Employment Law - Topics 4,5,6

In general employment terms, what is a reduction in force (RIF)?

When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs A RIF is a term applied to an employer procedure used to terminate employment positions caused by lost funding, change of work requirements, or the reorganization of a business operation.

Title VII requires employers to accommodate only religious practices arising out of _______ beliefs.

Sincerely-held Sincerely-held beliefs. Although this may be difficult to determine, it would be even more subjective to attempt to determine if a belief is "reasonable," and determining whether it is "long-term" would be both impossible and irrelevant.

Courts will find a RIF plan discriminatory if:

--Downsizing is used as an opportunity to eliminate older workers --The selection of which employees will be terminated is based on subjective criteria --The RIF is initiated as pretext to avoid ADEA concerns All of the above Courts will find a RIF plan discriminatory if downsizing is: 1) used as an opportunity to eliminate older workers; 2) based upon subjective criteria; or 3) employed as a pretext to avoid ADEA concerns. For example, in the scenario presented in the text, if LSK, Inc. fired a 60-year-old manager as part of its DVD plant restructuring, but then immediately hired a younger manager to carry out similar functions, the RIF would be seen as pretext for age discrimination. Similarly, if LSK, Inc. did not allow the older manager with more seniority to "bump" the younger one, it may have committed age discrimination. Likewise, age discrimination may have occurred if LSK, Inc. could not clearly define what criteria led to the firing of the 60-year-old over others.

What factors are causing employees to work until they are older than 55 years old?

--Increased desire to work longer --The need for workers to accumulate adequate retirement resources --People living longer lives All of the above Because of continued uncertain economic conditions, the need for workers to accumulate adequate retirement resources, and more opportunities for older workers, the trend for older workers to keep working will continue.

The factors examined to determine disparate treatment in a color and race discrimination case include all of the following except:

Explained deviations from policy The factors examined to determine disparate treatment in a color and race discrimination case include, but are not limited to, race-related statements by decision-makers, comparative treatment evidence, unexplained deviations from policy, the decision-maker's race, and statistical evidence.

Before 1964, it was uncommon to see overt religious discrimination in the workplace. TRUE or FALSE

False False. It was common to see overt discrimination in the workplace with respect to a person's religion.

Like racist comments, all rude or offensive behavior directed at an individual because of nation of origin characteristics is harassment FALSE or TRUE

False From the text, "Like racist comments, not all rude or offensive behavior directed at an individual because of nation of origin characteristics is harassment."

Under Title VII, an employer may favor Blacks from the U.S. over Blacks from Africa or vice versa. TRUE or FALSE

False From the text, "The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and another protected class characteristic, like gender or nation of origin. For example, an employer may not favor Blacks from the U.S. over Blacks from Africa or vice versa."

When employees need religious "reasonable accommodations," they are not protected under Title VII. TRUE or FALSE

False Title VII requires that in cases where an employee's religious practice conflicts with a work assignment, the employer must make a "reasonable accommodation" for the employee.

It is generally bad policy to ban all private religious communication at work. TRUE or FALSE

True The Constitution prevents a wholesale prohibition of religious speech at work because of the First Amendment.

The majority of workers say Muslims face more religious discrimination in the workplace than any other group. TRUE or FALSE

True The majority of workers polled believe the Muslim religion to be the most discriminated against.

The so-called ADEA waiver prevents a retiree from personally suing under the ADEA, but does not prevent him or her from making an age discrimination claim with the EEOC.

True True. He or she can still make an age discrimination claim with the EEOC.

The Immigration Reform and Control Act prohibits employment discrimination on the basis of citizenship in firms with:

Four or more employees The IRCA rendered it unlawful for an employer employing four or more workers to knowingly hire or retain an undocumented worker.

If an English-only rule is adopted, an employer should ensure, by reasonable means, that non-English speaking employees are apprised of the rule:

In their native language If an English-only rule is adopted, an employer should ensure by reasonable means that non-English speaking employees are apprised of the rule, in their native tongue if necessary. This is, of course, to ensure complete and fair understanding of the rule.

Which of the following is not included in the EEOC's definition of race?

Intelligence - known intellectual strengths of different races While Title VII does not specifically define race or color, the EEOC and case law have suggested that race and color employment discrimination encompass: --Ancestry—racial or ethnic background --Physical characteristics—such as a person's color, hair, facial features, height, and weight --Race-associated illnesses—for example, diabetes, obesity, and sickle-cell anemia affect some races more than others --Culture—dress, grooming practices, accent, or manner of speech --Perception—a belief that a person is a member of a particular racial group --Association—a person's association with someone of a particular race (e.g., spouse, relatives, friends/associates of a certain race).

Given that the request is legitimate, an employer has the duty to provide the employee with a reasonable accommodation, even if undue hardship is caused to the business. TRUE or FALSE

False An employer has the duty to provide the employee with a reasonable accommodation, absent an undue hardship to the business.

When looking at whether an accommodation is an undue hardship, courts look to:

--The employer's efforts --The cost of accommodation --The size of the employer All of the above When looking at whether an accommodation is an undue hardship, courts look to the employer's efforts, the cost of accommodation in terms of wages and administration, the type of job involved, and the size of the employer.

Language is very closely related to employee or job applicant national origin affinity and, therefore, employers must pay special attention to avoid:

--accent discrimination establishing unnecessarily strict -----English fluency rules --English-only rules in the workplace All of the above From the text, "Language is very closely related to employee or job applicant national origin affinity and, therefore, employers must pay special attention to avoid accent discrimination or establishing unnecessarily strict English fluency or English-only rules in the workplace.

Under reasonable accommodation, an employer is not required to:

--change its shift management schedule --order other employees to work alternate shifts --violate seniority rules to accommodate an employee All of the above The employer is not required to change its shift management schedule, order other employees to work alternate shifts, or violate seniority rules to accommodate an employee, and so on. These would all be considered undue hardship on the employer.

Religious observances include a broad range of activities that could include:

--formal meeting attendance --public praying --proselytizing or abstinence from some common practices All of the above From the text, "Religious observances include a broad range of activities, which could include formal meeting attendance, public praying, meditation, donning garb, wearing icons, adhering to restrictive diets, proselytizing, or abstinance from some behaviors."

Employment policies made it difficult for older workers to retain employment and find new employment after termination. In response, Congress passed the:

ADEA Age Discrimination in Employment Act

In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called:

ADEA waivers From the text, "In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called "ADEA waivers.""

The ADEA was designed to eliminate practices based upon the negative and unsupported _______________ of reduced performance and competence.

Age stereotypes It was found that "age discrimination against older workers was prevalent, with the bulk of the problem stemming from employers setting arbitrary age maximums for hiring or from forced retirement based on unfounded concerns about older workers' physical ability to perform."

John F. Kennedy made the proposition to Congress that race had no place in:

American life or law Kennedy stated: "Next week I will ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law."

Which of the following is not a guideline for determining nation of origin employment discrimination?

An adverse employment decision against an individual because the person or his/her ancestor had a negative interaction with the employer in the past Nation of origin employment discrimination means an employer makes an adverse employment decision against an individual because the person or his/her ancestor: 1) is from a certain country or place; or 2) belongs to, or identifies with, a national, cultural, or ethnic group; or 3) associates with a person from that group.

Age discrimination claims:

Are on the rise As the baby boomers enter their 60's, age discrimination claims filed with the EEOC are on the rise, with 22,857 persons in 2012 making age-related complaints with the EEOC, compared with 16,548 in 2006.

What two groups represent the largest number of immigrants living in the United States?

Asian and Latino About 25% of persons living in the U.S. were born abroad, with the largest numbers coming from Asia and Latin America.

Over the past two decades, _________ immigration has been on the rise and _________ immigration has declined.

Christian Christian immigration has declined from 68 percent to 61 percent in the past 20 years, while Islam immigration doubled to reach ten percent of all legal immigrants in the same period.

Religious communication can create undue hardship on an employer if it disrupts the work of other employees or:

Constitutes unlawful harassment Casual conversations about religious issues are generally permissable at work. However, if zealous advocacy interferes with getting work done, an employer can successfully claim that allowing religious expression is an undue hardship.

Which of the following is not a typical position that can be defended by the BFOQ defense?

Cook This defense is usually related to public safety. Courts have found that in employment which involves the public safety - bus drivers, pilots, police, and fire fighters - a BFOQ defense can stand.

Which of the following is an example of nation of origin harassment?

Ethnic slurs in the workplace Nation of origin discrimination harassment conduct often includes offensive comments about a person's birthplace, ethnicity, culture, or accent, as well as ethnic slurs or workplace graffiti.

A nursing home decided to reduce costs by terminating its highest-paid and least-productive employees. To ensure that supervisors accurately assessed productivity and did not base evaluations on stereotypes, the employer instructed supervisors to evaluate productivity in light of objective factors such as the number of patients served, errors attributed to the employee, and patient outcomes. Which of the following is true of this example?

Even if the practice did have a disparate impact on older employees, the employer could show that the practice was based on a RFOA This example is the defendable example illustrated in Example 1 in section 4.4. The decisions were made based on objective factors unrelated to age

In the Hewlett-Packard Company case, an employee who objected to the firm's diversity policy posted anti-gay verses from the Bible at his desk. The court that ultimately heard that case found an undue hardship because:

It was impossible for HP to accommodate religiously-motivated expressions that violated its core human resource philosophy. If the company had a different "core philosophy," the situation may have been different, but "it was impossible for HP to accommodate religiously-motivated expressions that violated its core human resource philosophy."

In cases where an employee's religious practice conflicts with a work assignment, Title VII requires that the employer:

Make a reasonable accommodation The employer must make a reasonable accommodation for the employee.

Which religious groups have seen the largest increase in workplace discrimination over the past decade?

Muslims and Hindus The change in immigration patterns, coupled with the events of 9/11, have created workplace tensions that have resulted in increased religious discrimination against Muslims and Hindus.

How old must an employee be to claim age discrimination under the ADEA?

Must be over the age of 40 The stated purpose of the ADEA was to protect workers aged 40-65 years, but eventually the upper age limit was eliminated altogether.

Certain nationals may be discriminated against in employment in situations of:

National security, under federal statute or Executive Order From the text, "When it comes to situations of national security, under federal statute or Executive Order, certain nationals may be discriminated against in employment."

Title VII allows for English-only rules under certain circumstances where there is:

No discriminatory purpose or effect From the text, "As with accents, an English fluency requirement may be essential to the effective performance of a particular job. Therefore, discrimination based upon English language fluency does not violate Title VII. However, employers should avoid across-the-board fluency requirements, as each job may have a varied degree of fluency demands. For example, an individual who speaks English competently enough to be a cashier at a grocery store may lack the skills to perform managerial paperwork - in English - at that same store. In such a case, a blanket English fluency policy may violate Title VII. The key is for an employer not to demand a degree of English fluency greater than necessary for the relevant position."

The Supreme Court in Hazen Paper Co. v. Biggins held that a paper company's decision to terminate an employee because his pension was about to "vest" was:

Not in violation of the ADEA The Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, held that age and seniority are "analytically distinct" from each other in the ADEA context.

The level of reasonable accommodation has been characterized by the courts as "de minimus," meaning

Not very much Given that the request is legitimate, an employer has the duty to provide the employee with a reasonable accommodation, absent an undue hardship to the business. The level of accommodation has been characterized by the courts as "de minimus," meaning "not very much."

In the race and color context, virtually all race-based conduct may be eventually considered unwelcome even if the claimant is:

Participating in joking and banter In the race and color context, virtually all race-based conduct may be eventually considered unwelcome. This includes joking or playful banter, even where the victim is a participant, because such conduct can quickly turn a workplace in a hostile work environment.

Which of the following is a good example of accommodating a request for religious advocacy?

Provide for a time and place for religious discussions before and after work and on breaks. A good accommodation allows for a time and place for employees to meet outside of working hours. All other options would impose on other employees' work time and free will.

The EEOC states that an "employment practice is based on a _______ when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers."

RFOA "Age discrimination may also be established when an employee shows that a facially-neutral company policy has a negative effect on employees covered by the ADEA. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice."

Nation of origin employment discrimination is often linked to ________ and ____________ discrimination because those factors are closely associated with a specific country or ethnic group and often the same set of facts support the varied claims.

Race : religion Nation of origin employment discrimination is often linked to race and religion discrimination because those factors are closely associated with a specific country or ethnic group, and often the same set of facts support the varied claims.

Under the ADEA, there is no _______________ for age. Moreover, the condition of being over 40 is not a disability.

Reasonable accommodation From the text, "Under the ADEA, there is no "reasonable accommodation" for age. Moreover, the condition of being 40 years of age and older is not a disability."

A clear definition of religion has proved elusive because:

Religious beliefs are so diverse and uniquely personal From the text, "A clear definition of religion has proved elusive because religious beliefs are so diverse and uniquely personal."

A telemarketing firm is forced to terminate an employee because no one can understand him on the phone. Which of the following is true?

The employer has not violated Title VII If a person's accent interferes with the communication skills necessary to perform essential job functions, an employer will not violate Title VII by discriminating against that person.

If an employer takes an action based on the discriminatory practices of clients or customers ____________:

The employer is also discriminating As with race and gender, employers may not rely on co-worker, customer, or client discomfort or preference as the basis for a discriminatory action. If an employer takes an action based on the discriminatory practices of others, the employer is also discriminating. Employers may not assign applicants or employees to certain positions based on national origin.

Suppose two people apply for the same position, and one is 42 and other 52. What action can the employer take?

The employer may not lawfully turn down either on the basis of age, but must make the decision on the basis of some other factor From the text, "In 1981, the EEOC adopted a regulation which rested on the notion that ADEA prohibitions against age discrimination were uniform in their application to both young and old within the protected class. Specifically, the regulation stated "it is unlawful in situations where this Act applies, for an employer to discriminate in hiring or in any other way by giving preference because of age between individuals 40 and over." Thus, if two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either on the basis of age, but must make such decisions on the basis of some other factor."

Which of the following is not part of the EEOC's investigation for a discrimination claim?

The impact on the organization's performance In judging whether to pursue claims, the EEOC looks to: 1) the frequency of the action; 2) the severity of the unwelcome conduct; 3) the physical or threatening nature of the harassment; and 4) the impact on the victim's performance.

Which is NOT a legitimate business reason for basing employment decisions on English language skills?

The majority of citizens speak multiple languages The English-only rule must be justified by "business necessity," which can include the need to communicate effectively with coworkers, supervisors, and customers, to address safety requirements, and to protect employees in emergency situations.

In age discrimination, what is the meaning of a mixed motive?

The many factors which come into play in discrimination cases Most often it is difficult to parse out of employer actions a single reason for a claimed adverse job action due to age.

Why was it permissible for a Jesuit university to deny a qualified Jewish philosophy professor a teaching position at the university on the basis of his religion?

The requirement that a professor also be a Jesuit was wholly consistent with the university's mission to expose students to education in the context of the Jesuit tradition. From the text, "A reviewing court reasoned that, while any qualified person could teach philosophy, the requirement that a professor also be a Jesuit was wholly consistent with the university's mission to expose students to education in the context of the Jesuit tradition."

For Title VII purposes, religious beliefs cover:

The ultimate ideas about life, purpose, and death Under Title VII, beliefs become religious beliefs when they are based on the ultimate ideas about life, purpose, and death.

Author Dave Bernard, in a 2012 U.S. News and World Report article, argues that older workers are better workers because:

They possess abundant knowledge and experience From the text, "Author Dave Bernard, in a 2012 U.S. News and World Report article, argues that older workers are better workers because they possess abundant knowledge and experience, have a good idea of how to get the job done, and have a stronger internal compass. Bernard notes that employers benefit from older workers due to less turnover, greater efficiencies, greater understanding of firm history and corporate culture, and lower health costs due to fewer dependents."

What did the University of Chicago and MIT find about people with names that are generally found in Black communities?

They were less likely to be invited for a job interview A study by researchers out of the University of Chicago and MIT found that persons with names generally found in the Black community were half as likely to be invited for job interviews as persons with traditional names.

What is the purpose of the Older Worker Benefit Protection Act?

To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections From the text, "Under OWBPA provisions, employers may offer retirement incentives to older workers as long as the terms and restrictions of the incentives are fully explained and assurances given that another more favorable plan will not be imminently forthcoming."

The Courts have found that "religion" includes:

Traditional organized religions as well as new, informal, small, or personal religions Religion comes in a variety of displays. Some may even seem illogical or unreasonable to a non-believer. Religious beliefs are diverse and uniquely personal.

In unlawful age discrimination claims, the employer's consideration of the harmful impact of an employment practice and its efforts to mitigate it will be relevant to a successful defense of the rule or policy.

True Unlike the "business necessity test" in Title VII cases, under the ADEA when an employer makes a reasonable business decision impacting older workers, the employer is not required to search for a less-discriminatory practice for achieving the legitimate business purpose. The employer is not even required to show that it used each and every one of the considerations listed by the EEOC to establish the RFOA defense. However, the employer's consideration of harmful impact of an employment practice, and its efforts to mitigate it, will be relevant to a successful defense of the rule or policy.

The ADEA applies to public and private employers and unions with more than _______ employees.

Twenty While some regulations apply to employers with only 15 employees, "the ADEA applies to public and private employers and unions with more than 20 employees."