4.16.24 21st Century Movements for Black Lives.pptx
Chapter 51 – Employment Law
1. C H A P T E R
51
Employment Law
Take care of those who
work for you and you’ll
float to greatness on
their achievements.
H.S.M. Burns, quoted in
Men at the Top (Elliott,
1959)
51-1
2. Learning Objectives
• Identify and describe legislation
protecting worker safety, health,
and well-being; regulating wages
and hours, pensions and benefits,
and income security; and that
governs unionized workforces
• Explain employment-at-will
doctrine and its major exceptions
51-2
3. Overview
• Historic rule of law: employment at will
– Employer may fire an employee for any
(or no) reason
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4. Overview
• Modern employment law: employment
at will unless the employee is protected
by a statute in several categories:
– Employee Health, Safety, and Well-Being
– Employment Security
– Financial Protection
– Employment Discrimination
– Employee Privacy
51-4
6. Workers’ Compensation
• Workers’ compensation protects only
employees (not independent contractors)
– Some state laws exempt certain
categories of employees or employers
• When applicable, worker’s compensation
laws allow injured employees to recover
under strict liability
– Removes need to prove employer
negligence and eliminates employer
defenses
51-6
7. Exclusive Remedy
• Workers’ compensation is an employee’s
exclusive remedy against an employer for
covered injuries
– Unless employer acted intentionally
• Types of recovery: hospital and medical
expenses, (2) disability benefits, (3)
specified recoveries for loss of certain
body parts, and (4) death benefits to
survivors and/or dependents
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8. Work-Related Injuries
• Employees recover only for work-related
injuries – those injuries that:
1. Arise out of the employment
• Close relationship between nature of
employment and injury
2. Happen in the course of employment
• Injury occurred within time, place, and
circumstances of employment
• See Darco Transportation v. Dulen
51-8
9. Agency Administration
• In general, a state agency administers
workers’ compensation systems to
handle and adjudicate workers’ claims
• States fund workers’ compensation by
requiring covered employers to
purchase private insurance, make
payments into a state fund, or self-
insure with a contingency fund
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10. OSHA
• The federal Occupational Safety and
Health Act imposes a duty on
employers to provide their employees
with a workplace and jobs free from
recognized hazards that may cause
death or serious physical harm
• The Occupational Safety and Health
Administration (OSHA) issues and
enforces supporting regulations
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11. OSHA Rules & Enforcement
• OSHA requires employers
to inform, train and
protect employees,
especially with regard to
hazardous materials and
equipment
• OSHA is authorized to
inspect a workplace and
issue citations for violations
of the act and regulations
51-11
12. Family & Medical Leave Act
• Family and Medical Leave Act (FMLA)
covers those employed for > 12 months
(>1,250 hours) by an employer employing
50 or more employees
• Employers who deny FMLA rights bear
civil liability to the affected employee
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13. Family & Medical Leave Act
• Covered employees may take a total of
12 workweeks of leave during any 12-
month period for one of several reasons:
– Birth of a child
– Adoption of a child
– Need to care for a spouse, child, or parent with
a serious health condition
– Employee’s own serious health condition
• Beaver v. RGIS Inventory Specialists, Inc.:
not every illness qualifies for FMLA leave
51-13
15. Social Security
• Federal social security system is funded
by the Federal Insurance Contributions
Act (FICA), which imposes a flat
percentage tax on employee income
below a base figure and requires
matching amounts by employers to
support programs:
– Social security
– Disability
– Medicare
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16. Unemployment Compensation
• Covering discharged workers, each state
administers a system of unemployment
compensation under federal guidelines
– Funded by federal and state
unemployment compensation taxes
paid by employers
– Workers who voluntarily leave without
good cause, are fired for misconduct, fail
to actively seek new work, or refuse other
work generally are ineligible for benefits
51-16
17. ERISA
• Employers often contribute voluntarily to
employee retirement income through
pension plans
• Employee Retirement Income Security
Act of 1974 (ERISA) imposes:
– Guaranteed employee participation
– Record-keeping, reporting, and disclosure
requirements
– Pension fund managers have fiduciary duties
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18. ERISA
• Remedies for ERISA violations include
civil suits by plan participants and
beneficiaries, equitable relief, and
criminal penalties
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19. Fair Labor Standards Act
• FLSA regulates wages and hours by
entitling covered employees to
1. Specified minimum wage whose
amount changes over time, and
2. Time-and-a-half rate for work
exceeding 40 hours per week
• Exemptions: executive, administrative,
and professional personnel
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20. Fair Labor Standards Act
• FLSA prohibits oppressive child labor by
any employer engaged in interstate
commerce or producing goods for such
commerce
• See
U.S. Dept. of Labor Int’l Child Labor Program we
51-20
21. Collective Bargaining
• Until the National Labor Relations Act of
1935 (NLRA or Wagner Act), U.S. workers
attempting to organize and obtain better
working conditions and pay often were
treated like criminals
51-21
22. Union Activity
• NLRA gave employees the right to
organize by enabling them to form,
join, and assist labor organizations and
to bargain collectively through their
own representatives
• The Act also prohibited employers from
engaging in certain unfair labor
practices and established the National
Labor Relations Board (NLRB)
51-22
23. Restrictions on Union Activity
• NLRA amended in 1947 and 1959 to restrict
union activity, but organized labor may still
engage in collective bargaining to achieve
a collective bargaining agreement and
may protest unfair labor practices by
employers
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24. Information for Discussion
• 4,547 fatal work injuries were recorded in the
United States in 2010.
• 3,063,400 non-fatal injuries and illness were
reported in 2010.
• Cost of most disabling workplace injuries
and illnesses in 2008: $53.42 billion in direct
U.S. workers compensation costs, averaging
more than one billion dollars per week
• See OSHA’s
Making the Business Case for Safety and Health
51-24
25. Thought Questions
• Do you think that people take advantage
of government employment laws? Do you
believe that Workers’ Compensation
programs are effective methods to handle
the substantial cost of workplace injuries?
51-25
27. The EEOC
• The Equal Employment Opportunity
Commission is an independent federal
agency authorized to enforce
employment discrimination laws,
investigate allegations of
discrimination, and interpret statutes
by issuing rules, regulations, and
guidelines
– See the EEOC website
51-27
28. Equal Pay Act of 1963 (EPA)
• As an amendment to the FLSA, the Act
forbids pay discrimination based on
gender: employee may not be paid a
lesser rate than employees of opposite
sex for equal work
– Equal work defined as substantially equal in
terms of effort, skill, responsibility, and
working conditions
– Unlike FLSA, EPA covers executive,
administrative, and professional employees
51-28
29. Equal Pay Act of 1963 (EPA)
• Employer may raise one
four defenses in a lawsuit
filed under the EPA by
showing the pay disparity
is based on (1) seniority,
(2) merit, (3) quality or
quantity of production
(e.g., a piecework
system), or (4) any factor
other than gender
51-29
30. Title VII of
1964 Civil Rights Act
• Prohibits employers from
discriminating on basis of race, color,
religion, gender, or national origin
• Prohibits sexual harassment and
discrimination because of pregnancy
• Covers all employers employing 15 or
more employees and engaging in an
industry affecting interstate
commerce
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31. Title VII Procedure
• If an employer’s act violates Title VII, the
aggrieved person must file a charge or
complaint with EEOC for investigation
and allow agency to either file a lawsuit
or obtain resolution
– See EEOC website regarding procedure
• If, after six months, EEOC fails to file suit
or resolve the claim, plaintiff may obtain
a right to sue letter and file a civil lawsuit
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32. Title VII Remedies
• If private plaintiff or EEOC wins a Title VII
suit, several remedies exist:
compensatory damages, reasonable
attorney’s fees, and equitable relief
• If discrimination was intentional, an
employee may obtain back pay for lost
wages and compensatory damages for
emotional distress, sickness, loss of
reputation, or denial of credit
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33. Title VII Remedies
• Punitive damages are
available if
defendant
discriminated against
current or prospective
employee with
malice or reckless
indifference to
plaintiff’s rights
51-33
34. Definition of Discrimination
• Discrimination is refusing to hire, failing
to promote, firing, or otherwise
reducing a person’s employment
opportunities for a person in a
protected class
• Two methods to prove discrimination:
– Disparate treatment
– Disparate impact
51-34
35. Proving Disparate Treatment
• Plaintiff must show s/he was treated
differently due to race, gender, color,
religion, or ethnicity (prima facie case)
– Example: Gaskell v. University of Kentucky
• Once plaintiff proves prima facie case,
the burden shifts to employer to show a
legitimate and non-discriminatory reason
for discrimination
– Plaintiff must then prove that employer’s
reason is mere pretext to win the case
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36. Proving Disparate Impact
• Disparate impact occurs if an employer
has a rule or practice that, on its face,
seems non-discriminatory or neutral, but
the impact excludes too many people
in a protected class
– Example: height or weight limits, taking a
written test
• If plaintiff proves disparate impact,
burden is on employer to show job-
related reason
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37. Title VII Employer Defenses
• An employer may prevail in a Title VII
claim if it can prove a legitimate
reason for the discriminatory act or
practice based on:
– Bona fide occupational qualification
(BFOQ)
– Seniority
– Merit
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38. Henry v. Milwaukee County
• Facts:
– Plaintiffs (both women) filed Title VII suit
alleging gender discrimination and
retaliation by defendant-employer for its
policy of assigning some correction
officers' shifts in single-sex juvenile
detention facilities on the basis of sex
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39. Henry v. Milwaukee County
• Ruling:
– Judgment for defendant affirmed in part
and reversed in part
• Gender-based assignments not reasonably
necessary to achieve facility's goals of privacy,
security, and rehabilitation, and therefore an
officer's gender could not be considered a
bona fide occupational qualification
• But, plaintiffs did not prove their harassment or
retaliation claims
51-39
40. Title VII and Religion
• Employers must make reasonable
accommodation for a worker’s
religious beliefs unless the request
would cause undue hardship for the
business
– The term religion is broadly defined
– Undue hardship exists if
accommodation imposes more than
a minimal burden on an employer
51-40
41. Title VII and
Sexual Harassment
• Two major categories of sexual
harassment are prohibited by Title VII:
– Quid pro quo (this for that): when an
aspect of a job is made contingent on
an employee’s sexual activity
– Hostile work environment: when sexual
talk and innuendo are so pervasive
that a hostile work environment is
created for the employee
51-41
42. Title VII and
Sexual Harassment
• Harassers and victims may be
either gender
• Keeton v. Flying J, Inc.
confirms that Title VII allows
recovery when the harasser is
a female and harassee is
male
• Harasser(s), individual
manager(s), and the
company are potential
defendants
51-42
43. Ashmore v. J. P. Thayer Co.
• Facts and Background:
– Plaintiff sued under Title VII for same-sex
sexual harassment and retaliation, and
state law claims for negligent retention
– Plaintiff alleged that Fye, a male
employee of defendant and plaintiffs'
supervisor, sexually harassed plaintiffs
and took adverse employment actions
against plaintiffs when they complained
about it
51-43
44. Ashmore v. J. P. Thayer Co.
• Appellate Court Ruling:
– Jury found for plaintiffs, but appellate
court ruled for defendant because
plaintiffs failed to notify defendant of
harassment in a timely manner and
“failed as a matter of law to take
reasonable advantage of opportunities
provided by Defendant to prevent and/or
correct the sexual harassment”
51-44
45. Age Discrimination in Employment Act
• Prohibits age-based discrimination
against employees or job applicants at
least 40 years old
• Covers organizations that engage in an
industry affecting interstate commerce,
and employ at least 20 persons
• Remedial procedures, defenses, and
remedies are similar to Title VII claims
51-45
46. Americans with Disabilities Act
• Prohibits employers from disqualifying a
job applicant or employee if employee
can, with reasonable accommodation,
perform the essential functions of the job
51-46
47. Definition of Disability
• Disability under the ADA is:
– A physical or mental impairment that
substantially limits one or more of an
individual’s major life activities
– A record of such an impairment, or
– One’s being regarded as having such
an impairment
• Employer may not ask about
disabilities before making a job offer
51-47
48. Americans with Disabilities Act
• Act covers employers who have 15 or
more employees and are engaged in
an industry affecting interstate
commerce
• Accommodation is not reasonable if it
would create undue hardship for
employer
• Remedial procedures, defenses, and
remedies are similar to Title VII claims
51-48
49. Americans with Disabilities Act
• During 1990s and early 2000s, the Supreme
Court narrowed the concept of “disability”
• In response, Congress enacted the ADA
Amendments Act of 2008, which clarified
standards for determining disability and
expressed intent that the ADA be
“construed in favor of broad coverage”
• Fleck v. WILMAC Corp.: case allowed to
proceed to trial to determine whether
reasonable accommodation was provided
51-49
51. Overview
• Employer interests in surveillance of the
workplace may conflict with
employee privacy interests
• Unless otherwise specified by statute,
U.S. Constitution does not apply to
private employment
– Federal privacy laws typically apply
only to federal employees and state
law covers private sector employees
51-51
52. Employee Polygraph Protection
Act of 1988
• Applies to private employers and
current or prospective employees
• Enforced by Department of Labor
(DOL), an employer may not:
– Require or request employees to take a
polygraph (lie detector) test
– Use or inquire about polygraph results
– Discriminate based on polygraph results or
an employee’s failure or refusal to take test
51-52
53. Employee Polygraph Protection
Act of 1988
• Certain employers
exempted: government,
private firms with security-
related interests, private firms
investigating economic loss
• For violations, DOL may file
suits or issue civil penalties
and private parties may sue
for damages and equitable
relief
51-53
54. Drug & Alcohol Testing
• Testing by public employers
is legal under search and
seizure provisions of Fourth
Amendment if:
– Reasonable basis for
suspecting employee drug
or alcohol use on the job
exists
– If such use could threaten
public interest or public
safety
51-54
55. Employer Searches
• A public employee has a reasonable
expectation of privacy in areas such
as his or her office, desk, or files, but a
search of those areas is constitutional
if the search is reasonable under
circumstances
– Requires balancing employee’s legitimate
privacy expectations against government’s
need for control of the workplace
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56. Employer Searches
• A public or private employer who conducts
an allegedly unreasonable search may be
sued by an employee under common law
claim of invasion of privacy
51-56
57. Records & References
• Most states allow employees access
to their personnel files maintained by
employers and limit access by third
parties
• Employers who transmit such data to
third parties, such as information in a
reference letter, may be liable for civil
claims of defamation or invasion of
privacy
51-57
58. Employer Monitoring
• Employers may monitor the workplace by
closed-circuit television, video monitoring,
telephone monitoring, computer
workstation monitoring (keystroke
counting), and using metal detectors
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59. Employer Monitoring
• Many firms warn employees
that e-mail, voicemail,
Internet usage, and other
communications and
transactions are subject to
monitoring
• Sporer v. UAL, Inc. illustrates
the legal impact of these
policies on a wrongful
termination claim
51-59
61. Employment at Will Rule
• Traditional employment-at-will rule first
appeared around 1870: either party can
terminate an employment contract of
indefinite duration for good cause or no
cause
• Doctrine limited today by statutes and
three common law exceptions:
– Public policy
– Implied covenant of good faith & fair dealing
– Employment promises
51-61
62. Wrongful Discharge
• In states recognizing
exceptions to
traditional rule, a
terminated employee
may sue the former
employer for wrongful
discharge or unjust
dismissal
– May also include tort
or contract claims
51-62
63. Public Policy Exception
• Terminated employee may claim discharge
was unlawful because it violated state
public policy in one of three ways:
– Employee refused to commit unlawful act
– Employee performed public obligation
such as military duty or whistle-blowing
• A whistle-blower is an employee who
publicly discloses dangerous, illegal, or
improper behavior by the employer
– Employee exercised legal right or privilege
51-63
64. Breach of Good Faith
• In a wrongful discharge
suit based on breach of
the implied covenant of
good faith and fair
dealing, employee
argues discharge was
unlawful because it was
not made in good faith
or did not amount to fair
dealing
51-64
65. Breach of Promise Exception
• Increasingly, courts have made
employers liable for breaking promises to
employees made prior to or during
employment
• If employer breaks promises when it fires
employee, it is liable for breach of
contract
• Sporer v. UAL, Inc : employee should have
known that e-mail privacy did not exist
51-65
66. Test Your Knowledge
• True=A, False = B
– Employment at will is the rule of law in all
fifty states.
– An employer (100 employees) may not
fire a man for taking a two month leave
of absence to care for his seriously-ill wife.
– Workers’ compensation is an employee’s
exclusive remedy against an employer for
covered injuries
51-66
67. Test Your Knowledge
• True=A, False = B
– The Fair Labor Standards Act prohibits any
form of child work or labor by any employer
engaged in interstate commerce.
– OSHA may not inspect a workplace or issue
citations for violations of the act without a
warrant issued by a judge.
– An employer may terminate a whistle-
blower immediately because whistle-
blowers make defamatory comments to the
public.
51-67
68. Test Your Knowledge
• Multiple Choice
– Under Workers’ Compensation,
employees recover only for:
a) Injuries that affect an employee’s ability
to do his or her job
b) Work-related injuries that arise out of or
happen in the course of employment
c) Injuries that occur during any period of
employment, whether on or off the job
d) both A and B
51-68
69. Test Your Knowledge
• True=A, False = B
– The Civil Rights Act prohibits employers
from discriminating on basis of race,
color, religion, gender, or national origin.
– Two methods to prove discrimination are
disparate treatment and disparate
impact.
– Discrimination based on a BFOQ is legal.
– Every employer has the right to request a
prospective employee to take a pre-
employment polygraph.
51-69
70. Test Your Knowledge
• True=A, False = B
– Unless otherwise specified by statute,
protections of the U.S. Constitution do not
apply to government employees.
– The Americans With Disabilities Act
prohibits employers from disqualifying a job
applicant or employee with a disability for
any reason.
– The two types of sexual harassment claims
are quid pro quo and undue hardship.
51-70
71. Test Your Knowledge
• Multiple Choice
– If an employer’s act violates Title VII, the
aggrieved person must:
a) File a charge or complaint with the EEOC
b) Allow the EEOC to investigate the charge
c) Allow the EEOC to file a lawsuit or obtain
resolution
d) All of the above
e) File a lawsuit within 6 months in federal
district court
51-71
72. Thought Questions
• Employers may be able
to monitor your work by
video, audio, computer
keystroke, or other
methods of surveillance.
Are you comfortable with
this fact? Are broad
allowances for employer
surveillance good public
policy?
51-72
Editor's Notes
Photos: Left, 14 year old girl working as a spinner in Whitnel Cotton Mfg Co, North Carolina, 1913, in violation of the law. Right, candy store, early 1900s
Photo is of a book bindery.
Hyperlink is to the court’s opinion on the McGraw-Hill Higher Education website. Arising-out-of-the-employment test usually requires a sufficiently close relationship between the injury and the nature of the employment. Different states use different tests to define this relationship. Examples include: Increased risk. Employee recovers only if nature of job increases risk of injury above the risk to which general public is exposed. Factory worker assaulted by a trespasser probably would not recover, while a security guard assaulted by the same trespasser probably would. Positional risk. More liberal test – injured employee recovers if employment caused employee to be at place and time where injury occurred. Factory worker probably would recover. Dulen case adopts this test. In-the-course-of-the-employment requirement inquires whether the injury occurred within the time, place, and circumstances of the employment. Employees injured off the employer’s premises generally are outside the course of the employment. For example, injuries suffered while traveling to or from work usually are not compensable. But an employee may be covered where the off-the-premises injury occurred while she was performing employment-related duties such as going on a business trip or running an employment-related errand.
Decisions of state workers’ compensation boards or commissions normally are appealable to state courts.
Occupational Safety and Health Act applies to all employers engaged in a business affecting interstate commerce, an easy threshold to meet.
Main sanctions for violations of the act and the regulations are various civil penalties.
Hyperlink is to the court’s opinion in pdf. Usually, the leave is without pay. Upon the employee’s return from leave, the employer ordinarily must put her in the same or an equivalent position and must not deny her any benefits accrued before the leave began.
Unemployment insurance plans vary from state to state.
Both affected employees and the Labor Department can recover any unpaid minimum wages or overtime, plus an additional equal amount as liquidated damages, from an employer that has violated the FLSA’s wagesand-hours provisions. A suit by the Labor Department terminates an employee’s right to sue, but the department pays the amounts it recovers to the employee. Violations of the act’s child labor provisions may result in civil penalties. Other FLSA remedies include injunctive relief and criminal liability for willful violations.
Oppressive child labor includes (1) most employment of children below the age of 14; (2) employment of children aged 14–15, unless they work in an occupation specifically approved by the Department of Labor; and (3) employment of children aged 16–17 who work in occupations declared particularly hazardous by the Labor Department. The link is to the U.S. Department of Labor’s International Child Labor Program at http://www.dol.gov/ILAB/programs/iclp/main.htm. The photo is of children digging for drinking water in India. While this isn’t necessarily a “child labor” photo, it is a reference for a very serious issue. According to the International Labor Organization (ILO), there were an estimated 211 million children, ages 5 to 14, working around the world in 2000. First, child labor is considered a major human rights and health issue by international organizations worldwide. Second, different cultures view child labor differently. In international dialogue regarding child employment, one important element is defining child work as separate from child labor , which is oppressive (long hours; tedious, difficult tasks) and often dangerous. In general, child labor was legal in the United States until the FLSA was enacted in 1938. The FLSA provides for many exemptions to the child labor requirements in the U.S. For example, minors of any age may be employed by their parents at any time in any occupation on a farm owned or operated by his or her parent(s), although states may enact laws restricting such labor. Nevertheless, the U.S. National Institutes of Occupational Safety and Health (NIOSH) reported: “Farming is one of the most dangerous industries in the United States. Yet injury, illness, and death on the farm are not restricted to adults. Each year, approximately 100,000 children under 20 years of age are injured on farms and over 100 are killed.” See http://www.cdc.gov/niosh/kidsag.html.
Labor battles often ended in the courtroom, with famous lawyers representing the defendants. One of the most famous trials of a labor organizer was the 1907 trial of “Big Bill” Haywood for conspiracy to murder. With Clarence Darrow as his defense attorney, the jury found Haywood not guilty. After another decade of union organizing, Haywood was convicted of violating federal espionage and sedition laws in 1918 and when released on bail, he fled the country to join the bolshevik revolution in Russia. Other famous labor-related trials highlighted class warfare and racial discrimination, such as the trial of the McNamara brothers in 1911. The Trading with the Enemy Act of 1917, Sabotage Act of 1918, and Sedition Act of 1918 were routinely used against labor organizers and the “Palmer Red Raids” involved warrantless search, seizure, and prosecution of union organizers, including deportation of citizens.
Wagner Act prohibited certain unfair labor practices that were believed to discourage collective bargaining: (1) interfering with employees’ rights to form, join, and assist labor unions; (2) dominating or interfering with the formation or administration of a labor union, or giving a union financial or other support; (3) discriminating against employees in hiring, tenure, or any term of employment due to their union membership; (4) discriminating against employees because they have filed charges or given testimony under the NLRA; and (5) refusing to bargain collectively with any duly designated employee representative. NLRB’s main functions are (1) handling representation cases (which involve the process by which a union becomes the certified employee representative within a bargaining unit), and (2) deciding whether challenged employer or union activity is an unfair labor practice.
NLRA amended in 1947 by the Labor Management Relations Act (LMRA or Taft-Hartley Act) which declared certain acts by unions to be unfair labor practices. These include (1) restraining or coercing employees in the exercise of their guaranteed bargaining rights (e.g., their right to refrain from joining a union); (2) causing an employer to discriminate against an employee who is not a union member; (3) refusing to bargain collectively with an employer; (4) conducting secondary strike or a secondary boycott for a specified illegal purpose;4 (5) requiring employees covered by union-shop contracts to pay excessive or discriminatory initiation fees or dues; and (6) featherbedding (forcing an employer to pay for work not actually performed). NLRA amended again in 1959 by the Labor Management Reporting and Disclosure Act requiring union leadership to be more open and democratic.
Source for first two statistics: Bureau of Labor Statistics, Department of Labor, National Census of Fatal Occupational Injuries in 2010 , August 25, 2011. Source for the statistics regarding cost of workplace injuries: 2010 Liberty Mutual Workplace Safety Index.
Photo is of a worker walking live power lines near a nuclear power plant.
Act has a substantially-equal-work requirement which is met if the female plaintiff ’s job and the higher-paid male employee’s job involve each of the following: (1) equal effort, (2) equal skill, (3) equal responsibility, and (4) similar working conditions.
If the two jobs are substantially equal and they are paid unequally, an employer must prove one of the EPA’s four defenses or it will lose the case. The employer has a defense if it shows that the pay disparity is based on (1) seniority, (2) merit, (3) quality or quantity of production (e.g., a piecework system), or (4) any factor other than gender.
The link is to the information on the EEOC website about how to file a complaint: http://www.eeoc.gov/charge/overview_charge_filing.html
Equitable relief may include orders compelling hiring, reinstatement, or retroactive seniority. Courts have ordered quotalike preferences in Title VII cases involving race and (occasionally) gender discrimination through consent decrees.
Prima facie means, essentially, “on its face.” From the EEOC website: “In fiscal year 2004, EEOC received 27,696 charges of race discrimination. EEOC resolved 29,631 race charges in FY 2004, and recovered $61.1 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). The EEOC has observed an increasing number of color discrimination charges. Color bias filings have increased by 125% since the mid-1990s, from 413 in FY 1994 to 932 in FY 2004.”
To be bona fide, a seniority system at least must treat all employees equally on its face, not have been created for discriminatory reasons, and not operate in a discriminatory fashion. A merit system is bona fide if it bases earnings on quantity or quality of production, or the results of a professionally developed ability test. A bona fide occupational qualification (BFOQ) must be reasonably necessary to the business in question. The BFOQ defense is applied to cases of disparate treatment and does not protect race or color discrimination. NOTE: Students love to talk about the Hooters restaurant lawsuit in which men filed suit against Hooters because they wanted the better pay of the female waitresses rather than just being cooks. Hooters management alleged that being female was a BFOQ for being a Hooters waitress, specifically, that the chain is not merely a restaurant, but that their primary mission is "providing vicarious sexual recreation." The government conducted a four-year sexual discrimination probe of Hooters, demanded a $22-million fine from the 170-restaurant chain after looking into complaints by four Chicago men , and demanded that Hooters hire male waiters, compensate any men it had turned down for jobs and set up a scholarship fund to enhance employment opportunities for men. However, the EEOC backed off its lawsuit after obtaining a $3.75 million settlement from Hooters and requiring Hooters to create new gender- neutral positions. Thus far, Hooters has settled each discrimination suit filed against the chain. The Hooters Employee Handbook requires female employees to sign that they "acknowledge and affirm" the following: My job duties require I wear the designated Hooters Girl uniform. My job duties require that I interact with and entertain the customers. The Hooters concept is based on female sex appeal and the work environment is one in which joking and sexual innuendo based on female sexappeal is commonplace. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating , hostile , or unwelcome.
Hyperlink is to the opinion on the Findlaw.com website.
Because of the test for undue hardship, plaintiffs rarely win religious discrimination suits. From the EEOC website: 99,922 charges of discrimination were filed in 2010, but only 3.8% were based on religious discrimination.
Quid pro quo cases usually arise when, due to an employee’s refusal to submit, she suffers a tangible job detriment of an economic nature. Quid pro quo harassment is committed only by supervisory employees, because only supervisors have the power over hiring and firing. Hostile environment sexual harassment can be inflicted by both supervisors and co-workers. In Harris v. Forklift Systems , the Supreme Court held that a mere epithet or innuendo is not actionable, but when conduct is pervasive enough to create a hostile work environment to the reasonable person, such conduct is actionable even if the plaintiff has not suffered psychological injury From the EEOC website: “ In Fiscal Year 2004, EEOC received 13,136 charges of sexual harassment. 15.1% of those charges were filed by males. EEOC resolved 13,786 sexual harassment charges in FY 2003 and recovered $37.1 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Link is to the case opinion.
Hyperlink is to the court’s opinion on the Leagle.com website.
Hyperlink is to the court’s opinion on the Leagle.com website.
It is not a violation of the ADEA for an employer to favor older employees over younger employees. From the EEOC website: “In Fiscal Year 2004, EEOC received 17,837 charges of age discrimination. EEOC resolved 15,792 age discrimination charges in FY 2004 and recovered $60.0 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
From EEOC: “In Fiscal Year 2004, EEOC received 15,376 charges of disability discrimination. EEOC resolved 16,949 disability discrimination charges in FY 2004 and recovered $47.7 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).”
Hyperlink is to the court’s opinion in pdf.
Employee Polygraph Protection Act mainly regulates lie detector tests, which include polygraph tests and certain other devices for assessing a person’s honesty. Under the act, employers may not: (1) require, suggest, request, or cause employees or prospective employees to take any lie detector test; (2) use, accept, refer to, or inquire about the results of any lie detector test administered to employees or prospective employees; and (3) discriminate or threaten to discriminate against employees or prospective employees because of the results of any lie detector test, or because such parties failed or refused to take such a test. The act also has an antiretaliation provision. Act restricts the disclosure of test results by examiners and by most employers.
Exemptions: (1) federal, state, and local government employers; (2) certain national defense and security-related tests by the federal government; (3) certain tests by security service firms; and (4) certain tests by firms manufacturing and distributing controlled substances. The act also contains a limited exemption for private employers that use polygraph tests when investigating economic losses caused by theft, embezzlement, industrial espionage, and so forth. See the information (FAQ) about polygraphs from the American Polygraph Association at http://www.polygraph.org/faq.htm Naturally, the APA is a pro-polygraph organization. Many opposing views are available through a simple internet search.
Private-sector employees generally have no federal constitutional protection against drug and alcohol testing.
Determining reasonableness generally means balancing the employee’s legitimate privacy expectations against the government’s need for supervision and control of the workplace, with more intrusive searches demanding a higher degree of justification. Supreme Court has also held that neither probable cause nor a warrant is necessary for such searches to proceed.
As always, t ruth is a defense in defamation cases.
Telephone monitoring may be illegal under federal wiretapping law.
The link is to the case opinion. Company policies may also limit the ways that employees can use company computer systems, and often subject employees who violate the policy to disciplinary penalties such as discharge. The case provides an example of the potential legal significance of the policies to a wrongful termination claim.
Examples: Refusing to commit unlawful act – employee refuses to fire an employee for discriminatory reasons, illegally dump hazardous materials, or commit perjury Performing public obligation – military duty, jury duty, stop & assist duty, whistle-blowing (turning in an employer or co-worker for illegal activity) Exercising legal right or privilege – filing a Workers’ Compensation claim
About 25 percent of the states have recognized this exception to employment at will, and most of these interpret the exception narrowly.
At least two-thirds of the states recognize this exception to employment at will, but employers may avoid liability by inserting disclaimers of job security in employment applications and employment manuals.
False. The rule still exists, but is limited today by statutes and three common law exceptions: Public policy, implied covenant of good faith & fair dealing, and employment promises True. An employer with 50 or more employees must comply with the Family & Medical Leave Act that allows employees to take a total of 12 workweeks of leave during any 12-month period for one or more of several reasons: Birth of a child, adoption of a child, need to care for a spouse, child, or parent with a serious health condition, or employee’s own serious health condition. True.
False. FLSA prohibits oppressive child labor by any employer engaged in interstate commerce. If FLSA prohibited any form of child work or labor by any employer engaged in interstate commerce, most farm owners who are also parents across the U.S. would be in jail. False. OSHA is authorized to inspect a workplace and issue citations for violations of the act and regulations. False. A whistle-blower is an employee who publicly discloses dangerous, illegal, or improper behavior by the employer
The correct answer is (b). Employees recover only for work-related injuries that arise out of employment (close relationship between nature of employment and injury) or h appen in the course of employment (e.g., i njury occurred within time, place, and circumstances of employment).
True . True. True. False. Private employers may NOT require or request employees or prospective employees to take a polygraph (lie detector) test
False . Unless otherwise specified by statute, the U.S. Constitution does not apply to private employment; public employees are protected by the U.S. Constitution. False. The ADA prohibits employers from disqualifying a job applicant or employee if the employee can, with reasonable accommodation , perform the essential functions of the job False. The two types of sexual harassment claims are quid pro quo and hostile work environment.
The correct answer is (d).
Opportunity to discuss surveillance in the workplace. Interesting websites to prompt discussion include the Electronic Privacy Information Center (www.epic.org) and the American Civil Liberties Union webpage concerning workplace privacy (http://www.aclu.org/privacy/workplace/index.html).
