41 -welding example (welders were deemed IC's but should've been employees) -cable spilcer (deemed IC and court held decision)

Salinas v. Commercial Interiors (whether joint employers exist)

pg 60