Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
55 Cards in this Set
- Front
- Back
|
Employment at will doctrine
|
a contract of employment for an indeterminate term is terminable at will by either the employer or the employee; the traditional “American Rule” governing employer-employee relations. Can lay you off at anytime for any reason (except discrimination)
justified by the right of the employer to control his property places the employer in a position to treat employees arbitrarily federal restrictions include: cant be fired for filing a complaint, testifying or causing a hearing based on fair things the effect has been restricted by a growing number of common law and state statutory exceptions ^ the exceptions fall into 3 categories: 1. implied contract: ex. Happy language 2. violations of public policy 3. implied covenant of good faith and fair dealing |
|
|
implied contract
|
may arise from statements made by the employer in advertising the position or in an employment manual
|
|
|
the public policy exception
|
- makes it unlawful to dismiss an employee for taking certain actions in the public interest
includes dismissals: participation in environmental or consumer activities, “whistleblowing”( someone who talks bad about company and you can’t fire them. Public policy) serving jury duty, doing military service and refusing to take a lie detector test |
|
|
implied covenant of good faith and fair dealing
|
based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other. Shouldn’t ask them to do a task that they worked hard on and then fire them.
not used often because there is no clear agreement on what constitutes “fair treatment of an employee |
|
|
Collective Bargaining Agreements
|
restricts the employers ability to terminate employees except for “just cause”
the employees covered by this agreement are thus no longer “at will” employees |
|
|
Fifth Amendment
|
no person may be deprived of life, liberty or property without due process of law
|
|
|
Thirteenth Amendment
|
abolished slavery
|
|
|
Fourteenth Amendment
|
granted slaves equal rights and privileges and guarantees equal protection
^ not enough to prohibit unequal treatment so they made civil rights laws and anti discrimination laws |
|
|
The Equal Pay Act of 1963
|
prohibits wage discrimination based on sex within any “establishment”
an amendment to the Fair Labor Standards Act plaintiff must show that the employer pays unequal wages to men and women doing equal work at the same establishment |
|
|
Equal Work in the Equal Pay Act of 1963
|
based on four factors and if the employer varies any one of those factors there is no violation of the act. The factors are:
1. Skill- experience, education, training, and ability required to do the job 2. Effort- physical or mental exertion needed for performance of the job 3. Responsibility- measured by the economic and social consequences that would result from a failure of the employee to perform the job duties in question 4. Working conditions- safety hazards, physical surroundings and hours of employment (Am/Pm shifts) an employer is entitled to pay a shift premium to employees working different shifts as long as there is no sex bias |
|
|
Extra Duties in Equal Pay Act of 1963
|
the duties are sufficient to preclude a finding of equal work only if:
1. the duties are actually performed by those receiving extra pay 2. the duties regularly constitute a significant portion of the employees job 3. the duties are substantial, as opposed to inconsequential 4. additional duties of a comparable nature are not imposed on workers of the opposite sex 5. the extra duties are commensurate with the pay differential 6. in some jurisdictions, the additional duties must be available on a nondiscriminatory basis |
|
|
Establishments in Equal Pay Act of 1963
|
one business location is obvious. If an employer had several locations they may all be considered part of the same establishment on the basis of an analysis of the companys labor relation policy
the greater degree of centralized authority for hiring, firing, wage setting, and other human resources matters, the more likely the courts are to find the multiple locations a single establishment |
|
|
Defenses in Equal Pay Act of 1963
|
legal justifications for paying unequal wages to men and women
pay differential is based on one of the four statutory exceptions found in Bennet Amendment to the Equal Pay Act 1. seniority system 2. merit system 3. a pay system based on quality or quantity of output 4. factors other than sex a training program that requires trainees to rotate through jobs that are normally paid lower wages will be upheld as long as it is a bona fide training program and not a sham for paying one sex higher wages for the same job |
|
|
Remedies in Equal Pay Act of 1963
|
pay, liquidated damages equivalent to back pay (if defendant was not acting in good faith), attorney fees and court costs
cannot remedy the violations by reducing the higher paid workers wage or by transferrin those of one sec to another job so that they are no longer doing equal work |
|
|
Title VII of the Civil Rights Act of 1964
|
prohibits:
1. hiring, firing, or otherwise discriminating in terms and conditions of employment 2. segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin. these 5 categories ^ are known as protected classes |
|
|
Applicability of the Civil Rights Act of 1964
|
employers who have 15 or more employers, this year or last, for 20 consecutive weeks, and are in a business that affects interstate commerce
also covers indian tribes, private clubs, unions, and employment agencies the act imposes record keeping and reporting requirements on these parties must maintain all records regarding employment opportunities for at least six months including: job applications, notices for job openings, and records of layoffs Annual reports with info of the number of minorities in various job classifications must be filed with the Equal Employment Opportunity Commission by employers of more than 100 workers the employer must display a summary of relevant portions of title VII where the employees can see it |
|
|
How to prove discrimination in employment discrimination case:
|
1. disparate treatment
2. disparate impact |
|
|
disparate treatment
|
one individual is treated less favorably than another because of color, race, religion, sex, or national origin
|
|
|
Building a prima face case (obvious on its face) for disparate treatment:
|
-the plaintiff must establish these facts:
1. the plaintiff is within one of the protected classes 2. he or she applied for a job for which the employer was seeking applicants for hire or promotion 3. the plaintiff possessed the minimum qualifications to perform that job 4. the plaintiff was denied the job or promotion 5. the employer continued to look for someone to fill the position. Evidentiary burden shifts to the employer. the defendant gives reasons that he didn’t give the plaintiff the job that are nondiscriminatory. Employer must have good record-keeping to win the case and show that the other person was better qualified. the plaintiff must then prove the reasons the defendant offered were just pretext (not real but put forth because they sounded good [excuse]) which can be proved by things like the criteria they used to reject them were not applied to others |
|
|
disparate impact
|
- arise when a plaintiff attempts to establish that an employers facially neutral employment policy or practice has a discriminatory effect on employees that belong to a protected class
the plaintiff must establish statistically that the rule disproportionately restricts employment opportunities for a protected class the defendant must demonstrate that the practice or policy is a business necessity the plaintiff can recover by proving these reasons are a pretext. A facially neutral policy=pretext for discrimination. Ex: job doesn’t require a certain diploma (irrelevant). |
|
|
Fickling v. New York State Department of Civil Service (1995)
|
Fickling was temporary employee and failed the eligibility examination so they terminated her and others. They fought saying the exam was unlawful racially to minorities. Needed to pass test (w/ reading comp. and math). Blues more likely to pass than greens. Test was rigged. Court favored plaintiffs bcuz business didnt give evidence showing the exam was for the business goal of the company.
|
|
|
What are the two types of sexual harassment?
|
quid pro quo and hostile environment
|
|
|
sexual harassment
|
sexual conduct that makes submission a term or condition of employment or that creates an intimidating, hostile, or offensive environment
|
|
|
quid pro quo
|
in sexual harassment, occurs when a supervisor makes sexual demands on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment (ex. For a raise or promotion)
basis of rule is that same demand wouldn’t be made with same sex |
|
|
Hostile Environment
|
in sexual harassment, includes cases based on religion, race, and even age. Because of harassment, it makes it hard for people to get their work done.
- example: black correction workers demonstrated a hostile environment saying they were subject to continuing verbal abuse and racial harassment by coworkers and the county sheriffs office did nothing to stop the abuse appeared that in quid pro case a company was liable regardless of its knowledge, but in hostile environment case, a company was not liable without direct knowledge of the situation |
|
|
Teresa Harris v. Forklift Systems Inc (1994) pg 543
|
Harris was manager for FSI and filed an action against the president for creating an abusive work environment based on her gender. Favored Harris. Boss made comments to Harris that created a hostile work environment. Said things such as “Can you get some change out of my pocket for me?”.Case went to the supreme court. Where do we draw the line? All that is required it that it is pervasive.
|
|
|
Ellerth v. Burlington-employer Defense
|
Ellerth was subjected to dirty jokes and sexual innuendos from her boss. He threatened to make her life miserable if she didnt listen. She did not complain about harassment but quit after a year because she couldnt take it anymore
|
|
|
Oncale v. Sundowner Offshore Services (1998)
|
same sex harassment did not constitute as harassment until this case: Oncale worked for SOS on 8 man crew. HE brought a Title VII action against his former employer, male supervisors, and coworkers, alleging sexual harrassment. Male on male harassment at a drilling site where you can’t just leave. Favored onacle. Hostile work environment.
-Employer isn’t liable if they take steps to prevent and promptly correct the issue/behavior when it takes place (ex: training where they take attendance) |
|
|
Statutory Defenses
|
raised by the defendant after the plaintiff establishes one of the three above. Three main types:
-Bona Fide Occupational Qualification -merit -seniority systems |
|
|
Bona Finde Occupational Qualification
|
raised by the defendant after the plaintiff establishes one of the three above. Three main types:
|
|
|
Merit system
|
claims involve the use of tests to hire or promote. Tests must be validated in accordance with standards established by the American Psychological Associations. Three types of validation:
-criterion-related validity -content validity -construct validity |
|
|
criterion-related validity
|
the statistical relationship between test scores and objective criteria of job performance
|
|
|
Content validity
|
isolates some skill used on the job and directly tests that skill. EX a test that required a secretary to type and take shorthand
|
|
|
Construc validity
|
a psychological trait needed to perform the job is measured. EX a test for patience for a teacher
|
|
|
Seniority systems
|
employees are given preferential treatment based on their length of service, may perpetuate discrimination that occurred in the past.
|
|
|
seniority systems not unlawful if:
|
1. the system applies equally to all persons
2. the seniority units follow industry practices 3. the seniority system did not have its genesis in discrimination 4. the system is maintained free of any illegal discriminatory purpose |
|
|
Protected classes and their description
|
Race and Color-
the act contains a proviso that stating that nothing in the act requires that preferential treatment bases on an imbalance between their representation in the employers workplace and their representation in the population at large be given to any protected class. brought questions about discrimination against whites as a result of employers attempts to create a racially balanced workplace National Origin- not alienage, so an employer can refuse to hire non-US citizens Sex- refers only to gender and not to preferences, so homosexuals are not protected it would be sex discrimination to fire male homosexuals and keep female ones |
|
|
Pregnancy Discrimination Act
|
specifies that discrimination based on pregnancy is sex discrimination
pregnancy must be treated the same way as any other disability, except that abortions for any purpose other than saving the mothers life may be excluded from the companys medical benefits |
|
|
*UAW v. Johnson Controls
|
JC fired 8 female employees for getting pregnant with high BAC levels. UAW challenged JC fetal-protection policy as sexually discriminatory in violation of Title VII and 1964 Civil Rights Act.
Court favored UWA, even though lead exposure may be harmful to unborn- JC had no proof this detracted the female employees abilities to perform their tasks |
|
|
Tips for Avoiding Sexual Harassment Charges
|
1. senior management must make clear their position that sexual harassment in any form will not be tolerated
2. Have an explicit written policy on sexual harassment that is widely disseminated in the workplace and given to every employee 3. make sure employees know what is, and what is not sexual harassment 4. provide a gender-neutral training program on sexual harassment for all employees 5. establish an efficient system for investigating charges of sexual harassment and punishing violators 6. Make sure that complaints are to be filed with a neutral party, not with the employees supervisor 7. Thoroughly investigate and resolve every complaint, punishing every violation appropriately |
|
|
The Age Discrimination In Employment Act of 1967
|
prohibits employers from refusing to hire, discharging, or discriminating against people in terms of conditions of employment on the basis of age.
|
|
|
To which type of companies does the Age Discrimination in Employment Act apply?
|
employers with 20 or more employees in an industry that effects interstate commerce, employment agencies, and unions that have at least 25 members or operate a hiring hall.
does not apply to state employees |
|
|
Proving Age Discrimination
|
show disparate treatment or impact
most ADEA cases today involve termination in order to prove a prima facie case: 1. Most be 40 years or older 2. Qualified for the position held (Temptation ->make assumptions) 3. Terminated under circumstances giving rise to an inference of discrimination 4. Replaced with a younger person (until 1996) after defendant some courts have relied only on a pretext standard from the plaintiff, while others required a plaintiff to show direct proof of discrimination known as “pretext plus” |
|
|
*Reeves v. Sanderson Plumbing Products (2000)
|
Reeves, 57 worked for SPP for 40 years. When absents and tardies showed poor production in the area Reeves worked in, he was fired even though his work showed no problem. Reeves sued the company for discrimination under ADEA. Favored Reeves
|
|
|
To which type of companies does the Age Discrimination in Employment Act apply?
|
employers with 20 or more employees in an industry that effects interstate commerce, employment agencies, and unions that have at least 25 members or operate a hiring hall.
does not apply to state employees |
|
|
Statutory Defense to Age Discrimination in Employment Act:
|
=Bona Fide Occupational Qualification
=bona fide seniority system =“reasonable factors other than age |
|
|
Proving Age Discrimination
|
show disparate treatment or impact
most ADEA cases today involve termination in order to prove a prima facie case: 1. Most be 40 years or older 2. Qualified for the position held (Temptation ->make assumptions) 3. Terminated under circumstances giving rise to an inference of discrimination 4. Replaced with a younger person (until 1996) after defendant some courts have relied only on a pretext standard from the plaintiff, while others required a plaintiff to show direct proof of discrimination known as “pretext plus” |
|
|
Bona Fide Occupational Qualification
|
defendant must establish that he must hire employees of only a certain age to safely and efficiently operate the business
|
|
|
*Reeves v. Sanderson Plumbing Products (2000)
|
Reeves, 57 worked for SPP for 40 years. When absents and tardies showed poor production in the area Reeves worked in, he was fired even though his work showed no problem. Reeves sued the company for discrimination under ADEA. Favored Reeves
|
|
|
*Hudgson v. Greyhound Lines Inc
|
the employer refused to hire people 35 or older. They demonstrated its safest drivers were 50-55 with 16-20 years of experience. They argued that this combination of age and experience could never be reached by someone hired 35 or older, so they need to hire 35 and younger to ensure the safest drivers. The court agreed with this
|
|
|
Statutory Defense to Age Discrimination in Employment Act:
|
=Bona Fide Occupational Qualification
=bona fide seniority system =“reasonable factors other than age |
|
|
Executive Exemption
|
an individual may be mandatorily retires after age 65 if:
he or she has been employed as a bona fide executive for at least 2 years immediately before retirement on retirement, he or she is entitled to nonforfeitable annual retirement benefits of at least $44,000 |
|
|
Bona Fide Occupational Qualification
|
defendant must establish that he must hire employees of only a certain age to safely and efficiently operate the business
|
|
|
*Hudgson v. Greyhound Lines Inc
|
the employer refused to hire people 35 or older. They demonstrated its safest drivers were 50-55 with 16-20 years of experience. They argued that this combination of age and experience could never be reached by someone hired 35 or older, so they need to hire 35 and younger to ensure the safest drivers. The court agreed with this
|
|
|
Executive Exemption
|
an individual may be mandatorily retires after age 65 if:
he or she has been employed as a bona fide executive for at least 2 years immediately before retirement on retirement, he or she is entitled to nonforfeitable annual retirement benefits of at least $44,000 |
