MGMT 445 Employment Law

Can you elaborate o section 703(k) (Title VII) and disparate impact claims

The 1991 amendments to Title VII added Section 703(k), which deals with disparate impact claims and requires that the plaintiff demonstrate that the employer uses a particular employment practice that causes a disparate impact on one of the bases prohibited by Title VII. Section 703(k) states that a plaintiff shall demonstrate that each particular employment practice that is challenged causes a disparate impact unless the plaintiff can demonstrate that the elements of the decision- making process are not capable of separation for analysis.

What can harassment be

- physical - verbal - visual

What are the facts, issue, and decision of Pricewater House v. Ann B. Hopkins?

Facts Ann Hopkins, a senior manager in an office of Price Waterhouse, was proposed for partnership in 1982. She was neither offered nor denied admission to the partner- ship; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued under Title VII of the Civil Rights Act of 1964, charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership. Issue Did Hopkins' firm discriminate against her on the basis of sex? Decision The Supreme Court affirmed the trial court and court of appeals' decision that employment decisions based on sex stereotypes may constitute sex discrimination in violation of Title VII.

What does section 703 in Title VII state?

Section 703 of Title VII states that it shall be an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's race, color, religion, sex or national origin"

What is construct validity?

A method of demonstrating that an employment selection device selects employees based on the traits and characteristics that are required for the job in question

What is a Prima Facie case?

Plaintiff was a member of a protected class, Plaintiff was Qualified for the position he/she sought, or Was performing competently in the position he held, Plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job Some other circumstance suggests discriminatory motive, such as person outside protected class received job.

What is the main military leave provision?

The 2008 National Defense Authorization Act amended the FMLA so that employers must grant eligible employees an unpaid leave of up to 12 weeks during a 12-month period for qualified exigencies

What are the two types of sexual harassment?

Two Types of Harassment: Quid pro quo: Latin meaning "this for that." Hostile work environment.

What are the effects of other laws on FMLA?

Americans with Disability Act/ FEHA Employee may be entitled to additional unpaid leave as a "reasonable accommodation" for a disability. No clear guidelines for how long is reasonable.

What is a military caregiver leave?

An employee may take up to 26 weeks of unpaid leave to care for a family member who is a member of the armed forces and who is undergoing medical treatment, recuperation, or therapy in outpatient status on the temporary disability retired list because of a serious illness or injury Qualifying exigency leave entitles an eligible employee whose spouse, son, daughter, or parent is a military member on covered active duty to take unpaid, job-protected leave to address any of the qualifying exigencies listed in the regulations.

What are some characteristics of disparate treatment?

Intentional discrimination in terms or conditions of employment The employer intentionally treats employees or applicants differently because of their race, color, sex, religion, or national origin

Is Sexual Orientation discrimination banned under Title VII?

Is discrimination based on sexual orientation covered by Title VII? The courts are split so the Supreme Court will likely consider the issue. E.g., "Title VII Bars Sexual Orientation Discrimination, 2nd Circuit Decides." Many state statutes (including California) bar sexual orientation discrimination.

What does the Pregnancy Discrimination Act of 1978 cover?

Pregnancy Discrimination Act of 1978: Amended Title VII to include pregnancy discrimination in the definition of sex discrimination. women affected by pregnancy, childbirth or related medical conditions shall be treated the same as others not so affected but similar in their ability or inability to work. Overruled U.S. Supreme Court decision in General Electric v. Gilbert (1976). Must treat pregnancy same as any other temporary disability.

How does pregnancy and hazardous working conditions work?

Pregnancy and Hazardous Working Conditions On-the-job exposure to harsh substances or potentially toxic chemicals may pose a hazard to the health of employees Employers cannot attempt to avoid potential health problems for pregnant employees by prohibiting women of childbearing age from working in hazardous jobs

How can you show a disparate impact?

Showing a Disparate Impact Four-Fifths Rule: A mathematical formula developed by the EEOC to demonstrate disparate impact of a facially neutral employment practice on selection criteria Minority group must do at least 80% as well as majority group on job screening device or presumption of disparate impact arises Can be rebutted by employer's legitimate business necessity keep in mind this is not a strict rule but only a guideline

What's an example of racial harassment and retaliation?

Skanska USA Building, Inc., a building contractor headquartered in Parsippany, N.J., had to pay $95,000 to settle a racial harassment and retaliation lawsuit brought by the EEOC Skanska violated federal law by allowing workers to subject a class of black employees who were working as buck hoist operators to racial harassment, and by firing them for complaining to Skanska about the misconduct.

How Do I Know What a "Reasonable Person" Is?

The objective severity of the harassment is judged from the perspective of a reasonable person in the complainant's position, considering "constellation of surrounding circumstances, expectations, and relationships" The inquiry is intended to be guided by "common sense, and an appropriate sensitivity to social context." Key Element Unwelcome conduct

Can you elaborate on the burdens of proof?

The plaintiff in a suit under Title VII always carries the burden of proof Prima Facie Case: A case "on the face of it" or "at first sight", often used to establish that if a certain set of facts is proven, then it is apparent that another fact is established Disparate Treatment Claims: Claims of disparate treatment involve allegations of intentional discrimination in employment. A plaintiff alleging disparate treatment must establish that he or she was subjected to less favorable treatment because of his or her race, color, religion, gender, or national origin.

What are the two ways to violate Title VII?

There are two ways that an employer can violate Title VII Disparate treatment happens when plaintiff is intentionally treated differently based on a reason that is illegal under Title VII. Disparate impact occurs when plaintiff is victim of unintentional discrimination; on its face, employment criteria appears to be neutral but, in reality, the result is different treatment based on a reason that is illegal under Title VII.

What is "Gender Plus" Discrimination?

This is employment discrimination based on gender plus another factor such as marital status or being parent of young child(ren) Note that discrimination based solely on marital status is expressly illegal under California's FEHA. This kind of discrimination can serve as "justification" for preferring to hire man instead of woman Example - woman would have to leave work earlier in order to cook dinner for her husband or pick up children from school or day care.

What are the uniform guidelines on employee selection?

Uniform Guidelines on Employee Selection Procedures: Regulations adopted by the EEOC and other federal agencies that provide for methods of demonstrating a disparate impact and for validating employee selection criteria

What are some examples of harassing physical conduct?

Unnecessary touching, rubbing, or invasion of personal space Unnecessary brushing against an individual's body or hair Standing or sitting too close to someone Patting a person on the buttocks or touching an individual's breasts, thighs or genitals Exposing portions of the body to another person Following closely behind someone Giving unwelcome gifts Blowing into someone's ear Blocking or impeding an individual's movement Winking, blowing kisses, licking lips Rubbing or touching oneself sexually in the presence of another Unwelcome hugging or kissing Imitating others movements in derogatory way

What is the coordination between FMLA, CFRA, and PDL like?

CFRA and PDL are separate and distinct FMLA and PDL run concurrently CFRA begins after PDL ends Maximum entitlement in California for both pregnancy disability leave (FMLA and PDL) and CFRA leave for reason of the birth of a child is four months for mother's disability and 12 workweeks for baby bonding

What was the civil rights act of Title VII aimed at?

The Civil Rights Act was aimed at discrimination in a number of areas of society: Housing Public accommodation Education Employment

What are some examples of what is NOT a hostile work environment?

Examples of what is not a hostile environment include Screenwriters' sexually-themed "brainstorming" sessions before which employee was warned - Lyle v. Warner Bros., 38 Cal.4th 264 (2006) ("Friends" case). Isolated comments, jokes and/or touching of a sexual nature - unethical and unfortunate but not illegal. S.B. 1300, just signed into law by Governor Brown, rejects the "stray remarks" doctrine

What are some characteristics of FMLA coverage?

Leave may be unpaid Employees may use PTO, vacation or sick leave as appropriate Employers may require use of paid leave under certain circumstances (i.e., fully unpaid leave) May require medical certification Must pay for employee's health insurance coverage on the same terms as if the employee were actually working

What is criterion-related validity?

A method of demonstrating that an employment selection device correlates with the skills and knowledge required for successful job performance

What is content validity?

A method of demonstrating that an employment selection device reflects the content of the job for which employees are being selected

What are some other federal anti discrimination laws

Age (Chapter 9) and Disability (Chapter 10). Citizenship (Cf. Chapter 5) Genetic Information (Cf. Chapter 4) Uniformed service member status Veteran status

What four elements must be met for a hostile work environment to be present?

In order to constitute environmental harassment, four elements must be met: 1) The conduct must be unwelcome. 2) The conduct must be connected with a protected status (e.g. sex, race) 3) The conduct must be offensive to the recipient (subjective standard) and to a "reasonable person" (objective standard) 4) The conduct must be severe or pervasive.

What was the US Supreme Court's decision on Griggs V. Duke Power Company

Neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted without meaningful study of their relationship to job-performance ability. Employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.

What does California's FEHA say about sexual harassment?

"It is an unlawful employment practice . . . "(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract." (j)(3) "An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action."

What is sexual harassment according to the EEOC?

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

What is the administration behind Title VII

Administered by the Equal Employment Opportunity Commission (EEOC). Regulations and guidelines require that employers, unions, and employment agencies post EEOC notices summarizing the act's requirements. The act further requires that those covered keep records relevant to the determination of whether unlawful employment practices have been, or are being, committed. Covered employers must maintain payroll records and other records relating to applicants and to employee promotion, demotion, transfer, and discharge.

Can you elaborate on Bona Fide Occupational Qualifications (BFOQs)?

An exception to the civil rights law that allows an employer to hire employees of a specific gender, religion, or national origin when business requires it

What is the California Family Rights Act?

CFRA leaves largely identical to original FMLA leaves, except Leave to care for domestic partners and domestic partner's children are covered under CFRA but not FMLA (moot?). Military caregiver and exigency leaves are covered under FMLA but not CFRA. Disability for pregnancy, childbirth, or a related medical condition is not a serious health condition under CFRA.

How do dress codes and grooming requirements work in regards to sex discrimination?

Dress Codes and Grooming Requirements Title VII prohibits imposing different working conditions or requirements on similarly situated male and female employees because of the employee's gender

What was the concurring opinion of Justice Scalia in the Harris v. Forklift Systems Inc. case?

Concurring Opinion by Justice Scalia: "'Abusive' (or 'hostile,' which in this context I take to mean the same thing) does not seem to me a very clear standard. "And I do not think clarity is at all increased by adding the adverb 'objectively' or by appealing to a 'reasonable person['s]' notion of what the vague word means. "As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. "Be that as it may, I know of no alternative to the course the Court today has taken. One of the factors mentioned in the Court's nonexhaustive list—whether the conduct unreasonably interferes with an employee's work --provide greater guidance to juries and employers. But I see no basis for such a limitation in the language of the statute.

What is the California Pregnancy Disability leave?

Covered Employers Employers with 5 or more full or part-time employees Eligible Employees All female employees, regardless of length of service, who are disabled by pregnancy, childbirth or medical conditions A pregnant employee who is actually disabled by a pregnancy-related condition is entitled to a leave of absence for a reasonable period of time not to exceed four months Pregnancy leave does not have to be taken in one consecutive period of time Accumulated periods of leave may be totaled in computing up to four months of leave Employer must pay for health insurance benefits on standard terms

How is a case established?

Defendant's Burden If the plaintiff is successful in establishing a prima facie case of disparate treatment, defendant must then articulate a legitimate, nondiscriminatory reason for its decision. Plaintiff's Burden of Showing Pretext Plaintiff must then offer substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two

Can you elaborate on disparate impact?

Employee or applicant alleges employer's facially neutral policy or qualification has an adverse impact on protected Title VII group. Note - "protected" group can be any group adversely impacted; e.g., white man can be protected in race or gender discrimination case. Look at the real-life effect of a job qualification, company policy, etc. since no intent is needed for a disparate impact case.

What are the facts, issues, and decision of EEOC V. Dial Corp.

Facts: A Dial plant located in Fort Madison, Iowa, produces canned meats. Liles filed a discrimination complaint with the EEOC in August 2000. The EEOC claimed that the use of the WTS test had an unlawful disparate impact on female applicants. Issue: Has Dial proven that use of the Work Tolerance Screen Test to screen applicants for employment was a business necessity because it reduced the number of injuries in the sausage production area? Decision: The Court of Appeals upheld the district court findings of a disparate impact on female applicants and that Dial had not shown that the WTS was required as business necessity. The court affirmed the trial court finding that Dial was liable for back pay and benefits.

What are the facts, issues, and decisions of Fuller v. Edwin B. Stimpson Co. inc.

Facts: Elzie Fuller, III, an African-American male, appealed the district court's grant of defendant Edwin B. Stimpson Company, Inc.'s motion for summary judgment as to Fuller's claims alleging race discrimination in violation of Title VII and the Florida Civil Rights Act, arising out of his long-term employment with Stimpson and his termination in 2009 as part of a reduction in force. On appeal, Fuller argued that he established a prima facie case of race discrimination. Issue: Did the employer have an illegal motive for terminating Fuller's employment? Decision: No. The court found that Fuller failed to establish a prima facie case of race discrimination. As for the four comparators Fuller identifies on appeal, only employee Jack Shuck was identified in Fuller's motion for partial summary judgment as a comparator regarding attendance. In any event, Fuller was either late to work or left early on 57 occasions in 2008, whereas none of the four individuals identified here had more than 16 total late arrivals and early departures that year, so they are not valid comparators.

What are the facts, issue, and decision of University and Community College of Nevada v. Farmer?

Facts: Farmer sued the University and Community College System of Nevada ("the University") claiming violations of Title VII of the Civil Rights Act, the Equal Pay Act and for breach of an employment contract. Issue: Was the legality of the University's affirmative action plan under both Title VII and the U.S. Constitution? Decision: The court held that the jury was not equipped to understand the necessary legal basis upon which it could reach its factual conclusions concerning the legality of the University's affirmative action plan.

What are the facts, issue, and decision of Ambat v. The City and County of San Francisco?

Facts: In 2006, the San Francisco Sheriff 's Department implemented a new policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the county. According to San Francisco Sheriff Michael Hennessey, who had held his position since 1980, he adopted the policy to protect the safety of female inmates from sexual misconduct perpetrated by male deputies and promote the inmates' rehabilitation. Issue: Did the SFSD articulate a bona fide occupational qualification for its rule forbidding male guards from supervising female inmates? Decision: The justifications offered by the county in support of the policy each spoke to extremely important concerns, according to the court, which added that "the Sheriff is to be commended for his attention to the welfare of female inmates in San Francisco's jails." However, continued the appellate judges, the fact that the policy sought to advance such important goals as inmate safety was not, by itself, sufficient to permit discrimination on the basis of sex. Remanded.

What are the facts, issue, and decision of Ricci V. Destefano?

Facts: New Haven, Connecticut, used objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results, the City threw out the results based on the statistical racial disparity. Issue: Did the City's affirmative action of discarding the test results amount to disparate treatment of the successful white and Hispanic test-takers on the basis of race and in violation of Title VII? Decision: Yes. The problem for the City, said Justice Kennedy's majority opinion, was that showing a significant statistical disparity between white and black test-takers, standing on its own, was not a solid enough basis for tossing the tests.

What are the facts, issue, and decision of Novak V. Metrohealth Medical Center?

Facts: Novak, an employee of Metrohealth Medical Center, was terminated after exceeding the company's number of hours of unexcused absence. Novak missed work due to back pain and helping care for her 18-year-old daughter's baby. The daughter allegedly suffered from postpartum depression. Novak filed suit against MetroHealth, alleging interference with her FMLA rights. Issue: Whether Novak was entitled to FMLA leave because of her back pain and/or her caring for her daughter and her grandson Decision: The court of appeals held that Novak was not entitled to FMLA leave. The court therefore affirmed the dismissal of Novak's FMLA claims.

What are the facts, issue, and decision o McDonnell Douglas Corp. v. Green?

Facts: Petitioner, McDonnell Douglas Corporation, is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964 when he was laid off in the course of a general reduction in petitioner's work force. Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. Later, petitioner publicly advertised for qualified mechanics, respondent's trade, and respondent promptly applied for reemployment. Petitioner turned down respondent, basing its rejection on respondent's participation in the "stall-in." Issue: Was the former employee denied employment "because of his involvement in civil rights activities"? And is this protected activity under Section 704(a)? Decision: No. The court found that nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it. But the court stated that on remand, the respondent must be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretextual.

What are the facts, issue, and decision of Harris v. Forklift Systems Inc.?

Facts: Teresa Harris worked as a manager at Forklift Systems, Inc. Charles Hardy was Forklift's president. Hardy often insulted Harris because of her gender. Harris then sued Forklift, claiming that Hardy's conduct had created an abusive work environment for her because of her gender. The trial Court found this to be a "close case," but held that Hardy's conduct did not create an abusive environment. On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the trial court decision. Issue: Whether Charles' abusive work environment amounted to hostile environment harassment and violated Title VII. Decision: The U. S. Supreme court reversed the judgment of the Court of Appeals, finding the sexual harassment of Harris to constitute hostile environment "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Meritor Savings Bank v. Vinson (1986). This standard . . . takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. But Title VII comes into play before the harassing conduct leads to a nervous breakdown.

Elaborate on the Griggs V. Duke Power company incident

Facts: Duke Power Company is an electrical utility company operating in North Carolina. Griggs and a group of other African-American employees brought suit against Duke Power, alleging that the high school diploma requirement and the aptitude test requirements violated Title VII. Issue: Did Duke Power Company violate Title VII? Decision: The District Court also concluded that Title VII was intended to be prospective only and not retroactive, and therefore, the impact of prior discrimination was beyond the reach of the Act The Court of Appeals concluded there was no violation of the Act. Griggs then appealed to the U.S. Supreme Court.

Can you elaborate on gender stereotyping?

Gender Stereotyping: When a person is treated differently because he/she does not conform to the typical social norms expected of his/her gender Examples: Overly aggressive women; effeminate men This is an assumption or belief that members of one gender must act, dress, groom, etc. in certain "gender-appropriate" ways Example - "bad behavior" (e.g., foul language, drinking, sexual activity) is often more tolerated for a man but not a woman who is held to higher "moral" standard.

What is the only exception to Title VII discrimination?

Gender as a BFOQ Title VII does allow employers to hire only employees of one sex, or of a particular religion or national origin, if that trait is a BFOQ

How does affirmative action and reverse discrimination work?

Giving preference in hiring or promotion to qualified female or minority employees. Employees who are not members of this group may therefore be at a disadvantage for hiring or promotion. Title VII does not require employers to enact affirmative action plans However, the courts have often ordered affirmative action when the employer has been found in violation of Title VII. Federal and state contractors generally required to have affirmative action plans

What do a growing number of cities and states mandate?

In 2004, the state of California became the first state to provide for temporary paid family leave through the state's disability insurance program. In 2015, California, Rhode Island, and New Jersey lead the nation in offering broad paid family and medical leave insurance programs for their residents, with significant positive impacts. In addition, Ohio, Virginia, and Illinois offer paid parental leave for state employees, while Washington, D.C.; St. Paul and Brooklyn Park, Minnesota; St. Petersburg, Florida; San Francisco, California; Chicago, Illinois; and Austin, Texas offer these benefits for their municipal employees.

In California what three overlapping statutes must employers abide by?

In California, employers must comply with three overlapping statutes: The federal Family and Medical Leave Act ("FMLA") The California Family Rights Act ("CFRA") California Pregnancy Disability Leave ("PDL")

What are some case examples for affirmative action

In Johnson v. Transportation Agency, Santa Clara County, California,19 the U.S. Supreme Court held that an employer can justify the adoption of an affirmative action plan by showing that "a conspicuous ... imbalance in traditionally segregated job categories" exists in its workforce. When considering the legality of affirmative action programs under the U.S. Constitution, the approach used by the courts is slightly different from the approach used in Title VII cases. In Wygant v. Jackson Board of Education20 and in Adarand Constructors, Inc. v. Pena,21 the U.S. Supreme Court held that affirmative action plans by public sector employers must pass the strict scrutiny test under the U.S. Constitution, requiring: (1) the affirmative action plan must serve a "compelling governmental interest," and (2) it must be "narrowly tailored" to further that compelling interest.

What must an employer demonstrate if a plaintiff shows that an employer considered an illegal factor in an employment decision?

In Price Waterhouse v. Hopkins, the Supreme Court held that when a plaintiff shows that the employer has considered an illegal factor under Title VII (race, sex, color, religion, or national origin) in making an employment decision, the employer must demonstrate that it would have reached the same decision if it had not considered the illegal factor. The 1991 amendments to Title VII addressed this "mixed-motive" situation and partially overruled the Price Waterhouse decision. In Desert Palace, Inc. v. Costa,14 the Supreme Court held that a plaintiff need only "demonstrate" that the defendant used a prohibited factor (race, color, gender, religion, or natural origin) as one of the motives for an employment action.

Can you elaborate of the "unwelcome conduct" of sexual harassment?

In order for a sexual harassment case to prevail, the employee must show that the employer's conduct was "unwelcome" Since consensual ("welcome") conduct cannot be the basis for a sexual harassment case. Conduct is "unwelcome" or "unwanted" if the person subjected to it considers it as such (whether they express it or not) Whether conduct is "unwelcome" can be hard to prove - what if the employee does not object or actually participates in or approve of subject conduct, such as Employee's participation in sexually-themed conversations. "Consenting adults" defense. Provocative clothing = consent?

What is the employer's liability for sexual harassment?

In this PowerPoint presentation, generic reference has been made to "employer" as the perpetrator of sexual harassment. However, the employer may not be the perpetrator (or may not even be a person such as a corporation); instead, the perpetrator may be a supervisor, co-worker, vendor or customer. What should be the employer's liability for sexual harassment committed by a supervisor, etc.? Employers are liable for sexual harassment by supervisory or managerial employees Agency Relationships Supervisors or managerial employees, acting in the course of their employment, are generally held to be agents of the employer Employer Liability for Supervisors An employer is liable for harassment by a manager or supervisor because such conduct is related to the supervisor's or manager's job status Employer Liability for Coworkers & Nonemployees For both quid pro quo harassment and hostile environment harassment by nonsupervisory or nonmanagerial employees, an employer will be liable if it knew of, or should have known of, the harassing conduct and failed to take reasonable steps to stop it Individual Liability The courts have held that individual employees are not liable for damages under Title VII; this means that the employee doing the harassing will not be held personally liable for damages under Title VII. However California law provides for personal liability in the part of the individual harasser(s).

What are additional protected classes in California?

Marital status Sexual orientation Gender Gender identity Gender expression Breastfeeding and related medical conditions Ancestry Genetic information Medical condition (cancer) Military and veteran status

What's a mixed motive case?

Mixed-motive cases: When an employer can prove that, without considering an illegal factor under Title VII, the same employment decision would have been made, the employer is not liable under Title VII

What is one way employer's can avoid harassment liabilities?

One way for an employer to avoid or limit sexual harassment liability is to have policies and procedures in place which either prevent or remedy sexual harassment. Training is also mandatory in California Example: Leadership from the top

How does Retaliation under Title VII work?

Plaintiffs must show that They were engaged in an activity protected under Title VII or opposed a practice prohibited by Title VII They suffered an adverse employment decision or employment action There was a causal link between the protected activity and the adverse employment decision The "protected activity" must be related to either the participation clause or the opposition clause of Section 704.

Can you elaborate on the coverage of Title VII

Prohibits the refusal or failure to hire any individual, the discharge of any individual, or the discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of that individual's race, color, religion, sex, or national origin. Title VII, as amended, applies to employers, labor unions, and employment agencies. State and local governments are also covered by Title VII; the federal government and wholly owned U.S. government corporations are covered under separate provisions of Title VII. The 1991 amendments to Title VII extended the coverage of the act to American employers that employ U.S. citizens abroad. Labor unions with at least 15 members or that operate a hiring hall are subject to Title VII. Title VII covers all levels and types of employees. U.S. citizens employed anywhere in the world by American employers are protected by Title VII. However, non-U.S. citizens employed by American employers are covered by Title VII only in the U.S.

What are the provisions and defenses of the equal pay act of 1964?

Provisions: A plaintiff claiming violation of the Equal Pay Act must demonstrate that the employer is paying lower wages to employees of the opposite sex who are performing equal work in the same establishment Equal, or substantially equivalent, work involves equal Effort Skill Responsibility Working conditions Defenses: Pay differentials do not violate the act if they are due to... Seniority system Merit pay system Productivity-based pay system A "factor other than sex"

When does the FMLA cover and apply to employees?

Public sector employers are covered without regard to the number of employees Private sector employers with 50 or more employees within 75 miles of a workplace Employees of covered employers are eligible for leave under the act if they have been employed for at least twelve months have worked at least 1,250 hours of the twelve-month period immediately preceding the leave

What are qualified exigencies?

Qualified exigencies include the following issues arising from the call to active duty status of a family member: short notice deployment military events and related activities certain child care and related activities making or updating financial or legal arrangements attending counseling taking up to five days of leave to spend time with a family member who is on short-term, temporary rest and recuperation leave during deployment attending certain postdeployment activities

Can you elaborate on some difficulties with a seniority system in regards to Title VII

Seniority: Length of service on the job Frequently used to determine entitlement to employment benefits, promotions or transfers, and job security May have a discriminatory effect when an employer, prior to the adoption of Title VII, refused to hire women or minority workers If, after Title VII's adoption, the employer does hire them, those workers will have the least seniority The layoffs by inverse seniority have a disparate impact on women and minorities Title VII immunizes employment actions under a "bona fide seniority system" Neutral on its face No intentional discrimination in its origin Maintained free from intention discrimination Reasonable in light of business practice

When do employees have an entitlement to serious health condition?

Serious Health Condition: Means an illness, injury, impairment or physical or mental condition that involves: inpatient care or absence of three or more days from work or school, or absences to receive multiple treatments from a health care provider includes pregnancy

What is sex discrimination and what is an exception to the matter?

Sex Discrimination Title VII prohibits any discrimination in terms or conditions of employment because of an employee's sex Bona Fide Occupational Qualification (BFOQ): An exception that allows an employer to hire employees of a specific gender, religion, or national origin when business necessity (the safe and efficient performance of the particular job) requires it Note: Race is not listed in the statute.

What is the California statue covering protected classes in employment?

The California statute governing discrimination in employment is the California Fair Employment and Housing Act ("FEHA") California does not have separate laws governing different types of discrimination. Virtually all types of discrimination are covered by FEHA FEHA also has a specific, statutory prohibition on Harassment on account of the listed protected classes

What does the equal pay act of 1963 do?

The Equal Pay Act of 1963: Federal legislation that requires that men and women performing substantially equal work be paid equally The act applies to all employers "engaged in commerce (interstate commerce)," and it applies to all employees of an "enterprise engaged in commerce." Virtually all substantial business operations are covered.

What is the Family and Medical Leave Act?

The Family and Medical Leave Act allows eligible employees to take up to twelve weeks' unpaid leave in any twelve months because of the birth, adoption, or foster care of a child the need to care for a child, spouse, or parent with a serious health condition the employee's own serious health condition makes the employee unable to perform functions of his or her job

What federal office does the equal pay act of 1963 cover?

The act also covers state and local government employees. The Congressional Accountability Act of 199511 extended the coverage of Fair Labor Standards Act to federal employees of these offices: House of Representatives Senate Capitol Guide Service Capitol Police Congressional Budget Office Office of the Architect of the Capitol Office of the Attending Physician Office of Technology Assessment

What are some characteristics of disparate impact?

The discriminatory effect of apparently neutral employment criteria or selection devices; does not require intention to discriminate on the part of the employer The employment criteria or selection device disproportionally disqualifies employees based on race, color, sex, religion, or national origin

Can you elaborate of quid pro quo sexual harassment?

The employer (perpetrator) demands that the employee (victim) provide something of a sexual nature in exchange for a job-related benefit. In other words, the employer makes something of a sexual nature (instead of merit, seniority, etc.) a condition of getting a job-related benefit . . Or avoiding a job-related detriment. Can be based on one incident though can also be based on a series of events. Examples of "something of a sexual nature" can include a sex act, date, disrobing, etc. Examples of "job-related benefit" can include getting or keeping the job, getting a promotion, preference in granting requested assignments, vacation time or work conditions, etc.

What does Title VII of the Civil Rights act outlaw?

Title VII of the Civil Rights Act deals with discrimination in employment It became the foundation of modern federal equal employment opportunity (EEO) law

What does Title VII of the Civil Rights deal with

Title VII of the Civil Rights Act deals with discrimination in employment It became the foundation of modern federal equal employment opportunity (EEO) law

Is Same Sex harassment included in Title VII?

Title VII prohibits discrimination because of sex in terms or conditions of employment, including sexual harassment by employees of the same sex as the victim of the harassment.

What are some examples of harassing verbal or visual conduct?

Unwelcome flirtations, advances, or propositions (e.g., whistling, leering, staring, cat calls) Repeated requests for a date with someone who has not expressed interest Jokes, slurs, epithets or stories of a sexual nature (or racial, religious, ethnic, etc.)—often with innuendo Sexually suggestive or inappropriate remarks or innuendos: "Wow, nice legs!" or "You should really wear more tight-fitting tops!" or "You people are so lazy!" Making or using derogatory comments, epithets, slurs, and jokes Graphic verbal commentaries about an individual's body, degrading words to describe an individual, suggestive or obscene letters, notes or invitations Using expressions which can be belittling such as "honey", "dear", "sweetheart", "little lady", "lady manager" or "lady supervisor." Using offensive terminology in other languages Inappropriate photos, displays, paraphernalia—(i.e. Sports Illustrated swimsuit calendar, nude photos, dildos, etc.) Inappropriate e-mails, text messages, postings on social networking websites of a sexual or derogatory nature Imitating others in a derogatory manner

Can you elaborate on business necessity?

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