MGT350 - FINAL EXAM REVIEW GUIDE

Civil Rights-Unlawful Discrimination - ME-TOO

"Me-too Movement events" and the Civil Rights Act - CIVIL RIGHTS ACT APPLIES! To charities and companies in this area. Victoria Secret Store discussion

Ruth Bader Ginsburg (KNOW!!)

"She's considered the Thurgood Marshall of the women's movement."

Americans with Disabilities Act (ADA)

Americans with Disabilities Act of 1990 with 2009 Amendments •Signed into law by George H. Bush. •Covers persons with disabilities across a wide spectrum of social life. •Requires buildings and transportation accessible by the use of wheelchairs. •Title I of the bill deals with employment discrimination: •Purpose: to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. •Applies to ERs with 15 or more employees. •Does not apply to the federal govt. (other laws apply).

Civil Rights Act:

At least 15+ EE's for at least 20 calendar weeks

Civil Rights Acts of 1964 and 1991 - Attorney Fees

Attorney fees - Prevailing plaintiff can get attorney fees. - Punitive damages in intentional discrimination. - Concept of private enforcement or type of private prosecutor. - (Otherwise, the general rule of law is each party pays their own attorney fees, unless a statute provides otherwise). - Limits On Compensatory & Punitive Damages. - https://www.eeoc.gov/employees/remedies.cfm

Civil Rights-Unlawful Discrimination - GOVERNMENT CONTRACTS

Government Contracts Govt. Contracts and Affirmative Action Plans - the Federal Govt. can require an ER to maintain a level of diversity. How? The Govt. has the power of contract-i.e. we only contract with you if you have XYZ level of diversity. It is not quotas but equality and recruiting to all areas of the employment pool. Office of Federal Contract Compliance Programs (OFCCP). Text example - OFCCP and U.S. Dept. of Labor settles $1.65 million for Beef Packing plant not hiring female applicants.

Disparate Treatment

Key aspects: Discrimination, prima facia case, burden of proof, pre-text

Human Resource Management

Last chapter deals with "Human Resource Management" •Note: you do not need to read this chapter but just know attend this lecture and review these PowerPoints (and...you are welcome!) •The areas: 1.Hiring - recruiting and selecting 2.Compensating 3.Performance Management 4.Conflict Management •Verifying Employee Information: •Using credit checks, background checks, etc. •Need to check on the law on how to use and reporting requirements. •Fair Credit Reporting Act (FCRA) - ER must report that a credit report may be used and any "adverse action"- reassigning, termination, denying promotion, ER must - •Give pre-adverse action notice with copy of credit report and a summary of rights. •After adverse action, you must give the individual notice with the right to dispute the accuracy or completeness.

Civil Rights Acts of 1964 and 1991 - Remedies

Remedies May Include Compensatory & Punitive Damages. - Compensatory and punitive damages may be awarded in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information. - Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). - Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination. https://www.eeoc.gov/employees/remedies.cfm

REVERSE DISCRIMINATION

Reverse Discrimination - Overview/Summary 1.Govt. contracts and affirmative action plans. 2.Private Sector and Preferential Treatment. 3.Public Sector Preferences under the 14th Amendment. 4.Bona Fide Occupational Qualifications. The principle: Different discrimination laws cover different types of employment relations. Reverse Discrimination Is there such a thing as "reverse discrimination" - discuss. The Supreme Court vs. Congress Congress - laws were intended to eliminate discrimination in the future. The court - made rules on the issue in its own view. 1.Govt. Contracts and Affirmative Action Plans. 2.Private Sector Preferential Treatment. 3.Public Sector Preference under the 14th Amendment. 4.Bona Fide Occupational Qualifications.

Civil Rights-Unlawful Discrimination - OTHER CASES

Fisher v. University of Texas (U.S., June 2016) https://www.oyez.org/cases/2012/11-345 Dred Scott v. Sanford (U.S. 1857) The majority held that "a negro, whose ancestors were imported into [the U.S.], and sold as slaves," whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in Federal Court. Because the Court lacked jurisdiction, Taney dismissed the case on procedural grounds. https://www.oyez.org/cases/1850-1900/60us393 Brown v. Board of Education (U.S. 1954) Chief Justice Earl Warren delivered the opinion of the unanimous Court. The Supreme Court held that "separate but equal" facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment. https://www.oyez.org/cases/1940-1955/347us483

Nixon signed the civil rights law into effect and ____ finished it

Ford

Civil Rights-Unlawful Discrimination (Commerce Clause)

The COMMERCE CLAUSE! Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) The U.S. Supreme Court decided that Congress had the power to regulate private business and accommodations through the use of the commerce clause.

Civil Rights Acts of 1964 and 1991 (2) EEOC

The Equal Employment and Opportunity Commission (EEOC). Coverage -Private business. -Involves race, color, religion, sex (including pregnancy), national origin, age (age 40 or older), disability, or genetic information. -Business with 15 or more employees who worked for the ER for at least 20 calendar weeks in this year or last year. -State and local government entities are covered if they have 15 employees or more. -All federal employees are covered.

GINA applies to

The GINA applies to: Private employers with at least 15 employees The EEOC enforces GINA. To find an EEOC office near you, and to find out more about GINA, visit the EEOC's website at www.eeoc.gov. The Genetic Information Nondiscrimination Act of 2008

ADA - Undue Hardship

Undue Hardship - requiring significant difficulty or expense when considered in light of the factors below: •Nature and cost of accommodation. •Overall financial resources of facilities involved. •Overall financial resources of the entity (the company). •The type of operation - including the building, functions of the work force, etc.

Unions; Collective Bargaining (Wagner Act)

Unions; Collective Bargaining - The Wagner Act (National Labor Relations Act) •The National Labor Relations Act is a federal law that protects an EE's right to engage in concerted activity. •In general - Employers cannot fire or punish employees for trying to start a union at the workplace, if covered by the Act.

Example of the application of the 14th Amendment

United States v. Virginia (U.S. 1996) https://www.oyez.org/cases/1995/94-1941 Facts: The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. Issue presented: Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? Holding: 7-1 decision for United States Majority opinion by Ruth Bader Ginsburg VMI's male-only admissions policy lacked an "exceedingly persuasive justification" violating the Equal Protection Clause of the 14th Amendment.

Thurgood Marshall (1908-1993)

Won Supreme Ct case (Brown v. Board of Education). His ruling made SEGREGATION UNCONSTITUTIONAL. First Afr-Am to serve on the Supreme Ct.

Commerce Clause:

expansion of governmental power (step in and tell states what to do)

ADA "reasonable accommodation" is it financially reasonable?

if it does not cause undue hardship on employer

When you deal with supreme court cases on discrimination, the basic test is:

strict scrutiny (balancing test of fairness)

OSHA

•Enforcement • Consent and the 4th Amendment - discussed in class. •4th AMENDMENT ISSUE! A new and exciting part of the Constitution applied in this class, with case law. •Remember what OSHA covers? A safe workplace and preventing injuries to Employees.

ADA - Statutory Definitions

•Statutory definitions of life activities and major bodily functions that are "regarded as having" such impairment. "(3) Regarded as having such an impairment For purposes of paragraph (1)(C): (A)An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter 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." •PGA Tour, Inc. v. Martin (2001) •Case of Casey Martin (pro golfer)*, due to physical impairment, he could not walk the golf course, as required by the rules of PGA. •Holding: The ADA applies to professional golf tournaments and golf contestants cannot be denied the use of a golf cart (the court found it would not "fundamentally alter the nature" of tournaments to allow him to use a cart while others walk).

ADA - Reasonable Accommodations can include:

Reasonable Accommodations can include: 1.Making existing facilities readily accessible and usable. 2.Job restructuring. 3.Modifying work schedules to part schedules. 4.Modify exams. 5.Modify training materials or policies. 6.Providing readers or interpreters. (list is not exclusive)

Independent Contractors (IC)

1.Workers' Comp. and minimum wage laws do not apply to them, as to the Employers. So, Company A hires an IC, then A is not responsible for what the IC is doing with their own employees. 2.Independent contractors vs. EEs - it comes down to extent of CONTROL. 3.IC cannot get into other issues that EEs may get into, they have a contract; and their main claim is violation of a contract.

4 Justices - MUST KNOW

(Justice Holmes, Justice Cardoza, Justice Ginsburg, Justice Thurgood Marshall)

Workers Compensation

(state law, unlimited medical coverage, negligence has no coverage)

At-will-employment:

(you can be fired at any time, quit at any time with no notice and no reason from ER) No fairness doctrine when it comes to employment-at-will (exceptions: public policy exception and wrongful termination)

Discrimination at employment can consist of unfair or unequal treatment as to:

- Demotions - Promotions - Training - Benefits - Pay - Job opportunities - Assignments - Hostile environment

REVIEW - Constitution Basics

1) It applies to the Govt; not to private actors/companies/schools etc. 2) 4th Amendment relates to the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 3) 5th Amendment relates to the principle that no person should be deprived of life, liberty, or property, without due process of law by the FEDERAL GOVT. 4) 14th Amendment relates to the principle that no person should be deprived of life, liberty, or property, without due process of law by the STATE GOVERNMENTS. 5) The 14th and 5th Amendments have a "due process" clause that the Supreme Court uses to declare a law unreasonable. 6) The clause that declares that Federal law trumps state law is supremacy clause. 7) The clause that gives the Federal Govt. the ability to regulate various areas like labor unions, employment laws, minimum wages, discrimination is commerce clause. 8) Which Amendment is this: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."- The 10th Amendment 9) Is the Amendment in #8 interpreted by the court to limit the Federal Govt., or interpreted to give the Federal Govt. extensive power unless the people's representatives vote otherwise?- the Court gives the Federal Govt. extensive power. 10) Constitutional law and the Supreme Court rulings come down to balancing tests.

Justices: (KNOW)

1)Justice Holmes (March 8, 1841 - March 6, 1935)- his jurisprudence and thinking was part of the New Deal and use of federal powers, he was the dissent in the Adair case. 2)Justice Benjamin Cardozo (May 24, 1870 - July 9, 1938) 3)Justice Ruth Bader Ginsburg -United States v. Virginia (U.S. 1996); civil rights protector 4)Justice Thurgood Marshall had a fresh, passionate voice and became a champion of civil rights, both on the bench and through almost 30 Supreme Court victories before his appointment, during times of severe racial strains. He had strong views on affirmative action and contributed greatly to opinions on constitutional law.

Workers' Compensation

1.It is a STATE law and not federal. 2.It has unlimited medical coverage. 3.Negligence is NOT a necessary element for the EE to recover or for ER to have to pay. 4.It is an EXCLUSIVE REMEDY. 5.It is administered by the govt. ; not the company. 6.ER bears the cost. 7.EEs prefer to not have their claim under Workers' Comp. when they want to sue for more damages.

Bakke v. Regents of the University of California

1978 (35 year old white man - GPA & Test Scores) *The Supreme Court upheld the university's use of race in its admissions decisions *The Court also found that Bakke, a white, should have been admitted to the university's medical school *This finding banned the use of racial quotas Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? Holding: No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by the government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the Equal Protection Clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.

The Genetic Information Nondiscrimination Act of 2008

7. Genetic Information Nondiscrimination Act. The Genetic Information Nondiscrimination Act (GINA) can be found at 42 U.S.C. § 200 and following. This 2008 law prohibits employers from using an applicant's or employee's genetic information as the basis for employment decisions and requires employers to keep genetic information confidential. GINA also prohibits employers from requiring or asking employees to provide genetic information. The law includes exceptions for information the employer learns inadvertently, information gathered pursuant to the certification requirements of the Family and Medical Leave Act, and information used for genetic monitoring, among other things. Even if one of these exceptions applies, the employer must keep the information confidential and may not use it when making employment decisions.

Human Resource Management - Mediation and Arbitration

A word about Mediation and Arbitration •Mediation: •Less formal, typically not binding unless a signed agreement is reached. •Rules of evidence are very loose and informal. •Arbitration: •More formal - a step up from mediation but not as formal as court. •Contracts can require arbitration as a substitute for any court action. •Arbitration clauses (that parties agree to arbitrate and not use the courts) are upheld by the courts as binding! •Decisions are binding like a court order. •They are more quiet and confidential - Employers like this! •Undoing an arbitration ruling is VERY HARD.

ADA Key Terms:

ADA key terms: •Reasonable Accommodations (p. 179) - remember the Colorado law on religion and discrimination? •ERs must provide reasonable assistance so that the disabled person can perform work. •Persons must be a "Qualified Individual" to perform work (defined p. 179). Qualified Individual - the components: •Person with or without reasonable accommodations that - •Can perform essential functions of employment position. •ER's judgment is given consideration as to what functions are essential •If ER gives a written description before advertising or interviewing applicants for the job, then - •Such description shall be considered evidence of the essential functions of the job •Note - it is just evidence - it is not a presumption or irrebuttable presumption •So, ER must consider the applicant's qualifications without reference to disabilities, and if qualified, then the ER must decide if "reasonable accommodations" can be made. Reasonable Accommodations: •"Undue hardship" - if an accommodation involves undue hardship for the ER, then it is not reasonable. •Is all of this as clear as mud as it seems? Yes, welcome to the law of ambiguity and abstract standards determined ultimately by court rulings and testing.

Bona Fide Occupational Qualifications

Bona Fide Occupational Qualifications Johnson Controls or..... United Automobile Workers v. Johnson Controls, 499 U.S. 187 (1991) Held: The private companies' controls that prohibited women from knowingly working in potentially hazardous occupations are discriminatory and in violation of Title VII and the Pregnancy Discrimination Act of 1978. Cites: Dothard v. Rawlinson (1977) https://www.oyez.org/cases/1976/76-422 Women security guards - height and weight could NOT be factors for hiring, but sex (female/male) was a bona fide occupation qualification. Bona Fide Occupational Qualifications "The statute thus limits the situations in which discrimination is permissible to "certain instances" where sex discrimination is "reasonably necessary" to the normal operation of the "particular" business. And so............what about the Hooters case? "Hooters settled the litigation (brought by a group of men) for $3.75 million and agreed to open up some "gender-neutral" positions to men, according to the Tribune. Hooters did not agree to let men work as servers, and it had a legitimate legal argument for refusing to do so." https://www.businessinsider.com/how-can-hooters-hire-only-women-2015-9

Civil Rights Acts of 1964 and 1991 (3) - Bringing a Claim

Bringing a claim: - Bring a claim to the EEOC. - Claim with EEOC is a prerequisite to have the issue heard by a court. - Congress's goal was to have the federal agency to resolve issues. - Claims with the EEOC must be in person or by mail (NO ON-LINE FILING). - You can file an on-line inquiry, but you must follow up with an interview or a mail filing. - According to the EEOC website: "A charge of discrimination is a signed statement asserting that an organization is engaged in employment discrimination. It requests EEOC to take remedial action. The laws enforced by EEOC, except for the Equal Pay Act, require you to file a charge before you can file a lawsuit for unlawful discrimination. There are strict time limits for filing a charge." - Charges filed with the EEOC are automatically filed with the state or local agencies.

The 4th Amendment has language that prevents the govt. from the following: A.Stops the govt. from any search and seizure. B.Stops the govt. from looking in your windows and seeing what is in plain view. C.Stops the govt. from unreasonable search and seizure. D.Prevents the govt. from ever getting a search warrant by Ex-Parte process.

C. Stops the govt. from unreasonable search and seizure.

Civil Rights - Unlawful Discrimination (CASES)

Cases: United States v. Virginia, (U.S. 1996) Bakke v. Regents of the University of California (U.S. 1978) Fisher v. University of Texas (U.S., June 2016) Dred Scott v. Sanford (U.S. 1857) Brown v. Board of Education (U.S. 1954) Plessy v. Ferguson 163 U.S. 537 (U.S. 1896) Ricci v. DeStefano 557 U.S. 557 (U.S. 2009) Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)

COLORADO - Protection of the Disabled

Colorado Anti-Discrimination Act (CADA) Colorado state law also prohibits discrimination based on: Race Color National origin Ancestry Religion or creed Sex (including pregnancy, childbirth, and related medical conditions) Disability: physical, mental, or learning Age (40 and older) Sexual orientation (including perceived sexual orientation) AIDS/HIV Lawful conduct outside of work Mental illness Military status Transgender status, and Marital status or civil union partnership with a coworker (with some exceptions). Colorado Anti-Discrimination Act (CADA) - As to the disabled: •Applies to all employers, regardless of number of employees. •Follows similar working and application of the federal law-physical impairment and reasonable accommodations.

Civil Rights-Unlawful Discrimination - COLORADO

Colorado Anti-Discrimination Act (CADA) The Colorado Anti-Discrimination Act makes it illegal for employers to discriminate against an employee in light of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry. Unlike federal anti-discrimination laws, the Colorado Anti-Discrimination Act applies to ALL Colorado employers, regardless of the number of employees. Overview of Amendments, effective January 1, 2015 In addition to back pay and equitable relief (i.e. reinstatement), employees can now seek to recover punitive and compensatory damages such as emotional pain and suffering, mental anguish, loss of enjoyment of life, inconvenience and other losses not directly relating to or consisting of money (a.k.a. non-pecuniary losses). The courts now have the discretionary power to award aggrieved employees attorneys' fees, as well as various fees and costs associated with the actions. Employers may be awarded attorneys fees and costs, but only if the court deems the case to be groundless, vexatious or frivolous. Either the employer or the employee can now demand a jury trial. https://avitusgroup.com/2015/01/colorado-anti-discrimination-act/

Civil Rights-Unlawful Discrimination - COLORADO

Colorado expanded its Anti-Discrimination Act by passing the Sexual Orientation Employment Discrimination Act (SOEDA). Under this new Act, it is unlawful for an employer to: Make pre-employment inquiries regarding an applicant's sexual preference. Have separate lines of job progression or seniority systems for employees based on different sexual orientations. Express preferences in job advertisements for employees of a particular sexual orientation. Refuse to allow each employee to dress according to the gender with which the employee identifies. Refuse to hire, promote, or offer pay raises to an employee based on sexual orientation. Discipline, harass, or terminate an employee based on sexual orientation.

Federal law and state law have major differences:

Colorado protects - employment discrimination as to the disabled, gender identity discrimination, and minimum wage laws (higher minimum wage)

Colorado Anti-Discrimination Act (CADA)

Colorado state law also prohibits discrimination based on: Race Color National origin Ancestry Religion or creed Sex (including pregnancy, childbirth, and related medical conditions) Disability: physical, mental, or learning Age (40 and older) Sexual orientation (including perceived sexual orientation) AIDS/HIV Lawful conduct outside of work Mental illness Military status Transgender status, and Marital status or civil union partnership with a coworker (with some exceptions).

Civil Rights Acts of 1964 and 1991

Congress enacted to overcome the segregation created by Plessy v. Ferguson. Started by Kennedy and finished by Johnson. Title VII of the act applies to equal rights in employment. Supreme Court made six bizarre rulings in the 1989 term and so we have the 1991 Amendment to correct the course of the law. 1991 strengthened some parts of the law and added additional protections. See chart in text p. 138, the law and changes (be familiar with this chart).

Theories of discrimination - DISPARATE IMPACT

Disparate Impact-when a fair and neutral employment policy adversely affects a group even though the ER has no intent of discrimination. Griggs v. Duke Power Company,401 U.S. 424 (1971) - "The company requiring a high school degree case." "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." "Business necessity" - if a test or process that operates to exclude a group cannot be shown to be related to job performance, then the practice is prohibited. Evidence - showed EEs with no high school degree had continued to perform satisfactorily and make progress in the company. Disparate Impact Griggs v. Duke Power Company, 401 U.S. 424 (1971) - "The company requiring a high school degree case." "Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanism that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capacity." Nothing in the act precludes the use of testing or measuring procedures, obviously they are useful......they must demonstrate a reasonable measure of job performance. "THE TOUCHSTONE IS BUSINESS NECESSITY"- the Supreme Court in Griggs referring to testing. Disparate Impact Griggs v. Duke Power Company, 401 U.S. 424 (1971) - "The company requiring a high school degree case." Burden of proof is on who??? The ER!!! Wards Cove v. Antonio (1989) - Justice White of the opinion the court was to present a "reasonable explanation" for the policy/testing, etc. Dispositive issue is whether a challenged practice serves a legitimate employment goal in a significant way.

Theories of Discrimination- Disparate Treatment

Disparate Treatment a.The treating of employees differently than someone else. b.Evidence and burdens of proof are key. -What is a "burden of proof?" -If a party fails to carry their burden of proof at any step, the opposing side wins! -Mixed motives (ER did engage in unlawful discrimination but claims the result would have been the same). -STALTER v. WALMART STORES INCORPORATED. Disparate Treatment Stalter v. Walmart, United States Court of Appeals, Seventh Circuit (1999) - "Don't take your co-worker's taco chips" case! - https://caselaw.findlaw.com/us-7th-circuit/1366856.html Example of burden of proof and tests: I.Plaintiff shows prima facia case. 1)PL is in a protected class. 2)PL suffered an adverse employment action. 3)PL was meeting ER's legitimate expectations. 4)ER treated similar situated employees who were not in a protected class more favorably. Disparate Treatment Example of burden of proof and tests. I.Plaintiff shows prima facia case. II.Burden shifts to ER/Df. 1.ER must show a "legitimate non-discriminatory reason" for ER's action. Example - we fire people who steal. Disparate Treatment Example of burden of proof and tests. I.Plaintiff shows prima facia case. II.Burden shifts to ER/Df. III.Burden shifts back to EE to show ER's reasons are "pretextual" - EE must show that ER proffered reasons: 1)Are factually baseless, or 2)Were not the actual motive for the discharge at issue, or 3)Such reasons were insufficient to motivate the discharge. Stalter v. Walmart (text pp. 142-146) Discussion as to burden shifting. Note on Wal-Mart's policy - dishonesty in any form results in immediate termination," but the policy did not require termination for theft! POLICIES AND THEIR WORDING MATTER!

EEOC examples of employment tests

EEOC examples of employment tests - pp. 151-152 Cognitive tests, physical tests, sample tasks, medical inquires, personality tests, criminal background tests, credit checks, performance appraisals, and English proficiency. Evidence of validity - showing the selection procedure is representative of important aspects of performance on the job which the candidates are to be evaluated. Use guidelines consistent with professional standards.

Employment-at-Will (2)

Employee Handbooks; training manuals, etc. 1)They are dangerous -- if ER is not careful, they can create an implied contract. 2)An implied contract means ER cannot freely fire the employee but must give a reason or use some type of internal review (such as an administrative review of the termination decision). 3)Ways to protect E-at-Will is to a)EE initials the pages with CLEAR, LARGE FONT disclaimers saying the manual creates no contract. b)EE Signs the book and there is another disclosure that it is not a contract. c)Define E-at-will so a simple EE can understand what they are reading. d)Again, font size, clear language, and adequate disclosure. 4)Big attack area is "appeal rights" in EE manual said to create a contract.

Employment anti-discrimination laws - COLORADO

Employment anti-discrimination laws are found at: Colorado Revised Statutes (C.R.S.) § 24-34-401, et. seq. Investigating complaints - COLORADO Employees alleging discrimination under CADA may file complaints with the Colorado Civil Rights Division (CCRD), which will then attempt to mediate the dispute. If the parties choose not to participate or mediation is unsuccessful, the division will investigate the claim. The CCRD will determine whether there's probable cause to believe a violation has occurred. If it finds no probable cause, the employee may appeal to the Colorado Civil Rights Commission. If the CCRD does find probable cause, it will attempt to conciliate the dispute. If conciliation fails, the division's director will issue a dismissal notice along with a "right to sue" letter. The employee then has the option of suing in District Court. In some cases, the Civil Rights Commission will order the case to go before an Administrative Law Judge. State law requires the CCRD to complete its investigation in 270 days. But anytime after 180 days, the employee may request a "right to sue" letter, which the division must provide. Tip: Although legal representation isn't necessary during the investigation stage, it's advisable for employers to consult an attorney.

Employment-at-Will

Employment-at-Will still exists but has several exceptions. 1.Public policy - must be against an explicit well-established rule of the state; e.g. exercising statutory rights like workers' comp. 2.Implied contract - exceptions (the employee handbook) 3.Covenant of good faith - most significant departure from the employment-at-will rule 4.Wrongful Termination statutes - example Montana

Extent of the coverage of the ADA:

Extent of the coverage of the ADA: •"Disabled" is defined broad. •2009 Amendments dealt with Supreme Court ruling making the definition apply: •To any physical or mental impairment that substantially limits one or more major life activities. •OR a record of such impairment. •Or being regarded as having such impairment. •Statutory definitions of life activities and major bodily functions that are "regarded as having" such impairment.

Fair Labor and Standards Act ; Equal Pay Act

Fair Labor and Standards Act and Equal Pay Act 1.Creates a minimum wage - and that is ABOUT IT! In the most basic terms, it does not deal with other benefits. 2.Federal law is limited to companies that earn not less than $500,000.00 gross (not net). 3.There are exempt EEs - just know that you have to check if an exception applies. 4.States may have a minimum wage law or not; If they do, it can be LESS in amount if not conflicting with the 500K rule (no. 1 above). Equal Pay Act; Amendment to FLSA 1.Exceptions - seniority system, merit system and any differential based on anything but sex. 2.So, unequal results do not always mean that the company is acting unlawfully.

Civil Rights-Unlawful Discrimination (PLAYERS)

Federal DOJ - Department of Justice The Equal Employment Opportunity Commission (EEOC) Colorado Colorado Division of Civil Rights The Colorado Civil Rights Commission Director of the Colorado Civil Rights Division

Commerce Clause - Key Case:

Heart of Atlanta motel vs. US

Independent Contractors:

Hill corporation is not liable for Dakota Summers corporations' issues even though they are hired as an independent contractor under Hill corporation

Unemployment Insurance

In class - ER gets the EE to "resign" in order to avoid termination - why? To avoid increases in their insurance. Employers care about their history and number of unemployed because it effects their RATES of insurance.

Great summary of Colorado Act at: https://denverlaborlaw.com/colorado-employment-law/colorado-revised-statutes-crs-24-34-401/#age-discrimination

Religious discrimination under Colorado Revised Statutes C.R.S. 24-34-401, et seq. Colorado Revised Statutes C.R.S. 24-34-401, et seq. prohibits discrimination on the basis of an employee's bona fide religious belief or practices. This mirrors federal law under Title VII of the Civil Rights Act of 1964. Like disability discrimination, an employer must provide a reasonable accommodation to a religious practice although the standard for an undue hardship is much lower. Common reasonable accommodations to a religious practice include time off work to attend religious ceremonies, adjusting break schedules to accommodate prayers or breaking fasts.

Civil Rights-Unlawful Discrimination - OLD CASE LAW

Other cases: OLD CASE LAW THAT THE CIVIL RIGHTS ACT AIMED AT UNDOING Plessy v. Ferguson 163 U.S. 537 (U.S. 1896) Does the Separate Car Act violate the Fourteenth Amendment? Holding: Equal but separate accommodations for whites and blacks imposed by Louisiana do not violate the Equal Protection Clause of the Fourteenth Amendment. https://www.oyez.org/cases/1850-1900/163us537

Public Sector Preferences under the 14th Amendment

Public Sector Preferences under the 14th Amendment 1)Gratz v. Bollinger (2003) https://www.oyez.org/cases/2002/02-516 Gratz Did the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964? 6-3 decision for Gratz Majority opinion by William H. Rehnquist Yes. Chief Justice William H. Rehnquist delivered the opinion for the 6-3 majority. The Court held that the OUA's policies were not sufficiently narrowly tailored to meet the strict scrutiny standard. Because the policy did not provide individual consideration, but rather resulted in the admission of nearly every applicant of "underrepresented minority" status, it was not narrowly tailored in the manner required by previous jurisprudence on the issue. 2)Grutter v. Bollinger (2003) https://www.oyez.org/cases/2002/02-241 Grutter v. Bollinger Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? 5-4 decision: in favor of the policy Majority opinion by Sandra Day O'Connor No. In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Justice O'Connor wrote, "In the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants." Material on the following slides are quotes and copied from the above links.

Civil Rights-Unlawful Discrimination - PUBLIC SECTOR

Private Sector and Preferential Treatment The case - Weber v. United Steelworkers (1978) Facts: 13 trainees were selected; 7 were black and 6 were white. The most senior black EE has less seniority than several white EEs that were rejected into the program. Issue: Did Congress in the Civil Rights Act of 1964 give ERs the ability to take race-conscious steps to eliminate racial imbalances in traditionally segregated job categories? Holding: (very narrow) - 1) The 14th Amendment is not at issue; 2) Title VII does not forbid private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and provided in the plan provided for in this case.

Ricci v. DeStefano 557 U.S. 557 (U.S. 2009)

Ricci v. DeStefano 557 U.S. 557 (U.S. 2009) White and Hispanic candidates for promotion in the New Haven, CT Fire Department sued various city officials in the United States District Court for the District of Connecticut when the New Haven Civil Service Board (CSB) failed to certify two exams needed for the plaintiffs' promotion to Lieutenant and Captain. The CSB did not certify, because the results of the test would have promoted a disproportionate number of white candidates in comparison to minority candidates. Before an employer can engage in intentional discrimination for the purpose of avoiding a "disparate impact" on a protected trait (race, color, religion, national origin), the employer must have a "strong basis in evidence" that it will be subject to "disparate impact liability" if it fails to take the discriminatory action. Here, the Court reasoned that New Haven failed to prove it had a "strong basis in evidence" that failing to discard the results of the exam would have subjected it to liability, as the exams were job-related, consistent with business necessity, and there was no evidence that an equally-valid, less-discriminatory alternative was available. https://www.oyez.org/cases/2008/07-1428

Statute of Limitations

Statute of Limitations = an absolute bar to a claim. -If a SOL is 1 year, then you cannot file after the year; there is no mercy. The only trick is when does a claim accrue; i.e. When did the time start running; You don't have to know the details of this; just know that it is an issue. - this aspect will NOT be on the exam, due to the complexity of such.

Civil Rights-Unlawful Discrimination (Statutory law)

Statutory law: Jim Crow laws Title VII, Civil Rights Act of 1964 Age Discrimination in Employment Act, 1967 Civil Rights Act of 1991 Americans with Disabilities Act of 1992 The Genetic Information Nondiscrimination Act of 2008 Colorado Employment anti-discrimination laws Colorado - Sexual Orientation Employment Discrimination Act (SOEDA)

STRICT SCRUTINY

Strict Scrutiny means: 1)"narrowly tailored" 2)"compelling governmental interest" "strict scrutiny" to all racial classifications (p. 166) which are a "highly suspect tool." In Constitutional law - it all comes down to balancing tests! We balance the individual's rights with the govt. interest

Weber v. United Steelworkers (1978)

The court states (rule) that it is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within the spirit, nor within the intention of the makers." Court then goes on to argue Congress' primary intent and history of the law. "We need not today define the detail of the line of demarcation between permissible and impermissible affirmative actions plans"....the court merely holds that THIS plan is acceptable and "mirrors" the statute and it is a temporary measure. (p. 161) "Area of discretion of Title VII"- the court rules that this plan is within what is permissible.

Civil Rights Acts of 1964 and 1991 - Time Limits

Time limits: - Where the discrimination took place can determine how long you have before filing a charge. The 180-calendar-day filing deadline is extended to 300-calendar days if a state or local agency enforces a state or local law that prohibits employment discrimination on the same basis. - The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination. - https://www.eeoc.gov/employees/howtofile.cfm - Equal Pay Act - EE does not need a notice of right to sue, instead they can sue directly. - BUT if you want to sue under the Equal Pay Act and the Civil Rights Act, then you must get the notice or right to sue. - Underage of Equal Pay Act - 2-year statute of limitations and 3-year SOL for willful discrimination.

Employment-at-Will (1)

What does employment-at-will mean 1)ER can freely terminate EE 2)EE is free to quit 3)No time commitments 4)No notice time; etc. (such as 10-day notice) 5)No reason needed 6)A weird reason may even exist (but ER should not say it; such as "you talk funny"- and it is not a disability, your voice is just weird)

Arbitration is MORE formal than mediation.

When there is an arbitration law in a contract, you can't sue. It is like court, but not. Its confidential