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63 Cards in this Set

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Automatic Appeal
when the judge renders a decision, a person has an automatic right to appeal to the Appellate Court (Court of Appeals) if they lose.
CA (9th Circuit) can render 3 options:
1. affirm: we agree
2. Reverse
3. Vacate and Remand: throw out and send it to a district court to do again
Writ of Certiorari
1. Grant
2. Deny ex. writ granted or write denied; if they grant, they will review the district's decision; Supreme Court will hear the case b/c there's a significant piece of law that it wants to address, not concerned if a mistake was made.
Type of Law (tort)
1. tort: (violation of public policy). compensatory damages, emotionally distraught, and punitive damages. Mechanism to change human behavior so they won't do it again. Make it their (deft) interest to change through economics.
Type of Law (contract)
2. contract: (amt you owed, maybe court fees included) agreement btwn 2 ppl; make the person WHOLE (what was specified in the contract); "Efficient Breach": can do this but has to make person whole--mitigate damages they suffer
Punitive Damage
designed to punish, this is when compensatory damages won't do it
At-will employment (Pure)
An employer can fire an employee (or take other adverse actions against an employee) for any reason at all--good, bad or indifferent--so long as the termination doesn't BREACH A CONTRACT OR VIOLATE A SPECIFIC LAW. should have freedome to begin/end employment relationship w/o gov't interference p. 2, 3
Collective Bargaining Rights (prohibiting at-will discharges; indirect exception)
1st major exception to at-will employment. Employees allowed to unionize and bargain collectively w/ employer. Were able to place economic pressure on employers to enter into contracts that limited/restricted employer's right to terminate an employee. NOT AT-WILL EMPLOYEE, b-cuz of contract p. 7
Title VII of the Civil Rights Act of 1964 (direct exception to at-will employment)
Federal Law prohibiting employment discrimination on acct of an employee's race, color, national origin, sex, or religion. Er's couldn't use any of those criteria asa basis for any other type of "adverse action" (including demotion, harrassment, refusal to hire, etc) p. 11
Disparate Treatment Test
Burden of proof falls on ee:
1. Prima Facie: member of a protected class, suffered adverse action, inference of unlawful discrimination 2. er has to articulate a legitimate, non-discrim reason for it's actions 3. prove that er's articulated reason is a pretext (false), and prove that the true reason was unlawful discrim
Disparate Impact Test
1. Facially neutral policy (on it's face, looks like it applies to everyone)
2. Disparate impact upon a protected group
3. No business justification (ex. How important is it for these policies in mining coal? None, no business justification) p. 46
Mixed Motives Test
legitimate and unlawful reasons. Now a 4th step will be addes: burder of proof will switch to er in a mixed motive case: ex. it would have taken the same action if she was a man p. 48 and 55, 58
Respondeat Superior
an er is responsible for ee's conduct; is the er vicariously liable? will be automatically liable if ee is at fault if:
1. ee's actions occurred during the course of employment
2. general nature of what happened (ee's actions) can be characterized as foreseeable. Court says misconduct from ee may fall under Responeat Superior p. 74
What are the 3 options available to the appeals court when it hears a case?
1. Affirm (we agree)
2. Reverse
3. Vacate and Remand (throw it out and send it to a district court to do again
What types of cases do Federal courts typically hear?
1. Federal law at issue
2. 2 or more parties and come from different states (Complete Diversity of Citizenship) and ALL defts have to be in diff states
3. Amt of $ at issue is least 50,000
When CAN'T an employer fire an employee?
1. breach a contract
2. violate a specific law
Rebuttable presumption
1. the employer can't terminate or take other adverse actions against an ee if the baseis for the er's decision violates a specific law
2. occurs when the termination breaches an express or implied contract w/ the ee
Explain the importance of obtaining collective bargaining rights for employees
Often limits an er's right to terminate an ee. May require progressive discipline. Not a DIRECT execption to at-will employment. Right to bargain collectively is indirect b/c assists in getting er to sign off on the contract. Terms of agreement are the DIRECT exception to at-will.
Name the 5 types of discrimination disallowed by Title 7? Which was more controversial? How did it end up in the law?
1. race, color, sex, religion, national origin
2. sex was most controversial
3. passed by backfiring of opponents of prohibition of sex discrimination
Another controversy surrounding Title 7
it prohibited jury trials in employment discr cases, had to be heard by judge. assumed to be more fair. But amended in 91, had to be heard by jury instead. *plaintiffs could sue for and potentially collect punitive damages for employ. discrim.
Arguments for at-will
1. don't want judges/juries to 2nd guess an er's business judgement
2. may cause more frivolous law suits--no fear of being sued and potentially 2nd guessed
Arguments against at-will
1. market will control er's behavior
Nuisance settlement
settlement in which an er pays $ to the plaintiff, even though the lawsuit is meritless; the cost of defending against the lawsuit outweighs the cost of settling
Employment Laws (Pure/anti discrim laws)
1. pure at will: tips balance in favor of er and potentially risks ee's being unfairly discrim against
2. discrim laws: tip balance towards ee, and potentially risk exposing er to frivolous lawsuits
*laws create a blance btwn er and ee
What are the differences btwen torts and contracts
contract: if an er breaches the terms of a contract w/ an ee, the er only will be exposed to contract damages ($ lost by being denied benefits of the bargain, can't recover for pain/suffering, atty's fees, punitive damages)
tort: terminates an ee in violation of a fundamental public policy (collect for severe emotional distress, pain/suffering, punitive damages) Civil wrong
Efficient Breach
Breach of contract: make the plaintiff whole; once done, no additional $ needs to be paid to plaintiff
Case: Tameny v. Atlantic Richfield Co.
ee alleged that he was fired for refusing to comply w/ er's demand that he assist in an illegal gas price-fixing scheme. Court: violation of public policy, sue for tort damages
Hejmadi v. AMFAC, Inc
ee alleged that he was terminated b/c complained that company acted illegally in strip-searching a friend who was detained at 1 of the company's stores for suspected shoplifting. Court: violation of public policy
Gantt v. Sentry Insurance (Claim for unlawful retaliatory discharge) 4 items
1. ee was fired b/c refused to violate a statute
2. ee was adversely treated b/c performed a statutatory obligation (testify in court b/c of subpoena)
3. ee was adversely treated b/c exercised a statutory right or privilege (er's order to avoid jury duty after summoned)
4. ee reported a statutory violation for the public's benefit p. 23
makes it unlawful for er to prohibit an ee from reporting violations of law to public or police when ee has a reasonable belief that a violation has occured. er can't retaliate. Doesn't protect plaintiff who reported DIRECT TO ER.
Breach of written/oral contract. Tort
written: 4 year limitation
oral: 2 years
Tort: 1 year
Continuing violation
Under some circumstances, if reported w/in statute of limitation, ee may introduce evidence that occurred outside of statute, b/c er's actions are continuing.
McDonnel Douglas/Burdine (3 part test for proving unlawful discrimination) Disparate Treatment Test
*Burden of proof lies w/ ee
1. Prima Facie: member of a protected class, suffered adverse action, inference of unlawful discrimination
2. Er has to articulate a legitimate, non-discrim reason for it's actions
3. ee: prove that er's articulated reason is a pretext (false), and prove that true reason was unlawful discrim
What is Disparate Impact Test (Griggs)? What is the sequence of steps in this test?
Test: a. facially netural policy (looks like it applies to everyone) b. disparate impact upon a protected group c. no business justification
What case established Dis Impact Test? Why necessary to create a new test for employ discrimination?
1. Griggs v. Duke Power Co (mining): Blacks who worked in this dept. had lowest pay/position least desirable. came up w/ 2 requirements to promote 1. H.s diploma 2. SAT test
Differences btwn Disparate Treatment/impact
1. Treatment: discriminates against protected member on it's face (initially choosing white over black applicant)
2. Impact: doesn't discriminate on face, but in it's application (requiring a h.s. diploma for all applicants)
3 ways that are used to satisfy the inference of unlawful discrimination requirement
1. plaintiff applied for position
2. qualified for position
3. application was rejected
4. position that plaintiff applied for remained open and was filled by a person not in the protected category
Price Waterhouse v. Hopkins
Accounting firm. Hopkins applied for partner (promotion); application put on hold; claimed sex discrim (disp treatmen); company said rude, abrasive, etc.; supreme court said she was rude. Mixed motives. 4th step added to test: burden of proof switches to er, would have taken same action if she was a man.
McDonald v. Santa Fe Trail Transportation
Ee's working for Santa Fe were accused of misappropriating cans of antifreeze. Fired all white ee's involved, but kept the 1 black ee. Lower courts said Title 7 didn't cover white ppl. Supreme court disagreed ("Any individual"). prohibited against race discrim on acct of ANY race, including whites
DeSantis v. Pacific Telephone & Telegraph
1. case demonstrates the reluctance of federal courts to allow plaintiffs to try and creatively argue around the fact that federal law doesn't cover sexual orient discrim
2. case is useful tool in examining ways in which a creative plaintiff's atty attempted to apply disparate treatment/impact. Case: homosexual man fired from happy Times Nursery school. Court: man's termination on acct of effeminacy constitutes unlawful sex discrim. Flip side of Price Waterhouse
What does CA law say about marital status and employment?
CA FEHA specifically precludes an employer from discriminating against an employee based upon his/her marital status. Ee has to prove denied benefit b/c their spouse was concurrently employed by same er. However, er may refuse to place 1. 1 spouse under direct supervision of another spouse 2. both spouses in the same dept, if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons
City of Simi Valley v. FEHC
Court held that the city's blanket prohibition against hiring an ee who is married to another city ee violated CA's marital status antidiscrimination laws. however, if city made an assessment and the marital status created potential conflict of interest, then didn't violate.
What 3 supreme court cases deal w/ respondeat superior?
Mary M.; John R. ; Lisa M.
Vicarious liability
strictly liable. An er will generally be liable to the vic/plaintiff for damages resulting from an ee's misconduct. True even if er did nothing wrong.
Mary M. v. City of LA
Woman raped by police officer who wanted "payment" for not taking her to jail for erratic driving. Court: the city was vicariously liable.
John R. v Oakland Unified School District
Junior high student particpated in program that allowed him to complete xtracurricular activities and his teacher's home. teacher eventually seduced him; told his mother, and called police/school. Court: school district is not vicariously liable for the teacher's actions.
Lisa M. v Henry Mayo Newhall Hospital
Pregnant woman who was molested by the ultrasound guy. Court: not forseeable, not liable.
Sutton v. United Air Lines
a plaintiff's impairment must be judged in its corrected state when determining whether the ee is disabled w/in the meaning of the ADA
Murphy v. UPS
Ee fired for having high blood pressure which exceeded the requirements for drivers of commerical vehicles. Court: hed that the mechanic's blood pressure, when medicated, doesn't limit him in any major life activity. An ee's impairment must substantially limit his ability to work in a wide class of jobs, not just one particular job.
Albertsons v Kirkingburg
er fired a truck driver ee b/c of his monocular vision. However, the 9th circuit reversed the decision and said regulations require an ee to demonstrate a significant restriction, not just a significant difference.
Josephs v Pac Bell
Involved the ADA's prohibition against discriminating against a person who is regarded as having a mental disability, as well as the standard for mixed motive cases. Had spent 2 years prior in mental hospital and applied for a poistion to perform unsupervised, in-home telephone installation or repair. Court: PacBell's termination was non-discrimatory. However, failure to reinstate Jospehs b/c it regarded him as mentally diabled in violation of the ADA. Awarded compensatory damages.
What 3 cases limit the scope of the ADA?
Sutton, Muprhy and Albertson.
Meritor Savings Bank v Vinson
sexual harrassment case that established quid pro quo and hostile and offensive work environment. A woman can bring a sex harrass case even if she suffers no monetary (economic harm)
Quid pro quo
requires the deft to explicity or implicitly condition a job benefit, or the absence of a job detriment upon the performance of a sexual act. A form of hostile and offensive work environment harrassment
Hostile and offensive work environment
much broader that quid pro quo. Even if no sexual favors are requested, an ee may bring a claim if she was forced to endure sex harrass that was sufficiently severe or pervasive to alter the conditions of the vic's employment and create an abusive working environ.
4 types of sexual harrassment under FEHA
1. verbal.
2. physical
3. visual
4. sexual favors
Reasonable Victim Standard
Determines when sexual misconduct is sufficiently sever or pervasive to justify an award of damages. considers vic's perspective.
1. Test for Negligence 2. Subjective Test 3. Objective Test
ellison v. brady
Reasonable victim standard (sexual harrassment). 1. test for negligence: would a typical, reasonable person have done the same thing? 2. subjective test: did woman feel conduct crfeated abusive work environment 3. Objective test: requires that reasonable person of same gender as vic would consider conduct sufficiently severe or pervasive so as to alter the vic's working conditions and create abuse working environ.
harris v Forklift systems
Court clarified that an ee potentially could succeed in bringing a sex harrass lawsuit even if he or she never suffered any economic or psychological injury
Nichols v Francisco
Deaf and mute female postal ee copulated her supervisor orally b/c afraid she would lose her job. Quid pro quo sex harrass. Sex harass could be proved by an objective or subjective test.
Objective test
proven when a reasonable womean believes that the sexual misconduct created an abusive working environment
Subjective test
when the man intends his conduct to be sexual harassment. Did the woman feel conduct created an abusive work environment?
Lyle v Warner Bros
Friends writers spoke about sex. Sexually coarse and vulgar language.