BUS-L201 Chapter 51 Employment Law

administration and funding

workers' comp systems usually are administered by a state agency that adjudicates workers' claims and oversees the system; the states fund workers' comp by compelling covered employers to purchase private insurance, self-insure, or make payments into a state insurance funds

where workers' compensation systems apply

share certain features; allow injured employees to recover under strict liability, thus removing nay need to prove employer negligence; also eliminate the employer's three traditional defenses" contributory negligence, assumption of risk, and the fellow-servant rule; also make workers' comp an employee's exclusive remedy against her employer for covered injuries

workers' comp recoveries

include hospital and medical expenses, disability benefits, specified recoveries for the loss of certain body parts, and death benefits to survivors and/or dependents; although amount recoverable under each category of damages frequently is less than would be obtained in a successful negligence suit.

work-related injury requirement

injury must arise out of the employment and happen in the course of the employment

increased risk test

employee recovers only if the nature of her job increases her risk of injury above the risk to which the general public is exposed

Unemployment Compensation

Another way that the law protects employees after their employment ends is by providing unemployment compensation for discharged workers. Since 1935, federal law has authorized joint federal-state efforts in this area. Today, each state administers its own unemployment compensation system under federal guidelines. The system's costs are met by subjecting employers to federal and state unemployment compensation taxes. Unemployment insurance plans vary from state to state but usually share certain features. States often condition the receipt of benefits on the recipient's having worked for a covered employer for a specified time period, and/or having earned a certain minimum income over such a period. Generally, those who voluntarily quit work without good cause, are fired for bad conduct, fail to actively seek suitable new work, or refuse such work are ineligible for benefits. Benefit levels vary from state to state, as do the time periods during which benefits can be received.

ERISA (Employee Retirement Income Security Act)

ERISA does not require employers to establish or fund pension plans and does not set benefit levels. Instead, it tries to check abuses and to protect employees' expectations that promised pension benefits will be paid. ERISA imposes fiduciary duties on pension fund managers. For example, it requires that managers diversify the plan's investments to minimize the risk of large losses, unless this is clearly imprudent. ERISA also imposes record-keeping, reporting, and disclosure requirements. For instance, it requires that covered plans provide annual reports to their participants and specifies the contents of those reports. In addition, the act has a provision guaranteeing employee participation in the plan. For example, certain employees who complete one year of service with an employer cannot be denied plan participation. Furthermore, ERISA contains funding requirements for protecting plan participants against loss of pension income. Finally, ERISA contains complex vesting requirements that determine when an employee's right to receive pension benefits becomes nonforfeitable. These requirements help prevent employers from using a late vesting date to avoid pension obligations to employees who change jobs or are fired before that date. ERISA's remedies include civil suits by plan participants and beneficiaries, equitable relief, and criminal penalties.

Title VII Defenses

Same-decision defense. Title VII allows an employer to limit a plaintiff's recovery in a mixed-motives disparate treatment claim, if the employer proves that it would have taken the same action in the absence of the unlawful motivating factor. In other words, if an employer proves it would have made the same decision regardless of the employee's protected status, the employee is not entitled to any personal recovery. The employer has violated the law and can be enjoined from continuing to do so, but the employee cannot recover money damages or be reinstated. An employee may still be entitled to recover his attorney fees for the attorney's work on the successful portion of the mixed-motives claim. In the preceding Gaskell case, for instance, if a jury found that UK was motivated not to choose Gaskell as Observatory Director because of his religion, the same-decision defense might allow UK to escape paying money damages (e.g., back pay, compensatory, and punitive damages) to Gaskell. For example, UK might try to prove that it would not have hired Gaskell because of reports of his obstinacy at his previous employment, regardless of his religious beliefs. Seniority. Title VII is not violated if the employer treats employees differently pursuant to a bona fide seniority system. To be bona fide, such a system at least must treat all employees equally on its face, not have been created for discriminatory reasons, and not operate in a discriminatory fashion. The various "merit" defenses. An employer also escapes Title VII liability if it acts pursuant to a bona fide merit system, a system basing earnings on quantity or quality of production, or the results of a professionally developed ability test. Presumably, such systems and tests at least must meet the general standards for seniority systems stated above. Also, the EEOC has promulgated lengthy Uniform Guidelines on Employee Selection Procedures that speak to these and other matters. The BFOQ defense. Finally, Title VII allows employers to discriminate on the bases of sex, religion, or national origin where one of those traits is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the business in question. The BFOQ defense is applied to cases of disparate treatment, whereas the business necessity defense, which was discussed earlier, applies in disparate impact cases. The BFOQ defense does not protect race or color discrimination. As the following Berry case makes clear, moreover, the defense is a narrow one. Generally, it is available only where a certain sex, religion, or national origin is necessary for effective job performance. For example, a BFOQ probably would exist where a female is employed to model women's clothing or to fit women's undergarments. But the BFOQ defense usually is unavailable where the discrimination is based on stereotypes (e.g., that women are less aggressive than men) or on the preferences of coworkers or customers (e.g., the preference of airline travelers for female rather than male flight attendants). The defense also is unavailable where the employer's discriminatory practice promotes goals, such as fetal protection, that do not concern effective job performance. In addition, as discussed in the Berry case, required or desired traits or characteristics cannot be the basis for a BFOQ defense unless those traits or characteristics are synonymous with a particular sex, religion, or national origin. Otherwise, an individualized evaluation of the trait or characteristic in each applicant is required.

Title VII: Sexual Harassment

Sexual Harassment. Even though the term "sexual harassment" does not appear in the text of Title VII, courts have long held that an employer may be liable if it allows its employees to be subjected to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.15 Sexual harassment is a form of disparate treatment sex discrimination because the victim is subjected to different (and disadvantageous) terms or conditions of employment because of her sex. . As a result, the Supreme Court has held that an employer is automatically vicariously liable for a supervisor's harassing behavior when that harassment involves or ends in a tangible job detriment for the victim. Colloquially, this type of harassment is often referred to as quid pro quo sexual harassment, in which a supervisor makes some express or implied linkage between an employee's submission to sexually oriented behavior and a tangible job consequence. For example, suppose that a supervisor fires a secretary because she refuses to have sexual relations with him or refuses to go out on a date with him. Such conduct violates Title VII whether or not the supervisor expressly tells the secretary that she will be fired for refusing to submit. Title VII is also violated when a supervisor denies a subordinate a deserved promotion or other job benefit for refusing to submit to the harassment. In such circumstances, the employer is automatically vicariously liable to the victim and has no defense. A supervisor will not always take the drastic step of a tangible employment action when he harasses a subordinate. Title VII prohibits the employer from allowing an employee to be subjected to unwelcome, sex-related behavior that is sufficiently severe or pervasive to change the conditions of her employment and create an abusive working environment, even if no tangible job detriment accompanies it. Such conduct is often referred to as hostile environment harassment. The Johnson v. J. Walter Thompson U.S.A. case, which follows this discussion, provides an example of supervisory hostile environment harassment. Generally, the victim must show that the harassment was unwelcome. A victim who instigated or contributed to the offensive behavior will not recover. As discussed in the case, the behavior must be sufficiently severe or pervasive to create an environment that a reasonable victim would find hostile or abusive. The victim herself must also have subjectively experienced the harassment as abusive and hostile. Finally, the alleged harasser must have targeted his victims because of their sex. That targeting is often presumed when the perpetrator is motivated by sexual desire for his victim, but it can also be established by a showing of general animosity toward workers of the victim's sex or by differential treatment of members of the opposite sex. If a supervisor engages in such offensive behavior, the employer will be automatically vicariously liable, unless the employer can prove (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise to avoid harm. This two-step showing is often called the Ellerth/Faragher affirmative defense, after the two cases in which the Supreme Court announced the vicarious liability standard.17 The affirmative defense places a premium on an employer's proactive education about and response to alleged harassment. Responsible employers accomplish this, in part, by creating, adopting, and educating their employees about specific, comprehensive policies that define and prohibit harassment, as well as provide multiple avenues of complaint for alleged victims. The affirmative defense also reinforces a victim's responsibility to notify her employer about the offending conduct and to take advantage of an employer's attempts to be proactive. The Johnson v. Fluor Corporation case, which follows the J. Walter Thompson case, provides an example of an employer that escaped liability because of the affirmative defense. Though co-workers, customers, suppliers, and other nonsupervisors with whom an employee comes in contact in the workplace cannot threaten a victim with a tangible job detriment, they nonetheless can inflict a hostile environment. In such cases, the employer is not vicariously liable for the perpetrator's behavior. Rather, the employer can only be liable for nonsupervisory harassment under a theory of direct liability. Generally, the employer will be directly liable for harassment when the employer knew or should have known about the harassment and was negligent in responding to prevent and correct the offending behavior. The victim bears the burden of proving the employer's knowledge and negligent response.

The Age Discrimination in Employment Act

The 1967 Age Discrimination in Employment Act (ADEA) prohibits age-based employment discrimination against employees who are at least 40 years of age. In General Dynamics Land Systems v. Cline,18 the U.S. Supreme Court decided that it is not a violation of the ADEA for an employer to favor older employees over younger employees, even if the younger employees are in the 40-and-over age range. Coverage The ADEA covers individuals, partnerships, labor organizations and employment agencies (as to their employees), and corporations that (1) engage in an industry affecting interstate commerce and (2) employ at least 20 persons. Referrals by an employment agency to a covered employer are within the ADEA's scope regardless Page 1478of the agency's size. In addition, the ADEA reaches labor union practices affecting union members; usually, unions with 25 or more members are covered. The ADEA protects against age discrimination in many employment contexts, including hiring, firing, pay, job assignment, and fringe benefits. Procedural Requirements The complex procedural requirements for an ADEA suit are beyond the scope of this text. Before she can sue in her own right, a private plaintiff must file a charge with the EEOC or with an appropriate state agency. The EEOC also may sue to enforce the ADEA; such a suit precludes private suits arising from the same alleged violation. For both government and private suits, the statute of limitations is three years from the date of an alleged willful violation and two years from the date of an alleged nonwillful violation. Proof Like Title VII, the ADEA includes both disparate treatment and disparate impact theories of discrimination. However, the specifics of each theory diverge from Title VII. For example, the Supreme Court held that the ADEA does not incorporate mixed-motives claims of disparate treatment.19 Plaintiffs, thus, must prove that age was the "but-for" cause of the challenged employment decision. Unless the plaintiff has direct evidence of discrimination, she will likely rely exclusively on the burden-shifting framework described earlier in this chapter. Likewise, the Supreme Court affirmed that the disparate impact theory is available under the ADEA.20 While it resembles a Title VII disparate impact claim, there are important differences. Most notably, when a plaintiff proves that an employer's age-neutral policy or practice results in an adverse impact on the basis of age, the employer's defense is not to prove business necessity. Rather, based on the ADEA's reasonable factors other than age defense, the employer only needs to prove that the policy or practice was reasonable under the circumstances. Obviously, because what is reasonable may not be necessary, employers generally find ADEA disparate impact claims easier to defend than analogous Title VII claims. Defenses The reasonable factors other than age defense provides the employer's justification for adverse impact, as discussed above. To the extent that it is a defense to disparate treatment claims, it probably duplicates the second step of the burden-shifting framework, in which an employer is obligated to produce a legitimate, nondiscriminatory reason for a challenged employment decision. Similarly, the ADEA allows employers to discharge or otherwise discipline an employee for good cause. It also allows employers to observe the terms of a bona fide seniority system. In addition, the ADEA has a bona fide occupational qualification (BFOQ) defense. As a very general statement, an employer seeking to use this defense must show that its age classification is reasonably necessary to the proper performance—usually the safe performance—of the job in question. For example, an employer that refuses to hire anyone over 60 as a helicopter pilot may have a BFOQ defense if it can prove that 60-and-over helicopter pilots pose significant safety risks and that it is not feasible to test older pilots individually. Remedies Remedies available after a successful ADEA suit include unpaid back wages and overtime pay resulting from the discrimination; an additional equal award of liquidated damages where the employer acted willfully; attorney's fees; and equitable relief, including hiring, reinstatement, and promotion. Most courts do not allow punitive damages and recoveries for pain, suffering, mental distress, and so forth. The Americans with Disabilities Act

positional risk test

an injured employee recovers if her employment caused her to be at the place and time where her injury occured

Social Security

Today, the law requires that employers help ensure their employees' financial security after the employment ends. One example is the federal Social Security system. Social Security mainly is financed by the Federal Insurance Contributions Act (FICA). FICA imposes a flat percentage tax on all employee income below a certain base figure and requires employers to pay a matching amount. Self-employed people pay a different rate on a different wage base. FICA revenues finance various forms of financial assistance besides the old-age benefits that people usually call Social Security. These include survivors' benefits to family members of deceased workers, disability benefits, and medical and hospitalization benefits for the elderly (the Medicare system).

Title VII

It prohibits discrimination based on race, color, religion, sex, and national origin in hiring, firing, job assignments, pay, access to training and apprenticeship programs, and most other employment decisions Covered Entities Title VII covers all employers employing 15 or more employees and engaging in an industry affecting interstate commerce. Employers include individuals, partnerships, corporations, colleges and universities, labor unions and employment agencies (with respect to their own employees), and state and local governments.7 Also, referrals by employment agencies are covered no matter what the size of the agency, if an employer serviced by the agency has 15 or more employees. In addition, Title VII covers certain unions—mainly those with 15 or more members—in their capacity as employee representative. Although the EEOC sometimes sues to enforce Title VII, the usual Title VII suit is a private claim. The complicated procedures governing private Title VII suits are beyond the scope of this text, but a few points should be kept in mind. Private parties with a Title VII claim have no automatic right to sue. Instead, they first must file a charge with the EEOC, or with a state agency in states having suitable fair employment laws and enforcement schemes. This allows the EEOC or the state agency to investigate the claim, attempt conciliation if the claim has substance, or sue the employer itself. The EEOC has entered worksharing agreements with many of the state agencies. Theories of Discrimination Title VII incorporates two theories of discrimination: disparate treatment and disparate impact. Disparate treatment claims involve allegations that an employer treated an employee differently because of the employee's protected status (race, color, religion, sex, or national origin). Disparate treatment theory encompasses both individual claims by a single employee or systemic claims by a group of mistreated employees. Disparate impact claims involve allegations that an employer's policies or practices that are seemingly neutral with regard to race, color, religion, sex, or national origin have a disproportionate negative impact (or "adverse impact") on members of one of those groups. Disparate impact theory is most often used when the alleged discrimination affects many employees. Many Title VII plaintiffs face an uphill battle because proving an employer's discriminatory motive requires the employee to "get in the head" of the employer. Without direct evidence or strongly suggestive circumstantial evidence, proving a disparate treatment case can be difficult, especially when the employer purposefully tries to conceal its discriminatory motive. As a result, courts have adopted a specialized burden-shifting method of presenting circumstantial evidence of a cover-up upon which many Title VII plaintiffs rely. In such suits, the plaintiff is typically not proceeding under a mixed-motives approach, but rather trying to show that the only credible motive is an unlawful one. The plaintiff first must show a prima facie case: a case that eliminates the most common nondiscriminatory reasons for the challenged employment decision (e.g., hiring, promotion, or termination) and creates a presumption of discrimination. The proof needed for a prima facie case varies with the nature of the challenged employment decision, but usually it is not onerous and is easily made. To establish a prima facie case to challenge a hiring decision, for example, the plaintiff must prove that she applied for the job and was minimally qualified for it, that she is a member of the protected class that she claims was the unlawful motivating factor the employer considered, that she was rejected, and that the employer continued to attempt to fill the job or filled it with someone who is not a member of the relevant protected class. The method of proving a disparate impact claim is more straightforward because it does not require proof of the employer's motive. Instead, disparate impact focuses on results. If a policy or practice—for example, a height, weight, or high school diploma requirement for hiring or a written test for hiring or promotion—results in an adverse impact on a protected group, the employer may have violated Title VII, even though the requirement is neutral as to Title VII's protected classes and the employer had no specific desire to discriminate against the affected employees. A prima facie case of disparate impact involves showing that the challenged, facially neutral practice has an adverse impact on the plaintiff's race, color, religion, sex, or national origin. Adverse impact is usually established by statistical evidence showing that the practice results in disproportionately harsher outcomes for the protected class. For example, a plaintiff may show that a standardized test that the employer uses to screen candidates for promotion has a disproportionately lower pass rate for individuals of a particular national origin than for others, or that a minimum height requirement screens out proportionally many more women than men. If the plaintiffs show a disparate impact, the employer loses unless it demonstrates that the challenged practice is job-related for the position in question and consistent with business necessity. For example, the employer might show that its promotion test really predicts effective job performance and that effective performance in the relevant job is necessary for its operations. Even if the employer makes this demonstration, the plaintiffs have another option: to show that the employer's legitimate business needs can be advanced by an alternative employment practice that is less discriminatory than the challenged practice. For example, the plaintiffs might show that the employer's legitimate needs can be met by a different promotion test that has less adverse impact on the protected group. If the employer refuses to adopt this practice, the plaintiffs win.

Collective bargaining and union activity

Organized labor's political power continued to grow during the first part of the 20th century. In 1926, Congress passed the Railway Labor Act, which regulates labor relations in the railroad industry, and which later included airlines. This was Page 1463followed by the Norris-LaGuardia Act of 1932, which limited the circumstances in which federal courts could enjoin strikes and picketing in labor disputes, and also prohibited federal court enforcement of yellow-dog contracts. The most important 20th-century American labor statute, however, was the National Labor Relations Act of 1935 (the NLRA or Wagner Act). The NLRA gave employees the right to organize by enabling them to form, join, and assist labor organizations. It also allowed them to bargain collectively through their own representatives. In addition, the Wagner Act prohibited certain unfair labor practices that were believed to discourage collective bargaining. These practices include (1) interfering with employees' rights to form, join, and assist labor unions; (2) dominating or interfering with the formation or administration of a labor union, or giving a union financial or other support; (3) discriminating against employees in hiring, tenure, or any term of employment due to their union membership; (4) discriminating against employees because they have filed charges or given testimony under the NLRA; and (5) refusing to bargain collectively with any duly designated employee representative. The NLRA also established the National Labor Relations Board (NLRB). The NLRB's main functions are (1) handling representation cases (which involve the process by which a union becomes the certified employee representative within a bargaining unit) and (2) deciding whether challenged employer or union activity is an unfair labor practice. In 1947, Congress amended the NLRA by passing the Labor Management Relations Act (LMRA or Taft-Hartley Act). The act declared that certain acts by unions are unfair labor practices. These include (1) restraining or coercing employees in the exercise of their guaranteed bargaining rights (e.g., their right to refrain from joining a union), (2) causing an employer to discriminate against an employee who is not a union member, (3) refusing to bargain collectively with an employer, (4) conducting a secondary strike or a secondary boycott for a specified illegal purpose,5 (5) requiring employees covered by union-shop contracts to pay excessive or discriminatory initiation fees or dues, and (6) featherbedding (forcing an employer to pay for work not actually performed). The LMRA also established an 80-day cooling-off period for strikes that the president finds likely to endanger national safety or health. In addition, it created a Federal Mediation and Conciliation Service to assist employers and unions in settling labor disputes. Congressional investigations during the 1950s uncovered corruption in internal union affairs and also revealed that the internal procedures of many unions were undemocratic. In response, Congress enacted the Labor Management Reporting and Disclosure Act (or Landrum-Griffin Act) in 1959. The act established a "bill of rights" for union members and attempted to make internal union affairs more democratic. It also amended the NLRA by adding to the LMRA's list of unfair union labor practices. The proportion of U.S. workers who are members of labor unions has decreased fairly steadily over the past 40 years. Today, less than 13 percent of the workforce are members of labor unions.

The Family and Medical Leave Act

In general, the act covers those employed for at least 12 months, and for 1,250 hours during those 12 months, by an employer employing 50 or more employees at the employee's work site or within a 75-mile radius of that work site. Covered employers include federal, state, and local government agencies;Under the FMLA, covered employees are entitled to a total of 12 workweeks of leave during a 12-month period for one or more of the following reasons: Page 1461(1) the birth of a child and the need to care for that child; (2) the adoption of a child; (3) the need to care for a spouse, child, or parent with a serious health condition; and (4) the employee's own serious health condition. The definition of "serious health condition" is complex. It generally requires inpatient care in a hospital or continuing care by a health care provider. Thus, ear aches, the common cold, and mild cases of influenza generally do not qualify for FMLA leave, even when a parent must stay home from work to care for a child with one of those conditions; Usually, the leave is without pay. Upon the employee's return from leave, the employer ordinarily must put her in the same or an equivalent position and must not deny her any benefits accrued before the leave began. The National Defense Authorization Act of 2008 included provisions that revised the FMLA with respect to military families. The new provisions permit eligible employees who are employed by covered employers to take up to 12 weeks of leave because of any "qualifying exigency" arising from the fact that the employee's spouse, son, daughter, or parent is on active military duty or has been notified of an impending call to active duty status.

Occupational Safety and Health Act (OSHA)

Occupational Safety and Health Act imposes a duty on employers to provide their employees with a workplace and jobs free from recognized hazards that may cause death or serious physical harm. In addition to the general duty clause requirement, employers are required to comply with many detailed regulations promulgated by the Occupational Safety and Health Administration (OSHA); The Occupational Safety and Health Act applies to all employers engaged in a business affecting interstate commerce. Exempted, however, are the U.S. government, the states and their political subdivisions, and certain industries regulated by other federal safety legislation like the Mine Safety and Health Act. The Occupational Safety and Health Act mainly is administered by the Occupational Safety and Health Administration (OSHA) of the Labor Department. It does not preempt state workplace safety regulation, but OSHA must approve any state regulatory plan.

The Americans with Disabilities Amendments Act of 2008

Reacting to a series of Supreme Court opinions interpreting the ADA, Congress determined in 2008 that the Supreme Court had interpreted the definition of disability too narrowly, eliminating protections for people who Congress had intended to protect with the ADA. Congress's response was to enact the ADA Amendments Act of 2008, which clarifies the standards for determining disability. The amendments express Congress's intent that the ADA should be "construed in favor of broad coverage" and that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." The ADA amendments specify that major life activities include (but are not limited to) tasks such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. They also include the operation of major bodily functions, such as (but not limited to) the operation of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Directly repudiating one of the Supreme Court opinions, the amendments state that the determination of whether an impairment limits a major life activity is to be made without regard to ameliorative effects of measures that people use to cope with their mental and physical conditions, such as medication, equipment, hearing aids, prosthetic limbs, mobility devices, and oxygen therapy. The ameliorative effect of ordinary eyeglasses and contact lenses can be considered in determining whether an impairment substantially limits a major life activity. However, an employer or other covered entity cannot use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the requirement is job related and consistent with business necessity.

Title VII Remedies

Remedies Various remedies are possible once private plaintiffs or the EEOC wins a Title VII suit. If intentional discrimination has caused lost wages, employees can obtain back pay. At the court's discretion, successful private plaintiffs also may recover reasonable attorney's fees. In addition, victims of intentional discrimination can recover compensatory damages for harms such as emotional distress, sickness, loss of reputation, or denial of credit. Victims of intentional discrimination also can recover punitive damages where the defendant discriminated with malice or with reckless indifference to the plaintiff's rights. However, Title VII caps the sum of the plaintiff's recoverable compensatory and punitive damages to certain amounts that vary with the size of the employer. For example, they cannot total more than $300,000 for an employer with more than 500 employees. If a jury verdict awards a plaintiff an amount in excess of the statutory cap, a defendant can request a reduction of the award in a posttrial order by the judge. Discrimination may also entitle successful plaintiffs to equitable relief. Examples include orders compelling hiring, reinstatement, or retroactive seniority. On occasion, moreover, the courts have ordered quotalike preferences in Title VII cases involving race and (occasionally) gender discrimination. For example, a court might order that whites and minorities be hired on a 50-50 basis until minority representation in the employer's work force reaches some specified percentage. Generally speaking, such orders are permissible if (1) an employer has engaged in severe, widespread, or longstanding discrimination; (2) the order does not unduly restrict the employment interests of white people; and (3) it does not force an employer to hire unqualified workers. Minority preferences also may appear in the consent decrees courts issue when approving the terms on which the parties have settled a Title VII case.

The Americans with Disabilities Act

The Americans with Disabilities Act (the ADA) prohibits discrimination against people who have disabilities. Before the 1990s, federal regulation of employment discrimination against people with disabilities mainly was limited to certain federal contractors and recipients of federal financial assistance. By passing Title I of the ADA, however, Congress addressed this problem comprehensively. This portion of the ADA is primarily enforced by the EEOC, and its procedures and remedies are the same as for Title VII. The ADA's coverage basically tracks Title VII, covering employers who are engaged in interstate commerce and who employ 15 or more employees. Substantive Protections The ADA forbids covered entities from discriminating against qualified individuals with a disability because of that disability. It covers disability-related discrimination regarding hiring, firing, promotion, pay, and innumerable other employment decisions. The ADA protects both individuals who can perform the essential functions of their job despite their disability and individuals who could perform the essential functions of their job if reasonable accommodation is provided. In the Page 1479later case, employers illegally discriminate if they do not provide such accommodation. Reasonable accommodation includes making existing facilities readily accessible and usable, acquiring new equipment, restructuring jobs, modifying work schedules, and reassigning workers to vacant positions, among other options. The Kohl's case later in this section discusses the accommodation requirement. Figure 2 displays the reasoning used in an ADA case.

The Fair Labor Standards Act

The FLSA regulates wages and hours by entitling covered employees to (1) a specified minimum wage whose amount changes over time and (2) a time-and-a half rate for work exceeding 40 hours per week. The FLSA's complicated coverage provisions basically enable its wages-and-hours standards to reach most significantly sized businesses that are engaged in interstate commerce or produce goods for such commerce. Also covered are the federal, state, and local governments. The many exemptions from the FLSA's wages-and-hours provisions include executive, administrative, and professional personnel. The FLSA also forbids oppressive child labor by any employer engaged in interstate commerce or in the production of goods for such commerce and also forbids the interstate shipment of goods produced in an establishment where oppressive child labor occurs. Oppressive child labor includes (1) most employment of children below the age of 14; (2) employment of children aged 14-15, unless they work in an occupation specifically approved by the Department of Labor; and (3) employment of children aged 16-17 who work in occupations declared particularly hazardous by the Labor Department.

Section 1981

Where it applies, a post-Civil War civil rights statute called Section 1981 sets employment discrimination standards resembling those of Title VII. Section 1981 forbids public and private employment discrimination against blacks, people of certain racially characterized national origins such as Mexicans, and ethnic groups such as gypsies and Jews. Included within such discrimination are most of the ways that an employer might disadvantage an employee. Section 1981 is important because it gives covered plaintiffs certain advantages that Title VII does not provide. Although courts often use Title VII's methods of proof in Section 1981 cases, Title VII's limitations on covered employers and its complex procedural requirements do not apply. Also, damages are apt to be greater under Section 1981; in particular, Title VII's limits on compensatory and punitive damages are inapplicable. For these reasons, covered plaintiffs often include a Section 1981 claim along with a Title VII claim in their complaint.

19th century law

made it difficult for employees to recover when they sued their employer in negligence for on-the-job injuries

workers' compensation

only protects EMPLOYEES and not independent contractors; however, many states exempt casual, agricultural, and domestic employees, among others' also states usually exempt certain employers that employ fewer than a stated number of employees (often 3)