Law 322 Chapter 16 Notes
Law 322 Chapter 16 Notes LAW 3220
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This 5 page Class Notes was uploaded by Stephanie Notetaker on Monday April 18, 2016. The Class Notes belongs to LAW 3220 at Clemson University taught by Edward R. Claggett in Fall 2015. Since its upload, it has received 22 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Clemson University.
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Date Created: 04/18/16
Law 322 Chapter 16 Notes Major Topics 1. Discrimination Laws-‐ a. Equal Pay Act of 1963 i. You can’t discrimination in pay against sex ii. Same job, same pay iii. Differences in wages are allowed if it is not based on sex under this law b. Title VII of 1964 Civil Rights Act i. Most litigation and discrimination filed under here these days ii. Only applies to employers who had 15 or more employees iii. Employer can’t make any decisions in an employment context like hiring, firing, training, based upon any of the below classes iv. Race, color, religion, sex (gender only), national origin are protected classes under this law 1. Protected classes-‐anyone who makes decisions about employment v. Affirmative action is permitted under title VII vi. Employers have to make reasonable accommodation for employee’s religion practices 1. Reasonable-‐employer only has to incur a minor expense to let it happen c. Pregnancy discrimination act i. Employer cant discriminate against women because of pregnancy, childbirth or related medical condition or the likelihood that they can get pregnant d. Sexual Harassment is prohibited in the workplace i. Feel uncomfortable at work e. Age discrimination act i. Employers with 20 or more employees you can’t discriminate in any employment decision or action with persons over 40 2. Discrimination complaint process a. Can file in person or mail it in b. EEOC Offices-‐federal and state offices i. Federal-‐have 180 days from the event to file your complaint ii. States-‐usually give you up to 300 days to file iii. Can file in either office, then the EEOC will investigate your complaint iv. They might interview you, or employer v. EEOC may try to settle compliant by mediation (let’s work this out) they might make a settlement offer (voluntary so both parties must agree) then the EEOC issues a finding if neither of these two steps are taken, if finding finds discrimination is present, right to sue letter (individual can file complaint in court system (federal or state)) c. Steps in the process-‐(above) d. Forms of discrimination i. Constructive Discharge-‐when the employers makes your working conditions so intolerable that you have to quit ii. Disparate treatment-‐you can show that your employer intentionally discriminated against you iii. Disparate Impact-‐ you can’t really show that your employer intentionally discriminated against you, but there definitely has been discrimination 1. If it is intentional, the courts and EEOC take it more seriously, the damages/remedies will be more severe iv. Courts want to see employers have clear written policies for employees 3. Statutory Defenses under Title VII a. If you can satisfy one of these or show one of these to the court, it should be upheld b. Business Necessity i. Job opening or promotion but need someone with certain educational background or skill set, wasn’t discriminating against who got it, they were just more qualified c. Professionally developed ability tests i. Questions are designed to determine how successful you would be if you were hired for that job ii. If you can show you are using these tests and in the past they have been a good indicator than you can promote/hire give the job to the person with the higher score rather than the lower score d. Seniority or merit systems i. Merit-‐is the person more productive? They have earned their promotion and earned their right to be hired ii. Seniority-‐have been there longer, more qualified e. Bona fide occupational qualification i. You can make employment decisions based upon sex, religion, national origin if they are necessary to that particular business ii. Example: Women’s clothing, need to hire people to model the clothes, can only offer to women, not discrimination, there is a reasonable need f. Voluntary retirement incentives i. If you want to offer voluntary early retirement to your senior workforce, that’s fine, that is not discriminatory to the younger workers 4. Remedies in discrimination cases a. If you get fired because of a discriminatory practice, back pay is the first thing you ask for i. Back pay-‐Pay for the time from when you left the company till the time the EEOC or the court issues their decision b. On-‐going pay-‐ you won’t get this for an indefinite period of time, EEOC and judge will decide how long you need continuing pay and how much it is c. Compensatory damages-‐ costs you have incurred, job search expenses, court considers attorneys fees (this is an exception) Employer must pay attorneys fees, if this employer has been held guilty before, punitive damages will be assessed this time d. Affirmative action program i. If EEOC and courts feel like the employer has discriminated they can order to implement this ii. Affirmative action program-‐An effort by the employer to try to remedy what looks like historical discrimination practices 1. Involuntary program-‐*** 2. Forced onto it-‐given a timeline, EEOC or the court will monitor progress 3. Voluntary-‐employer wakes up and thinks something is wrong, implement it yourself, go to HR department and say you need to focus on finding more qualified Spanish people e. Executive Orders i. Issued by the President ii. Requires every government contractor to have an affirmative action program iii. To show it, it is part of the company policy that you give to your employees, post the notices iv. If you don’t have one, you can lose all your business with the federal government 5. Affirmative action-‐(above) 6. Disability discrimination a. Rehabilitation Act i. Provides protection for disabled seeking employment ii. Pertains to employers who received federal funds or do business with the federal government b. Americans with Disabilities Act i. Most disabilities complaints filed under here ii. Expanded protection under above act iii. The way you bring a complaint is the same you bring any other discrimination complaint, you bring it with the EEO under federal or state, in person or by mail iv. To have a complaint, you must show that the individual has a disability 1. Disability means a physical or mental impairment that limits the persons ability to perform major life activities a. Major life activities are walking, seeing, hearing, working, learning, caring for yourself v. Protected if you previously had a disability even if you currently don’t have it vi. Even if you don’t have a physical or mental impairment, if people treat you as if you have one, then you are protected by the law vii. First thing is your must show you have a disability viii. Second thing is that you must show that the employer knew or should have known that you have the disability ix. Third, is that you must show that you can perform the essential functions of the job if the employer just made a reasonable accommodation for you 1. Reasonable accommodation=the employer only has to incur minimal expense to make the job site suitable for you a. Examples: modified work schedule, modified equipment or facilities, restructuring the job so that they can do it, providing interpreters or qualified readers for them if the need arises b. Not deemed to be discriminating if it would incur a significant amount of expenses x. Fourth, you must show that the employer refused to make that reasonable accommodation xi. The law says that during the interview process, the employer cannot ask disability related questions nor can they require a physical exam, however you can make a conditional offer of employment and then make them take a physical exam xii. There are certain questions that are illegal to ask, can only ask if the problem specifically relates to their ability to do the job, you cannot ask a disability person how many sick days were you out last year or do you have AIDS? You can ask, are you currently on illegal drugs? xiii. File complaint with EEOC office, they do an investigation and interview people and try to settle it, if they can’t then they will issue their finding/decision, if you don’t like their decision then you can go to court 1. Most common remedy-‐to order the employer to make the reasonable accommodation and to hire the person