HR LAW2 – Flashcards

prohibits employment discrimination based on race, color, religion, sex, or national origin;in all employment practices for companies with 15 or more employees engaged in interstate commerce, unions & employment agencies covered.

Religious establishments (if religion is BFOQ), Native American reservations, private clubs (membership, not employees)

compensatory & punitive damages allowed; may request jury trial. Damages in all but race & national origin capped at $300,000 depending on number of employees

1. Claimant or charging party must file with federal or state EEO office (within 180 days of discriminatory event 2. Emphasis on conciliation rather than litigation 3. Employer notified within 10 days of charge 4. Antiretaliation provisions /Burlington Northern Santa Fe Railway Co. v. White., 2006 5. EEOC screen all new charges for mediation referral. Complex and weak cases will not be referred for mediation.

Back pay, Front pay, Retroactive seniority, Damages= compensatory damages (Title VII and ADA cases involving intentional discrimination) • punitive damages (Title VII and ADA cases in which the employer acts with reckless disregard of the federally protected rights of the individual)

o $50,000 for employers with 15-100 employees o $100,000 for employers with 101-200 employees o $200,000 for employers with 201-500 employees o $300,000 for employers with more than 500 employees. Jury Trials: CRA of 1991, jury trials are allowed at the request of the claimant or employer

Guidelines issued by EEOC & other government agencies

Disparate treatment arises when an employer "treats some people less favorably than others because of their race, sex, national origin, and religion."

1. Member of protected group 2. Qualified 3. Employer made employment decision that adversely affected employee or applicant 4. Others not in the protected class treated more favorably.

1. Show decision based on nondiscriminatory reason (need not be a valid reason; just equally applied) OR 2. Bona Fide Occupational Qualification (BFOQ) In rare circumstances, it is an objective fact that no member of a protected class can perform a particular job. A BFOQ is permissible discrimination based on a criterion such as sex or religion for authenticity (female role in a movie) or privacy (male washroom attendant). The employer must show both: 1. That all persons of the excluded would be unable to perform the requirements of the job; and 2. The requirements of the job directly relate to the essence of the employer's business.

1. Proving Intent: May use direct evidence (must be substantial, not just a stray comment) or one of the following forms of circumstantial evidence= Comparative evidence or statistics 2. Mixed Motives: The plaintiff need only prove that membership in a protected class was a motivating factor in the employment decision, not the sole factor. 3. After-Acquired Evidence: Under the doctrine, employers after firing an employee or taking other adverse action, justify their actions by relying on evidence uncovered after the employee's termination that would have justified the termination. The Supreme Court ruled the employer is still liable for having violated an antidiscrimination law but that the employee is not entitled to reinstatement or to back pay for the period after the employer learns of the misconduct. After-acquired evidence such as lying on job application may be used to limit employer liability but not negate it.

Similarly situated employees, not in plaintiff's protected group, treated more favorably or did not receive the same adverse treatment. Suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn."

Arises when an employer's practice is "facially neutral . . . but . . . in fact falls more harshly on one group than another."

Step 1 Plaintiff provides prima facie evidence (statistics) 1. Four-Fifths rule (80 percent rule) used by the EEOC to determine when reasonable cause exists. Applies to any HRM process including selection, promotion, training, and discipline. 2. Hiring data: comparison of the ratio of minorities in the company and the total company work force with minorities in the local population and the total local population. 3. Labor market data (relevant geographic area) ratio of "qualified" minorities in the labor market and all minorities in the labor market to "qualified" majorities in the labor market and all majority members in the labor market. Step 2 Defendant attempts to show discrimination justified using one of two defenses. 1. Business Necessity, employment practice has a direct and obvious relationship to successful performance of the job in question. May use cost, economic data, scientific research, or logic. DO NOT CONFUSE WITH BFOQ!!! 2. Job related: Permissible discrimination based on valid measurement. Employer must show a relationship between the HR practice and employee performance. More specific to the job than business necessity. Must show direct evidence. Step 3 Plaintiff proposes equally valid but less discriminatory alternative.

In response to Gilbert ruling. Pregnancy is treated on the same basis as any other medical disability. In General Electric Co. v. Gilbert, the Supreme Court ruled that a health insurance plan for employees providing sickness and accident benefits for any disability but those arising as a result of pregnancy did not constitute sex discrimination under Title VII, although the court acknowledged that only women can become pregnant.

(1) codified adverse impact theory stating that the plaintiff need only establish a prima facie case; (2) clarified mixed-motive defense; (3) extended Title VII protection to U.S. citizens employed in foreign countries by American-owned or controlled companies; (4) prohibited "race norming;" (5) allowed compensatory damages for pain suffering in adverse treatment cases and jury trials; (6) confirmed that CRA of 1866 applies to all employment related disputes.

Title VII of 64- protects those in these groups; race, religion, sex, national origin, and color. , CRA of 91- an amendment to title VII, ADA- those who have, have had or are perceived to have a disability , ADEA- those over the age of 40, EPA - equal pay for equal work

All employers with 15 or more employees are covered by the CRA/ title VII/ ADA. ADEA) covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations. The Equal Pay Act (EPA) covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.

Sex, color, race, religion, national origin. Age, disability.

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court.

Back pay - pay for time when claimant not working due to illegal termination. Front pay - pay claimant would have earned if not for the discrimination. Retroactive seniority. Damages. compensatory damages (Title VII and ADA cases involving intentional discrimination)• punitive damages (Title VII and ADA cases in which the employer acts with reckless disregard of the federally protected rights of the individual) • the sum of punitive damages and future compensatory damages may not exceed the following amounts, per person:

A reasonable accommodation is any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of "reasonable accommodations": i. changes to a job application process ii. changes to the work environment, or to the way a job is usually done iii. changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training).

The plaintiff need only prove that membership in a protected class was a motivating factor in the employment decision, not the sole factor

Discrimination on the basis of an immutable characteristic associated with race, such as skin color, hair texture, or certain facial features violates Title VII, even though not all members of the race share the same characteristic.

BURLINGTON NORTHERN & SANTA FE RAILWAY CO. v. WHITE

Disparate treatment is unequal treatment equaling unequal results and adverse impact is fair on its face but produces unequal results. To establish a prima facie case for adverse impact the plaintiff must show statistics proving their claim. Acceptable statistics include the 4/5th's rule, labor market data, or hiring data. To establish a prima facie case for disparate treatment the plaintiff must be a member of the protected class, be qualified, have suffered an adverse HRM decision, and show the non-protected class is treated better. The burden of proof is on the plaintiff and after they prove their prima facie case the burdon is placed upon the defendant to justify the practice. Statistics used in adverse impact are the 4/5ths rule, hiring, and labor data. Hiring data=MinComp+TC:MLP+TLP Labor Market data: QMinLM+TMinLM:QmajLM+TMajLM Statistics used in disparate treatment are admissible but their usefulness depends on their relevance in the particular case affecting the individual plaintiff

Business necessity: practice has an obvious and direct link to successful job performance, or job relatedness: permissible discrimination based on valid statistics

BFOQ: That all persons of the excluded class would be unable to perform the requirements of the job; and The requirements of the job directly relate to the essence of the employer's business. Or proving that the method is credible, nondiscriminatory and applied equally to all.

we are using selection for employment tests such as in the case of proving selection procedure is job related.

A BFOQ is permissible discrimination based on a criterion such as sex or religion for authenticity (female role in a movie) or privacy (male washroom attendant). The employer must prove that his or her hiring decision falls within the very narrow limits allowed by the BFOQ defense. The employer must show both: That all persons of the excluded would be unable to perform the requirements of the job; and The requirements of the job directly relate to the essence of the employer's business. A Business Necessity - employment practice has a direct and obvious relationship to successful performance of the job in question. Requiring infant CPR to be a day care worker

case that established adverse impact theory of discrimination

The McDonnell Douglas case established the order and framework that employment discrimination cases must follow: 1. The plaintiff (employee) must first establish a prima facie case of discrimination. 2.The defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions Or BFOQ. The employer must show both: That all persons of the excluded would be unable to perform the requirements of the job; and The requirements of the job directly relate to the essence of the employer's business If this occurs, then the presumption of discrimination dissipates. 3. Proving Intent - May use direct evidence (must be substantial, not just a stray comment) or one of the following forms of circumstantial evidence. Comparative evidence,statistics, or mixed motive

Similarly situated employees, not in plaintiff's protected group, treated more favorably or did not receive the same adverse treatment. Suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn."

Do not confuse with adverse impact when used in a disparate treatment case

The plaintiff need only prove that membership in a protected class was a motivating factor in the employment decision, not the sole factor.

Cloutier v. Costco Wholesale Corp. 1st Cir - Costco's interest in promoting a "neat, clean and professional image" outweighed an employee's belief that her facial piercings needed to be displayed. The Court found that "religious accommodation amounts to an undue hardship when it would impose upon an employer more than a de minimus cost."

(1) codified adverse impact theory stating that the plaintiff need only establish a prima facie case; (2) clarified mixed-motive defense; (3) extended Title VII protection to U.S. citizens employed in foreign countries by American-owned or controlled companies; (4) prohibited "race norming;" (5) allowed compensatory damages for pain suffering in adverse treatment cases and jury trials; (6) confirmed that CRA of 1866 applies to all employment related disputes.

Citizenship status discrimination--when individuals are rejected for employment or fired because they are or are not U.S. citizens or because of their immigration status or type of work authorization. U.S. citizens, permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. National origin discrimination--when individuals are rejected for employment or fired based on their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign." All work authorized individuals are protected from national origin discrimination. OSC has this jurisdiction over smaller employers, not covered by the EEOC. Document abuse discrimination-- when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents or specify certain documents over others. All work authorized individuals are protected from document abuse

Quid Pro Quo - employee required to engage in certain activity in exchange for workplace entitlements or benefits such as promotions, raises, or continued employment (most cases related to sex discrimination)• Hostile Work Environment - Must demonstrate all of the following 1. Harassment unwelcome 2. Based on membership in protected class 3. Sufficiently severe or pervasive to create an abusive working environment (;reasonable women or reasonable victim; standard) 4. Affects term, condition, or privilege of employment 5. Employer knew or should have known and did not take prompt or adequate remedial action (basis for imputing liability to the employer)

The Supreme Court held that the ADA allows "using qualification standards (Affirmative Defense) ... that screen out or tend to screen out disabled individuals" if the qualification standard is "shown to be job-related ... and ... consistent with business necessity."

A prima facie case under the CRA of 64 involves proving the case through statistics; such as, 4/5ths rule, Hiring data=MinComp+TC:MLP+TLP Labor Market data: QMinLM+TMinLM:QmajLM+TMajLM A prima facie case under the ADEA involves 4 things: membership in protected group (age 40+), qualified, suffered adverse employment decision, members not in protected group treated better

American's with disability act. Anyone with a disability, who has had a disability or is perceived to have a disability. A disability is a - Physical or mental impairment that substantially limits one or more major life activities such as walking, talking, seeing, hearing, breathing, or learning. Recent Supreme Court decisions have narrowed the definition. A. History of drug and alcohol addiction covered but behavior is not covered Sullivan v. Neiman Marcus Group, 358 F.3d 110 (1st Cir., 2004) B. Mental illnesses such as depression covered but negative personality traits, bad conduct, and mere symptoms of mental or psychological disorder not covered C. Must be based on current medical knowledge and best available evidence D. Must have history or record of impairment or be perceived as impaired. There is no liability if employee/applicant is disabled but the employer did not know of the disability.

No, Sam has no case because the ADA states that employers do not have to provide accommodations for impairments that are transitory or minor with an expected duration of 6 months or less. In addition, since climbing is a business necessity accommodating Sam might be an undue hardship.

Based on the information provided in this exercise, Cora has a case of disparate treatment. The four fifths rule adds credence to her case. It is now up to the employer to use either the BFOQ defense or to prove that the reason for not hiring the protected class is credible and applied equally to all. 100% of the white applicants were selected under 4/5ths 64 percent of the Asian applicants should have been selected. However, only 33% of the Asian applicants were selected.

James has no sexual harassment case unless the teasing was related to his sex or a perceived failure to conform to male gender norms. The information given in this case indicates that he was teased for being socially awkward. Socially awkward single people who live with their parents are not part of any protected class. In order to have a sexual harassment case five criteria must be present: 1) harassment based on protected class status 2) harassment unwelcome 3) Employer knew or should have known 4) severe or persuasive 5) affects term, condition or privilege. James may have a case on intentional infliction of emotional distress. In order to have a case of IIED four things must be present: The conduct by the defendant was outrageous or extreme 2. The defendant, by intention or reckless disregard, caused the emotional distress 3. The plaintiff did, indeed suffer emotional distress 4. The proximate cause of the emotional distress was by the defendant's actions

Johnson Controls is violating title VII because they are only asking for proof of sterility from female applicants. All employees are exposed to the same chemicals but only females are facing disparate treatment.

The ADEA only applies to people over the age of 40. Therefore, if Ms. Adams chooses to not hire people under the age of 30 she has not violated any laws.

No, because in a similar case, Anderson v. VSF Logistics the seventh circuit court ruled that the phrase is not a requirement of the religion and an employer does not have to satisfy an employee's every desire.

No, because the unmarried and childless are not a protected class.

the construction company may be violating fed law because the comprehension test is causing adverse impact. In order to defend themselves from these charges they must vaidate the test and show that a 75 cut-off score is job related or that it is a business necessity.

disparate treatment

While depression is covered by the ADA the bad conduct that Mary is exhibiting is not. The company has not violated the ADA and Mary has no case.

No, the policy creates adverse treatment. Only males are fired following complaints females should also be fired if a complaint is lodged against them. The policy needs to be equally applied; in addition, following investigation of the complaint the complainant should also be fired if the complaint is false.

McKnight falls into the protected class group under both the ADA and the ADEA. However, this ADEA case information fails the burden of proof test. McKnight is a member of the protected group, he is qualified and the HR decision has adversely affected him, but there is no proof that others who are not in the protected group are being treated more fairly. Regarding an ADA case McKnight does meet the burden of proof. He is a member of the protected group, he is qualified, the HRM decision adversely affected him and the subgroup is not affected by the hiring policy. The employer could defend themselves on the basis of BFOQ and by showing that the members of the protected group would be unable to fulfill the requirements of the job. For example it would make sense for UPS to not hire anyone with a DUI conviction in the past 7 years; however, for a DUI conviction to bar the hiring of a office bound employee would make little sense. In fact, the EEOC advises employers to deny employment based on a conviction only if the conviction relates to the applicant's suitability for the job.

No, this is a clear case of failure to provide accommodation. The prayer cap, although not a required part of the Muslim faith is religious garb in the tradition of Mohammed. Furthermore, the cap does not obscure or restrict the therapist from performing his duties. The hospital is in the position to allow the therapist to continue wearing the cap without incurring an undue hardship on operations. The Brown v. USPS decision supports this.