BUL3320 Exam 3 Study Guide

What are the Functions of Negotiable Instruments?

Saturday October 27, 11 am 

Ch. 22-24, 29-30, 31, 33 

Ch. 22 - Creation of Negotiable Instruments 

Negotiable Instruments 

-unconditional orders or promise to pay 

-checks, drafts, bearer bonds, promissory notes 

-main benefit: used as a substitute for money 

-also called commercial paper 

Holder in due course (HDC) 

-transferee of a document that qualifies as a negotiable instrument 

Article 3 (Commercial Paper) of UCC 

-promulgated in 1952 

-established rules for creation of, transfer of, enforcement of and liability of negotiable Instruments Don't forget about the age old question of shasta college courses

Functions of Negotiable Instruments 

1. Substitute for money 

a. merchants and consumers don’t carry cash for fear of theft 

b. impossible to have enough cash for large purchases We also discuss several other topics like which cells phagocytize pathogens

2. Act as credit devices 

What are the Type of Negotiable Instruments?

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a. extensions of credit: a promise to pay in future 

3. Act as record-keeping devices 

a. Kept for preparation of financial statements, tax returns, etc 

Type of Negotiable Instruments 

-Draft 

-three-party instrument 

-unconditional written order by one party (drawer) that orders a second party (drawee) to pay money to a third party (payee) 

-for a drawee to be liable, must have written acceptance 

-time draft: payable at designated future date 

-sight draft: payable on sight (also a demand draft) 

-trade acceptance: a sight draft that arises when credit is extended by the seller to the buyer w/ the sale of goods (seller is both the drawer and payee) (still considered 3 party bc 3 legal positions are involved) “u can pay me later for this”

-Check 

-type of draft that is drawn on a financial institution (drawee) and payable on demand 

What is a Promissory Note?

-Promissory Note 

-unconditional written promise to pay 

-collateral: security for repayment of the note in the form of automobiles, houses, etc. 

-Certificate of Deposit (CD) 

-note that is created when a depositor deposits money in exchange for a financial institution’s promise to pay back the amount of deposit plus agreed-on interest Rate 

-bank=borrower/maker of CD 

-depositor=lender/payee of CD 

-small CDs=under $100k 

-jumbo CDs= $100k or over 

Order Instruments 

-instruments that are payable to the order of an identified person 

Bearer Instruments If you want to learn more check out chem 217
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-these are payable to anyone in physical possession of the instrument 

Requirements for Creating a Negotiable Instrument (Found in Article 3 of UCC): 1. Be in writing (permanent and portable) 

2. Be signed by the maker or drawer 

3. Be an unconditional promise to pay 

4. State a fixed amount of money If you want to learn more check out bil 360 university of miami

5. Not require any undertaking in addition to the payment of money 

6. Be payable on demand or at a definite time 

7. Be payable to order or to bearer (person in possession of the instrument) 

Prepayment, Acceleration, & Extension Clauses 

-Prepayment clause 

-permits the maker to pay the amount due prior to the due date of the instrument (maker is the person who makes the promise to pay) 

-Acceleration clause 

-allows the payee or holder to accelerate payment of the principal amount of an instrument and accrued interest on the occurrence of an event 

-ex: missing a loan payment 

-Extension clause 

-allows the date of maturity of an instrument to be extended to sometime in the Future

Non Negotiable Contract 

-a promise or order to pay that does not meet one of the requirements and therefore not negotiable 

Ch. 23 - Holder in Due Course and Transferability 

Transfer of a Nonnegotiable Contract by Assignment 

-assignment: transfer of rights under a contract 

-assignment occurs when there is a transfer of a nonnegotiable contract Transfer of a Negotiable Contract by Negotiation 

-negotiation: transfer of a negotiable instrument by a person other than the issuer -holder: person to whom the instrument is transferred 

Negotiating Order Paper 

-order instrument: an instrument that is payable to a specific payee or indorsed to a specific indorsee 

-also called order paper 

-negotiated by delivery w/ necessary indorsement 

-must have delivery and indorsement 

Negotiating Bearer Paper 

-bearer instrument: an instrument that is not payable to a specific payee or indorsee (bearer paper) 

-negotiated by delivery, indorsement not necessary 

-risk associated w/ loss or theft of bearer paper 

Transfer Negotiable Instrument by Indorsement 

-indorsement: signature of a signer that is placed on an instrument to negotiate -signature may: 

1. Appear alone 

2. Name an individual to whom the instrument is paid 

3. Be accompanied by other words 

-allonge: separate piece of paper for indorsement is there’s no room on instrument. Must be stapled or fastened to instrument. 

Types of Indorsements 

1. Blank Indorsement 

-does not specify a particular indorsee 

-may just consist of signature 

2. Special Indorsement 

-contains the signature of the indorser and specifies the person (indorsee) to whom the indorser intends the instrument to be payable 

-words of negotiation (“pay to the order of…”)

-creates order paper 

-preferred over blank to prevent loss or theft 

3. Qualified Indorsement 

-indorsements that disclaim or limit liability on the instrument 

-qualified indorser: does not guarantee payment of the instrument if the maker, drawer, or acceptor defaults on it 

-unqualified indorser: promise to pay the amount of the instrument if the maker, drawer, acceptor defaults in it 

Restrictive Indorsement 

-most are indorsements are nonrestrictive 

-restrictive indorsement: indorser includes some form of instruction, restricts indorsee’s rights in some manner 

Types of Restrictive Indorsements 

-indorsement for deposit or collection 

-makes indorsee the indorser’s collecting agent 

-indorsement in trust 

-states it is for the benefit or use of another person 

Misspelled or Wrong Name 

-when a payee’s name is misspelled or wrong, the payee can indorse the instrument using the misspelled name, correct name, or both 

Multiple Payees or Indorsees 

-payable jointly: instrument uses the word “and”, both person's’ indorsements are required to negotiate instrument 

-payable in the alternative: uses “or”, either persons’ signature is sufficient to negotiate -virgule: slash mark. Treated as an “or” 

Holder in Due Course (HCC) 

-holder: person in possession of an instrument that is payable to a bearer or an identified person who is in possession of an instrument payable to the holder 

-subject to all claims and defenses that can be asserted on the transferor -holder in due course: takes a negotiable instrument free of all claims and most defenses that can be asserted against the transferor 

-in other words, a holder in due course is a person who accepts a check. They are not responsible if the check bounces. 

-only universal defenses can be asserted against HDC 

Requirements for HDC 

1. Taking for Value 

-holder must have given value for negotiable instrument 

-value has been given if:

-performs the agreed-on promise 

-acquires a security interest in or lien on instrument 

-takes the instrument in payment of or as security for antecedent claim 

-gives a negotiable instrument as payment 

-gives irrevocable obligation as payment 

2. Taking in Good Faith 

-holder must take instrument in good faith 

-honesty in fact in the conduct or transaction concerned 

3. Taking Without Notice of Defect 

-can’t qualify as HDC if they have notice that instrument is defective in any of the following ways: 

-it’s overdue 

-it’s been dishonored 

-it contains an unauthorized/altered signature 

-claim to it by another person 

-defense against it 

4. Taking Where There is No Evidence of Forgery, Alteration, or Irregularity -does not qualify for HDC if there’s evidence or forgery or alteration on instrument 

Ch. 24 - Liability, Defenses and Discharge 

Signature Liability for Negotiable Instrument 

-signature liability: a person cannot be held contractually liable unless their signature appears on it, also called contract liability 

-signers: 

-makers of notes and CDs 

-drawers of drafts and checks 

-drawees who certify/accept checks and drafts 

-indorsers who indorse indorsements 

-agents who sign on behalf of others 

-signature: can be any name, word or mark used in lieu of a written signature 

Primary Liability for Negotiable Instruments 

-primary liability: makers of notes & CDs have primary liability of the instruments -unconditionally promises to pay the amount stipulated in the note when its due 

Secondary Liability for Negotiable Instruments 

-secondary liability: arises when the party primarily liable for an instrument defaults and fails to pay when due 

-drawers of checks & unqualified indorsers must have secondary liability 

-if an unaccepted draft or check is dishonored by drawee, drawer is obligated to pay according to its terms

-qualified indorser not liable because they expressly disclaimed with the phrase “without recourse” 

Requirements for Imposing Secondary Liability 

-The instrument is properly presented for payment 

-presentment: a demand for acceptance/payment of an instrument made on maker, acceptor, drawee, or other payer by or on behalf of the holder 

-The instrument is dishonored 

-dishonor occurs when acceptance/payment is refused/cannot be obtained from the party required to accept or pay instrument 

-Notice of the dishonor is timely given to the person to be held secondarily liable for instrument 

-notice of dishonor may be given by any commercially reasonable means 

Liability of and Accommodation Party 

-accommodation party: a party who signs an instrument for the purpose of lending their name (and credit) to another party 

-may sign as maker, drawer, acceptor, indorser 

-obliged to pay the instrument in the capacity in which they sign 

-can recover reimbursement from the accommodated party and enforce instrument against them 

- two types of liability 

1. Guarantee of payment 

a. Primarily liable, party is called accommodation maker 

2. Guarantee of collection 

a. Called accommodation indorser 

b. Secondarily liable 

c. Signature must be w/ words indicating they’re guaranteeing collection d. Only obliged to pay if: 

i. Execution of judgment against the other party has been returned 

unsatisfied 

ii. The other party is insolvent or in an insolvency proceeding 

iii. The other party cannot be served w/ process 

iv. It is otherwise apparent that payment cannot be obtained from 

other party 

Agent’s Signature 

-agent: a representative to sign an instrument on someone’s behalf 

-principal: represented person 

-agent can either sign principal’s name or their own name 

-agent has no liability if signature show it’s made on principal’s behalf 

-agent is liable if no evidence to show the original parties did not intend them to be liable Unauthorized Signature

-signature made by a purported agent w/out authority from purported principal -occurs if: 

1. A person signs on behalf of someone they are not an agent for 

2. Authorized agent exceeds the scope of their authority 

Forged Indorsements 

-unauthorized signature makes instrument inoperative 

-loss falls on the party who first takes the forged instrument after the forgery happens 

Warranty Liability for Negotiable Instruments 

-warranty liability is imposed whether or not transferor signed instrument 

Transfer Warranties 

1. Transferor has good title to the instrument or is authorized to obtain payment or acceptance on behalf on one who does have good title 

2. All signatures are genuine or authorized 

3. The instrument has not been materially altered 

4. No defenses of any party are food against the transferor 

5. The transferor has no knowledge of any insolvency proceeding against the maker, the acceptor, or the drawer of unaccepted instruments 

Presentment Warranties 

-any person who presents a draft/check makes these warranties: 

1. The presenter has good title to instrument or is authorized to obtain payment/acceptance of person who has good title 

2. The instrument has not been materially altered 

3. The presenter has no knowledge that the signature of the maker/drawer is unauthorized 

Defenses to Payment of Negotiable Instruments 

-universal (real) defenses 

-personal defenses 

Universal (Real) Defenses 

-can be raised against HDCs to deny payment of negotiable instrument 

1. Minority 

a. Minor can disaffirm negotiable instrument 

2. Extreme duress 

a. Uses force or violence to have negotiable instrument issued 

3. Mental incapacity 

a. A person adjudicated mentally incompetent cannot issue a negotiable instrument 4. Illegality 

a. Unenforceable if instrument arises out of an illegal transaction 

5. Discharge in bankruptcy

a. Relieves debtors of burdensome debts 

6. Fraud in the inception 

a. If a person is deceived into signing a negotiable instrument 

b. Also called frause in the factum or fraud in the execution 

7. Forgery 

a. Party placed unauthorized signature 

8. Materially alteration 

a. Adding, changing removing any part of the dollar amount 

Personal Defenses 

-can be raised against ordinary holders to deny payment of negotiable instrument **these never can be raised against HDCs** 

1. Breach of contract 

2. Fraud in the inducement 

a. A wrongdoer makes a false statement to another person to lead that person to enter into a contact and issue a negotiable instrument with the wrongdoer 3. Mental illness that makes a contract voidable, not void 

a. drawer/maker is mentally ill but not adjudicated mentally ill 

4. Ordinary duress or undue influence 

a. A person wrongfully influenced/threatened to enter negotiable instrument, but the pressure to enter is ordinary, not extreme 

5. Discharge of an instrument by payment or cancellation 

a. If discharged by payment/cancellation, it is not an enforceable instrument 

Discharge of Liability 

-parties discharged if 

1. The party primarily liable on instrument pays it in full to holder 

2. A drawee in good faith pays an unaccepted draft/check in full to holder 

-cancellation can be accomplished by: 

1. Any manner apparent on the face on the instrument or endorsement (writing canceled on the instrument) 

2. Destruction or mutilation of negotiable instrument w/ intent of eliminating obligation 

Ch. 29 - Agency, Employment, and Labor Law 

Employment and Agency 

-agency relationships are formed by mutual consent of a principal and agent -agency: a fiduciary relationship “which results from the manifestation of consent by one person to another that the other shall act in his behalf and subject to his control, and consent by the other so to act in similar terms, the relationship b/w the principal and agent” 

-in simpler terms, an agency is the relationship b/w the principal and agent

Person who can initiate an agency relationship 

-any person w/ capacity to contract can appoint an agent to act on their behalf -agency can only be created to accomplish a lawful purpose 

Principal-Agent Relationship 

-formed when an employer hires an employee and gives that employee authority to act and enter into contracts on his or her behalf 

Employer-Employee Relationship 

-employer hires an employee to perform some form of physical service but does not give agent authority to enter contracts 

Independent Contractor 

-principal employs outsiders to perform tasks on their behalf 

-independent contractors operate their own business 

Formation of an Agency 

-can arise in 4 ways 

Express Agency 

-agent has the authority to contract or otherwise act on principal’s behalf as expressly stated in agency agreement 

-most common type of agency 

-exclusive agency contract: principal cannot employ another agent 

Implied Agency 

-agency is implied from the conduct of the parties 

-extent of agent’s authority is determined from facts and circumstances of the particular Situation 

Agency by Ratification 

-occurs when: 

1. A person misrepresents themselves as another’s agent when they are not 2. The purported principal ratifies (accepts) the unauthorized act 

Apparent Agency 

-arises when a principal creates the appearance of an agency that does not exist -also called agency by estoppel 

-where apparent agency is established, the principal is estopped from denying the agency relationship and is bound to contracts 

Principal’s Duties 

Principal’s Duty to Compensate

-has to compensate the agent for services provided 

-contingency fee: principal owes a duty to pay the agent an agreed-on contingency fee if service is completed 

Principal’s Duty to Reimburse 

-agent might spend own money on behalf of principal 

-duty to reimburse if expenses were: 

1. Authorized by the principal 

2. Within the scope of the agency 

3. Necessary to discharge agent’s duties in carrying out the agency 

Principal’s Duty to Indemnify 

-duty to indemnify for any losses the agent suffers because of the principal’s conduct -usually arises when agent is held liable for principal’s misconduct 

Principal’s Duty to Cooperate 

-duty to cooperate and assist the agent in the performance of the agent’s duties and accomplishment of the agency 

Agent’s Duties 

Agent’s Duty to Perform 

-two obligations: 

1. To perform the lawful duties expressed in the contract 

2. To meet the standards of reasonable care, skill, and diligence implicit in all contracts 

Agent’s Duty to Notify 

-duty to notify principal of info learned concerning the agency 

-imputed knowledge: principal is assumed to know what the agent knows 

Agent’s Duty to Account 

-a duty to maintain an accurate accounting of all translations undertaken on principal’s behalf 

-keeping records of all property and money received and expended during course of agency 

-agent must maintain a separate account for principal 

-use the principal’s property in an authorized manner 

Termination of Agency 

Termination of an agency by Act of the Parties 

-can be terminated by: 

1. The mutual assent of the parties 

2. If a stated time has lapsed 

3. If a specific purpose is achieved

4. The occurrence of a stated event 

Notices of termination 

-direct notice: to all persons involved in agency 

-constructive notice: to any third party who has knowledge of the agency but with whom the agent has not dealt with 

Termination of an Agency by an unusual change in circumstance 

-termination when unusual circumstance lead agent to believe principal’s original instructions should no longer be valid 

Termination of an agency by impossibility of performance 

-impossibility of performance can come from: 

-loss or destruction of subject matter 

-loss of a required qualification 

-a change in the law 

Termination by operation of law 

1. Death of either principal or agent 

2. Insanity of either principal or agent 

3. Bankruptcy of principal 

4. Outbreak of war between principal's country and agent’s country 

Wrongful Termination 

-occurs if termination breaches the contract 

Ch. 30 - Liability of Principals, Agents & Independent Contractors 

Agent’s Duty of Loyalty 

-duty of loyalty in all agency-related manners is necessary bc agency relationship is built on trust 

-fiduciary duty: duty to not act adversely to the interests of the principal 

Common Types of Breaches of Duty of Loyalty 

-Self-dealing: agents cannot undisclosed sell own property to principal 

-Usurping an opportunity: keeping info/opportunities from principal 

-Competing w/ Principal: not allowed to compete while serving as agent -Misuse of Confidential Info: cannot misuse or disclose principal’s confidential info before or after agency 

-Dual Agency: cannot meet a duty of loyalty with 2 or more parties of conflicting interest 

Tort Liability of Principals and Agents to Third Parties 

-principals & agents are liable for own tortious conduct

-principals are reliable for agents in the scope of employment 

Frolic and Detour 

-when an agent is acting to further own interest during course of agency 

-negligence while on frolic and detour is based case-by-case 

Coming and Going Rule 

-principals not liable for injuries of agents on their way to and from work 

Dual-Purpose Mission 

-principal asks agent for request while agent is on a personal mission 

-both principal and agent are liable for injury 

Liability for Intentional Torts 

-principals not liable for intentional torts from employees committed outside the scope of Employment 

-there are two tests to determine what is in the scope of employment: 

1. Motivation Test 

a. If motivation for tort was to promote principal’s business, principal is liable 2. Work-related Test 

a. If tort is committed within work-related space and time, principal is liable 

Misrepresentation 

-principal is liable for both intentional and innocent misrepresentation by agent within scope 

Contract Liability 

-contract liability: a principal who authorizes agent to enter into a contract w/ third party is contract liable 

Fully Disclosed Agency 

-results if third party entering into a contract knows the agent is acting as an agent for the principal and knows the principal’s identity 

-contract is b/w principal and third party 

-principal is liable 

-agent’s signature: establishes agent’s status and therefore their liability 

Partially Disclosed Agency 

-agent reveals their agent status but not the principal’s identity 

-both agent and principal are liable 

Agent Exceeding the Scope of Authority 

-implied warranty of authority: an agent who enters a contract impliedly warrants they

have the authority to do so 

-if agent breaches scope of authority, principal is liable 

-agent is liable to third party 

Liability for an Independent Contractor’s Torts 

-generally, principal is not liable for independent contractors torts 

-liable for inherently dangerous activities they assign to contractors 

Liability for an Independent Contractor’s Contract 

-principals can authorize independent contractor to enter contracts 

-bound by authorized contracts 

Ch. 31 - Employment, Worker Protection and Immigration Laws 

Workers’ Compensation 

-employees injured on the job can sue for negligence 

-workers’ compensation act: enacted by states in response to the unfairness of uncompensated injured workers 

-workers file a claim which is then evaluated for legitimacy 

-states usually require employers to purchase workers comp insurance 

Exclusive Remedy: 

-workers comp is an exclusive remedy 

-an injured employee can’t sue company after receiving workers comp 

Occupational Safety 

-Occupational Safety and Health Act: enacted in 1970 to promote safety in the workplace 

- Occupational Safety and Health Administration (OSHA): federal administrative agency to enforce the act 

-the act imposes record-keeping and reporting requirements on employers and requires them to post notices to inform employees of their rights under the act 

Specific Duty Standards 

-rules are developed for and apply to specific equipment, procedures, types of work, individual industries, unique work conditions 

General Duty Standard 

-imposed on employer a duty to provide employment and work environment free of hazards that can cause harm 

-OSHA inspects workplaces, can give workplaces written citations for violations Fair Labor Standards Act

-FLSA: 1938, protects workers 

-makes child labor illegal and shipment of goods make from oppressive child labor illegal 

Child Labor Laws 

1. Children under the age of 14 cannot work except for delivering newspapers 2. Children ages 14-15 can work limited hours in non hazardous workplaces 3. Children ages 16-17 can work unlimited hours in non hazardous workplaces 

Minimum Wage 

-FLSA establishes min. wage and overtime for all employees 

-managerial, administrative and professional employees exempt from act’s wages -overtime: over 40 hours a week, each hour is hourly wage + half hourly wage 

Exemptions from Minimum Wage & Overtime Pay Requirements 

-Executive exemption: applies to executives who are compensated on a salary basis, who engage in management roles, hire/fire employees, and regularly direct 2 or more Employees 

-Administrative employee exemption: applies to salary employees, whose primary duties are office/nonmanual work, and exercises independent judgment 

-Learned professional exemption: employees compensated on a salary basis, perform work that is intellectual in character, who possess advanced knowledge in science, math and technology, who went through advanced schooling 

-Highly compensated employee exemption: total compensation over $100k, mainly office/nonmanual work, regularly performs managerial, executive, administrative duties -Computer employee exemption: compensated on a salary basis, computer system analyst, computer programmers, designers, others in computer field 

-Outside sales rep exemption: paid by client/customer, primary duty is making sales and obtaining orders 

Family and Medical Leave Act 

-guarantees workers unpaid time off for family and medical emergencies -applies to companies w/ 50 or more employees 

-employers required to provide 12 weeks unpaid leave for any of the following: 1. Birth and care of a child 

2. Placement of a child w/ employee for adoption or foster care 

3. A serious health condition that prevents employee from being able to work 4. Care for a child, spouse, or parent with a serious medical condition 

Consolidated Omnibus Budget Reconciliation Act 

-COBRA: provides an employees beneficiaries must be offered opportunity to continue health insurance after termination 

-employer must notify them of their rights under COBRA 

-usually insurance is offered up to 18 months after termination

Employment Retirement Income Security Act 

-ERISA: designed to prevent fraud associated with private pension fund 

-requires record-keeping, disclosure, fiduciary duty if there’s a pension plan 

Government Programs 

Unemployment Compensation 

-assists workers who are currently unemployed 

-Federal Unemployment Tax Act: employers required to pay taxes to implement plan 

Social Security 

-provides limited retirement and death benefits to certain employees 

-includes: 

1. Retirement benefits 

2. Survivor’s benefits for family of deceased employee 

3. Disability benefits 

4. Medical and hospitalization benefits (Medicare) 

-under Federal Insurance Contributions Act, employees make contributions (taxes) to social security fund 

Immigration Law & Employment 

-immigration laws administered by U.S. Citizenship and Immigration Services -work visas: permit foreign nationals to work in this country 

-EB-1 visa: allows US employers to hire foreign nationals who possess extraordinary abilities 

Ch. 33 - Equal Opportunity in Employment 

Equal Employment Opportunity Commissions 

-EEOC: federal agency responsible for enforcing most federal antidiscrimination laws -has jurisdiction to investigate charges of discrimination 

Filing a Complaint 

-if employee was discriminated against, can’t immediately sue employer 

-first files complaint w/ EEOC, who investigates charges and then issues a right to sue letter 

-Lilly Ledbetter Fair Pay Act of 2009: provides each discriminatory pay decisions restarts statutory on a 180 day clock 

Disparate-Treatment Discrimination 

-occurs when an employer treats an individual less favorably bc of race, color, nationality, sex, religion 

-when filing a complaint, employee must prove:

1. They are a member of a protected group 

2. They applied for and qualified for employment 

3. They were rejected despite of this 

4. Employer kept position open and sought applicants w/ complainant’s qualifications 

Disparate-Impact Discrimination 

-occurs when an employer discriminates an entire protected class 

-proven through statistical data about employer’s practice 

-plaintiff must prove causal link b/w challenged practiced and statistical imbalance 

Remedies for Violations of Title VII 

-successful plaintiff can recover back pay & reasonable attorney’s fees 

-punitive damages can be given from court against employer 

Race & Color Discrimination 

-EEOC recognizes the following racial classifications: 

-African American, Asian, Caucasian, Native American, Pacific Islander -race discrimination violates Title VII 

-color discrimination is based on complexion of skin 

National Origin Discrimination 

-discrimination based on national origin 

Gender Discrimination 

-employment discrimination based on gender, violates Title VII 

-quid pro quo sex discrimination: sexual favors are requested in order to obtain a job -sex-plus discrimination: employer does not discriminate against a class as a whole but treats a subset of a class differently 

-gender-identity discrimination: against an individual because they are transgender -pregnancy discrimination: does not hire or consider pregnant applicants/employees 

Harassment 

-supervisors and coworkers engage in conduct that is offensive because it is sexually, racially, ethnically, or religiously charged 

Classification of Harassment 

-coworker: employee who harrasses other employee 

-supervisor:a person who is empowered by the employer to take tangible employment actions against the victim 

-Strictly liable: a tangible employment action is taken against the victim (e.g., the victim is fired, demoted, or denied employment benefits). 

-vicariously liable: where no tangible employment action is taken and the employer

cannot prove an affirmative defense. 

Sexual Harassment 

-conduct that is offensive because it is sexually charged 

Religious Discrimination 

-Title VII prohibits employment discrimination based on a person’s religion -An employer is liable for religious discrimination if it does not make a reasonable accommodation for an employee’s religious beliefs that could be done without causing an undue hardship on the employer 

Defenses to Title VII Actions 

-bona fide occupational qualification: an employer can justify discrimination based on gender in some circumstances 

Equal Pay Act 

-protects both sexes from pay discrimination based on sex 

-act prohibits disparity in pay for jobs that require equal skill, equal effort, similar working conditions, equal responsibility 

Criteria that Justify a Difference in Pay 

-Seniority 

-Merit (as long as there is some identifiable measurement standard). 

-Quantity or quality of product (i.e., commission, piecework, or quality control–based payment systems are permitted) 

-“Any factor other than sex” (i.e., shift differentials, such as night versus day shifts) 

Age Discrimination 

-Age Discrimination in Employment Act (ADEA):federal statute that was passed in 1967, prohibits certain age discrimination practices 

-employers often refuse to hire older employees 

-protects employees who are 40 and older from job discrimination based on their age 

Discrimination Against People with Disabilities 

-Americans with Disabilities Act (ADA): imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate physically challenged individuals 

Qualified Individual with a Disability 

-a person who can show that he or she has a disability in one of three ways: 1. A physical (physiological) or mental (psychological) impairment that substantially limits one or more of his or her major life activities, such as walking, talking, seeing, hearing, or learning.

2. A history of such impairment, such as cancer. 

3. Regarded as having such impairment even if he or she does not have the impairment 

- physiological impairment includes any physical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine 

-mental or psychological disorders, such as intellectual disability, mental retardation, organic brain tumor, etc. 

-Title I of the ADA limits an employer’s ability to inquire into or test for an applicant’s disabilities 

-forbids an employer from asking a job applicant about the existence, nature, and severity of a disability 

Uncovered Conditions 

-temporary illnesses or nonchronic impairments, common cold, flu, etc. 

Protection from Retaliation 

-Federal antidiscrimination laws prohibit employers from engaging in retaliation against an employee for filing a charge of discrimination 

Affirmative Action 

-Employers often adopt an affirmative-action plan that provides that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when making employment decisions