HRM Test 2a

Continuing treatment by a health care provider is

"[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition." 29 C.F.R. § 825.115(a) (also requiring actual treatment by a health care provider).

respondeat superior

"let the master answer" makes employers directly liable for harm to others caused by employees acting within the scope of employment

If the need for leave is unforeseeable, an employee need only

"provide sufficient information for [her] employer to reasonably determine whether the FMLA may apply to the leave request."

An employer may also have a defense to disability discrimination/ disparate impact claim if it can show that the challenged qualification standard was

"required or necessitated by another Federal law or regulation."

Medical FMLA leave taken on an intermittent or reduced schedule may be taken only

"when medically necessary," and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.

The determination of whether an impairment is substantially limiting must be made

"without regard to the ameliorative effects of mitigating measures."

qualifying events (FMLA)

- The birth of a child - placement of a child with the employee by adoption or foster care - the need to care for a spouse, son, daughter, or parent with a serious health condition - the inability of an employee to perform the functions of his job due to a serious health condition - the need to care for a service member who suffered a serious injury or illness while on active duty ("military caregiver leave") - any qualifying exigency (e.g. short-notice deployment, military events, financial and legal arrangements, counseling, post-deployment activities) arising from the fact that a family member in the military is or soon will be, placed on active duty

basic criteria for essential functions

- The position exists to perform this function - Few other employees are available to perform this function - The function is highly specialized - do not include marginal functions of the job

Serious health conditions involving periods of incapacity include:

- conditions that result in periods of incapacity of more than 3 consecutive calendar days or 2 or more treatments by health-care providers or one treatment followed by a regimen of continuing care supervised by a health care provider - any periods of incapacity relating to pregnancy or pre-natal care - any periods of incapacity, including subsequent treatment, due to chronic , serious, health conditions (asthma, diabetes) for which at least 2 visits to a health-care provider are made per year - long-term periods of incapacity due to conditions for which treatment may not be effective (stroke, terminal disease) - any absences to receive multiple treatments from health-care providers for conditions that would likely result in periods of incapacity of more than 3 consecutive calendar days if left untreated

Lawsuits: Interference Claims Eligible employee doesn't get leave

- employer's intent doesn't matter - COMMON EXAMPLES: • "I took time to take care of my sick mother and it counted against me under time and attendance" • "I told my supervisor the reason I needed to be off was because my husband was having surgery but she said she couldn't spare me that day."

religious organizational exemption

Absolves churches of any liability for discriminating on the basis of religion. Thus religious organizations can limit employment to or have preference for persons sharing the same faith.

record of disability

Because of prior disability. Might occur because of the stigma associated with the condition or fears the condition will reoccur

PREGNANCY DISRIMINATION ACT

Amendment to Title VII to prohibit discrimination on the basis of pregancy, childbirth, or related conditions. Does not require the employer to provide leave but employers must treat persons with pregnancy-related conditions in the same manner as persons with other medical conditions who are similar in their ability or inability to work

establishment clause

Clause in the First Amendment that says the government may not establish an official religion.

WHen it comes to arrests

EEOC cautions employers not to make employment decisions based on arrest records. ANy decision to exclude an applicant based on information about an arrest must be made on the basis of independently-verified, job-related, conduct underlying the arrest, rather than the arrest record itself.

When it comes to convictions,

EMployers need to consider how serious the offense is, what its relationship is to the job in question, and how long ago the offense occurred.

drug testing

Occurs under a variety of circumstances; tests are given prior to hire, in conjunction with periodic medical exams, for verfication that employees who have been through drug rehabilitation programs are staying "clean", on observant behaviors that create reasonable suspicion of drug use, after on-the-job accidents, and at random times

Perceived disability

Persons who are erroneously regarded as being disabled are also protected by the ADA. Impairment must not be transitory (actual or expected duration of <6 months) and minor.

Elements of a claim: negligent hiring

Plaintiff must show: 1. A standard for conduct or duty to others existed with respect to taking reasonable steps to avoid hiring unfit employees. The extent of any such duty is based on: a) foreseeability of harm to others if an unfit person is hired for a particular job b) knowledge of unfitness that the employer had or should have had if proper hiring procedures were used c) public policy 2. the employer failed to exercise the proper degree of care and hired an unfit employee 3. a coworker or another third party was harmed by the unfit employeee 4. THe employer's failure to exercise the proper degree of care in hiring was the proximate cause of the harm or injury that occurred

Establish prima facie of disability discrimination

Plaintiff must show: 1. She is disabled 2. is a qualified individual and 3. was subjected to unlawful discrimination because of her disability. suffered an adverse employment action because of his disability.

elements of a claim: Interference with FMLA rights

Plaintiff must show: 1. She was eligible for FMLA benefits and protections: - she worked for the employer for at least 12 months - she worked at least 1250 hours in the 12 months prior to taking leave or attempting to do so 2. Her employer was covered by FMLA: - the employer is a private-sector employer with 50 or more employees at the same worksite or spread across multiple worksites within a 75 mile radius 3. She experienced a qualifying event entitling her to FMLA leave 4. She provided her employer with sufficient notice of intent to take leave. 5. SHe had not already exhausted her maximum leave for the relevant 12 month period 6. FMLA benefits to which she was entitled were delayed or denied by the employer

Four-Fifths Rule

Rule of thumb that finds evidence of discrimination if an organization's selection rate for one protected class is less than four-fifths the selection rate for the other protected class that was the most successful for passing the test

qualified

Satisfies the skills, education, experience, and other job-related requirements for the job held or sought

Scored tests can produce disparate impact discrimination

Such effects are best seen by examining applicant flow data. These compare the protected class composition of an applicant pool to that of the group of people who pass the test and are successful

Fair credit reporting act

THe major federal law regulating the gathering, sharing and use of inofmration by employers and consumer reporting agencies

elements of a claim: failure to reasonably accommodate religion

The plaintiff must establish a prima facie case by showing all of the following: - The existence of a sincere religious belief or practice that conflicts with an employment requirement - The employer was informed of the conflicting belief or practice - the employee or applicant suffered an adverse employment outcome because of adhering to the religious belief or practice If a prima facie is established, employer must show one of the following: - A reasonable accommodation was offered but not accepted or - no reasonable accommodation without undue hardship was available

Elements of a claim: Failure to reasonably accomodate disability

The plaintiff must establish: 1. He has a disability-a physical or mental impairment that substantially limits the performance of one or more major life activities 2. He is qualified for the job in question: a) Meets all of the neutral, job-related requirements for the position; and b) is able to perform all the essential functions of the job with or without reasonable accommodation; and c) Is not a direct threat to his own health and safety or that of others-normally, it is the employer that must establish that the employee is a direct threat, but the burden shifts to the plaintiff for jobs with significant public safety implications 3. The employee's need for accommodation was made known, or should have been known to the employer. 4. One or more accommodations exist that are reasonable and that the employer did not provide. IF the plaintiff can meet these criteria, the employer can show that the proposed accommodation(s), although, reasonable in general, would pose an undue hardship- "significant difficulty or expense"- given the employer's resources and operational requirements.

Genetic Information Nondiscrimination Act (GINA)

U.S act that prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance. Covers employers with 15 or more employees. Employers must refrain from requesting, requiring, purchasing, or otherwise acquiring genetic information regarding applicants and employees.

When subjective criteria is challenged for their disparate impact, the proof of it being job-related and a business necessity does not require

a formal validation study. Instead the focus is on how reasonable the subjective criteria are in light of the job and whether more objective means of assessment were available but not used

ministerial exception

a law that intends to protect freedom of religion by exempting religious organizations from anti-discrimination laws in hiring employees.

serious health condition definition

a medical condition that involves either inpatient care in a hospital or continuing treatment by a health-care provider

criterion validity

a primary strategy for validating employment tests that refers to a measure of job performance

content validity

a primary strategy for validating employment tests that require the performance of the same behaviors and skills as the job in question

to survive constitutional challenges to its affirmative action plan

a public employer must show that the plan serves a compelling government interest and that the measures employed are narrowly tailored.

key employee

a salaried employee who is among the top ten percent of a company's employees in pay. EMployers cannot refuse to leave to key employees but can decline to restore them if restoration would cause "substantial and grievious economic injury" to the employers operation.

Random drug testing

a specified percentage of the workforce is selected for periodic drug testing without prior notice and without individualized suspicion of drug use. Arguably the most intrusive form of drug testing- highly stringent.

reduced leave schedule

a type of intermittent leave during which an employee's normal daily or weekly hours of work are reduced

If the employee has requested intermittent or reduced schedule leave:

a) Is it for a serious health condition, involving "medical necessity"? b) If the requested leave follows birth, adoption or foster care placement, does the employer's policy or practice allow such leave?

a person taking leave based on the serious health condition of a family member must

actually provide physical or pyschological care

medical examination

any procedure or test that seeks information about an individual's impairments or health

investigative report

any wirtten, oral , or other communication similar to a consumer crdit report but based on personal interviews with friends, neighbors, or other associates

consumer credit report

any written, oral, or other communciation of any information by a consumer reporting agency bearing on a consumer's credit worthiness., credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for employment.

glass ceiling

artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing in their organization. (can prompt lawsuits alleging pattern or practice discrimination, disparate impact, and other claims)

negligence

based on the idea that some people sometimes have a duty to others to exercise reasonable care in carrying out certain activities; when that duty is not met and this failure is a proximate cause of harm to others, the party that failed to live up to responsibilities can be found negligent. It is not neccessary to show that the negligent party intended for anyone to be harmed

a test that has content validity should

be clearly representative of the skills and behaviors that are central to the job

Employers may and generally should require requests for leaves based on serious health conditions

be supported by certifications from healthcare providers. Employees must be given at least 15 days to obtain medical documentation

Major life activities include but are not limited to

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working

leaves for birth, adoption or foster care must be

continuous, unless the employer allows otherwise

Impairments that should easily qualify as disabilities

deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, ptsd, ocd, and schizophrenia

IT is the job of the health-care provider, not the employer to

determine whether an employee is fit to return to work

According to FCRA, an employer must

disclose to a job applicant that a credit report will be obtained and must receive the applicant's authorization to do so. THe disclosure and consent form must be solely for this purpose.

When leave is needed for planned medical treatment

employees are expected to first consult with their employer regarding the timing of treatment and attempt to schedule leave to lessen its disruptiveness

IF the need for leave is not foreseeable, such as when a serious health problem emerges suddenly and without warning

employees are responsible for providing notice "as soon as practicable" . Employer requirements for written notification of leave cannot be enforced in emergency medical situations.

IF the leave is foreseeable, such as a birth or planned medical treatment, where at least approximate dates of leave are known,

employees can be required to provide 30 days advance notice. Failure to provide adequate notice can result in delay of the leave until the 30 day notice requirement is satisfied

When the information provided is deemed inadequate,

employers are required to notify the employee in writing, indicate which information is missing, and afford the employee at least 7 calendar days to provide the information

An exception to the general rule prhibiting preemployment inquiries regarding disability is that

employers can require job candidates to document their needs for accommodation in the application and testing process

Although individuals vary widely in ability, overall, people of different races, sexes, national origins and other protected classes are

equally capable of doing most jobs

statistical disparities showing underutilization do not suffice as a constitutional justification for aa, absent

evidence that the public employer's discriminatory acts produced those disparaties

serious health condition

far more inclusive than "disability"

FMLA

federal law governing the provision of leave to employees for paternal and medical reasons.

IF based, in any part, on info from a consumer credit report, an employer intends to take a an adverse action, the employer must

first provide the individual with a "pre-adverse action disclosure." THis is to include a copy of the individual's consumer credit report and a statement of their rights under the FCRA- employers are under no obligation to reconsider the applicant

first amendment

free exercise and establishment clause

entitlement to parental leave under FMLA

generally expires 12 months from the DOB, adoption, or foster care placement

undue hardship

impose significant difficulty or expense in relation to the size of the company, its resources, and the nature of its operations. -Unduly costly, substantial or disruptive or that would require fundamental alteration of the nature or operation of the business

ADA definition of discriminate

includes the failure to provide reasonable accommodation to an otherwise qualified individual with a disability, unless doing so would impose undue hardship on the employer's business.

In the case of military caregivers

leave is available to care for children of any age as well as "next of kin"

Employers are permitted to require

medical certification of fitness upon an employee's return to work, provided that this is the employer's general practice.

substantially limited

need not completely prevent or "significantly restrict" the performance of a major life activity to be a disability. The central issue is whether the impairment substantially limits the conditions, manners, or amount of rather than on which outcomes the individual manages to achieve.

a serious health condition involving inpatient care includes

not only the actual period of hospitalization but any period of incapacity (inability to work, attend school, or engage in other regular daily activities) and time for subsequent treatment of of the condition

Employees are responsible for

notifying their employers that a qualifying event has occurred for which leave is needed. The notification can be verbal and need not specifically refer to FMLA, but must provide enough info to alert the employer that FMLA might apply

accommodating religion by making exceptions to dress and appearance is

often required With some exceptions, such as safety concerns, effects on coworkers or the public, or the nature of the job any of which may grant undue hardship

honesty tests

paper-and-pencil tests used by employers to determine the integrity of job candidates; these tests are not regulated by the EPPA

Not having been arrested or convicted for a crime is a neutral requirement, however, this neutral requirement is likely to exclude

persons of color at a much higher rate than whites.

employers may contact employees while they're on leave to

receive information on their status and verify their intent to return to work following leave

prior to making a conditional offer of employment, employers are prohibited from

requesting or requiring applicants to submit to medical exams. This can only be done, after a conditional offer of employment is made to verify the person is capable of performing the job.

in order for obesity to be considered a physical impairment, it must

result from an underlying physiological disorder or condition

employees may choose or their employers may require them to

substitute available paid leave for unpaid FMLA leave

overly exclusionary criminal history policies have been

successfully challenged on the basis of disparate impact

An employee has the right to take FMLA leave only if she

suffers from a "serious health condition" that makes her "unable to perform the functions of [her] position."

First clause of PDA

term because of sex includes because of or on the basis of pregnancy, childbirth or related medical conditions.

job-related

that it actually measures skills, knowledge, or ability required for successful performance of the job.

"[I]ncapacity" means

the "inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom."

drug testing by public employers can violate

the Fourth amendment- unreasonable search and seizure

Conditions not often considered serious health conditions

the common cold, flu, earaches, upset stomach, minor ulcers, headaches other then migraine, routine dental or orthodontia problems, peridontal disease, etc.

job-related consistent with business necessity

the employer must produce statistical evidence that the test is a good measure of ability to do a job

An employer using the business necessity defense usually must prove that

the practice was related to the specific job and the required skills and physical requirements of the position

Medical exams for current employees are limited to

those that are job-related and consistent with business necessity or are voluntary

in cases involving employment decisions based on stereotypes of how sex and caregiving responsibilities interact (this would be disparate treamtment), it is not necessary

to show that similarly situated persons of the opposite sex were treated more favorably.

Expressly excluded from the definition of disability

transsexualism, pedophilia, exhibitionism, kleptomania, pyromania, current illegal drug user

treatments include

visits to doctors for purposes of diagnosis and evaluations

Certification of medical condition requirements: Employee seeking FMLA leave must give certification of her medical condition "to the employer

within 15 calendar days after the employer's request, unless it is not practicable ... to do so" or "the employer provides more than 15 calendar days"

The DOL requires employers to provide

written notice to employees requesting leave that the leave is being designated as FMLA leave, generally within 5 business days after notification of leave

Employee Notice Requirements

• 30 days if foreseeable (as soon as practicable if not) • Insufficient notice- you may be able to delay (but probably not deny) leave • Rescheduling medical treatment to suit the employer's schedule • Return to work reporting

Reasonable Accommodation

• Anything that enables employee to perform a job's essential functions • Reassignment to vacancy • Modified facility or schedule • Be creative • Talk to the employee- but he doesn't always get his way

ADAAA Changes to "Regarded As"

• Before: Is not disabled but is treated as if they are disabled • Now: - has an actual or perceived impairment AND - has been discriminated against because of the impairment

Who is Qualified?

• Can perform the "essential functions" of the job with or without reasonable accommodation • Pre-existing job description good evidence of essential functions • Can require no "direct threat of harm"

FMLA Covered Employers; Eligible Employees

• Covered Employer has 50 employees • Eligible Employee - worked 12 months (count military service) - worked 1250 hours in last 12 months (count military service) - worksite with 50 employees (75 mile rule)

Not "reasonable" if:

• Eliminates an essential function (but may have to eliminate non-essential functions) • Poses an undue hardship (i.e., impossible, costs more than the job is worth)

Evidence of Whether Function Is Essential

• Employer judgment • Terms of a written job description • Terms of a collective bargaining agreement • Amount of time spent performing the function • Consequences of not performing the function • Experience of current and previous employees in the job

Leave vs. Accommodation

• FMLA: all about leave - eligible employee gets leave- period - employer's business needs don't matter - attendance problems vs. intermittent leave • ADA: non-discrimination, accommodation - business needs matter leave not typically a reasonable accommodation - attendance can be an essential functio

Employer Notice Requirements

• General notice (posted, handbook) • Eligibility notice - once you know the employee needs leave, only 5 days to say she is eligible (or not) • Rights and Responsibilities Notice - provide with Eligibility Notice and request the medical certification • Designation Notice - leave counts (or doesn't) as FMLA, call-in and return to work requirements

When Reinstatement is/isn't Required

• Generally employee must be returned to the position • Exceptions/ Limitations - E has no greater right to reinstatement than if he had not taken leave - If Employer can show that employee would not otherwise have been employed • RIF • Key Employees • If E unable to perform an essential function of job - Caveat: ADA obligations

Qualified Individual

• Individual meets the skill, education, and other job-related requirements; and • Can perform the essential functions of the position such individual holds or desires with or without a reasonable accommodation.

Reason for 26 Weeks of Leave

• Injured Service member (including adult children and next of kin) • Special leave year starts with first day of leave • Available once per service member per injury

Impairment that "substantially limits a major life activity"

• Interpret "substantially limits" broadly- it is not a "demanding standard" • Does not have to be a "severe restriction" • Does not have to be a "significant restriction" as compared to the average person • BUT not transitory (< 6 months) AND minor (hangnails, common cold, etc.)

WHAT THE ADA ACTUALLY SAYS ADA Basics

• No discrimination against employees OR applicants based on disability - can be sued by someone who never worked for you • Applies to private employers, state and local governments • 15 employee threshold

ADA Prohibited Actions

• No discrimination based on disability (e.g., hiring, firing, discipline, etc.) • No retaliation for exercising rights • Failure to make a reasonable accommodation • No illegal medical inquiries

Serious Health Condition vs. Disability

• Not the same thing • Serious can be transitory (< 6 months) while disability typically is not • Chronic conditions probably qualify employee for both FMLA and ADA • BUT if someone exhausts FMLA, consider whether they have ADA rights as well

Interference provision is broader than retaliation

• Protects all individuals (whether or not with disabilities or qualified) from coercion, threats, intimidation, or interference with ADA rights • Reaches even instances when conduct does not meet the "materially adverse" standard required for retaliation • Many instances of employer threats or coercion might also be actionable under the ADA as a denial of accommodation, discrimination, or retaliation

FMLA Protections for Employees

• Return to their job (or an equivalent position) • No loss of employment benefits he had prior to leave • Any benefit or position she would have gotten if she had not taken leave (raises, vacation accrual increases) • Maintain coverage under group health plans (like they were at work)

Defining a Disability per ADAAA:

• a physical/mental impairment that substantially limits one or more major life activities (MLAs); • a record of such impairment; OR • being regarded as having such an impairment

Discriminatory employment tests must:

• bear a demonstrable relationship to successful performance of the jobs for which it was used, • must have a manifest relationship to the employment in question, • and test results must predict or correlate with "important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated."

ADA Interference

• does not apply to any and all conduct or statements that an individual finds intimidating oCommission's view, only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights • threat does not have to be carried out be unlawful interference • individual does not actually have to be deterred from exercising or enjoying ADA rights

In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.

FMLA Interference claim elements:

(1)the employee was entitled to a benefit under the FMLA, and (2) her employer denied her that benefit.

Criteria for determining the reasonableness of an accommodation

- is effective (removes or sufficiently reduces the barrier to employment opportunity) - does not need to be the employee's preferred options - does not include provision of items that are primarily for personal use (e.g. eye glasses) - does not need to be as far reaching as accommodations made previously if these exceeded legal requirements - does not need to render working conditions strictly equal to those of other employees- effective removal of barriers is sufficient - does not require creating a new position or giving a promotion - does not require eliminating essential functions from a job or lowering production standards - does not require excusing or refraining from disciplining misconduct related to a disability - does not usually require making exceptions to established seniority rules

Lawsuits: Retaliation Claims Employee punished for taking or asking for leave

- must prove intent - COMMON EXAMPLES • "I didn't get the safety bonus because of my FMLA leave" • "I didn't get the promotion because they said my attendance wasn't goodFMLA leave" • "My performance rating was lower because of my leave"

Definition of disability includes the following:

-A physical or mental impairment that substantially limits one or more major life activities - a record of such an impairment - being regarded as having such an impairment

Disparate Impact Claim

1. In order to establish a prima facie claim the plaintiff must show: a) a neutral employment requirement or practice has the effect of disproportionately limiting the employment opportunities of a protected class group of which the plaintiff is part of b) The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance 2. If the plaintiff establishes a prima facie case, the employer must prove that the challenged employment requirement or practice is job-related and consistent with business necessity. 3. The plaintiff can still prevail by showing that a feasible alternative exists that would have a less discriminatory impact and the employer nonetheless refuses to to adopt it

Prima facie religious discrimination case

1. She held a bona fide religious belief 2. her belief conflicted with a requirement of her employment 3. Her employer was informed of her belief 4. she suffered an adverse employment action for failing to comply with the conflicting employment requirement

EEOC suggested methodology for the interactive process

1. The job in question should be examined and its essential functions determined 2. The individual with a disability should be consulted to determine if his specific physical or mental abilities and limitations. 3. Together with the individual with a disability, potential accommodations should be identified and assessed. 4. An accommodation that serves the needs of both the employee and the employer should be selected.

immigration reform and control act; two main requirements

1. all employers are prohibited from knowingly hiring or retianing on the job unauthorized aliens 2. employers with 4 or more employees are prohibited from discriminating, in hiring and termination decisions, on the basis of national origin and citizenship

drug testing procedures

1. employees must be provided with written notice that testing is required 2. employees must be provided with copies of the employer's substance abuse and drug testing policy 3. employers must use licensed labs to analyze samples 4. employers must perform confirmatory tess if requested or allow employees access to samples to have their own tests done 5. employees must be given test results in writing 6. employees who test positive must be given the opportunity to expalin the result 7. samples must be collected with due regard for employee privacy

Job-relatedness is assessed with a three-step approach:

1. employer specifies the particular trait or characteristic which the selection device is being used to identify or measure 2. employer must show the particular trait or characteristic is an important element of work behavior 3. employer must demonstrate by "professionally acceptable methods" that the selection device is "predictive of or significantly correlated" with the element of work behavior identified in the second step

best practices with testing

1. employers need to monitor and maintain records of the effects of testing procedures on different protected class groups 2. four-fifths rule should be applied to selection rates generated from applicant flow data to identify possible discriminatory effects 3. Tests with discriminatory effects should not be used unless strong evidence of test validity exists and less discriminatory alternatives are not available 4. potential disparate impact and the defensibility of tests be considered at the point when tests are being designed or purchased

The EEOC has said that the "job-related and consistent with business necessity" defense to disparate impact claims can be consistently met by showing

1. showing data or analyses linking the criminal conduct in question to unacceptable work performance or behaviors 2. developing a targeted screen that considers the seriousness of the crime, the time elapsed, and its job relatedness while also providing individualized assessments of people screened out; or 3. Showing the existence of other federal laws and regulations requiring exclusions based on criminal history

employers have 4 options for defining the 12 month period

1. the calendar year 2. any other fixed 12 month period 3. a 12 month period measured forward from the first day that any FMLA leave is taken 4. a rolling 12 month period that measures backward from the most redent day in which leave was used Employers must adopt one of these methods and use it consistently

FMLA requires that employers provide

1. up to 12 workweeks of leave over a 12 month period (however, when the qualifying event is the serious injury or illness of a service member incurred during active duty, the maximum period of leave is extended to 26 weeks) 2. maintenance of health insurance under the same conditions as if the employee had not taken leave 3. Restoration to the same position held before leave commenced or to an equivalent position with the same pay, benefits, and other terms and conditions of employment

free exercise clause

A First Amendment provision that prohibits government from interfering with the practice of religion.

Establishing That Tests Are Job-Related and Consistent with Business Necessity

A discriminatory test can be defended if it is job-related and consistent with business necessity. Employers must have evidence of the validity of a test that is producing discriminatory effects; does it measure what it purports to measure?

interactive proccess

Aimed at identifying an appropriate and mutually agreeable accommodation. Disabled employees should be involved early and continuously in the process of identifying and choosing accommodations.

Who is covered? FMLA

All government agencies, regardless of their size, and private-sector employers with at least 50 employees

If there is disparate impact, can the employer show that the selection procedure is job-related and consistent with business necessity?

An employer can meet this standard by showing that it is necessary to the safe and efficient performance of the job. The challenged policy or practice should therefore be associated with the skills needed to perform the job successfully

accommodating disability in testing

An employer is not responsible for providing accommodation unless requested to do so by the candidate with a disability.

obligation to accommodate religion

De minimis- in contrast to the ADA, employers need not incur more than minimal expense or operational problems in accommodating religion

negligent hiring

It extends employer's liability for harm caused by their employees beyond actions undertaken within the scope of employment (resondeat superior) to harmful actions that lie outside the scope of employment, but for which the careless hiring of an unfit employee set the stage

bona fide religious beliefs include

Moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. A belief is "religious" if it is "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by ... God" Whether the belief itself is central to the religion, i.e., whether the belief is a true religious tenet, is "not open to question."

Employee Polygraph Protection Act

Private-sector employers must not request or require that applicants submit to polygraphs or other mechanical or electrical truth-determining devices. Limited exception for employers producing or dispensing controlled substances or providing heavy security services.

direct threat

The employer must show that the employee currently poses a specific risk of significant harm. This judgment must be made on the basis of objective medical evidence, not on stereotypes or fears.

Omnibus Transportation Employee Testing Act

The federal law that requires drug (and alcohol) testing of employees in transportation-related occupations, including airline, railroad, trucking, and public transport workers.

Drug-Free Workplace Act

U.S. law that requires federal contractors with contracts of $100,000 or more as well as recipients of grants from federal government to certify they are maintaining a drug-free workplace. Does not address the subject of drug testing but rather requires covered employers to develop and comminicate policies prohibiting drug use, possession, sale, or distribution in the workplace; inform employees about the dangers of drug abuse and options available for drug counseling and treatment, establish penalties for drug abuse violations ; and report to the funding agency any convictions relating to drug use or sale in the workplace.

scope of employment

When employee actions realte to the kind of work that they were hired to perform; take place substantially within the workplace during work hours; and serve, at least partially, the interests of the employer

The following procedures apply to only people hired, not applicants

Within 3 days after a newly hired employee begins work, the employer must verify his eligibility to work in the US. Must be done for all workers, not select individuals. Viewing documents on I-9

Second clause of PDA

Women affected by pregnancy, childbirth or other related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work

the defendant can overcome the showing of disparate impact by proving

a "manifest relationship" between the policy and job performance. -the employer must present real evidence that the challenged criteria measure the person for the job and not the person in the abstract.