Final Management Study Guide

Front 1

Disparate- Treatment

Back 1

Prima Facie case:

1)Plaintiff a member of a protected class;

2) Applied and qualified for job;

3) Rejected by employer; and

4) Employer sought other applicants.

Front 2

Unintentional Discrimination; Disparate-Impact Discrimination

Back 2

Protected group of people is adversely affected by an employer's practices, procedures, or tests, even though they day not appear to be discriminatory

Front 3

What is an example of Disparate-Impact Discrimination

Back 3

Pool of Applicants Test: Plaintiff shows percentage of the protected class in employer's workforce does not reflect percentage in local labor market.

Front 4

What is another example of Disparate-Impact Discrimination

Back 4

Rate of Hiring: Plaintiff compares selection rates of members of protected class with nonmembers in employer's workforce. According to EEOC, less than 80% of rate of nonprotected class may show disparate impact.

Front 5

Constructive Discharge

Back 5

Employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit.

Applies to all title VII discrimination

Front 6

Constructive Discharge: Proving a case:

Back 6

•Plaintiffmust present objective proof of intolerable working conditionswhich employer knew about, failed to correct.

•Employee’sresignation must be a foreseeable result of working conditions.

Front 7

Sexual Harassment:

Back 7

There are currently two forms of sexual harassment: Quid Pro Quo and Hostile Work Environment

Front 8

Quid Pro Quo

Back 8

Involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits

Front 9

Sexual Harassment: Hostile Work Environment

Back 9

Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim's employment and create an abusive working environment

Front 10

Sexual Harassment: Harassment by Supervisors

Back 10

1) Supreme Court has held that employer can be liable even if employee does not suffer adverse job consequences

2) Employer is ALWAYS liable if harassment results in tangible employment action

Front 11

–The Ellerth / Faragher AffirmativeDefense hastwo elements:

Back 11

•(1)Employer must have taken reasonable care to prevent and promptly correct anysexually harassing behavior (policies and complaint procedures),

•(2)Plaintiff-employee must have unreasonably failed to take advantage ofpreventative or corrective opportunities to avoid harm.

•Ifan employer can prove both elements, he will not be liable forsupervisor’s harassment.λ[fW

Front 12

Retaliation by Employers

Back 12

Tangible employment action against employee that complains about sexual harassment or other title VII violations

Front 13

The Age of Discrimination in Employment Act (ADEA)

Back 13

Protects individuals over the age of 40 from workplace discrimination that favors younger workers

Front 14

Procedures under the ADEA

Back 14

Plaintiff must show discrimination was THE reason for adverse employment action

Front 15

The Americans with Disability Act (ADA) (ADA) requires employers to offer

Back 15

"reasonable accommodation" to employees or applicants with a disability who are otherwise qaulified for the job they hold or seek.

Applies to business with 15 or more workers

Front 16

Reasonable Accomodation: Substance Abusers

Back 16

Only applies to FORMER drug users completed or going through supervised drug rehabilitation

Front 17

What is Reasonable Accommodation?

Back 17

Employers can fire an alcoholic if he poses substantial risk

Health Insurance Plans: workers with disabililties must be given equal access to health care.

Front 18

Four basic types of defense:

Back 18

1) Business Necessity

2) Bona Fide Occupational Qualification (BFOQ)

3) Seniority Systems

4) After-Acquired Evidence

Front 19

Corporate Criminal Liability

Back 19

Corporate liable for crimes committed by agents and employees (1) within scope of employment and (2) with some benefit to the corp.

Usually, senior management participated in or new of and failed to stop crime

Front 20

Violent Crimes: Crime against person

Back 20

Murder, Sexual Assualt, Rape

Robbery: Taking a property from person by force or fear

Front 21

Property Crimes:

Back 21

1)Burglary: Entering dwelling with intent to commit crime

2) Larceny: Unlawful taking of property

3) Obtaining Goods by False Pretenses: Theft Involving trickery or fraud

Front 22

Justifiable use of force

Back 22

Self defense of people and property can use deadly force if reasonable belief or imminent death or serious injury, cannot use deadly force to protect property alone

Front 23

Stand your Ground Defense:

1) Florida

2) California

Back 23

1) Can use force to defend against imminent danger, no retreat

2) Castle Doctrine

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Front 24

What is Castle Doctrine?

Back 24

Any person using force [] within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury

But, jury instruction: A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonable necessary, to pursue an assailant.

Front 25

Defenses: Necessity and Insanity

Back 25

Necessity: Criminal act necessary to prevent greater harm

Insanity: Model Penal Code: Lacks capacity to understand wrongfulness

M'Naghten: did not know nature/qaulity of actions, or did not understand wrongfulness

Front 26

Mistake: Mistake of fact

Back 26

Can excuss criminal act if it negats mental state: ex. Taking someone's textbook mistakenly.

Front 27

Duress

Back 27

Wrongful threat induces another to commit a crime

Entrapment: government induced the crime. But: defendant cant be pre-disposed

Front 28

•Georgesees an iPad in what he thinks is an abandoned warehouse. He crawls through an open window to getit. When he reaches out to grab it, hesees Harriet on the couch. Her foot istouching the iPad. It turns out this isHarriet’s loft apartment. George grabsthe iPad and starts to flee through the window. To keep George from getting away with her iPad, Harriet shoots George inthe back, wounding him.

Front 29

Constitutional Protections: Fourth Amendment

Back 29

No warrant for a search or an arrest issued without probably cause.

Front 30

Constitutional Protections

Back 30

The exclusionary rule: Evidence obtained in violation of the Fourth Amendment is excluded from trial

"Fruit of the Poisonous Tree" is excluded as well

Front 31

Section1 of the ShermanAct

•Section1 regulates “horizontal” and “vertical” restraints.

two parts. What are those two parts

Back 31

1) Per se Violations: Per se violations are blatant and substantially anti competitive

2) Rule of Reason agreements do not unreasonably restrain trade. Factors a court considers. a) Purpose of the agreement

b) parties ability to implement the agreement

c) (Potential) Effect of agreement on competition

d) Whether the parties could have relied on less restrictive covenants to achieve their purpose.

Front 32

Horizontal Restraints:

Back 32

Agreements among sellers (or buyers) that restrain competition between rival firms competing in the same market

Per se violations:

•Price Fixing: competingfirms set an established price for the goods or services they offer.
•Group Boycotts: refuseto sell to/buy from particular customers/suppliers

•Horizontal Market Division: Competitorsin same market agree each will have exclusive rights to operate in designatedterritory

Front 33

Horizontal Restraints: Rule of reason

Back 33

Trade associations

Front 34

Vertical Restraints

Back 34

anti competitive agreements imposed by sellers upon Buyers (or vice versa) that may include affiliates in the entire supply chain of production

Front 35

Section 1 of the Sherman Act: Rule of Reason

Back 35

•Price Fixing: competingfirms set an established price for the goods or services they offer.•Group Boycotts: refuseto sell to/buy from particular customers/suppliers•Horizontal Market Division: Competitorsin same market agree each will have exclusive rights to operate in designatedterritory

Front 36

Section 2 of the Sherman AntiTrust Act:

Back 36

•Monopolizationand Attempts to Monopolize.

Predatory Pricing:Attempt to drive a competitor from the market by selling products at pricessubstantially below the normal costs of production.

Monopolization.–Relevant Market.•Mustbe determined by a court before it can determine whether firm has dominantmarket share: –(1)relevantproduct market,and –(2)relevantgeographic market.

Front 37

Section 2 of the Sherman Anti Trust Act

Monopolization.

Unilateral Refusals to Deal (individual boycott) violate the Sherman Act if:

Back 37

•firmrefusing to deal has (or is likely to acquire) monopoly power, AND

•therefusal is likely to have an anticompetitive effect on a particular market.

Front 38

The Sherman Act

Jurisdictional Requirements

Back 38

–Anyactivity that substantially impacts interstate commerce.

–Alsoextends to foreign activities that have an effect on U.S. commerce.

–Anyforeign business conspiracy that has a substantial effect on U.S. commerce iswithin reach of the Sherman Act.

–U.S.jurisdiction is automatically invoked when a per se violationoccurs (if substantial effect on US commerce)

Front 39

The Clayton Act:

What is Price Discrimination?

and what are the defenses?

Back 39

The charging of different prices to competing buyers for identical goods. (effect must be to lessen competition to bring claim)

there are three defenses:

1) Cost justification.

2) meeting the price of the competition

3) changing market conditions

Front 40

Securities Act of 1933

Back 40

3 points. 1) Initial sales of stock

2) all securities transactions must be registered unless exempt

3) issuing corporation must file a registration statement and prospectus with the SEC

Front 41

The Securities Act of 1933.

Well Known seasoned issuers:

Back 41

–AWKSI has issued $1 billion in securities during last 3 years, or $700 millionoutstanding stock in public hands.–Canfile registration statement the same day they announce.

Front 42

Exempt Securities and transactions: Regulation A (Offerings)

Back 42

•Upto $5 million in any twelve-month period is exempt from registration.

•Issuermust file a notice with SEC and circulate a prospectus

•Unrestricted stock (can resell anytime)

Front 43

Exempt Securities and Transactions.

Regulation D offerings:

Back 43

•Rule 504: up to $1M during 12 months to both accredited and 35 unaccredited investors --restricted

Front 44

•ExemptSecurities & Transactions.

–Regulation D Offerings.

Back 44

•Rule 506: private placement exemption: unlimitedprivate, noninvestment co offerings if no general solicitation and notice toSEC. Unlimited accredited investors, max of 35 unaccredited (but knowledgable)investors.–Restricted stock4

Front 45

Violations of the 1933 Act

Back 45

Intentional or negligent defrauding of investors by misrepresenting or omitting material information in the registration statement or prospectus.

defenses:

1) statement or omission was not material

2) plaintiff knew about misrepresentation at sale

3) defendant exercised due diligence and believed statements were true (this one not applicable to issuer).

Front 46

Insider Reporting and Trading - Section 167(b)

Back 46

requires recapture of all short-swing profits by insiders (those owning 10% of equalities) to corporation.

Front 47

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Back 47

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