LAW FINAL EXAM February 26

Section 701(j) defines religion as:

"including all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's religious observance or practice without undue hardship on the conduct of the employer's business."

When an inspection uncovers a violation of a standard, the employer is issued either:

A written citation or a notice of de minimis violations.

Arbitration of ADEA Claims

Agreements to arbitrate ADEA claims will be enforced when they were voluntarily and knowingly agreed to by the employees. Such arbitration agreements do not prevent the EEOC from bringing a suit on behalf of the individual employees subject to the arbitration agreements. The employees covered by a collective agreement that contained an arbitration clause that specifically included age discrimination claims are required to arbitrate their ADEA claims rather than litigate them.

Employers Liability Act & Railway Labor Act

Allowed for alternative methods of dispute resolution, first in the railroad, and later in the airline industry.

Public Policy Exception

Although the employee is employed at-will, termination is illegal if a clear and significant mandate of law (statutory or common) is damaged if the firing is permitted to stand unchallenged. If a statute creates a right or a duty for the employee, he or she may not be fired for exercising that legal right or fulfilling that legal duty.

The New Deal

1. The Social Security Act- Provides modest pensions to retired workers. 2. The National Labor Relations Act- Sets the ground rules for the give and take between labor unions and corporate managers. 3. The Walsh-Healy Act- First statute to set the terms and conditions of employment to be provided by government contractors. 4. The Merchant Marine (Jones) Act- Provides remedies for injured sailors. 5. The Fair Labor Standards Act- Sets minimum wages, mandates overtime pay, and regulates child labor.

Chao v. Gunite Corp.

Bad air and face mask case! After issuing a number of citations against Gunite Corporation for violations of occupational safety and health regulations, the Secretary of Labor failed to convince the Occupational Safety and Health Review Commission to uphold four of the charges. The Secretary petitioned the court to reverse the Commission's decision. The court found that the Secretary had met her burden. As a consequence of this holding, the judges went on to find that the company's alternative steps were an inadequate substitute for complying with the regulations.

Employment At Will

Both the employee and the employer are free to unilaterally terminate the relationship at any time and for any legally permissible reason, or for no reason at all.

Appeals of standards must be filed with the appropriate federal Court of Appeals before the ______ day after its issuance

60th

Employers with ___ or more employees are required to keep records of and to make periodic reports to OSHA on occupational injuries and illnesses.

8

Election of Remedies

A litigant's choice of solutions for a perceived wrong; for example, a plaintiff may have a choice between money damages and a court order of restitution.

Four-Fifths Rule:

A mathematical formula developed by the EEOC to demonstrate disparate impact of a facially neutral employment practice on selection criteria.

Criterion-Related Validity:

A method of demonstrating that an employment selection device correlates with the skills and knowledge required for successful job performance.

Content Validity

A method of demonstrating that an employment selection device reflects the content of the job for which employees are being selected.

Construct Validity

A method of demonstrating that an employment selection device selects employees based on the traits and characteristics that are required for the job in question.

State Agency Role:

A number of states and municipalities have created equal employment opportunity agencies, also known as "fair employment" or "human rights" commissions. Some state agencies have powers and jurisdiction beyond those given to the EEOC.

Disability

A physical or mental impairment that substantially limits one or more of the major life activities of such individual. The person has to be regarded or have a record of the disability.

ADEA Claims

A plaintiff alleging a violation of the ADEA must: establish a prima facie case that the employer has discriminated against the employee because of age and demonstrate that age was "the determining factor" in the employer's action.

Provisions of the Equal Pay Act

A plaintiff claiming violation of the Equal Pay Act must demonstrate that the employer is paying lower wages to employees of the opposite sex who are performing equal work in the same establishment.

Tort

A private or civil wrong or injury, caused by one party to another, either intentionally or negligently.

Comparable Worth:

A standard of equal pay for jobs of equal value; not the same as equal pay for equal work.

De minimis violation

A technical violation, but so insignificant as to require no fine or remediation

The Equal Pay Act of 1963

Federal legislation that requires that men and women performing substantially equal work be paid equally. The act applies to all employers "engaged in commerce (interstate commerce)," and it applies to all employees of an "enterprise engaged in commerce." Virtually all substantial business operations are covered and local government employees. No number of employees.

Employer Liability for Coworkers & Nonemployees

For both quid pro quo harassment and hostile environment harassment by nonsupervisory or nonmanagerial employees, an employer will be liable if it knew of, or should have known of, the harassing conduct and failed to take reasonable steps to stop it.

Title VII

Forbids discharge on the basis of race, color, gender, creed, or national origin.

The National Labor Relations Act (NLRA):

Forbids firing employees for engaging in protected concerted activities.

Disparate Impact Claims

Involve a claim in which neutral job requirements have a discriminatory effect.Another method of establishing a disparate impact may be by making a statistical comparison of the minority representation in the employers' work force and the minority representation in the population as a whole.

Defenses of the Equal Pay Act

Pay differentials do not violate the act if they are due to Seniority system, Merit pay system, Productivity-based pay system, or A"factor other than sex."

Administrators

Perform office or non-manual work directly related to management or general business operations Exercise discretion and independent judgment regarding significant matters

Oubre v. Entergy Operations, Inc.

Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operation. In 1994, she received a poor performance rating, and was given an option either to improve or accept a voluntary settlement of services. After 14 days she decided to accept. She later filed suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. The release cannot bar the ADEA claims because the employee's mere retention of monies amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did.

Equal Pay Act Remedies

Recover the unpaid back wages due, Receive an amount equal to the back wages as liquidated damages, Government suit remedies: Injunctions, Back pay with interest

Uniform Guidelines on Employee Selection Procedures:

Regulations adopted by the EEOC and other federal agencies that provide for methods of demonstrating a disparate impact and for validating employee selection criteria.

Educational Institutions Under Section 703(e)(2)

Religiously affiliated schools, colleges, universities, or other educational institutions are permitted to give preference to members of their particular religion in hiring.

Professionals

Require advanced knowledge of in a field of science or learning customarily acquired by specialized intellectual instruction Require invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor

The Bennett Amendment:

The provision of Section 703(h) that allows pay differentials between employees of different sexes when the pay differential is due to seniority, merit pay, productivity-based pay, or a factor other than sex.

Business Necessity

The safe and efficient performance of the business or performance of a particular job requires that employees be of a particular sex, religion, or national origin.

Minimum Wage

The wage limit, set by the government, under which an employer is not allowed to pay an employee

National Maritime Safety Ass' n v. Occupational Safety & Health

This case arose out of OSHA's effort to limit the total tonnage that could be hoisted aboard or off of a container ship in a single vertical lift. The agency proposed a limit of two containers with total weight of 20 tons at one time. The plaintiff, a trade association, posed two somewhat bizarre arguments: first that the agency could only require workplace practices, and could not prohibit them; secondly, that the underlying statute itself was an unconstitutional delegation of Congressional power to the agency. The court made short work of both of the plaintiff' s contentions, rejecting them each in turn.

Trans World Airlines v. Hardison

Trans World Airlines (TWA) operates 24 hours per day, 365 days per year. A seniority system dictates which employees work which shifts. Larry Hardison, an employee of TWA, practiced a religion that required observing the Sabbath and other religious holidays by refraining from work on those days. Hardison's manager changed his shift hours to accommodate his religion. Hardison then took a different position, where his seniority was not high enough to allow him to choose his shifts. He refused to report for work on Saturdays and was consequently fired. The court held that TWA made reasonable efforts to accommodate Hardison's religious needs.

Employers are liable for sexual harassment by supervisory or managerial employees.

True

Remedies for Sexual Harassment under Title VII include...

injunctions to stop the harassment and to refrain from such conduct in the future lost wages and benefits compensatory and punitive damages for intentional conduct legal fees reinstatement

Lemon v. Kurtzman

set out a three-part test to determine if government action affecting religion violates the First Amendment: Does the government action have a secular purpose? Does the action neither advance nor inhibit religion? Does the government action involve "entanglement" of church and state?

Stegall v. Orr Motors of Little Rock, Inc.:

• A car dealership owner unilaterally modified an employee's pay plan in writing, but it was unsigned by the parties. The new pay plan removed the manager's base salary provision and set out that his compensation would be based solely on commissions from exceeding net profit goals, as well as the opportunity to earn other commissions based on certain benchmark sales numbers. The manager brought an action for breach of employment contract, seeking unpaid wages. • The finding by the trial court that the owner improperly modified the manager's pay plan was not manifestly erroneous or clearly wrong.

KillingsWorth v. Housing Authority of City of Dallas:

• A prospective employee, Jerry Killingsworth, contended that the Housing Authority of the City of Dallas (DHA) backed out of a deal to hire him as the DHA's President and Chief Executive Officer. Killingsworth claimed that despite having a written employment contract offering him the position, the DHA yielded to political pressure to retain then-DHA President Ann Lott and refused to allow him to assume the duties of the position. He sued the DHA for breach of an employment contract and violations of his civil rights. • The court concluded that the letter agreement required subsequent approval by the DHA Board after it was presented to Killingsworth. The summary-judgment evidence conclusively demonstrated that the Board did not approve the letter agreement, and so Killingsworth could not prove the existence of valid contract.

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that the employee is required to accept as a condition of employment, the employee's response to such conduct is used as a basis for employment decisions, or such conduct creates a hostile working environment.

Remedial Seniority

Victims of discrimination must be placed in the position they would have been in had no illegal discrimination occurred.

Gender Stereotyping

When a person is treated differently because he/she does not conform to the typical social norms expected of his/her gender.

"Gender-Plus" Discrimination:

When a person is treated differently because of additional requirements beyond gender.

Disparate Treatment:

When an employee is treated differently from others due to race, color, religion, gender or national origin. Intentional discrimination in terms or conditions of employment. The employer intentionally treats employees or applicants differently because of their race, color, sex, religion, or national origin.

Mixed-motive cases:

When an employer can prove that, without considering an illegal factor under Title VII, the same employment decision would have been made, the employer is not liable under Title VII.

Limitations on Remedies for Mixed-Motive Discrimination

Where the employer has met the "same decision" test, the court will only issue a declaration or injunction and award legal fees.

Continuing Violation

Where the plaintiff alleges a continuing violation of Title VII, the plaintiff need only file within 180 or 300 days (depending on whether there is an appropriate local or state agency involved) of the latest incident of the alleged continuing violation.

The Working Law Wisconsin Case:

Wisconsin's Governor Scott Walker signed the 2014 Wisconsin Act 10, a controversial bill that limits the collective bargaining power for the state's public employees (except for firefighters, police, and State Patrol Troopers), and require state employees to pay more for their health care and pensions. Then the Supreme Court ordered the reinstatement of Governor Walker's bill, overturning Dane County Circuit Judge Maryann Sumi's restraining order, which had temporarily prevented the publishing of the law.

Occupational injuries must be recorded if they result in:

Death Loss of consciousness Medical treatment other than minor first aid One or more lost workdays The restriction of work or motion Transfer to another job

Gender-Based Pension Benefits

Differences in male/female life expectancy are used by actuaries in determining benefits. Gender-based actuarial tables used to determine premiums and benefits for pensions would require that women pay higher premiums to receive the same levels of benefits as men of the same age (because women typically live longer than men).

National Industrial Recovery Act (NIRA)

Provides for the development of "codes of fair competition" for various industries.

The Family and Medical Leave Act

* Allows eligible employees to take up to twelve weeks' unpaid leave in any twelve months because of the birth, adoption, or foster care of a child the need to care for a child, spouse, or parent with a serious health condition the employee's own serious health condition makes the employee unable to perform functions of his or her job. * Public sector employers are covered without regard to the number of employees. * Private sector employers with 50 or more employees. * Employees of covered employers are eligible for leave under the act if they have been employed for at least twelve months or Have worked at least 1,250 hours of the twelve-month period immediately preceding the leave. * Also covers military personnel for 26 weeks! (Military Caregiver Leave)

Blackman v. Florida Dept. of Business and Professional Regulation

* Blackman viewed a public website with state salary information and learned that the DBPR was paying her less than two male DPMW bureau chiefs and one of her male subordinates. Blackman alleged that she was being paid less than five male employees on the basis of her gender in violation of Title VII and the Equal Pay Act. * The court found that the salary difference was a function of legislatively-mandated annual raises (which were gender-neutral) from which Ms. Blackman's colleagues benefited before they were discontinued, and Ms. Blackman did not.

Procedures Under the Equal Pay Act

* Individuals filing a suit under the Equal Pay Act are not required to file with the EEOC first. * Individual suits must be filed within 2 years of the alleged violation.

Discrimination on the Basis of Citizenship

* National origin discrimination under Title VII does not include discrimination on the basis of citizenship *The Immigration Act of 1990 expanded the protection of the IRCA to cover seasonal agricultural workers. *The IRCA is enforced by the Department of Justice through the Special Counsel for Immigration-Related Unfair Employment Practices

Novak v. Metrohealth Medical Center

* Novak, an employee of Metrohealth Medical Center, was terminated after exceeding the company's number of hours of unexcused absence. Novak missed work due to back pain and helping care for her 18-year-old daughter's baby. The daughter allegedly suffered from postpartum depression. Novak filed suit against MetroHealth, alleging interference with her FMLA rights. * The court of appeals held that Novak was not entitled to FMLA leave. The court, therefore, affirmed the dismissal of Novak's FMLA claims.

Pregnancy and Hazardous Working Conditions

* On-the-job exposure to harsh substances or potentially toxic chemicals may pose a hazard to the health of employees. * Employers cannot attempt to avoid potential health problems for pregnant employees by prohibiting women of childbearing age from working in hazardous jobs. * Pregnancy itself is not a BFOQ, so doing so would constitute a gender discrimination violation of Title VII. * The Patient Protection and Affordable Care Act also amended the Fair Labor Standards Act [FLSA] to require employers to provide nursing mothers with a secure place to express breast milk.

The Immigration Reform and Control Act of 1986 (IRCA)

* The _________ prohibits employment discrimination because of national origin or citizenship against applicants or employees, unless necessary to comply with laws, government contracts, or business necessity.

Christensen v. Harris County

*Basically, when someone works more than 40 hours, you have to take time off. Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff's Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals found that the FLSA contains no provision that would prohibit the policy.

Hostile Environment Harassment:

*Harassment which may not result in economic detriment to the victim, but which subjects the victim to unwelcome conduct or comments and may interfere with the employee's work performance. *It does not involve the conditioning of any job status or benefit on the employee's response to the harassment. Unwelcome harassment has the effect of interfering with the employee's work.

Extra Fact #1

*John L. Lewis' violation of a "gentlemen's agreement" with the Roosevelt Administration, resulting in one of the worst abuses of union power.

Enforcement and Remedies Under the FLSA

*KNOW!!*** The FLSA is enforced by the Department of Labor (DOL). The Wage and Hour Division of the DOL performs inspections, investigations and issues rules and regulations. The Secretary of Labor is authorized to file suit on behalf of employees seeking to collect wages and overtime and may also recover liquidated damages in an amount equal to the amount of wages owed. The Secretary may also seek injunctions against violations of the act. Criminal proceedings for willful violations may be instituted by the Department of Justice. Employees may file suit to recover back wages and overtime plus liquidated damages in an equal amount and may also seek reinstatement and may recover legal fees. Employees generally may not release employers for less than the full amount owing, nor may employees waive their rights to compensation under the act.

Extra Fact #2

*Many courts hold that the right or duty must be clearly spelled out by statute. For instance, in the seminal case of Geary v. United States Steel Corporation, the Pennsylvania Supreme Court upheld the dismissal of a lawsuit brought by a salesman who was fired for refusing to sell what he insisted was an unsafe product. Additionally, if the statute itself provides the employee with a cause of action, the courts are reluctant to recognize an alternative remedy in the form of a lawsuit for wrongful discharge.

Harris v. Forklift Systems, Inc.

*Teresa Harris worked as a manager at Forklift Systems, Inc. Charles Hardy was Forklift's president. Hardy often insulted Harris because of her gender. Harris then sued Forklift, claiming that Hardy's conduct had created an abusive work environment for her because of her gender. The trial Court found this to be a "close case," but held that Hardy's conduct did not create an abusive environment. On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the trial court decision. *The U. S. Supreme court reversed the judgment of the Court of Appeals, finding the sexual harassment of Harris to constitute hostile environment.

Policy and Processes of the OSH Act

-Assure safe and healthful working conditions for men and women. -Provide a framework for research, education, training, and information in occupational safety and health Employers shall meet the various health and safety standards set under the act and keep records of injuries, deaths, accidents, illnesses, and particular hazards Applies to all employees who work for an employer that is engaged in a business affecting interstate commerce Does not apply to: -The federal and state governments in their capacity as employers -Domestic servants -Self-employed persons -The OSH Act contains no specific industry-wide exemptions

Defenses Under the ADA

-Direct Threat to Safety or Health of Others -Job-Related Criteria -Food Handler Defense -Religious Entities

OSHA Physical Inspections

1. Investigation of complaints of imminent danger 2. Investigation of fatal and catastrophic accidents 3. Investigation of complaints filed by employees alleging hazardous working conditions 4. Investigation of high-hazard industries 5. Random general investigations

The Davis-Bacon Act

Provides that contractors working on government construction projects must pay the prevailing wage rates in the geographic area, as determined by the Secretary of Labor.

Prima Facie Case:

A case "on the face of it" or "at first sight", often used to establish that if a certain set of facts is proven, then it is apparent that another fact is established.

Tomkins v. Public Service Electric & Gas Co.

A classic example of quid pro quo sexual harassment. Tomkins was told by her male supervisor that she should have sex with him if she wanted him to give her a satisfactory evaluation and recommend her for promotion. When she refused, she was subjected to a demotion, negative evaluations, and disciplinary suspensions, and was ultimately fired.

Express Contract

A contract in which the terms are explicitly stated, usually in writing but perhaps only verbally, and often in great detail. In interpreting such a contract, the judge and/ or the jury is asked only to determine what the explicit terms are and to interpret them according to their plain meaning.

Implied Contract

A contractual relationship, the terms and conditions of which must be inferred from the contracting parties' behavior toward one another.

Racketeer Influenced and Corrupt Organizations Act (RICO):

A federal law designed to criminally penalize those that engage in illegal activities as part of an ongoing criminal organization (e.g., the Mafia).

Undue Hardship

An accommodation that requires significant difficulty or expense for the employer.

Pregnancy Discrimination Act of 1978:

An act that amended Title VII to include pregnancy discrimination in the definition of sex discrimination.

Lilly Ledbetter Fair Pay Act

An act that amends Title VII by extending the time limit for filing suit for pay discrimination cases.

Whitstleblower

An employee who brings employer wrongdoing to the attention of a government agency.

Employer Liability for Supervisors

An employer is liable for quid pro quo sexual harassment by a manager or supervisor because such conduct is related to the supervisor's or manager's job status.

Employer Defenses on ADA

An employer is not required to hire a person with a disability who is not capable of performing the duties of the job. Regulations require the employer to make "reasonable accommodation" to the disabilities of individuals. When determining the essential functions of a job, the court or the EEOC, which administers and enforces the ADA, considers the employer's judgment as to what is essential.

Bona Fide Occupational Qualification (BFOQ):

An exception that allows an employer to hire employees of a specific gender, religion, or national origin when business necessity (the safe and efficient performance of the particular job) requires it.

Bona Fide Occupational Qualifications (BFOQs):

An exception to the civil rights law that allows an employer to hire employees of a specific gender, religion, or national origin when business requires it.

Serious Health Condition

An illness, injury, or condition that requires inpatient hospital care, or that lasts more than three days and requires continuing treatment by a health-care provider, or that involves pregnancy, or a long-term or permanently disabling health condition, or absences for receiving multiple treatments for restorative surgery, or for a condition that would likely result in a period of incapacity of more than three days if it were not treated

Filing with the EEOC:

An individual alleging employment discrimination must first file a complaint with the appropriate state or local agency, if such an agency exists. Once the complaint is filed with the state or local agency, the complainant must wait 60 days before filing the complaint with the EEOC.

Class Actions

An individual plaintiff may sue on behalf of a whole class of individuals allegedly suffering the same harm. Affirmative relief may be available to minority group members who were not personally victimized by the employer's prior discrimination.

Qualified Individual with a Disability:

An individual with a disability who is able to perform, with reasonable accommodation, the requirements of the job in question, despite the disability.

Humphrey v. Memorial Hospitals Association

Carolyn Humphrey worked for Memorial Hospitals Association and was fired on October 10, 1995 because of her history of tardiness and absenteeism. Humphrey filed suit against MHA under the ADA. The district court granted MHA's motion for summary judgment, and Humphrey appealed to the U.S. Court of Appeals for the Ninth Circuit. The district court's grant of summary judgment to MHA on Humphrey's ADA and FEHA claims was reversed and the case was remanded for proceedings.

Chalfant v. Titan Distribution, Inc.

Chalfant sued Titan for disability discrimination under the Americans with Disabilities Act after he was told that he did not qualify in the physical test, which was contrary to the medical report given by the doctor who actually conducted the physical test. The district court then awarded $18,750 in front pay. Titan appealed. The court of appeals affirmed the trial court verdict and the award of punitive damages to Chalfant.

Jacobs v. N.C. Administrative Office of the Courts

Christina Jacobs worked as a deputy clerk at a courthouse in New Hanover County, North Carolina. Although she allegedly suffered from social anxiety disorder, her employer assigned her to provide customer service at the courthouse front counter. Believing that her mental illness hindered her ability to perform this inherently social task, Jacobs requested an accommodation to be assigned to a role with less direct interpersonal interaction. Her employer waited three weeks without acting on her request and then terminated her. The Fourth Circuit panel held that the trial judge erred by concluding that Jacobs was not disabled within the meaning of the ADA.

Disparate Treatment Claims:

Claims of disparate treatment involve allegations of intentional discrimination in employment. A plaintiff alleging disparate treatment must establish that he or she was subjected to less favorable treatment because of his or her race, color, religion, gender, or national origin.

ADA Provisions

Covered employers cannot discriminate in any aspect of employment because of disability against an otherwise qualified individual with a disability. Retaliation against any individual because the individual has opposed any act or practice unlawful under the ADA is prohibited. Retaliation against any individual because the individual has filed a charge or participated in any manner in a proceeding under the ADA is prohibited. Coercion or intimidation of, threats against, or interference with an individual's exercise of or enjoyment of any rights granted under the act is prohibited.

Executives

Customarily and regularly directs the work of two or more other employees Has the authority to hire or fire other employees

Equal, or substantially equivalent, work involves equal what?

Effort, Skill, Responsibility, and Working conditions.

Hostile Environment Harassment

Employees alleging harassment creating a hostile environment in violation of Title VII must file their complaint with the EEOC within 180 days (if there is no state or local agency involved) or 300 days (it there is an appropriate state and local agency) of the most recent discrete incident of harassment.

FLSA Coverage

Employees who are engaged in interstate commerce, including both import and export Employees who are engaged in the production of goods for interstate commerce Employees employed in an "enterprise engaged in" interstate commerce Employers and employees not covered by FLSA are generally subject to state laws, similar to the FLSA, which regulate minimum wages and maximum hours of work. In 1974, FLSA coverage was extended to most federal employees, to state and local government employees, and to private household domestic workers.

Exempt Employees

Employees whose hours of work and compensation are not stipulated by the FLSA

English-Only Rules

Employer work rules requiring that employees speak English in the workplace during working hours. Blanket English-only rules violate Title VII unless they are required by business necessity. The EEOC believed that such rules would create a discriminatory environment. However, NOT ALL COURTS AGREE WITH THIS. An employer may violate Title VII by denying employment opportunities because of an applicant's or employee's foreign accent or inability to communicate well in English, unless the job in question involves public contact.

Waivers

Employers may require employees receiving special benefits upon early retirement to execute a waiver of claims under the ADEA if: -The waiver is knowing and voluntary. -The employees receive additional compensation for the waiver, over and above that to which they are already entitled. Requirements: -Waivers must be in writing and must specifically refer to ADEA rights. -Employees must be advised to consult an attorney about the waiver. -Employees must be given at least twenty-one days to consider the matter before deciding whether to execute the waiver. -Employees must be allowed to revoke the waivers up to seven days after signing. -If the waivers are part of a termination incentive program offered to a group or class of employees, the employer must give the employees forty-five days to consider the waiver. If the early retirement and waiver are offered to a class of employees, the employer must provide employees: -A list of the class eligible for early retirement. -The factors to determine eligibility for early retirement. -The time limits for deciding upon early retirement. -Any possible adverse action if the employee declines to accept early retirement and the date of such possible action. For waivers involving a claim that is already before the Equal Employment Opportunity Commission (EEOC) or a court, employees must be given "reasonable time" to consider the waiver.

Disparate Impact

Employers should avoid arbitrary employment criteria, such as height or weight requirements, for applicants or employees because such requirements may have a disparate impact on national origin.

After-Acquired Evidence:

Evidence discovered by an employer after having taken allegedly discriminatory action against an employee that the employer attempts to use to justify the action already taken.

After-Acquired Evidence

Evidence, discovered after an employer has taken an adverse employment action, that the employer uses to justify the action taken.

Overtime & Minimum Wage Exemptions

Executives, Administrators, Professionals, and Outside Salespeople

Section 7: Rights of Employees

Given to all private employees covered by the NLRA: -Employees need not be organized union members to enjoy such rights -The rights are given to the individual employee, they may not be waived by a union purporting to act on behalf of the employees Activity is protected under Section 7 if: -It is concerted activity -It is for collective bargaining or mutual aid and protection purposes -It is not illegal, destructive, or unreasonable -The protection of Section 7 also extends to activities not directly associated with formal unionization Activity is not protected under Section 7 if: -Employees are acting individually -Conduct is not related to collective bargaining or mutual aid or protection purposes

Affirmative Action and Reverse Discrimination:

Giving preference in hiring or promotion to qualified female or minority employees. Employees who are not members of this group may therefore be at a disadvantage for hiring or promotion. Title VII does not require employers to enact affirmative action plans; however, the courts have often ordered affirmative action when the employer has been found in violation of Title VII.

Permanent variances

Granted when the employer establishes by a preponderance of the evidence that its particular procedures provide as safe and healthful a workplace as the OSHA standard would provide.

Temporary variances

Granted when the employer is unable to comply with a standard by its effective date because of the unavailability of Professional or technological personnel and Materials or equipment necessary to come into compliance.

Quid Pro Quo Harassment

Harassment where the employee's response to the harassment is considered in granting employment benefits. Plaintiff must show: She or he belongs to a protected group She or he was subject to unwelcome sexual harassment The harassment was based on sex Job benefits were conditioned on the acceptance of the harassment There is some basis to hold the employer liable

Burden of Proof

Having the burden of proving their claim/ case. If the plaintiff is successful in establishing a prima facie case of disparate treatment, the defendant must then try to overcome the plaintiff's claims

Public Employees Under Title VII

INTERNAL RESOLUTIONS! If the employee is not satisfied with the counselor's resolution of the complaint, the employee can file a formal complaint with the agency's designated EEO official. Employees of Congress and the White House are subject to Title VII through the Congressional Accountability Act of 1995.

The OSH Act provides for the issuance of 3 kinds of standards:

Interim standards: -Standards that the Secretary of Labor had power to issue for the first 2 years following the effective date of the act. -Modeled on various preexisting industry consensus standards Permanent standards: -Include both newly created standards and revised interim standards -Developed by OSHA and NIOSH Temporary emergency standards: -Issued when the employees are exposed to grave dangers from substances or agents determined to be toxic or physically harmful. -Actual injury does not have to occur but there must be a genuinely serious emergency.

Purple Communications, Inc., and Communications Workers of America, AFL-CIO

IS NOW OVERRULED!! Purple Communications, Inc. [the employer] provides sign-language interpretation services. The company maintains an employee handbook that contains its electronic communications policy prohibiting employees from using the email system to "Engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company." The Communications Workers of America Union filed petitions to represent the interpreters, claiming they should be allowed to use their employer's email and other electronic communications systems for the purpose of communicating with other employees about union or other Section 7 matters. A majority of the NLRB overruled the Board's decision in Register Guard to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes. The majority held that, consistent with the purposes and policies of the Act and the obligation to accommodate the competing rights of employers and employees, employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.

variance

If an employer, or a class of employers, believe that the OSHA standard is inappropriate to its particular situation, an exemption, or _________, may be sought

Compensatory and Punitive Damages

If the plaintiff can demonstrate that a private sector defendant has engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an individual, the plaintiff can recover compensatory and punitive damages.

E.E.O.C. v. Exxon Mobile Corporation

In 1959, the FAA adopted a rule prohibiting pilots from flying in any operations in Part 121 of the FAA's regulations if the pilot was over the age of 60 ("Age 60 Rule"). Part 121 applied to "large commercial passenger aircraft, smaller propeller aircraft with 10 or more passenger seats, and common carriage operations of all-cargo aircraft with a payload capacity of 7,500 pounds. "The FAA supported this Age 60 Rule. Defendant Exxon adopted a similar retirement-at-60 rule for its corporate pilots. The EEOC challenged this rule in court. The EEOC failed to address the fact that Part 121 covered a wide range of operations and to distinguish Exxon's operations. Instead, the EEOC's evidence compared only commercial piloting to Exxon piloting or corporate piloting generally. When compared to commercial pilots, the EEOC was correct that corporate pilots might fly fewer hours, operate on a varying schedule, and only fly in certain weather conditions. However, these distinctions were "distinctions without difference." Exxon's operations functioned in much the same manner as commercial, commuter, or cargo operations, all types of piloting covered by Part 121. Thus, the EEOC had not shown a genuine dispute of material fact that the occupations lack congruence. Summary judgment for Exxon was affirmed.

Private Settlement and Release Agreements

In 2014, the EEOC took the position that private settlement-and-release agreements between employers and current or former employees are unenforceable to the extent that they potentially interfere with the employee's future access to the agency and/or future ability to cooperate in agency investigations.

The ADA Amendments Act of 2008

Individuals can establish that they are "regarded as having such an impairment" if they show that t hey have been subjected to discriminatory treatment because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. When determining whether an impairment substantially limits a major life activity, the court is not to consider the ameliorative effects of mitigating measures, assistive devices or aids, other than eyeglasses or contact lenses.

Employer Liability for Punitive Damages Under Title VII

Punitive damages may be recovered if there is an intentional discrimination with malice or reckless indifference to the federally protected rights of an individual.

The Genetic Information Nondiscrimination Act (GINA)

Its employment-related provisions took effect in November 2009. The legislation prohibits discrimination based on genetic information by employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

NLRB v. City Disposal Systems

James Brown, a truck driver, was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. Brown filed an unfair labor practice charge with the NLRB, challenging his discharge. The NLRB held that Brown's refusal was concerted activity within Section 7, and that his discharge was, therefore, an unfair labor practice under Section 8(a)(1). Finding that Brown's refusal to drive truck was an action taken solely on his own behalf, the Court of Appeals concluded that the refusal was not a concerted activity within the meaning of Section 7. The Court of Appeals disagreed and declined enforcement of the Board's order. The Supreme Court accepted the Board's conclusion that James Brown was engaged in concerted activity when he refused to drive truck. Therefore, it reversed the judgment of the Court of Appeals and remanded the case for further proceedings.

Common Law

Judge-made law as opposed to statutes and ordinances enacted by legislative bodies 1. Employment-at-will and wrongful discharge 2. Express and implied employment contracts

Webb v. City of Philadelphia

Kimberlie Webb, a practicing Muslim, was a police officer for the City of Philadelphia. She requested to wear a headscarf while on duty and was denied because of the uniform requirements. Webb then filed a complaint of religious discrimination under Title VII. The Third Circuit held that the uniform requirements were crucial to the safety of officers, to their morale and esprit de corps, and to public confidence in the police and therefore ruled in favor of the city.

Seniority

Length of service on the job. Frequently used to determine entitlement to employment benefits, promotions or transfers, and job security.

Lechmere, Inc. v. NLRB

Local 919 of the United Food and Commercial Workers Union was attempting to organize the employees at a Lechmere retail store. The union sent non-employee organizers into Lechmere's parking lot to place handbills on the windshields of cars parked. The store's manager informed the union organizers that Lechmere prohibits solicitation or handbill distribution of any kind on its property. The union filed an unfair labor practice charge with the NRLB, alleging that Lechmere violated the Section 8(a)(1) of NLRA by barring the non-employee organizers from its property. An ALJ recommended that Lechmere be ordered to cease and desist from barring the union organizers from the parking lot. The U.S. Court of Appeals for the First Circuit denied Lechmere's petition for review and enforced the Board's order. Lechmere then appealed to the U.S. Supreme Court. The Supreme Court reversed the decision of the court of appeals, and denied enforcement of the NLRB order.

The Occupational Safety and Health Act (OSHA):

Makes it illegal to fire an employee in retaliation for filing a safety complaint.

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos

Mayson worked at the gymnasium for some 16 years as an assistant building engineer and then as a building engineer. He was discharged in 1981 because he failed to qualify for a temple recommend; that is, a certificate that he is a member of the Church and eligible to attend its temples. The District Court found in favor of Mason and ordered reinstatement with backpay. The Court of Appeals reversed this judgment.

HARMON V. EARTHGRAINS BAKING COMPANIES, INC.

Michael Harmon, a manager at Eathgrains, was fired after failing to follow Earthgrains' accident reporting protocol. Earthgrains did not fill the vacancy created by Harmon's termination; rather, it assigned Mark Carter, an existing district manager in Glasgow, Kentucky, who was 10 years younger than Harmon (aged 58 at the time), to manage the area previously supervised by Harmon. Carter not only absorbed permanently all of Harmon's job responsibilities, but he also continued to serve as district manager in Glasgow, thereby increasing his workload. The court of appeals had no hesitancy to rule for the defendant on these facts. Because Harmon was not replaced by Carter, the appellate panel held that he failed to present a prima facie case of age discrimination. Nor did the judges buy the plaintiff's contention that the company's so-called "reorganization" was a pretext to disguise its discriminatory termination of the plaintiff in favor of his younger counterpart, Carter.

Purpose of the FLSA

Minimum wages Overtime pay provisions Child labor Equal pay for equal work

Equal Employment Opportunity Commission v. WC&M Enterprises, Inc.

Mohammed Rafiq was born in India and was a practicing Muslim. He was a car salesman at a Honda dealership. After the September 11, 2001 terrorist attacks, Rafiq began to be subjected to ongoing harassment based on his religion and national origin by his managers and co-workers. He filed a complaint with EEOC against the employer. The court found that Rafiq was subjected to a hostile work environment on the basis of religion and national origin.

Front Pay

Monetary damages awarded to a plaintiff instead of reinstatement or hiring

Outside salespeople

Obtain orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer Customarily and regularly engaged away from the employer's place of business

Overtime Pay

One-and-a-half times an employees' regular pay rate

McDonnell Douglas Corp. v. Green

Petitioner, McDonnell Douglas Corporation, is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964 when he was laid off in the course of a general reduction in petitioner's work force. Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. Later, petitioner publicly advertised for qualified mechanics, respondent's trade, and respondent promptly applied for reemployment. Petitioner turned down respondent, basing its rejection on respondent's participation in the "stall-in." The court found that nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it. But the court stated that on remand, the respondent must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretextual.

Occupational Safety and Health Act (OSHA) and Title VII:

Protect employees who blow the whistle on illegal practices or who cooperate in investigations and testify at hearings from employer retaliation, such as employment termination.

Section 11(c)(1) of the OSH Act provides the right to refuse:

Protects employees from discrimination because they refuse to work in the face of a dangerous condition. Can be exercised when employees are exposed to a dangerous condition posing the risk of serious injury or death and there is insufficient time, due to the nature of the hazard, to resort to the regular statutory procedures for enforcement.

The Age Discrimination in Employment Act (ADEA):

Protects older workers from discriminatory discharge.

Section 702(a)

Provides an exception under Title VII to all religious societies, religious corporations, religious educational institutions, and religious associations.

Individual Employee Rights

Rights enjoyed by workers as individuals, as against collective rights secured by unionization; sources are statutes and court decisions.

Civil Liability Under the Sarbanes-Oxley Act (SOX)

SOX's legislative history indicates that its whistleblower provisions are intended primarily to protect employees of publicly traded companies acting in the public interest to try to prevent officer/director wrongdoing and "to encourage and protect those who report fraudulent activity that can damage innocent investors in publicly traded companies."

Executive Exemption

Section 631(c) of the ADEA allows the mandatory retirement of executive employees who are over the age of sixty-five. To qualify under this exemption the employee must have been in a bona fide executive or high policy-making position for at least two years. Upon retirement, must be entitled to nonforfeitable retirement benefits of at least $44,000 annually An employee who is within the executive exemption can be required to retire upon reaching age sixty-five.

Filing a Complaint

Section 706(c) of Title VII requires that an individual filing a complaint of illegal employment discrimination must first file with a state or local agency authorized to deal with the issue, if such an agency exists.

The Walsh-Healy Act

Sets minimum standards for wages for contractors providing at least $10,000 worth of goods to the federal government.

Workweek

Seven consecutive days

Smith v. City of Salem, Ohio

Smith, a male lieutenant in the Salem Fire Department, was diagnosed with gender identity disorder (GID). While undergoing treatment for GID, he began expressing a more effeminate appearance, for which his coworkers began to harass him. Smith notified his supervisor of his diagnosis and treatment, which would eventually result in a complete physical transformation from male to female. His supervisor relayed the information to the chief of the fire department, who devised a plan for terminating Smith's employment. Smith filed suit in the federal district court alleging sex discrimination and retaliation in violation of Title VII. The court of appeals confirmed that Smith had stated a justified claim of sex discrimination under Title VII.

Remedies Under the ADEA

Successful private plaintiffs can recover.... -Any back wages owing and legal fees -An equal amount as liquidated damages if the employer acted "willfully" -Injunctive relief -Legal fees and costs Remedies in suits by the EEOC may include.... -Injunctions -Back pay -Liquidated damages are not available in such suits

Agency Relationships

Supervisors or managerial employees, acting in the course of their employment, are generally held to be agents of the employer

The feasibility of a standard must be examined from:

Technological feasibility Economic feasibility

Individuals Not Protected by the ADA

The 2009 amendments to the ADA specifically state that the "being regarded as having an impairment" aspect of the definition of disability shall not apply to impairments that are transitory (defined as an impairment with actual or expected duration of six months or less) and minor. Employees who use illegal drugs are not protected by the ADA, nor are alcoholics who use alcohol at the workplace or who are under the influence of alcohol at the workplace. The act's protection does not apply to an individual who is a transvestite, nor are homosexuality, bisexuality, or sexual behavior disorders (such as exhibitionism or trans-sexualism) considered disabilities.

ADA Coverage

The ADA applies to both private and public sector employers with fifteen or more employees. Does not apply to most Federal government employers, American Indian tribes, or Bona fide private membership clubs.

Enforcement of the ADA

The ADA is enforced by the EEOC The act specifically provides that the procedures and remedies under Title VII of the Civil Rights Act of 1964 shall be those used or available under the ADA

Medical Exams and Tests

The ADA limits the ability of an employer to test for or inquire into the disabilities of job applicants and employees: -Employers are prohibited from asking about the existence, nature, or severity of a disability -An employer may ask about the individual's ability to perform the functions and requirements of the job Employers are likewise not permitted to require preemployment medical examinations of applicants: -Once an offer of a job has been extended to an applicant, employers can require a medical exam, provided that such an exam is required of all entering employees. -Current employees are similarly protected from inquiries or exams, unless those requirements can be shown to be "job-related and consistent with business necessity."

Early Retirement and Work Force Reductions

The ADEA does not prohibit voluntary retirement as long as it is truly voluntary. The Older Workers Benefit Protection Act of 1990, which amended the ADEA, contained several provision concerning work force reductions. Employers seeking to reduce their work force may offer employees early retirement incentives such as. Subsidized benefits for early retirees. Paying higher benefits until retirees are eligible for social security. Severance pay.

ADEA Bona Fide Occupational Qualifications

The ADEA does recognize that age may be a BFOQ for some jobs. A BFOQ must be reasonably necessary to the normal operation of the employer's business In the case of Hodgson v. Greyhound Lines, Inc., the court held that Greyhound could refuse to hire applicants for bus driver positions if the candidates were over thirty-five years old because of passenger safety considerations.

Procedures Under the ADEA

The ADEA is enforced and administered by the EEOC. The ADEA allows suits by private individuals as well as by the EEOC. An individual alleging a violation of the ADEA must file a written complaint with the EEOC and with the state or local equal employment opportunity (EEO) agency if one exists. Unlike Title VII, however, the individual may file simultaneously with both the EEOC and the state or local agency. After filing with the EEOC and the state or local EEO agency, the individual must wait 60 days before filing suit in federal court. If the EEOC files suit under the ADEA, the EEOC suit supersedes any ADEA suit filed by the individual or any state agency. As with Title VII, the ADEA allows for a jury trial.

Government Suits

The ADEA provides for suits by the EEOC against nonfederal employers. The EEOC must attempt to settle the complaint voluntarily before filing suit. -There is no specific time limitation for this required conciliation effort. Once conciliation has been attempted, the EEOC may file suit. -The courts are split on the question of when the EEOC suit must be filed -Some courts have held that there is no specific statute of limitations on ADEA suits filed by the EEOC

The Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in employment because of disability. Title I of the act, which applies to employment, prohibits discrimination against individuals who are otherwise qualified for employment. In 2009, the act was amended by the Americans with Disabilities Act Amendment Act, which broadened the definition of covered disabilities to include a wide range of life activities that previously had been declared outside the ADA by a series of Supreme Court decisions, which the ADAAA in effect overruled.

Employer Social Media Policies and Limitations on Employees' Communications

The Board has generally taken a negative view of employer rules prohibiting employees from discussing work-related matters with fellow workers, holding that they are overly restrictive of protected activity. Northeastern Land Services, Inc. v. NLRB: The U.S. Court of Appeals for the First Circuit upheld the NLRB decision that an employer rule prohibiting employees from discussing terms of employment, including compensation, under penalty of dismissal was a violation of Section 8(a)(1). Costco Wholesale Corp.: The Board ruled that an employer's policy was a violation of Section 8(a)(1) because the broad prohibition clearly encompassed concerted communications protesting working conditions or the employer's treatment of its employees.

Smith v. City of Jackson, Mississippi

The City of Jackson, Mississippi adopted a pay plan in May 1999 that was intended to bring the starting salaries of police officers up to the average of other police departments in the region. A group of older officers filed suit against the city, alleging that the differential raise policy violated the Age Discrimination in Employment Act. The trial court dismissed the suit, and the U.S. Court of Appeals affirmed the dismissal. The officers then appealed to the U.S. Supreme Court. The U.S. Supreme Court held that the disparate-impact theory of recovery is available under the ADEA.

Duty of Reasonable Accommodation

The EEOC Guidelines indicate that the following factors will be considered in determining what a reasonable accommodation is and whether it results in undue hardship: Size of the employer's work force and number of employees requiring accommodation Nature of the job(s) that present a conflict Cost of the accommodation Administrative requirements of the accommodation Whether the employees affected are under a collective bargaining agreement What alternatives are available and have been considered by the employer

Hoasanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.

The Equal Employment Opportunity Commission brought this action against the member congregation of the Lutheran Church, alleging that the "called" teacher at its school had been fired in retaliation for threatening to file an Americans with Disabilities Act (ADA) lawsuit. The teacher intervened, claiming unlawful retaliation under both the ADA and state law. Chief Justice Roberts wrote his opinion on behalf of a unanimous Court. In it, he held that (1) the First Amendment bars suits by ministers against their churches, claiming termination in violation of employment discrimination laws; (2) the called teacher in effect was a minister for purposes of this rule, notwithstanding that she performed many duties equivalent to what lay teachers in the church's school also performed; and (3) this ministerial exception extends not only to the ADA but to all employment discrimination statutes.

OSHA created 3 federal agencies for administration and enforcement:

The Occupational Safety and Health Administration (OSHA) is an agency created for enforcement of the OSH Act. Able to issue citations and recommend penalties for violations The National Institute of Occupational Safety and Health (NIOSH) is an agency created to conduct research and promote the application of the research results regarding work experience. The Occupational Safety and Health Review Commission (OSHRC) is a quasi-judicial agency created to adjudicate contested enforcement actions of OSHA. 3 members appointed by the President for 6-year terms. Able to actually enforce penalties recommended by OSHA.

The Working Law Ohio Case

The Ohio legislature passed a massive revision of the state's public sector collective bargaining act. Later, Ohioans voted to repeal the law, with 63% of voters against the bill, and a union- backed committee that formed to repeal the law raised approximately $30 million for the effort.

Estate of Thornton v. Caldor, Inc.

The Supreme Court held that a Connecticut statute requiring employers to allow employees to take off work on their religious sabbath was unconstitutional.

The Working Law Supreme Court case:

The U.S. Supreme Court held in a 5-4 split between conservative and liberal justices that public employees who do not choose to join the union that represents their bargaining unit need not pay their "fair share" contributions to that labor organization - even though they inevitably benefit from the favorable terms and conditions of employment won by the union. The decision is widely viewed as a major setback to public-employee unions in states where membership is a matter of choice, rather than a requirement, for employees in the units that such unions represent.

Castillo v. Wells Fargo Bank, N.A.

The Wells Fargo Team Member Handbook states, "English is the business language for Wells Fargo's U.S. operations." Plaintiff Martha Castillo challenged this Wells Fargo rule on the basis of national origin discrimination. The court found that Wells Fargo's language policy was a "limited, reasonable and business-related English-only rule" that Wells Fargo enforced against "an employee who can readily comply with the rule [but] voluntarily chooses not to observe it as a matter of individual preference."

Back Pay

The court may award back pay to a successful plaintiff

Individual Liability

The courts have held that individual employees are not liable for damages under Title VII; this means that the employee doing the harassing will not be held personally liable for damages under Title VII.

Disparate Impact

The discriminatory effect of apparently neutral employment criteria. The discriminatory effect of apparently neutral employment criteria or selection devices; does not require intention to discriminate on the part of the employer. The employment criteria or selection device disproportionally disqualifies employees based on race, color, sex, religion, or national origin.

Justifications

The employee is likewise free to sever the working relationship at any time. In a free market, the worker with sufficient bargaining power can demand an employment contract for a set period of time if so desired.

Herbert v. Altimeter, Inc.

The employee-plaintiff claimed that she had been fired in retaliation for making safety complaints, for requesting a reasonable accommodation, for filing a workers' comp claim, and because her employer perceived her as disabled. After the plaintiff had presented her case at trial, the judge took the case away from the jury and granted the defendant's motion for a directed verdict. The court held that the trial judge was wrong right across the board. The jury was entitled to determine if the plaintiff was terminated; if so, did the employer fire her out of a lawful motivation; if not, was she in fact fired for any or all of the reasons she claimed.

Suits by Federal Employees

The federal government is not included in the ADEA's definition of employer. Personnel actions in most federal government positions shall be made free from discrimination based on age. The ADEA protects federal workers who are at least 40 years of age. A federal employee agency must file a complaint with the EEOC within 180 days of the alleged violation. The employee may file suit in federal court after thirty days from filing with the EEOC. The ADEA provides only for private suits in cases involving complaints by federal employees. No provision is made for suits by the EEOC.

ADEA Defenses

The following are not violations: Actions pursuant to a bona fide seniority system, retirement, pension or benefit system, For good cause, For a "reasonable factor other than age." The Act also: Recognizes that age may be a BFOQ, Permits the mandatory retirement of certain executive employees at age sixty-five. The ADEA was amended in 1990 to provide an additional defense for employers: Where the employer employs American workers in a foreign country and compliance with the ADEA would cause the employer to violate foreign law, the employer is excused from complying with the ADEA.

Globalization

The integration of national economies into a worldwide economy, due to trade, investment, migration and information technology.

Terry v. Sapphire Gentlemen's Club

The performers also agree to abide by certain "house rules," including a minimum standard of coverage by their costumes and a minimum heel height; payment of a "house fee," which ranges in amount, any night they work; and performing two dances per shift on the club stage unless they pay an "off-stage" fee. Sapphire does not pay wages to the performers, whose income is entirely dependent upon tips and dancing fees paid by Sapphire patrons. The performers filed suit against the Sapphire challenging their work arrangements, claiming that they were "employees" within the meaning of state minimum wage laws and were thus guaranteed a minimum wage. The court then held that, based on the review of the totality of the circumstances of the working relationship's economic reality, Sapphire qualified as an employer under the state legislation, and the performers therefore qualified as employees under the law. In so holding, the court noted that its decision was in accord with the great weight of authority, which has almost "without exception ... found an employment relationship and required ... nightclub[s] to pay [their] dancers a minimum wage."

Solis v. Laurelbrook Sanitarium and School, Inc.

This case raises another hot issue under the FLSA. The proliferation of unpaid interns in the wake of the 2008-09 Great Recession has led the DOL to promulgate rules aimed at determining when such college students are in fact employees of the companies that accept them for such on-the-job experiences. The NLRB is wrestling with a similar issue: are graduate assistants, who fill the classrooms and labs of our nation's large universities, primarily students or principally employees? This case offers a variation on these themes. Here the students in a boarding school studies four hours a day and worked four hours each day ostensibly acquiring practical skills. The district court applied the proper test when it asked which party to the relationship received the primary benefit of the students' activities. The appellate court found the district court's findings of fact amply supported by the evidence adduced at trial, and agree with its application of the primary benefit test to conclude that the students at Laurelbrook are not employees for purposes of the FLSA. Accordingly, the judgment of the district court is affirmed.

Salazar v. Butterball, LLC

This is a recent example of a classic FLSA issue: workers spend time preparing for and/or winding up their shifts. Here the plaintiffs banded together and prosecuted their claim that the time they spent each work day putting on and taking off their work clothes ought to be paid by their employer. The term "hanging clothes" in the FLSA provision that excludes this activity from compensation is ambiguous. Protective clothing and gear is "clothes" under this proviso, so far as this court was concerned. The plant was not a food and beverage employer under the analogous Colorado law. Consequently, under neither the FLSA nor the Colorado baby-FLSA were the plaintiffs entitled to pay for the donning and doffing periods.

Private Settlement and Release

This is when something is settled outside of court! In-office compromise. The employee gives up their right to sue the employer on the matter.

Mumby v. Pure Energy Services

This was a collective action by a group of employees for wages due under the FLSA. The company concocted its own definition of the pay rate under which it paid its roustabouts. The court found that Pure Energy failed to compensate Plaintiffs for weekly overtime despite being put on notice. It applied its compensation policy in reckless disregard of FLSA requirements, and is therefore subject to the three-year statute of limitations for damages. The same facts that support the district court's conclusion that Pure Energy's failure to fully compensate Plaintiffs' weekly overtime was willful also support the district court's conclusion that Pure Energy's belief that it was complying with the FLSA was unreasonable. Moreover, even if the district court had found Pure Energy acted reasonably, it retained discretion to award liquidated damages.

The Supreme Court held hostile environment sexual harassment was prohibited by ________.

Title VII

Gender Discrimination

Title VII prohibits any discrimination in terms or conditions of employment because of an employee's sex.

Same-Sex Harassment

Title VII prohibits discrimination because of sex in terms or conditions of employment, including sexual harassment by employees of the same sex as the victim of the harassment.

Discrimination Based on National Origin

Title VII prohibits employment discrimination against any applicant or employee because of national origin Harassment because of national origin includes discrimination based on: The place of origin of an applicant/employee (or his/her spouse or ancestors). The physical, cultural, linguistic characteristics of an ethnic group. Marriage or association with persons of a particular ethnic group. Membership or participation in organizations associated with ethnic groups (schools, churches, temples, mosques, etc.). The person's (or person's spouse's) name if associated with an ethnic group. National origin may be a BFOQ.

Ministerial Exemption under Title VII

To avoid government interference with the free exercise rights of the religious organization, the federal courts have created a "ministerial exemption" under Title VII when a discrimination complaint involves personnel decisions of religious organizations regarding who would perform spiritual functions and about how those functions would be organized.

National Defense Authorization Act

amended the FMLA so that employers must grant eligible employees an unpaid leave of up to 12 weeks during a 12-month period for qualified exigencies.

University and Community College System of Nevada v. Farmer:

• African American got hired instead of the white woman. Then she was later hired for less money, but only after finding out about a movement to hire more minorities. • She claimed she was more qualified, but the interviewers disagreed. • The court held that the jury was not equipped to understand the necessary legal basis upon which it could reach its factual conclusions concerning the legality of the University's affirmative action plan.

Price Waterhouse v. Ann B. Hopkins

• Ann Hopkins, a senior manager in an office of Price Waterhouse, was proposed for partnership in 1982. She was neither offered nor denied admission to the partner- ship; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued under Title VII of the Civil Rights Act of 1964, charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership. • The Supreme Court affirmed the trial court and court of appeals' decision that employment decisions based on sex stereotypes may constitute sex discrimination in violation of Title VII. • Like women running a women's dressing room. ^^^

Price Waterhouse v. Ann B. Hopkins

• Ann Hopkins, a senior manager in an office of Price Waterhouse, was proposed for partnership in 1982. She was neither offered nor denied admission to the partner- ship; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued under Title VII of the Civil Rights Act of 1964, charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership.• The Supreme Court affirmed the trial court and court of appeals' decision that employment decisions based on sex stereotypes may constitute sex discrimination in violation of Title VII. • Like women running a women's dressing room. ^^^

West Coast Hotel Company v. Parrish:

• Chambermaid who sued her employer for the difference between what she was getting paid and what she should have gotten paid for a 48-hour workweek. • "The switch in time that saved nine." • Court was in favor of Mrs. Parrish.

Fuller v. Edwin B. Stimpson Co. Inc.:

• Fuller claimed he was fired for being black. • But he actually just wasn't a good employee and had been late and absent a lot. • Being black actually was a factor in helping him not get fired until he did.

Mendoza v. Western Medical Center Santa Ana:

• GAY SEX CASE! • Issue of "the" and "a." • Both were fired. • There is a good chance if Mendoza had never reported it, he wouldn't have been fired.

Gilmer v. Interstate/Johnson Lane Corporation:

• Gilmer thought he was fired for being too old, which would be a violation of the ADEA. • The issue was this: Should the rule of Alexander v. Gardner-Denver Co. apply to an arbitration provision in an individual contract as opposed to a collective bargaining contract?

Griggs v. Duke Power Company:

• Griggs and a group of other African-American employees brought suit against Duke Power, alleging that the high school diploma requirement and the aptitude test requirements violated Title VII. • The District Court also concluded that Title VII was intended to be prospective only and not retroactive, and therefore, the impact of prior discrimination was beyond the reach of the Act • The Court of Appeals concluded there was no violation of the Act. • BUT!!! Griggs then appealed to the U.S. Supreme Court, who voted in favor of the plaintiff because they couldn't prove that a high school education was necessary for this job.

Lawson v. FMR LLC:

• In two separate cases, employees of nonpublic companies in the mutual fund industry sought the protection of the Sarbanes-Oxley Act's (SOX) whistleblower provision, alleging that their employers unlawfully retaliated against them after they complained of employers' improper business activities. The United States District Court for the District of Massachusetts partially granted and partially denied the motions, certified a controlling question of law to the appellate court, and stayed the cases. The parties' cross-petitioned for interlocutory review, and those petitions were granted. • The Supreme Court held that whistleblower protection under Sarbanes-Oxley extended to employees of private contractors and subcontractors serving public companies.

Ricci v. DeStefano:

• New Haven, Connecticut, used objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results, the City threw out the results based on the statistical racial disparity. • The problem for the City, said Justice Kennedy's majority opinion, was that showing a significant statistical disparity between white and black test-takers, standing on its own, was not a solid enough basis for tossing the tests. • This case was racist against whites. Too many white men passed the test, so they said it didn't count. • They got in trouble for this.

Ambat v. City and County of San Francisco:

• San Francisco Sheriff 's Department implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the county. According to San Francisco Sheriff Michael Hennessey, who had held his position since 1980, he adopted the policy to protect the safety of female inmates from sexual misconduct perpetrated by male deputies and promote the inmates' rehabilitation.• The justifications offered by the county in support of the policy each spoke to extremely important concerns, according to the court, which added that "the Sheriff is to be commended for his attention to the welfare of female inmates in San Francisco's jails." However, continued the appellate judges, the fact that the policy sought to advance such important goals as inmate safety was not, by itself, sufficient to permit discrimination on the basis of sex.• So basically, men had to be allowed to work there.• They're trying to come up with a better solution because it was remanded.

Serri v. Santa Clara University:

• Serri go mad at the university for firing her without disciplining her first. • But Serri hadn't done her job and had lied about it, so they fired her. And the Uni. Won!

Title VII of the Civil Rights Act:

• The Civil Rights Act was aimed at discrimination in a number of areas of society: Housing, Public accommodation, Education, Employment • Title VII of the Civil Rights Act deals with discrimination in employment • Became the foundation of modern federal equal employment opportunity (EEO) law • Title VII of the Civil Rights Act of 1964 is legislation that outlawed discrimination in terms and conditions of employment based on race, color, sex, religion, or national origin. • Prohibits the refusal or failure to hire any individual, the discharge of any individual, or the discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of that individual's race, color, religion, sex, or national origin • State and local governments are also covered by Title VII; the federal government and wholly owned U.S. government corporations are covered under separate provisions of Title VII. • Amendments extended the coverage of the act to American employers that employ U.S. citizens abroad. Labor unions with at least 15 members or that operate a hiring hall are subject to Title VII. • Administered by the Equal Employment Opportunity Commission (EEOC). • Regulations and guidelines require that employers, unions, and employment agencies post EEOC notices summarizing the act's requirements. • The act further requires that those covered keep records relevant to the determination of whether unlawful employment practices have been, or are being, committed. • Covered employers must maintain payroll records and other records relating to applicants and to employee promotion, demotion, transfer, and discharge. • Section 703(n) limits challenges to consent decrees. • Section 703(l) prohibits "race-norming"- the practice of using different cutoff scores for different racial, gender, or ethnic groups of applicants, or adjusting test scores or otherwise altering test results of employment related tests on the basis of race, color, religion, sex, or natural origin. • Title VII prohibits imposing different working conditions or requirements on similarly situated male and female employees because of the employee's gender. • Title VII does allow employers to hire only employees of one sex, or of a particular religion or national origin, if that trait is a BFOQ.

EEOC v. Dial Corp.:

• The EEOC claimed that the use of the WTS test had an unlawful disparate impact on female applicants. • WTS is Work Tolerance Screen, which asked applicants to carry a 35-pound bar and to work for 7 minutes at their own pace. • Injuries declined consistently after WTS was adopted. • But Dial couldn't prove the test was necessary to the business, so they lost, making them liable for back pay and benefits.

Alexander v. Gardner-Denver Company:

• The Supreme Court established a critical distinction between individual and collective employee rights. • The Alexander decision also had the effect of further undermining the rapidly eroding influence of labor unions in the American workplace • Following discharge by his employer, Alexander, an African American, filed a grievance under the collective bargaining agreement between the company and Alexander's labor union.

Desert Palace, Inc. v. Costa, 14:

• The Supreme Court held that a plaintiff need only "demonstrate" that the defendant used a prohibited factor (race, color, gender, religion, or natural origin) as one of the motives for an employment action.

Price Waterhouse v. Hopkins:

• The Supreme Court held that when a plaintiff shows that the employer has considered an illegal factor under Title VII (race, sex, color, religion, or national origin) in making an employment decision, the employer must demonstrate that it would have reached the same decision if it had not considered the illegal factor. • The 1991 amendments to Title VII addressed this "mixed-motive" situation and partially overruled the Price Waterhouse decision.

In Re D.R. Horton, Inc.:

• The company, on a corporate-wide basis, began to require each new and current employee to execute a Mutual Arbitration Agreement (MAA) as a condition of employment. • Pursuant to the MAA, all employment-related disputes must be resolved through individual arbitration, and the right to a judicial forum is waived. • Stated otherwise, employees are required to agree, as a condition of employment, that they will not pursue class or collective litigation of claims in any forum, arbitral or judicial.