B LAW 341

BUSINESS
LAW I
SECTION 005
INTRODUCTION TO
Employment
CONTRACTS, Law
Discrimination
LIABILITY ISSUES &
INTELLECTUAL
Protection
TOPIC OUTLINE
I. Employment Discrimination
A. Protected Classes
B. Discrimination Protection
C. Sexual Harassment
D. Americans with Disabilities Act

2017 Daniel R. Cahoy

AT WILL EMPLOYMENT
Standard in U.S. employment
Fired at any time
Quit at any time
Default rule that can be changed(Montana can only fire with a purpose)
Purpose and development
Benefits to business
Employees can always choose sth rather than contract
Pros: give employees more freedom(economics),
Keep employees quality high
Unequal employment relationships
In Europe, only fire for cause. And has to pay money when they fire employees.

International Contrast

Montanas unique presumption

Good cause rule
You have to have clauses to fire employees
By statue for Montana

2017 Daniel R. Cahoy

EXCEPTIONS TO AT-WILL
Statutes replace some part of at-will for hiring, firing or employment conditions
Conditions and Safety
Machines safety for factory workers
Income protection
Cannot fire employees due to minimal wage protection
Whistleblowing (in specific instances)
It is not generic. Sone statutes give protections. Employers cannot fire whistling blowing
employees.
Discrimination
Race, sex preference
Contract replaces some part or all of at-will
Explicit or implied(hand out employee booklets)
Union
Public Policy prohibits firing for certain reasons
Only hire you only under the condition you wont vote.
Good faith and fair dealing (cause required for firing)
Very rare only a few states

Most employment cases brought under statute or contract

Always have a reasons. Cannot randomly fire people. Even if in at-will. Some causes to
avoid allegation.

2017 Daniel R. Cahoy

FAIR TREATMENT OF EMPLOYEES
Is all employment discrimination illegal?
Gender discrimination: a male janitor in a male bathroom of a 21 club
Daycare employees
Some cases gender might be ok.

Only hire people with high IQ

Minimum performance on a certain test
Smart VS dump: 100 discrimination

Hire people who looks good on the clothes in fashion industry

Sexism. Morally ok: legally ok?

Penn State: count on some form of discrimination

Protective hire on a basis of attendance on a well-reputated uni
Discrimination. It is legal.

2017 Daniel R. Cahoy

 https://www.messen

FAIR TREATMENT OF EMPLOYEES

Protected Classes (fed.)
Civil Rights Act of 1964
race, color, religion, national origin, gender,
1991 Amendments(increase the remedies)
Equal Pay Act of 1963
genderx
Age Discrimination in Employment Act (ADEA)
Age (40 or older): protect older people

Americans with Disabilities Act

Disability
Pregnancy Discrimination Act
Initially supreme said discrimination against pregnancy isn't same as discriminated
against gender
Uniformed Services Employment and Reemployment Rights Act
U cant be fired coz u have to go away for military employment
Give same opportunity to come back to their jobs and promotion
Genetic Information Nondiscrimination Act of 2008
Genentic condition that leads to future diseases or behaviors
Cannot use that to discriminate in hiring or continuous employment
States can add additional protections
This is applied across the entire nations
2017 Daniel R. Cahoy
ADDITIONAL STATE OR MUNICIPAL
PROTECTIONS
Sexual Orientation and Gender Identity
Different states have enhanced gender discrimination protection
Off Duty Conduct
Often related to smokers rights
Creates problem to
Smokers rights protection: protect smokers in some states(tobacco states)
Marijuana: employees can fire u if u dont pass the drug test
Jobless (rare)
No discrimination in hiring or advertising
Employ people who has past job experience and dont consider people who are out of work
NY and NJ: some states cannot discriminate people who are out of job, unless for jobs
requiring some certification
Exceptions for licensure, current employees
Others exist
You can be hired, fired, and not promoted for any causes outside of the protection
categories
Political opinions are not protected.

2017 Daniel R. Cahoy

IN THE NEWS
Kimberly Hively was an adjunct maths professor at Ivy Tech Comm College
Never hired for open positions
Contract not renewed in 2014
Claimed it was based on discrimination coz she is openly lesbian
Filed case with EEOC and eventually granted right to sue
In en banc opinion, 7th Cir. find that such discrimination is gender stereotyping

Work class covered by fed law

A. gender
B. sexual orientation
C. ages

Religions institution is ok(exception), a Christian university

2017 Daniel R. Cahoy

ANTI-DISCRIMINATION
Sources of Law
Federal
14th Amendment (govt. only)
Commerce claus

State
Various Statues
Fills gaps in federal coverage
FEPA

Fair Employment Practices Agencies (FEPAs) and Dual Filing

Many states, counties, cities, and towns have their own laws prohibiting discrimination, as well as
agencies responsible for enforcing those laws. We call these state and local agencies "Fair
Employment Practices Agencies" (FEPAs). Usually the laws enforced by these agencies are similar
to those enforced by EEOC. In some cases, these agencies enforce laws that offer greater
protection to workers, such as protection from discrimination because you are married or
unmarried, have children or because of your sexual orientation. There also may be different
deadlines for filing a charge, different standards for determining whether you are protected by
these laws, and different types of relief available to victims of discrimination.

2017 Daniel R. Cahoy

ANTI-DISCRIMINATION
Protections
Hiring
Continued Employment
Constructive discharge(dismissal)
Employers dont fire you but make your job horrible that u cant continue
That count as the discrimination
occurs when an employee resigns as a result of the employer creating a hostile work
environment.
Promotion
Discriminatory acts
No retaliation for complaints
Even if you have a fake complains, employers punish you for that.
Retaliation
Defenses
Business Necessity
Bona fide occupational qualification
Access whether it is necessary to do the job
By the statute, race cannot be a bona fide occupation qualification
Bona fide: means real and true reasons

2017 Daniel R. Cahoy

THOMPSON V. N.AM. STAINLESS
Thompson and fiancee Regalado were employees of North
American Stainless (NAS)
In February 2003, Regalado files sex discrimination(harrassment) claim
against EEOC
Three weeks later, Thompson is fired(not married yet)
Claims unlawful retaliation
NAS claims only direct retaliation actionable
Court
Retaliation against a third party can count
Attempt to dissuade from filing complaint
Not any third party relationship
Thompson is an aggrieved person who can sue

Is this a retaliation? Yes.

Even tho the two parties are not married, to intimidate fiance Regalado
What counts as a their party?

2017 Daniel R. Cahoy

ANTI-DISCRIMINATION
Remedies
Make the individual whole
Back pay
Hiring, promotion or reinstatement
Reasonable accommodation
Costs and attorneys fees
Damages, if intentional discrimination(enhanced damages)
Compensate for economic or mental effect
Punish the employer
Enhanced fine/penalty: for repeated violator, employers repeat
discrimination in job
Fines for repeat violators

2017 Daniel R. Cahoy

ANTI-DISCRIMINATION
Enforcement Scheme
Agency Review
Relevant state agency, if any, or
Equal Opportunity Employment Commission
File complaint and agency pursues and conclude
Bring a complain to EEOC
EEOC access the complaint and bring the case in ur behalf
Only with the right to sue letter: you can sue on ur own
Private Lawsuit
Equal pay act, doesn'tt need to go to EEOC
Only after conclusion of agency review

Time period limitations on complaints

Ledbetter Fair Pay Act of 2009

Store: She was consistently payed less than her male collages over the 20 yrs in good
year and wanted to sue. Unfortunately, have only 180 days from 20 yrs. She was denied
and her cases was dismissed by the court coz it is late. Run with the paycheck. The 1800
days with every paycheck.
But president Obama signed it with her.

2017 Daniel R. Cahoy

EEOC V. ABERCROMBIE & FITCH (2015)
Samantha Elauf is a practicing Muslim
Wears a headscarf
Applied for position at Abercrombie and Fitch
Given a rating qualifying her to be hired
Manager consulted on whether headscarf was forbidden cap
Ordered to lower rating and prevent hiring
EEOC sued on Elfs behalf

Court
Does it matter if employer did not have direct knowledge of need for accommodation?
No applicant only required to show that accommodation need motivated employment
action
Law requires affirmative duty to accommodate
Neutrality not sufficient
A&F said she didnt expressly ask for recommendation of her jihad
A&F doesnt have a legit reason since

2017 Daniel R. Cahoy

INTENTIONAL VS. UNINTENTIONAL
Disparate treatment(treatment: trying to do sth)
Prima facie case
Facts suggest discrimination
Rebuttal:
Pretext response

Disparate Impact(maybe you have objectives/things u r looking for)

Discrimination not intent of action
But necessarily occurs because of action
Pool of Applicants
Rate of Hiring
EEOC 80% rule

People who lives in 1 mile who falls in certain categorical

It is not your clear intent but has a clear impact
That will still be discrimination
Was the discriminated class is hired at a too high rate.
Implied discrimination: disparate impact, gotta change your impact, go to certain group of
colleges, take this test that scores certain scores

Do these rules apply to all protected classes?

A. Yes.
Even u r disable, that also count in EEOC.

2017 Daniel R. Cahoy

DANGEROUS ACTIVITIES THAT MAY GENERATE ILLEGAL DISCRIMINATION

Facially non-discriminatory requirements can lead to impact

Testing and Educational Requirements
Height and Weight Requirements
Necessary for the job is great.
Appearance requirements
Seniority Systems
Requesting personal employee data
Google or Facebook searches
Employers ask for passwords or request pages during interviews
If you find a pic, enough evidence about my national origins to discriminate against
me
Consider whether you need the information

Possible employers ask for FB login information whether it violate the federal laws.
Employers will know everything about you.
Several states prevent employers from asking your login info.
It doesnt matter whether you find it openly thru google or ask the login info.
It violates the protected classes.

2017 Daniel R. Cahoy

WHATS THE DEAL WITH HOOTERS?
Hooters hires primarily women in the role of servers
Is that discriminatory?
Yes
No
Ans: yes
Is it discrimination against a protected class?
Gender (sex)
BFOQ: business necessity

How can this persist? Possible arguments:

Bona fide occupational qualification exception
Hire certain entertainers for shows. Legal discrimination
Can u say that for anything? Same argument for southwestern airline
It doesnt matter what you customers prefer
Alternate jobs for males

2017 Daniel R. Cahoy

WHAT ABOUT ACTORS?
BFOQ
or perhaps physical appearance and First Amendment
Narrative necessities
RMK: race is never a bon na occupation qualification

For acting whether it is a performance, bona occupation certificated of

qualification

2017 Daniel R. Cahoy

SEXUAL HARASSMENT
A form of gender discrimination
Title VII of the Civil Rights Act of 1964
State & Federal
Private employers with more than 15 employees
Various state laws too

Harassment due to membership in other protected class

Same rules apply!

Working is really difficult coz the comments you get due to ur protected
class.
Even if you are not fired, still promoted and same wage

Gender discrimination

Do these rules apply to all protected class? Yes

Harassment to religion/gender/
Even tho we often talk bout the sexual harassment
2017 Daniel R. Cahoy
HARASSMENT
Quid Pro Quo or Vicarious Harassment
Supervisor
Tangible Employment Action results
hiring, firing, demotion, promotion, etc.
Knowledge of company irrelevant
Hostile Environment Harassment
sufficiently severe to alter employment conditions and create abusive workplace
Knowledge of company irrelevant unless
Taken reasonable care to prevent and correct harassing behavior
Employee unreasonably failed to complain to management
The company can be in the hook unless they have a complaint system(have
someone checks on it). Then the company can be off the hook. Employees needs to
make an accusation while on the job. Then a good chance the company wont be on
the hook.

Quid Pro Quo: can only done by supervisor, have the power to make a tangible action, can
be demoted, the company is liable. Bil .Fox News is on the hook.

2017 Daniel R. Cahoy

VANCE V. BALL STATE
Maetta Vance was a server at Ball State Univ. dining services
Davis employed as catering specialist in same facility
No authority to hire, fire or promote Vance
Vance claimed Davis harassed and intimidated her based on race
Corrective action taken, but did not solve problem
Vance sued for discrimination and harassment
Court
Employer is liable for an employees harassment only when supervisor
Can take tangible employment action
Davis was not Vances supervisor
No vicarious harassment

Is ball state automatically on the hook? For the past decade, use complaint procedure in ball
state but the it wasnt adequate, sued based on Davis, Davis is only a coworker not an
supervisor, couldnt change the tangile circumstances of her employments.
Ball state is not the hook
Race-based harassment

2017 Daniel R. Cahoy

AMERICANS WITH DISABILITIES ACT
Federal law enacted in 1990
Employment discrimination against people with certain disabilities
Scope
Federal Government
State Governments
Private companies with more than 15 employees
A person who
Has a disability(include mental disability not only physical)
Is otherwise qualified for the job
Must be protected from discrimination by
Making reasonable accommodations
Unless
The accommodations cause undue hardship to employer

Reasonable accommodation against employees and customers

88 doesn'tt require to hire people who cant do the job, go for extra step by making a
reasonable accommodation

Whats reasonable? Undue hardship

It depends on the business. Institute to make the business uneconomically viable. Make it
go out of the business. Financially unfeasible.

2017 Daniel R. Cahoy

AMERICANS WITH DISABILITIES
What is a disability?
ACT: DIFFICULT ISSUES
Impairment that substantially limits a major life activity
Case by case
ADA Amendments Act of 2008
Overrules Supreme Courts narrow interpretation of disability
What is a reasonable accommodation?
Case by case
Employee generally must request
A threat to safety

Specific Exclusions
Current drug abuse
Compulsive gambling

2017 Daniel R. Cahoy

 2017 Daniel R. Cahoy