Rplu 11 Chapter 3

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Discrimination protected classes

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- race
-national origin
Sex
Religion
Age
Disability

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Most frequent charge with EEOC and percentage

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Race discrimination 35% of charges

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Race discrimination charges usually involve one of the following factors

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Physical characteristics such as facial features or height
Skin color of individual or group of person such as discrimination against dark skinned African-Americans
Association with a protected individual which involves discrimination not based on race but on employees Association with another person – discriminating against person because of interracial marriage or adoption of a child of different race
Stereotypes associated with race such such as athletic ability, use of alcohol, work ethic

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What may constitute unlawful discrimination

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Seemingly neutral employment practices have unintentional adverse effect

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National origin discrimination means

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Treating people less favorably because they come from a particular place, because of there is a city or accept or because it is believed that they have a particular ethnic background 9/11. 10% eeoc claims

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Discrimination including pregnancy childbirth and related conditions about 30% of EEOC charges examples are hiring only men or only women for certain jobs, allowing man but not women to work overtime, facing pension on actuarial tables that are based on gender

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Sex discrimination

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Including sex as bona fide occupational qualification BF 0Q

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Requiring all guards in a men's prison our mail or requiring female attendance for women's restroom these exceptions are rare and employers should always examine job qualifications for unintended discrimination

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Discriminating against older workers 40 and older protected by federal statutes is illegal. State and local statutes sometimes protect those under 40.
Examples of age discrimination

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Mandatory retirement at certain age, assigning only older workers or younger to certain positions and types of jobs, selecting older workers when reducing workforce and keeping only young, refusing to hire qualified older applicants
20% of eeoc claims

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Disability direct threat exception is gnarly applied and employers must prove significant risk of harm exists the camp eliminated or reduced by reasonable accommodation for factors considered in determining if disability poses direct threat either to self or others are

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-duration of risk – nature and severity of potential harm – likelihood of harm – eminence of potential harm

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Undue hardship

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Employer is required by ADA to make a reasonable accommodation for qualified applicant or employee if it would not impose an undue hardship on the business. Many EPL claims involve determining what constitutes undue hardship and what employer must do to accommodate disabled employee
or applicant

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Five general categories of retaliation claims

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Opposing unlawful employment discrimination
filing claims for unpaid wages engaging in union organizing and other union related activities
exercising rights under OSHA FMLA
whistleblower

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Best defense against defamation is

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Truth. These cases are usually one by employers but the associated defense costs may be significant

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Clean that arise when employees falsely accused of that in confidence embezzlement or drug use

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Defamation

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Invasion of privacy claims are based on two legal theories

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Intrusion upon seclusion and public disclosure of private facts

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Intrusion upon seclusion

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Usually involves the search of an employee's possessions but also includes observing our monitoring employees to reduce these exposures employer should establish policies that allow search of personal items lockers desks and cars

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If employer uses this type of information about employees behavior away from work place in making employment decisions and employee may claim

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Invasion of privacy

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Similar to defamation except the statements do not have to be false claims arising from this such as medical records to others who do not have legitimate reason to access information Selfick types of information such as medical records and credit reports may be protected by law employers you protectively data such as a valuations medical claims reduce their exposure to these

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Public disclosure of private facts

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Claims alleging fraud or misrepresentation usually involved to situations

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Usually an employee doesn't make a job change based on statements or misrepresentations made by their current employer or

An employee does make a job change based on statements or misrepresentations by the new or potential employer

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To prove claims of fraud misrepresentation employees must prove three elements

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– Employer made for statement misrepresentation to the employee – employer knew or should've known the statement was false – employee relied on this misrepresentation

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Often filed a sexual harassment charges but these claims can also be made separately based on intolerable working conditions generally employees conduct must be out rages are outside the bounds of what is considered socially acceptable behavior quarts differ in their opinions of what outrageous conduct Intel's these types of claims usually arise out of work play situations are difficult for an employee to prove

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Intentional infliction of emotional distress

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An employer interfering with him please business relationship frequently with the employees new or prospective employer the previous employer may disclose information that will not defamatory untruthful is not necessary or motivated by bad intentions

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Interference with business relations

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What are three elements of a retaliation claim

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1. Protected activity including opposition to discrimination or participation income complaint process2. Adverse employment action – causal connection between protected activity and adverse action

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Employers are often liable for the actions of their employees if the employees were acting within scope of employment however enjoying a coworker is not generally within the scope of employment the liability don't lawyers arises when the employer allows an employee to be harmed through

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Negligence and hiring retaining or supervising another employee
These claims are difficult to prove jury's may be sympathetic to employees injured at hands of coworkers and no damage caps apply to these claims
Negligent retention

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Involves the discrimination or harassment of a nonemployee such as a customer client our vendor these claims are usually not covered under other types of insurance so some EPli carriers offer this coverage as a part of their package without the coverage extension claims by non-employees are not covered

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Third-party claims

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Many of these claims involve I'll rations of ADA and are made against hotels restaurants retail stores where disable customers unable to use dining area restroom aisles and adequate parking is not available these claims usually require business to make accommodations and Bob costly set of settlements EPL policies do not cover the costs of such accommodations

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Type of 3rd party claim

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Some insurers offer third-party coverage for discrimination claims made by individuals but exclude claims for this meeting against banks mortgage lenders and other financial service companies. This typically involves illegal discrimination by banks and mortgage lenders the term refers to the practice of outlining certain neighborhoods where loans could not be made or cost of services would be increased usually older neighborhood in areas with a large number of minorities

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Redlining

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Fundamental difference between first and third-party claim

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First party made by an employee third-party made by non-employees such as client customer or vendor

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Classes of business that are more prone to third-party exposure

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Security property managers entertainment healthcare real estate insurance auto dealer membership car rental hotel restaurant

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Why was third-party coverage added to EPL I policy's

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These discrimination claims were not covered under CGL

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What factors should be underwriter consider when assessing risk of third-party claims

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class or type of business – interactions with clients customers and others – policies and procedures – training for employees

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Important distinction between retaliation claims and claims alleging harassment or discrimination

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Employee files retaliation claim does not have to be a member of a protected class and not necessarily victim of discrimination or harassment

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Define opposition and participation

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I position when an employee contests any type of discrimination harassment are protected activity including filing a charge complaining about activities or threatening to file a charge. Opposition requires employee to believe in players actions are legal

Participation is filing a charge testifying assisting or participating in investigation or legal proceeding

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Basic wrongful discharge claims are not recognized in many I will states and employees may seek other grounds on which to sue their employers many of these claims are based on

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Workplace torts

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Tort claims based on

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Common-law rather than statutes. Common laws are developed over the years through court decisions workplace towards include claim such as intentional infliction of emotional just stress defamation misrepresentation and negligent hiring

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Employment tort claims based on

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Certain duties employer has to its employees such as providing a see if working Bierman our freedom from harassment

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Caselaw and EPL exposure – fellow servant rule

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Roll relieved employer from any liability when one employee was injured because another employees careless or intentional misconduct courts have created exceptions to the rule and now employers have duty to provide safe work environment today employers may be liable if one employee injures another because the employer negligently hired retained or supervised employees

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Tort claims are often filed along with statutory claims an employee who file sexual-harassment lawsuit under title VII may also ledge in flexion of emotional distress negligent supervision which are both workplace torts. Which exposures are greater?

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Because many states don't limit damages allowed for tort claims the potential exposure from

Tort is much greater than statutory claims made under federal antidiscrimination laws

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False communication or statement the damages a person's reputation written statements called Bible while oil oral statements are called slander employers may find themselves charged with this for statements made after employee resigns or is discharged

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Defamation