MGT 334 Midterm

disparate impact case example

-Facts: New Haven Fire Department administered an exam to candidates for promotion. Worried about the disparate impact the exam may have on African Americans the department decided not to use to test to determine promotions. Group of Caucasian fire fighters who would have been promoted under the test brought suit. -Issue: Whether by throwing out the test the fire department violated Title VII. -Holding: Yes. -Reasoning: The exam was job related and the employer did not have a strong basis in evidence to justify rejecting the results. Fear of litigation is not sufficient to set aside the results.

Bona Fide Occupational Qualification (BFOQ)

-Gender, religion, national origin If the employer can demonstrate that business necessity (safe and efficient operation of the business) requires that an employee be of a particular gender, religion, national origin. -employer can hire only specific gender, religion, national origin if its a business necessity.

Equal Employment Opportunity Commission

- Administrative agency tasked with administering and enforcing the provisions of Title VII. -5 member commission - appointed by the president and confirmed by the senate. -Does not actually adjudicate or decide complaints alleging violations of Title VII -EEOC and its staff investigates complaints and attempts to settle them with the parties voluntarily. -If something cannot be solved voluntarily, the EEOC has the authority to bring its own suit against the alleged discriminator.

Coverage of equal pay act

- All employers engaged in interstate commerce and all employees of an enterprise engaged in commerce. -Extremely broad, mean to apply to virtually all employees. -No minimum number of employees

Defamation(Libel/Slander)

- An intentional, False, and harmful communication. Usually meant to harm another persons reputation in the community. -2 types of defamation= slander and libel -Example: John Doe and Suzie Smith were both applying for a corporate finance job at Big Bank. In an effort to win the job, John Smith posted on twitter that Suzie smith lied on her application to GVSU from is untrustworthy. Big Bank sees the twitter post and decides to hire John Doe.

Disparate Impact

- Discriminatory effect of a neutral employment criteria or selection device. -group of employees -refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, -Employment criteria or selection device disproportionately disqualifies employees based on being members of a protected class. -Does not require intention to discriminate on the part of the employer

Hostile Work Environment Sexual Harassment

- Harassment where the employee is subject to unwelcome sexual comments, jokes, propositions, or conduct that have the effect of interfering with the workers performance or creating a hostile work environment

Qualified Privilege

- One person is in good faith communicating information to another person, where the other person has a need to know. -defense of defamation

Theft of Trade Secrets

- Proprietary information protected by common law, state law, now federal law Defend Trade Secrets Act - New federal law passed in 2016 What is a trade Secret? The information is a secret The information confers a competitive advantage Reasonable steps have been made to keep the information secret Employer's trade secrets (proprietary information, process, product is taken by an employee.

Lilly Ledbetter fair pay Act

- Provides that the time limit for filing a suit alleging discrimination in pay begins: -When the discriminator pay practice or policy is adopted -When the employee becomes subject to the discriminatory practice or policy; or -When the employee is affected by the application of the discriminatory pay practice or policy. -180 day of statute of limitations -every time she got an unfair pay check she would have another 180 days to file complaint to court..

Sexual Harassment

- Unwelcome 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 employees response to such conduct is used for employment decisions or such conduct creates a hostile work environment.

Content Validity

- Way of demonstrating that the employment test reflected the content of the job for which the employee is being selected. -Do the requirements of the test actually evaluate ones ability to perform the job duties.

Filing a complaint with EEOC

- an individual who wishes to file a complaint under Title VII must first file the complaint with a state or local agency authorized to deal with the issue if such an agency exists. -The EEOC may have the opportunity to consider the complaint only after the state or local agency has has the complaint for 60 days or ceased processing the complaint (which ever is first). -If a complaint must first be filed with the state or local agency, the EEOC imposes a 300 day statute of limitations for a party to bring a Title VII claim. Must file your claim with the EEOC within 300 days of the alleged discrimination. Remember the 60 day rule! -If you are not required to file a complaint first with the state or local agency, you must bring your claim with the EEOC with 180 days of the alleged discrimination.

Military Care Giver Leave

- up to 26 weeks of unpaid leave to care for a child, spouse, parent, or next of kin who is a current member of the armed forces or veteran within 5 years who suffers from a serious illness of injury.

mixed motive

-1991 Congress amended Title VII to address the mixed motive situation. -Section 703(m) now states " an unlawful employment practice is established when the complaining party demonstrates that race, color, national origin, religion, or sex was a motivating factor for any employment practice even though other factors also motivated the practice. -In other words, an employer violates Title VII when it considers an illegal factor, even if it considers other factors. -If an employer can demonstrate that it would have made the same decision absent the illegal factor, then the employer's liability is reduced. -Cease and desist order by the court (Court says stop considering this unlawful practice. -Plaintiff's legal fees -Not required to pay damages -Not required to reinstate the employee.

defenses for equal pay act

-Attack one of the elements (Skill, equal work, effort, working conditions, responsibility) -Bona fide seniority systems -Merit pay- also known as pay-for-performance, is defined as a raise in pay based on a set of criteria set by the employer. This usually involves the employer conducting a review meeting with the employee to discuss the employee's work performance during a certain time period. -Piece work - work paid for according to the amount produced. -Factor other than sex Shift differential, training program

Quid Pro Quo Sexual Harassment

-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 -a favor or advantage granted or expected in return for somethin -There is some basis to hold the employer liable

Military Leave Amendment

-Employees may take up to 12 weeks of unpaid leave during a 12 month period for qualifying exigencies that arise out of an employees spouse, child or parent being on active duty or deployed to a foreign county or called to active duty from the reserves.

Title VII Coverage

-Employers, labor unions, and employment agencies who have 15 or more employees -An employer is covered under Title VII if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year

Employment At Will

-Employment Contract in which both the employee and the employer are free to Unilaterally terminate the employment relationship at any time for any legally permissible reason.

Just Cause Employment

-Employment provision in a contract that says an employee cannot be terminated from their employment except for specific enumerated reasons or after the expiration of the time stated in the contract

Elements of Prima Facie Case(intentional infliction of emotional distress)

-Extreme and outrageous conduct by the defendant -intent to cause emotional distress -Plaintiff suffers from sever emotional distress -The emotional distress is a direct result of the defendant's extreme or outrageous conduct.

serious health condition

-Illness, injury, or conditions that requires inpatient hospital care; or -That last more than 3 days and requires continuing treatment by health care provider; or -Involved pregnancy; or a long-term or permanently disability health condition; or -Absence for receiving multiple treatment for restorative surgery; or -For a condition that would likely result in a period of incapacity of more than 3 days if it were not treated

individuals liable for harassment

-Individuals are not liable for damages under Title VII but are subject to injunctions -May be individually liable under some other state laws

construct validity

-Method of demonstrating that the employment selection device selects employees based on the traits and characteristics that are required for the job. -Patience is required for the job or leadership, test is for those characteristics.

criterion related validity

-Method of demonstrating that the employment test selects employees based on the skills and traits and knowledge required for successful job performance -Think IQ test. Statistical correlation between scores and success

religious discrimination title VII

-Ministerial Exemption - When a decision involves a personnel decision of a religious organization regarding who will perform spiritual functions and how those functions will be organized, religious institutions are exempt for Title VII. -Section 703(e)(1) - Religion may be used as a BFOQ when the employer establishes that business necessity requires hiring individuals of certain religions. -Section 703(e)(2) - Educational institutions - religiously affiliated colleges, universities or other educational institutions are permitted to give preference to members of their religion in hiring. Broader than BFOQ. No need to show business necessity -Section 702(a) - Exemptions is also available for all religious societies, religious corporations, religious educational institutions, and religious associations. -Reasonable Accommodation - Employer must make a reasonable attempt to accommodate an employees religious beliefs or practices. Unless accommodation would cause an "undue hardship"

FMLA notice requirement

-Must give notice of the leave of absence to your employer at least 30 days before the leave when the need for leave is foreseeable. Or else as soon as practical -Must provide employer with enough information for the employer to determine whether FMLA applies Employer Requirement - Must give employee notice of acceptance or denial within 5 days of the request

FMLA employee coverage regulations

-Must have been employed by the employer for at least 12 months and must have worked at least 1250 hours of the 12 month period immediately preceding the start of the leave.

EEOC procedure

-Once the EEOC receives a properly filed complaint from an individual. -EEOC has 10 days to serve the employer with the complaint. -Once the complaint is filed, the EEOC coordinates the investigation to determine whether there is reasonable cause to believe the charge is true. -If cause, EEOC attempts to settle the case with the parties. -If no cause, the charge is dismissed. -If EEOC is unsuccessful in settling the case after 30 days, EEOC may file a complaint in Federal District Court. -If EEOC decides to dismiss the case or decline to file suit, it notifies complainant of "right to sue" Individual may then sue in Federal District Court within 90 days of receiving the the right to sue letter.

Is an employer liable for sexual harassment committed by your co-worker? non employees?

-Only if the employer knew or should have known about the harassment and failed to take reasonable steps to stop it. -If employer has some control over harasser and failed to take reasonable steps to stop it

Disparate Treatment

-Particular employee or applicant is subject to different treatment because of that employees race, sex, color, national origin, or religion. -1 person

disparate impact case

-Plaintiff makes a showing that some employment policy or requirement has an adverse impact on one of the protected classes. -If a showing is made, the employer must demonstrate that the practice, policy, or test is job related for the position in question and is consistent with the business necessity. Validation -Plaintiff is not sunk yet. Demonstration of an alternative employment practice being available, one without a disparate impact, and the employer refuses to adopt it.

Tort

-Private or civil wrong or injury caused by one part to another either intentionally or negligently. -Common Examples - Slip and Fall -Assault/Battery -Dealt with Exclusively in civil courts. -An action can be both criminal and civil

FMLA coverage

-Private sector employers who have 50 or more employees and public sector employers without regard to the number of employees. -75 mile rule - employees employed at work sites with less than 50 employees may still be covered if the employer employs at least 50 employees within 75 miles of work site

Intentional Infliction of Emotional Distress

-Purposefully outrageous conduct, which causes an employee emotional harm.

Equal Pay Act of 1963

-Requires men and women performing substantially similar work to be paid equally. -Act does not reach other forms of gender discrimination or discrimination on another protected class.

What is equal work

-SWEER - Skill, Working Conditions, Equal Work, Effort, Responsibilities. Skill - Substantially equivalent training, education, and ability. The Skill MUST relate to the performance of actual job duties. -Cant pay males more for skills that are not actually used on the job. -Does not have to be identical skills -Working Conditions - Work must be performed in similar working conditions. Physical surroundings, exposures, hazards. Night shift is not a different working condition. -Effort - Substantially equivalent physical or mental exertion needed for the performance of the job. Extra duties cannot be infrequent assignments. -Equal work - Job titles, job descriptions and classifications are not controlling. Are the duties substantially the same. -Responsibilities - Substantially equivalent degree of accountability required for the job. Minor responsibilities are not an indication as to whether the jobs are equal.

Protected classes under Title VII

-Sex, Race, Color, Religion, National Origin

Negligent Infliction of Emotional Distress

-Some states also recognize the tort of negligent infliction of emotional distress -Here, the defendant may be liable for extreme and outrageous behavior that results in severe emotional harm to the Plaintiff even though the defendant never meant to inflict any harm.

Absolute Privilege

-Statements made in connection with a legal proceeding

employer liability in sexual harassment

Employer's are liable for sexual harassment committed by their supervisor or managers. -Quid Pro Quo - Employers consistently held liable for harassment by managers/supervisors because such conduct is related to the supervisors or managers job status. -Hostile Work Environment - Some courts hold employers liable only when it knew or should have known of the harassment

Bona Fide Seniority System

Seniority- Length of service on the job, which is frequently used to determine entitlement to employee benefits, promotions, or transfers. -seniority systems usually provide that worker layoffs be conducted on the basis of inverse seniority. not disparate impact as long as nothing to do with race, sex, color.

Tortious Interference with a Contract

-Unprivileged intrusion into a contractual relationship Elements: -Contractual Relationship -Intrusion by third party -ex. College Football Coaches - PJ Fleck from Western Michigan. Contractual relationship with Western Michigan to coach football. Third Part Minnesota wants to lure Fleck to coach Minnesota. -Zarr v Washington Tru Solutions = No Tortious interference claim because WTS has a legitimate reason for asking that Zarr be removed from the project

4/5 Rule (disparate impact)

-When you compare the selections rates of various groups subject to the workplace requirements. If the selection rate of the group with the lowest rate is less than 80% of the rate of the group with the highest rate, a disparate impact exists. -ex. 120 applicants apply for a jobs as custodians GVSU and must pass a test. Of all of the applicants 80 are white and 40 are black. 48 of the white applicants and 12 of the black applicants pass the test and are hired. Can a black applicant demonstrate a disparate impact exists? White - 80 Applicants, 48 are hired. 48/80 = 60% Black - 40 Applicants, 12 are hired. 12/40 = 30% Impact Ratio - .3/.6 = 50%

Pregnancy discrimination act

-Women affected by pregnancy, child birth, related medical conditions shall be treated the same for all employment related purposes including receipt of benefits. -Employers who fire pregnant employees because of the assumption they will likely be absent from work for lengthy periods of time violate Title VII. -Prohibits discrimination because an employee has an abortion or is using in-vitro fertilization

libel

-Written Falsehood(lies)

family medical leave act (FMLA)

-allows eligible employees to take up to twelve weeks unpaid leave ina 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 employees own serious health condition makes the employee unable to perform functions of his or her job -Employee has right to return to the same or equivilent position and the leave cannot result in the loss of any benefit to the employee

3 types of validating job requirement

-content, construct, criterion related

Implied Contract

-contracts that the courts infer from company policies(such as those in employee handbook) and the behavior of the parties r that are implied for the law.

TItle VII payroll method

-covers American employers that employ U.S citizens abroad -Foreign corporations controlled by American employers are also covered. But if compliance with title VII would require the employer to break the law of the country where the work place is, compliance is not required.

Key employees in FMLA

-employer may designate key employees -key employees are those who it would be necessary for the employer to replace in order to prevent substantial economic injury to the operation of the business. -key employee must be salaried employees and must be among the highest paid 10% of the company. -No more than 10% of employees at a work site can be designated as key employees.

Justification for at-will-employment

-freedom of contract-employee is free sever working relationship at any time -free enterprise in a competitive market-the worker with sufficient bargaining power can demand an employment contract for a set period of time if so desired

Express Contract

-has terms spelled by the parties, usually in writing.

Public Policy Exception to At-Will Doctrine

-if a Statute exists that creates right or duty for the employee, then the employee cannot be fired -ex. courts of most states agree that an employee cannot be fired for missing for jury duty.

Title VII of the Civil Rights Act of 1964

-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 or employment.

Truth

-not an absolute defenses if published with malice(bad intentions) in Michigan -prove the statement is false -defense to defamtion

Dicta

-opinions of a judge or appellate panel of judges that are tangential to the rule, holing, and decision which are at the core of the judicial pronouncement.

business necessity

-safe and efficient performance of the business or performance of a particular hob that requires that employees be of a particular sex, religion, or national origin

slander

-spoken falsehood(lies)