Bus 3657 Chp 3

Front 1

* What's the role of the legislative branch? (employment law)

Back 1

Creates statutory law

Front 2

* What's the role of the judicial branch? (employment law)

Back 2

- Interprets statutory law
- Creates common law

Front 3

* Whats the role of the executive branch (sources of employment law)? (employment law)

Back 3

- Enforces statutory law Equal Employment Opportunity Commission (EEOC)
- Establishes and enforces executive orders office of federal contract compliance programs (OFCCP)
- Affirmative Action: executive order

Front 4

* What does the EEOC (Equal Employment Opportunity Commission) enforce?

Back 4

Statutory laws

Front 5

* What does the OFCCP (Office of Federal Contract Compliance Programs) enforce?

Back 5

executive orders. Only addresses federal agencies.

Front 6

Compensatory

Back 6

Compensates

Front 7

* Punitive

Back 7

Punishments

Front 8

* Explain the 1964 Civil Rights Act- Title VII (+ 1 executive order)

Back 8

Prohibits discrimination in employment based on race/color, religion, sex, or national origin.

- 1965 executive order. Mandates affirmative action for federal government and government contractors

- The idea of a "Protected Class" develops: Categories of people who are legally protected from discrimination in the workplace

Front 9

ADEA

Back 9

Age Discrimination in Employment Act of 1967

Front 10

* Explain the Age Discrimination in Employment Act of 1967 (+ 2 amendments)

Back 10

Prohibits discrimination in employment based on age for people 40-65

- 1974 Amendment- prohibits discrimination against people 40-70

- 1986 Amendment- prohibits discrimination against people 40 and over

(today illegal to discriminate on age 40+)

Front 11

* Explain the Pregnancy Discrimination Act of 1978

Back 11

Prohibits discrimination based on pregnancy

- amendment to Title VII
- Requires employers to treat an employee who is pregnant like any other employee with a medical condition
- Health care must cover pregnancy

Question is NOT are you pregnant or may become pregnant?
But: Can she do the job?

Front 12

ADA

Back 12

Americans with Disabilities Act of 1990

Front 13

* explain the Americans with Disabilities Act of 1990 (ADA)

Back 13

Employment discrimination is prohibited against individuals with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation

Front 14

* ADA "Disabilities"

Back 14

Physical or mental impairment that substantially affects one or more major life activities

Front 15

* ADA "Essential Functions"

Back 15

job duties that EVERY employee must do or be able to do to be effective

Front 16

* ADA "Reasonable Accommodation"

Back 16

Anything which would enable the disabled person to enjoy equal employment opportunity, as long as it doesn't cause under hardship or the employer

Front 17

ADA "undue hardship" (for reasonable accommodation)

Back 17

defined by the courts. Resources and size of organization affect ruling.

Front 18

ADA "Major Life activities" (disabilities)

Back 18

Reading, standing, talking, breathing, sex,etc. (not typing)

Front 19

* explain the 1991 Civil Rights Act

Back 19

(amendment to 1964 CRA)

- Burden of Proof is shifted to employer to demonstrate they are not discriminating
- Quotas and differential standards illegal
- Punitive Damages allowed

Front 20

* When are punitive damages allowed under the 1991 CRA?

Back 20

- If discrimination was intentional, with malice, or reckless
- limited to 50,000 to 300,000 depending on the size of the organization

Front 21

Differential Standards (1991 CRA)

Back 21

Can't lesson job requirement standards- example firefighter test

Front 22

T or F you can set goals and quotas for diversity

Back 22

F. You can set goals, but CAN'T set quotas

Front 23

Explain the Family Medical Leave Act of 1993

Back 23

- Requires employee with 50 employees or more to provide up to 3 months of unpaid leave to employees (every 12 months) allowing them to :
- Take care of a newborn or adopted child
- Take care of a family member (parent, spouse, or child) with a serious illness
- Cope with their own serious illness

- Upon the employee's return the employer must provide the same job, or one that is equivalent in terms of pay and status.

Front 24

FMLA

Back 24

Family Medical Leave Act

Front 25

Explain the Genetic Information Nodiscrimination Act (GINA) of 2008

Back 25

- Companies cannot use genetic information to make employment decisions

- Companies cannot intentionally gather genetic information

- Any such information must be kept confidential

- Harassment on the basis of genetic information illegal

Front 26

What is legal discrimination?

Back 26

GPA, How good of a student, leadership qualities, smarts, etc.

Front 27

* What are 2 types of Illegal discrimination?

Back 27

Disparate Treatment
Disparate (Adverse) Impact

Front 28

* Disparate Treatment

Back 28

Treating people differently based on protected group status (intentional). Discriminating on anything that is protected by law (age, race/color, gender/sex, national origin, religion, disability, pregnancy).

Front 29

* Disparate (Adverse) Impact

Back 29

Treating everyone the same; however the process that is used has the effect of harming the employment opportunities of a protected group (may be intentional or unintentional).
- eye color requirement could exclude certain races. Height could discriminate between women or a certain race, hiring based on referrals if employment pool is homogenous, targeting recruitment in a particular place (predominantly white school).

Front 30

1971 Griggs vs. Duke Power Co.

Back 30

Disparate Impact ("adverse impact") is illegal

Front 31

* 1991 Civil Right Act

Back 31

- Burden of Proof on the employer (essentially reversed the Wards Cove ruling)
- Quotas illegal
- Punitive Damages allowed

Front 32

*1972 Equal Employment Opportunity Act

Back 32

- Established as the EEOC; applied to Title VII to all companies with 15 or more employees

Front 33

* Prima facie

Back 33

at first blush

Front 34

* What are the 3 steps of Discrimination cases in court?

Back 34

1. Plaintiff must show reasonable evidence prima facie
2. Employer has the burden of proof (3 possible defenses)
To make a case:
3. Plaintiff must show
a. employer intended to discriminate- the reason offered by the employer was merely a pretext or excuse; the real reason was discrimination
or
b. A different test would accomplish the same purpose without discrimination

Front 35

* What are 4 possible components of prima facie

Back 35

1. Restricted Company Policy
2. Discriminatory Remarks (racial slurs, "we don't like your kind")
3. McDonnell-Douglas test
4. 4/5ths rule

Front 36

* McDonnell-Douglas test

Back 36

(part of Prima facie evidence)
- plaintiff is a member of a protected class
- plaintiff was qualified & applied, but not hired
- Company continued trying to hire after rejecting plantiff

Front 37

* 4/5ths rule

Back 37

Is the hiring rate for one protected group less than 4/5ths that of another group?

Applied Hired # Hired/ # applied
Men 30 15 0.5
Women 20 8 0.4

(protected class rate/unprotected class)
0.4/ 0.5= 0.8---> 4/5ths

Front 38

* What are the 3 possible defenses an employer can use in discrimination cases in court?

Back 38

1. Bona-fide Occupational Qualification (BFOQ)
2. Job Relatedness/Business Necessity
3. Seniority

Front 39

* Bona-fide Occupational Qualifications (BBFQ) (5 options) (part of defense when employer has the burden of proof)

Back 39

Legal exception to Title VII used in a disparate treatment case
1. All or nearly all (male wet-nurse?)
2. Authenticity (only women model women's clothes)
3. Propriety (Women in women's restroom)
4. Safety (e.g. pilots over 60)
5. Almost never applies to race/color

Front 40

* Job Relatedness/Business Necessity

Back 40

used in an adverse impact case
- employment decision was based on legitimate criteria (physical requirements of firefighters)
- Job Descriptions!
- This is way it's important to have good job descriptions
- Perhaps an IQ test can be legitamate

Front 41

When is seniority a good defense in discrimination cases?

Back 41

Sometimes used in layoffs. Can only be used as long as this criteria has been consistent and long standing.

Front 42

* To make a discrimination case what must the plaintiff show?

Back 42

1. employer intended to discriminate- the reason offered by the employer was merely a pretext or excuse; the real reason was discrimination
OR
2. A different test would accomplish the same purpose without discrimination

Front 43

EEO (Equal Employment Opportunity)

Back 43

- Laws passed by congress in 1964 and later
- Applies to companies with 15 or more employees
- EEO legislation protects all members of protected groups within a protected class

Front 44

* Affirmative Action

Back 44

- Executive order enacted in 1965
- Requires government contractors & sub-contractors to generate a plan to achieve and document equal
- Under certain circumstances allows employers to treat members of certain protected groups preferentially
- Could engage voluntarily if history of under representation
- Could be mandated by EEOC

Front 45

* What are the 8 steps in affirmative action?

Back 45

1. Written Equal Employment (EE) Policy & Affirmative Action (AA) commitment
2. Appoint director of AA program
3. Publicize the EE Policy & AA commitment
4. Determine where AA programs are needed (utilization analysis)
5. Develop goals and timetables
6. Implement programs to achieve these goals (Sometimes includes preferential treatment (if there is evidence of under utilization) CanNOT include quotas
7. Monitor and evaluate progress in the program
8. Develop support for affirmative action programs

Front 46

Utilization analysis

Back 46

Do we have a problem? (can compare ratio with surrounding community)

Front 47

* What does legal preferential treatment look like? (3)

Back 47

1. Recruitment efforts
2. Preferential layoffs (legal unless it violates seniority)
3. Extra consideration in hiring
-- When 2 people are both "qualified", the one who is from an underrepresented protected group may be given preference

Front 48

* What does illegal preferential treatment look like? (2)

Back 48

1. Differential Standards
2. Quotas/Minority Positions

Front 49

* What's the difference between the EEOC and OFCCP?

Back 49

1.The OFCCP was created with the goal of monitoring and regulating non-discrimination for business contractors and sub-contractors dealing with the federal government.

2.The EEOC is the agency that handles concerns for any discrimination that occurs in the workplace within the United States.

Front 50

* What is the difference between Affirmative Action and EEO?

Back 50

AA: executive order enacted in 1965, requires government contractors & sub-contractors to generate a plan to achieve and document equal opportunity, Under certain circumstances allows employers to treat members of certain protected groups preferentially, could be voluntary if history of under representation

EEO: Laws passed by congress in 1964 and later, applies to companies with 15 or more employees, EEO legislation protects all members of protected groups within a protected class

Equal Employment Opportunity prohibits discrimination against anyone. It attempts to ensure that all applicants, males-females and all races have a fair opportunity in a hiring process, in competing for promotions, and equal access to training/professional development opportunities.

As for Affirmative Action, it is a remedy to address past practices of discrimination.

Front 51

Uniform Guidelines on employee Selection Procedures

Back 51

Guidelines issued by the EEOC and other agencies to identify how an organization should develop and administer its system for selecting employees so as not to violate antidiscrimination laws.

Front 52

Occupational Safety and Health Act (OSH Act)

Back 52

U.S. laws authorizing the federal government to establish and enforce occupational safety and health standards for all places of employment engaging in interstate commerce.

Front 53

Occupational Safety and Health Administration (OSHA)

Back 53

Labor department agency responsible for inspecting employers, applying safety and health standards, and levying fines for violation.

Front 54

Right-to-know laws

Back 54

State laws that require employers to provide employees with information about the health risks associated with exposure to substances considered hazardous.

Front 55

Material Safety Data Sheets (MSDSs)

Back 55

Forms on which chemical manufactures and importers identify the hazards of their chemicals.

Front 56

Job Hazard Analysis Technique

Back 56

Safety promotion technique that involves breaking down a job into basic elements, then rating each element for its potential for harm or injury

Front 57

Technic of Operations Review (TOR)

Back 57

Method of promoting safety by determining which specific element of a job led to a past accident

Front 58

Identify the federal agencies that enforce equal employment opportunity, and describe the role of each

Back 58

-Equal Employment Opportunity Commission is responsible for enforcing most EEO laws (Title VII and ADA) it investigates and resolves complaints, gathers info and issues guidelines

- The Office of Federal Contract Compliance Procedures is responsible for enforcing executive orders that call for affirmative- action plans and takes action against companies that fail to comply

Front 59

Describe the role of the Occupational Safety and Health Administration (OSHA)

Back 59

publishes violations and conducts inspections. If OSHA finds violations, it discusses them with the employer and monitors the employer's response in correcting the violation.

Front 60

Discuss the ways employers promote worker safety and health

Back 60

- comply with OSHA regulations
- Establish safety awareness programs
- identify and communicate hazards through the job hazard technique or the technic of operations review
- adapt communications and training to the needs of dif. employees (cultural or experience differences)
- establish incentive programs to reward safe behavior.