© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 24 Employment and Discrimination Law 1 Copyright © 2016 McGraw-Hill Education. All rights reserved.

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 24 Case Hypothetical Ben Kerrigan and Allison LaCroix have worked together for five years. Although he has kept it to himself, Ben adores Allison, hanging on every word she says and watching every move she makes. Ben feels considerable guilt for his amorous emotions, since he has been married to his wife Jeannie for seven years, and since Allison is also married. From Allison’s perspective, her association with Ben is purely professional, although she does consider him a dear friend, enjoying his sense of humor, sharing with him many of her daily experiences, and consoling in him when life is unkind. On Friday morning, Ben asks Allison to join him for a quick lunch, stating “You drive, and I’ll buy.” They choose a local delicatessen, and are seated at a “table for two.” Aware that life is short, and weakened by five years of keeping a torturous secret, Ben confesses all to Allison over turkey subs and tomato soup. Ben proclaims, “Allison, I am tired of living a lie. You are not just the woman of my dreams, you are real, and I want you for my own. I worship you, and I want to share my life with you. You are the most beautiful and intelligent woman I have ever met, and I am willing to leave Jeannie for you. I hate to hurt your husband, but I love you more than he does. As far as work goes, we can try our best to keep it a secret; if not, I am willing to find another job. Tell me how you feel, Allison.” At first, Allison is speechless; her face then reddens, and she finds the words: “Ben, I thought you were my friend, but instead, you are a lustful stalker. I feel violated. For crying out loud, Ben, we are both married. Don’t you understand the true meaning of “family values?” Allison immediately rushes from the restaurant, leaving Ben to find a cab, and Ben wonders if he has said too much. The following Monday, Ben is called into the office of his supervisor, Alex Friedman. Friedman informs Ben that much to his regret, Allison has filed a sexual harassment claim against him, and that although she would like to resolve the matter internally, she will file a claim with the Equal Employment Opportunity Commission if the incident is not addressed satisfactorily. Friedman has scheduled an internal hearing in two weeks. The supervisor states that if Allison’s claim holds, Ben will be terminated in light of the company’s “zero-tolerance” anti-sexual harassment policy. Do Ben’s statements constitute sexual harassment? 2

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 24 Case Hypothetical and Ethical Dilemma Scooters Restaurant is a popular “dive” in Key Largo, Florida with twenty-nine employees. It primarily attracts male bikers en route to sunny, sub-tropical Key West. Although the testosterone-charged motorcyclists claim they stop at Scooters for its delicious buffalo wings and adult beverages, their wives and girlfriends believe the real reason they patronize the restaurant is the wait staff. Scooters only hires “drop-dead” gorgeous female waitresses ranging in age from eighteen to twenty-eight, with uniforms of white, midriff-baring halter tops and key lime-green “short” shorts. Male waiters need not apply at Scooters. Five (5) male plaintiffs who were denied wait-staff employment at Scooters have filed a civil lawsuit against the restaurant, alleging gender discrimination in violation of Title VII of the Civil Rights Act of The plaintiffs uniformly claim that although they were offered significantly lower-paying cook and dishwasher positions at Scooters, they were denied wait-staff positions on the basis of their gender. The eatery has defended on the basis of the “bona fide occupational qualification” (“BFOQ”) defense. The restaurant alleges that its female-only wait staff hiring practice is reasonably necessary for the success of its business, based on the contention that its typical customer (a burly, bearded man in bike leather) expects to be served only by an attractive waitress. Is Scooters Restaurant liable for gender discrimination, or should the court accept the defendant’s “BFOQ” defense? 3

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 24 Case Hypothetical and Ethical Dilemma James Donovan (“J.D.”) Cuthbert, J. D., one year removed from law school and practicing at the St. Louis firm Gibson, Smith and McGwire, P.L.L.C., is on the “fast-track” for partnership. Cuthbert was a prized hire for Gibson, Smith, and McGwire; with an imposing physical presence (6 feet, two inches tall and 210 pounds,) a disarming smile, and enough ambition for an entire courtroom of first-year attorneys, the “grapevine” surmises that Cuthbert will be offered a partnership in four years, far sooner than the standard wait period of seven years. Summer has arrived, and the Gibson firm has made plans to field its best-ever recreational softball team. The firm’s “legal nine” competes annually in the The Bar Association of Greater St. Louis Softball League. Attorneys participating in the league compete just as vigorously on the field as they do in the courtroom, and law firms strive to earn the annual “bragging rights” associated with a league championship. A senior partner at Gibson, Smith and McGwire, Tom Hackman, has recruited Cuthbert to play first base for the team. J.D. was at first reluctant to play (after all, the practice of law is a “jealous mistress,”) but he eventually agrees, realizing that impressing the partnership does not occur exclusively in the courtroom. The Gibson team excels, powering its way to the bar association softball championship game against an impressive foe, The Micah A. Mayo Personal Injury Law Firm. In the bottom of the 9 th inning of a tied championship game, with no one on base and two outs, “The Mighty Cuthbert” comes to bat. He swings for the fence, and drives the softball to within five feet of a home run. As he reaches third base, Hackman (the team’s third base coach) signals Cuthbert to stay, but he heads for home instead; glory is only ninety feet away, an “inside-the-park” homerun would only add to his legend, and extra innings come with no guarantees. Playing catcher for the Mayo firm is Albert Flaherty, an imposing figure himself; at 6 feet, five inches tall and 230 pounds, Flaherty is determined to use his height, weight and mass to save the game for his employer. Cuthbert and Flaherty collide, a cloud of dust surrounds home plate, and a sickening “crack” and scream are heard by all in attendance. Cuthbert’s right leg is severely broken, and he is out. Reasonable minds might differ in terms of which hurts worse. The Gibson firm loses after 10 innings, and the biggest question back at the office is “What would have happened if Cuthbert had stayed on third?” Cuthbert is hospitalized; his medical bills and days out of work are accumulating. Is Gibson, Smith and McGwire, P.L.L.C. legally liable for Cuthbert’s injury? Is the firm ethically liable for Cuthbert’s injury? 4

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Chapter 24 Case Hypothetical Jerry Weir is a loading dock worker for American Beauty Supplies, Inc. Jerry’s supervisor, Bob Garcia, is suspicious that Jerry is a drug user. Although the company does not have a dress code for its loading dock employees, Jerry’s attire has given Bob what he believes to be cause for concern. Today, for example, Jerry is wearing a t-shirt of his favorite 1960s rock-and-roll band, The Appreciative Deceased. The t-shirt has a picture of The Appreciative Deceased’s mascot, the “Pooh-Bah Man,” along with the words “Keep on Tokin’.” He is also wearing a “peace-sign” necklace, tattered blue jeans, and sandals. Add to his attire Jerry’s long, curly hair and his disheveled beard, and Bob believes his subordinate is a human tribute to the “60s” generation. Bob has decided to give Jerry a drug test to determine whether his charge is under the influence of illicit substances. Bob believes he has “reasonable suspicion” to do so based on Jerry’s appearance, and the fact that courts have generally upheld the right of employers to drug-test employees. Based on these circumstances, does Bob Garcia have the legal right to require that Jerry Weir submit to a drug test? 5

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. “Employment-At-Will” Means that any employee not employed under a contract/collective bargaining agreement may quit for any reason/no reason at all, with no required notice to employer Also means employer may fire employee at any time, with no notice, for almost any reason 6

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Federal Employment Discrimination Laws Provide minimum level of protection for employees States may give employees more rights, but not less rights, than they have under federal law (federal supremacy) 7

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Title VII of the Civil Rights Act (1964, As Amended by the Civil Rights Act of 1991) Protects employees against discrimination based on: Race Color Religion National Origin Gender 8

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. “Disparate Treatment” Versus “Disparate Impact” Discrimination “Disparate Treatment” Discrimination: In all aspects of human resource management (hiring, firing, promotions, etc.), if candidate/employee discriminated against based on membership in a protected class, employee has actionable claim based on intentional discrimination “Disparate Impact” Discrimination (also referred to as unintentional discrimination): Occurs when plaintiff establishes that while employer’s policy/practice appears to apply to everyone equally, its actual effect is to disproportionately limit employment opportunities for a protected class 9

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Requirements For Establishing A “Disparate Treatment” Discrimination Case Plaintiff-employee must demonstrate a “prima facie” case of discrimination Defendant-employer must articulate a legitimate, non- discriminatory business reason for the action Plaintiff-employee must demonstrate that the reason given by the defendant-employer is a “mere pretext” 10

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Sexual Harassment Includes unwelcome sexual advances, requests for sexual favors, and other verbal/physical conduct of a sexual nature that implicitly/explicitly makes submission a term/condition of employment; Makes employment decisions related to individual dependent on submission to such conduct (“quid pro quo” sexual harassment); or Has the purpose/effect of creating an intimidating, hostile/offensive work environment (“hostile work environment” sexual harassment) 11

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Pregnancy Discrimination Act of 1987 Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy 12

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Defenses to Claims Under Title VII of The Civil Rights Act Bona Fide Occupational Qualification (BFOQ): Allows employer to discriminate in hiring on basis of gender, religion, or national origin (but not race/color) when doing so is “reasonably necessary” for performance of job Merit Seniority: Seniority system legitimate if: -System applies equally to all persons -Seniority units follow industry practices -Seniority system did not have its genesis in discrimination; and -System maintained free of any illegal discriminatory purpose 13

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Procedure For Filing A Claim Under Title VII of the Civil Rights Act Charge Filed With EEOC EEOC Conciliation Attempts EEOC “Right-to-Sue” Letter 14

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Age Discrimination in Employment Act of 1967 (ADEA) Prohibits employers from refusing to hire, discharging, or discriminating in “terms and conditions” of employment on basis of employee/applicant being age 40 or older 15

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Americans With Disabilities Act (ADA) Prohibits discrimination against employees and job applicants with disabilities Requires employers to make “reasonable accommodations” to the known physical/mental “disabilities” of an “otherwise qualified” person with disability, unless necessary accommodation would impose “undue burden” on employer’s business 16

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Requirements For Bringing A Successful Claim Under ADA Plaintiff must show he/she meets all of the following: Had a disability Was “otherwise qualified” for the job Suffered an adverse employment decision because of disability 17

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Equal Pay Act of 1963 Prohibits an employer from paying workers of one gender less than wages paid to employees of opposite gender for work that requires equal skill, effort, and responsibility 18

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Defenses To An Equal Pay Act Lawsuit Bona fide seniority system Bona fide merit system Pay system based on “quality or quantity” of production Any factor(s) other than gender 19

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Additional Laws Governing The Employment Relationship 20

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. The Fair Labor Standards Act (FLSA) Requires that a “minimum wage” of specified amount be paid to all covered employees Specified minimum wage amount periodically raised by Congress Mandates that employees who work greater than 40 hours in a week be paid no less than one and one-half times regular wage for all hours worked beyond 40 Exceptions: -Executives -Administrative Employees -Professional Employees -Outside Salespersons 21

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. The Family and Medical Leave Act (FMLA) Requires certain employers to establish policy that provides all eligible employees with up to 12 weeks of unpaid leave during any 12-month period for specified family-related occurrences (Examples: birth/adoption of child, care for seriously ill spouse/parent/child) 22

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Federal Unemployment Tax Act (FUTA) Created state system that provides unemployment compensation to qualified employees who lose their jobs 23

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Workers’ Compensation Laws State laws that provide financial compensation to employees or their dependents when covered employee injured/killed on the job To recover workers’ compensation benefits, injured party must demonstrate -He/she is an employee -Both employer and employee are covered by state workers’ compensation program -Injury occurred “on the job” 24

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. The Consolidated Omnibus Budget Reconciliation Act (COBRA) Ensures that when employees lose their jobs or have their hours reduced to level at which they are not eligible to receive medical, dental, or optical benefits from their employer, employees have right to continue receiving benefits under employer’s policy for up to 18 months by paying the premiums for the policy COBRA does not apply if: -Employee fired for “gross misconduct”; or -Employer decides to eliminate benefits for all current employees 25

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. The Employee Retirement Income Security Act Federal law that sets minimum standards for most voluntarily- established pension and health plans in private industry to provide protection for individuals enrolled in these plans Under ERISA, employers must provide pension/health plan participants -Plan information (“features and funding”) -Assurances of fiduciary responsibility of those in charge of managing and controlling plan assets -Grievance and appeals process for participants to receive benefits from plan -Right to sue for benefits and breaches of fiduciary duty 26

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. The Occupational Safety and Health Act of 1970 (OSHA) Requires every employer to “furnish to each of his employees…employment…free from recognized hazards that are likely to cause death or serious physical harm” The Occupational Safety and Health Administration is responsible for setting safety standards under OSHA The Occupational Safety and Health Administration is also responsible for enforcing the Act through inspections and levying of fines against violators 27

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Employee Privacy in the Workplace Employer privacy policies should cover matters such as employer monitoring of telephone conversations and s, surveillance policies, control of access to medical and personnel records, drug testing, lie detector tests, and ownership of computers and all issues unique to the electronic workplace Omnibus Crime Control and Safe Streets Act of Employers cannot listen to private telephone conversations of employees or disclose the content of those conversations -Employers may ban personal calls and monitor calls for compliance, provided that they discontinue listening to any conversation once they determine it is personal -Violators subject to fines of up to $10,000 28

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Employee Privacy in the Workplace (Continued) Electronic Communications Privacy Act (ECPA) of Employees’ privacy rights extend to electronic forms of communication, including and cellular phones -ECPA outlaws intentional interception of electronic communications and the intentional disclosure/use of information obtained through such interception -“Business-Extension” exemption allows employers to monitor employee and telephone conversations in the “ordinary course of employment” 29

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Labor Laws and Unions 30

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Labor Law Wagner Act of 1935: Enacted to encourage formation of labor unions and provide for “collective bargaining” -Collective bargaining (Definition): Negotiations between employer and group of employees to determine conditions of employment Taft-Hartley Act of 1947 (Labor Management Relations Act): Designed to limit some of the powers unions had acquired under Wagner Act 31

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Labor Law (Continued) Landrum-Griffin Act of Governs internal operations of labor unions -Requires certain financial disclosures by unions -Establishes civil and criminal penalties for financial abuses by union officials -“Labor’s Bill of Rights” (contained in Landrum- Griffin Act) designed to protect employees from their own unions 32

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Labor Law (Continued) National Labor Relations Board (NLRB) -Administrative agency formed to interpret and enforce National Labor Relations Act Primary functions of NLRB include -Monitoring conduct of employer and union during an election to determine whether workers want to be represented by a union -Preventing and remedying unfair labor practices by employers/unions -Establishing rules to interpret the National Labor Relations Act 33