Legislation Exam 3

Reasons for drug testing in employment.

- As part of medical exams - To verify that employees who have been through drug rehab programs are "clean" - Upon observation of aberrant behavior that create reasonable suspicion of drug use - After on-the-job work accident - And randomly

Fun Facts about BFOQ

- Customer preference is not accepted by the courts as a legitimate reason for a BFOQ - The BFOQ defense is NEVER accepted in discrimination claims based on race or color

genetic information

- Information about genetic test (BRCA1 for predisposition to breast cancer, Huntington's disease) - Family medical history - Request for and receipt of genetic services - Information about a fetus carried by individual or family member or embryo held by either (testing for birth defects or risks of birth defects)

Elements of a claim for Promissory Estoppel

- One party makes an unambiguous promise to another - The party that receives the promise acts in reasonable reliance upon it - Reliance on the promise is expected and foreseeable by the part making the promise - The party to whom the promise is made is harmed by reliance on it

steps employers should take in testing employees based on reasonable suspicion

- Only supervisors trained in sign and symptoms of probable drug use and alcohol misuse can make decision to test - Document the signs and symptoms observed (smell, slurred speech, unsteady movements, eye dilation - Observation of employee should be made by two members of management or HR - Approach employee discreetly and with respect - Conduct interview with employee. And explain required drug test in private place - Transport employee to drug testing center and back home afterward

Explain the differences in drug testing for public employers compared with private sector employers.

- Random drug testing by employers is prohibited by the 4th amendment, prohibiting unreasonable search and seizure I. Supreme court has consistently held that drug testing in which employees are required to submit bodily fluids and have fluids analyzed for presence of illegal drugs, constitutes a "search". Thus, public employers had to defend the reasonableness of such searches - Public employers may drug test for safety sensitive jobs or upon reasonable suspicions only - Drug and alcohol testing of employees in transportation-related jobs is required

EEOC requirements for medical exams under the Americans with Disabilities Act (ADA)

- Under the ADA, prior to making a conditional offer of employment, an employer is prohibited from requiring applicants submit to medical exams - Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are NOT job related I. Post-hire examination must be job related and consistent with business necessity or voluntary - Drug tests searching for illegal substances are NOT medical exams - But testing for prescription drugs taken for medical conditions that might be disabling is a medical exam

Questions to be asked of employees complaining of harassment

1. A detailed description of what happened, including who harassed you? What exactly did the person do? When did it happen? Is it still happening? Where did it occur? How often? 2. Was the conduct unwelcome? How did you react? What did you say to the harasser at the time? 3. How did the harassment affect you? Has there been any effect on your employment status? Did you use sick time or seek medical treatment?

3 grounds for establishing a BFOQ

1. Authenticity- actor in movie role 2. Public safety- same sex guards in prison (limited in that must be evidence that there is a safety threat) 3. Privacy- protect the bodily privacy interest of customers from opposite sex

Affirmative defense against hostile environment claims requires proof that:

1. Employer exercised reasonable care to prevent and correct promptly any harassment 2. The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities

Best practices for responding to harassment

1. Employer must respond promptly and correct any harassment. Promptness and adequacy of an employer's response is assessed in light of the seriousness of the alleged harassment 2. Once it learns of harassment, the employer must take prompt action, even if the victim does not want action taken 3. Employer should launch a fair and prompt investigation, not one pre-determined to reach a certain conclusion

Best practices employers should use in carrying out drug testing programs.

1. Notify employees if they are subject to drug testing 2. Notify employees of the circumstances under which drug testing will occur 3. Notify employees of consequences of testing positive 4. Carefully label specimens 5. Document chain of custody for samples 6. Respect the privacy of employees being tested 7. Use reputable labs, and monitor their performance 8. Use confirmatory tests for positive results 9. Appoint a medical review officer to interpret results 10. After a positive result, seek information about medication the employee is taking 11. Take into account medicines that may affect the result 12. Give employees the opportunity to provides alternative explanations for positive results 13. Treat all drug tests as confidential 14. Provide rehabilitation drug programs or referral list to rehabilitation programs

Anti-harassment policies should include:

1. Strong prohibition of harassment, applying to all managers and employees 2. A clear explanation of the meaning of prohibited harassment 3. A requirement that employees with knowledge of harassment report it to the appropriate person 4. Assurance of protection from retaliation

To establish a BFOQ the employer must show:

1. That only persons with the specified protected class characteristic can do the job 2. That the job is integral to the operation of the business- would ultimately undermine the business

Employer is liable for this harassment if:

1. The employer knew or should have known about the harassment 2. The employer failed to take prompt and effective action to stop it

Drug testing requirements under the Omnibus Transportation Employee Testing Act

1. Use of tamperproof custody seal on specimen containers 2. Documentation of the chain of custody 3. Confirmatory tests- second, more sophisticated test to ensure result 4. Use of qualified medical review officer (licensed physician who acts as an agent of employer) to interpret results and communicate them

Questions to be asked of those accused of harassment

1. What is your response to each of the allegations? 2. Are there any reason to believe the conduct was welcomed by the complainant? 3. Are there other people with relevant information? 4. Do you have any other evidence related to the alleged incidents?

Exceptions to general rule prohibiting employer from obtaining genetic information.

1. Where the info is acquired inadvertently 2. As part of health or genetic services (including a wellness program) that employee participates in on a voluntary basis 3. Family medical history to comply with certification requirements of the family and medical leave act, state and local leave laws, or certain employer leave policies 4. From sources that are commercial and publicly available - newspaper, books, magazines, electronic sources

7-Factor test to determine if a test is a medical exam.

1. Whether the test is administered by health care professional 2. Whether test is interpreted by a health care professional 3. Whether test is designed to reveal an impairment of physical or mental health 4. Whether the test is invasive 5. Whether the test measure an employee's performance of a task or her physiological responses to performing task 6. Whether test is normally given in a medical setting 7. Whether medical equipment is used

Post hire examinations can be used to deny employment to a disabled person only if

1. cannot perform essential functions of the job even with reasonable accommodation or 2. is a "direct threat" to self or others

Promissory Estoppel

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise.

requirements for drug testing under Alabama state law.

Alabama has a drug free workplace program where employers can qualify for discounts on worker's compensation insurance premiums. To qualify: I. Must test job applicant upon conditional offers of employment II. Must include notice of testing in job announcements III. Generally, the program follows the drug free requirements under federal drug-free workplace act and the omnibus transportation employee testing act

Requirements for drug testing programs under the Americans with Disabilities Act (ADA)

An employer must not discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs Must consider whether the employee is able to perform the essential functions of the job, with or without reasonable accommodation

Conditional offer of employment

An offer of employment that is "conditional" upon satisfactory results from the medical exam

situations which may be considered acceptable by the EEOC and courts for hiring individuals of "like faith" at religious organizations.

BFOQ- authenticity I. Beyond acting and modeling roles, preferences in hiring people of "like faith" may be acceptable BFOQ's for religious organizations II. To be acceptable the organization must be primarily religious not secular, EEOC and courts consider: 1. If the articles of incorporation state a religious purpose 2. Whether its primary function is religious 3. Whether it is affiliated or supported by a church 4. Whether it is non-profit organization

Who is covered by the Omnibus Transportation Employee Testing Act

Covers employee in safety sensitive jobs in aviation, pipeline, public transportation, railroad, ships/vessels, trucking, tour buses, and school buses

Best practices in making employment offers to candidates.

Employers should offer jobs in writing (with legal help) so that employee knows exactly what is being offered I. Include salary or wage and start date II. Include employment at will if applicable and explain III. Reference the employee handbook or other materials IV. Offer should clearly specify what is included and what is not

Reasonable Suspicion for Drug Testing

Generally, an employee may not refuse to be tested, but depends on which laws cover employee: government employee, federal laws, state laws, unionized employee- may not implement drug testing of current employees without negotiating about the programs with employee's union

Price Waterhouse vs. Hopkins

Hopkins denied promotion because considered too aggressive and macho - was told to dress, act, and walk more femininely

Drug testing requirements under the Drug Free Workplace Act (DFWA)

I. Develop and communicate policies concerning drug use, sale or possession in the workplace II. Inform employees about dangers of drug use and options for counseling and treatment III. Establish penalties for drug use violations IV. Report drug use convictions

Remedies for harassment should correspond to the severity of the harassment:

I. Employer should take temporary measure on receiving a complaint, then long-term remedial measures based on the investigation. Transfers, reassignment, leaves of absence and closer supervision are all possible initial measure II. If an employee is not punished when there is strong evidence of harassment, he/she will be encouraged to continue the misconduct

"because of sex"

I. In the case of those who harass both sexes, the harassment may not be "because of sex" and therefore not actionable under title VII II. In the case of those who harass because of personal animus the harassment may not be "because of sex" and not actionable under title VII- bullying

Sex-plus cases as a facially discriminatory policy

Neutral criteria are applied to some protected class groups, but not others Examples: employer required candidates for promotion who were over 40 years of age to submit to EKG exam, while younger candidates were not required to do so

Elements of harassment claim

Plaintiff must show: 1. that he or she was subjected to harassment based on a protected class characteristic 2. The harassment resulted in a tangible employment action or was sufficiently severe or pervasive to alter working conditions and create a hostile environment 3. the harassment was unwelcome 4. there is a basis for attributing liability to the employer

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.

"The water cooler problem"

Ways of inadvertently acquiring information: I. Overhears discussion between employees II. Employer generally asks about employee's well-being III. Social media IV. Unsolicited information from employee

Quid Pro Quo

a favor or advantage granted or expected in return for something

Harassment

a form of discrimination in which individuals are the objects of mistreatment and/or harmful employment actions because of a protected class characteristic

Bona Fide Occupational Qualification (BFOQ)

a necessary (not merely preferred) qualification for performing a job

Random Drug Testing

a percentage of the work force is selected for periodic drug testing

Facially Discriminatory

a type of disparate treatment claim in which the employer purposely discriminates on the basis of a protected class characteristic

Reasonable Suspicion

any information that points to illegal activity and may include rumor, tips, and anonymous telephone calls.

How does the EEOC define a medical exam?

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

Negligence standard for liability

co-worker and third parties may create a hostile work environment

Reasonable affirmative defense

companies need to have a harassment policy and complaint procedure

Severe

concerned with the degree of harm

pervasive

concerned with the frequency of harassment- not a more single offensive utterance

Breiner vs. Nevada Dept. of corrections

court rejected BFOQ for employing female correctional lieutenants 1. Nevada argued female correctional lieutenants are less likely to condone sexual abuse by guards - no clear evidence of this, based on stereotypes 2. Employed a workforce where 30% of the guards working directly with women prisoners were male

International Union, UAW vs. Johnson Controls

court rejected BFOQ prohibiting women from jobs where lead exposure exceeded OSHA standard, women can perform duties and fetal welfare should be left to parents

Public Safety

generally established for age or gender based on evidence (factual, not stereotypes) that there is a safety risk in employing older individuals or members of a specific gender

Physical Appearance

has pervasive effect on employment outcomes People judged better looking are more likely to get hired, be promoted, and to be paid more

Medical Review Officer

interpret the results and communicate them, and opportunity for the tested employee to explain possible reasons for a positive result (other legal medications taken)

Same-sex harassment

is actionable if it is "because of sex" but proof is difficult I. If harasser is gay or lesbian, harassment may be "because of sex" II. Sex stereotyping may also show a discriminatory motive for harassment in same-sex cases III. If a harasser subject both men and women to harassment (an equal opportunity harasser) courts often conclude that the harassment was not because of sex; both sexes were disadvantaged

Weight

is not a protected class under Title VII unless linked to a protected class or covered under ADA

Workplace bullying

is not legally actionable unless linked to a protective class characteristic

genetic monitoring

monitoring genetic information for adverse health effects due to occupational exposures. For example, monitoring radiation levels for X-ray technicians or exposure to toxins

Harassment based on hostile work environment

results from a wide range of verbal and physical conduct by managers, co-workers, and third parties—insults, tasteless jokes, touching, exposure, stalking, displays of images. Treatment need not be based on overtly sex - or gender-specific, but must be sufficiently sever or pervasive to be actionable. Focus on the objective assessment by a reasonable person

confirmatory test

second, more sophisticated test

Sex-stereotyping theory of discrimination

sex discrimination based on stereotypes of gender roles or ideals. Used in discrimination claims based on gender identity and more recently sexual orientation

Chain of Custody

the parties who handle the samples for drug testing

Dothard vs. Rawlinson

the supreme court accepted BFOQ for Alabama prison employing only male guards because prison population included violent sex offenders - real possibility of attacks or prison riots

Tangible employment actions

these claims involve a sexual advance or demand for sexual favors that can be traded for some employment outcome

Legal requirements to showing that behaviors were unwelcome

to succeed, an employee must show that the action is casually linked to rejection of or submission to harassment - time proximity is enough

Behaviors which constitute harassment

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: 1. submission is explicitly or implicitly a term of the person continuing employment 2. submission or rejection of such conduct is used as the basis for employment decision affecting the person 3. such conduct unreasonably interferes with the person's work performance, or creates a hostile, intimidating or offensive work environment

Vicarious Liability

when harassment is conducted by someone whose position allows him to speak and act for the company. (an employee) I. Legal responsibility for damage is unconditionally placed with employer

Pre-employment exams must not include taking family medical history or other forms of genetic information gathering. Employers can violate GINA by requesting information to health care providers. To prevent this:

§ EEOC suggests specifically referencing GINA in request, defining genetic information, and requesting that genetic information not be provided in reports—"safe harbor"