Employment Discrimination

1. Section of TVII protecting Seniority Systems.

705(c]

702(a)

703(h)

704(b)

Section 703(h) is the correct answer as it specifically protects seniority systems within the TVII regulations. Sections 702(a), 704(b), and 705(c) do not pertain to the protection of seniority systems.

Explanation

Section 703(h) is the correct answer as it specifically protects seniority systems within the TVII regulations. Sections 702(a), 704(b), and 705(c) do not pertain to the protection of seniority systems.

2. What are the reasons for seniority systems?

1. Reduce employee turnover by at least 50%; 2. Increase salary without performance evaluation; 3. Create a biased system based on favoritism

O 1. Promote long term commitment to the firm:encourage works to acquire skills, to train newcomers without fear ofreplacement, continue to work hard to gain deferred benefitso 2. Operate to limit the discretion of managementand provide a relatively neutral means of resolving the competing interests oftheir memberso 3. Works feel the rules are legitimate becausethey are based on a criterion (length of service) that confirms the work of thepast and which offers greater security to all workers who remain in the firm

Seniority systems are designed to promote loyalty, limit managerial discretion, and provide a sense of legitimacy and security for workers.

Explanation

Seniority systems are designed to promote loyalty, limit managerial discretion, and provide a sense of legitimacy and security for workers.

3. What are the exemptions from religious discrimination rules?

Any organization claiming an exemption must be registered as a religious entity with the government.

Corporations/Associations: must have a primary religious purposeSchools: ER is owned in whole or substantial part by a particular religionMinisterial exception: primary duties consist of "teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship"

Religious discrimination rules do not have any exemptions.

Exemptions apply only to government agencies and not private entities.

The exemptions from religious discrimination rules apply to specific criteria such as having a primary religious purpose, ownership by a particular religion, or ministerial duties related to teaching and spreading the faith. These exemptions do not apply to all organizations, do not solely apply to government agencies, and do not require registration as a religious entity.

Explanation

The exemptions from religious discrimination rules apply to specific criteria such as having a primary religious purpose, ownership by a particular religion, or ministerial duties related to teaching and spreading the faith. These exemptions do not apply to all organizations, do not solely apply to government agencies, and do not require registration as a religious entity.

4. What is the Benefit vs. Burden rule for Sex discrimination?

Comparing the physical attributes of men and women

Allowing only one gender to participate in office events or activities

Applying different standards for men and women in a similar job category

Key is to look at whether the difference is a burden on one sex or another, if it is an added benefit only one sex can enjoy there is probably not adverse employment action (unless there is a distinction between men and women in the same category)

The Benefit vs. Burden rule for Sex discrimination focuses on analyzing whether the difference in treatment between genders creates a burden on one sex or offers a benefit that only one sex can enjoy. This rule helps determine if there is adverse employment action based on discriminatory practices.

Explanation

The Benefit vs. Burden rule for Sex discrimination focuses on analyzing whether the difference in treatment between genders creates a burden on one sex or offers a benefit that only one sex can enjoy. This rule helps determine if there is adverse employment action based on discriminatory practices.

5. What evidence is required to support a claim of stereotyping in an employment discrimination case?

1. The ER must have a stereotypical view.

3. The employee must report the stereotyping behavior to HR before taking any legal action.

1. The ER has a stereotypical view AND2. The ER engaged in an adverse employment action because of that view
Ask: if this person were a diff race, gender, religion, would they have been treated the same? if No, that is a problem!

2. The ER engaged in an adverse employment action without any evidence of stereotyping.

In an employment discrimination case involving stereotyping, it is not enough for the employer to simply hold a stereotypical view. The crucial element is for the employer to have taken an adverse employment action against the employee based on that stereotypical view. Additionally, considering how the employee would have been treated if they belonged to a different race, gender, or religion helps determine if discrimination played a role in the decision-making process.

Explanation

In an employment discrimination case involving stereotyping, it is not enough for the employer to simply hold a stereotypical view. The crucial element is for the employer to have taken an adverse employment action against the employee based on that stereotypical view. Additionally, considering how the employee would have been treated if they belonged to a different race, gender, or religion helps determine if discrimination played a role in the decision-making process.

6. How to make out a BFOQ defense including Weeks test?

2. BFOQ defense only applies to cases involving race discrimination, not sex discrimination

3. The Weeks test only considers individual assessments of qualification, not group assessments

1. P must establish a disparate treatment claim (If no DI then no need for defense)2. Burden of proof shifts to the ER to establish affirmative defense: the defense permits discrimination in certain instances where sex discrim is reasonably necessary to the normal operation of the particular business; job qualification must be related to the essence or the central mission of the ER's businessAnd Weeks "substantially all" test: 1. ER must establish reasonable cause to believe that all or substantially all persons of the class would be unable to perform safely and efficiently the duties of the job OR2. The protected class was a legitimate proxy for safety-related qualifications by providing that it is "impossible or highly impractical" to make individualized assessments of the qualification of the workers

1. ER must establish a disparate treatment claim first before considering BFOQ defense

7. What are the two types of sexual harassment?

3. Verbal harassment: using words or jokes of a sexual nature

5. Cyber harassment: using digital platforms to harass or intimidate others

1. Quid pro quo: this for that 2. Hostile Work environment: altering work conditions or requiring people to work in a discriminatorily hostile or abusive environment

4. Physical harassment: unwanted touching or advances

Sexual harassment can manifest in various forms, including verbal, physical, and cyber harassment, but the two main categories are quid pro quo and hostile work environment.

Explanation

Sexual harassment can manifest in various forms, including verbal, physical, and cyber harassment, but the two main categories are quid pro quo and hostile work environment.

8. What are some factors involved in determining a Hostile Work Environment?

1. Frequency and severity of jokes in the workplace

1. EE perceives abusive environment2. Reasonable person (in the shoes of the P) perceives hostile or abusive environment (no need to be pscychologically injurious)
Factors:FrequencyPhysically threatening or humiliating? Unreasonably interferes with EE's work performancePsychological harm may be taken into accountSeverityFUPPS

3. The employer's profit margin and market competitiveness

2. Individual employee's work experience and job title

9. Availability of Punitives under TVII and ADA?

Punitive damages can be awarded for any violation of TVII and ADA.

Punitive damages are rarely ever granted in cases involving TVII and ADA.

Punitive damages are only available when P can show reckless indifference and malice as to the ER's egregious behavior: must be knowingly and recklessly violating the statute

Punitive damages can only be awarded if the plaintiff suffers physical harm as a result of the defendant's actions.

Punitive damages are not automatically awarded in cases involving violations of TVII and ADA. The plaintiff must demonstrate that the defendant acted with reckless indifference and malice in order to be eligible for punitive damages. This sets a high bar for proving egregious behavior on the part of the defendant.

Explanation

Punitive damages are not automatically awarded in cases involving violations of TVII and ADA. The plaintiff must demonstrate that the defendant acted with reckless indifference and malice in order to be eligible for punitive damages. This sets a high bar for proving egregious behavior on the part of the defendant.

10. What is the Affirmative Defense for ERs for discrimination by supervisors and when is it available?

3. ER must immediately terminate the supervisor involved in the discrimination

1. ER must show that it acted with reasonable care to prevent and correct promptly any harassing behaviorPossible ways to show: attempts to mitigate harm through harassment policy (notice is impt) and complaint procedures, address complaints brought under procedures2. AND the ER must prove the P's unreasonable failure to take advantage of the preventative or corrective opportunities provided by the ER or to otherwise avoid harmNB: NOT available when the ER offense culminates in a tangible employment action (available if no change to the terms and conditions of employment)

1. ER must show proof of discrimination by the supervisor

2. ER must prove that the employee was not harmed by the discrimination

The correct answer explains the two main points required for an ER to claim Affirmative Defense for discrimination by supervisors, which involve demonstrating reasonable care in prevention and correction of harassment and the employee's failure to utilize provided opportunities to avoid harm. The incorrect answers do not accurately reflect the legal requirements for this defense.

Explanation

The correct answer explains the two main points required for an ER to claim Affirmative Defense for discrimination by supervisors, which involve demonstrating reasonable care in prevention and correction of harassment and the employee's failure to utilize provided opportunities to avoid harm. The incorrect answers do not accurately reflect the legal requirements for this defense.

11. Under what circumstances is an employer liable for harassment by a co-employee or customer?

ER liable for the harassment under a negligence standard: Step I: EE establishes hostile work environment (Harris)Step 2: If ER acted negligently in failing to stop, remedy, or correct the harassment, the ER is liable

An employer is only liable if the harassment results in physical harm to the employee.

An employer is automatically liable for any harassment that occurs in the workplace regardless of the circumstances.

An employer is never liable for harassment by a co-employee or customer.

12. What must a plaintiff prove in order to establish ER liability for supervisor harassment?

Plaintiff must prove financial loss due to the harassment

Supervisor must be directly related to the plaintiff

Step 1: P must prove hostile work environment (Harris)Step 2: Tangible action (change in work terms or conditions)? If yes then no affirmative defense, and ER is strictly liable If no then affirmative defense may apply

ER must be proven to have knowledge of the harassment

13. What is the ADA definition of disability?

1. An impairment is not necessary to qualify as a disability

2. Only physical impairments are considered disabilities

1. physical or mental impairment that substantially limits one or more of the major life activities of such individual2. Record of such impairment3. Being regarded as having such impairmentOR In Hirsch's words: 1. Whether there is an impairment2. Whether a major life activity is affected by such impairment (and what that activity is)3. Whether the major life activity is substantially limited by the impairment

3. The ADA definition only applies to individuals over the age of 65

The ADA definition of disability includes physical or mental impairments that substantially limit major life activities, record of such impairment, or being regarded as having such impairment. Other options are incorrect as they do not align with the specific criteria outlined in the ADA.

Explanation

The ADA definition of disability includes physical or mental impairments that substantially limit major life activities, record of such impairment, or being regarded as having such impairment. Other options are incorrect as they do not align with the specific criteria outlined in the ADA.

14. What is the definition of physical or mental impairment in ADA?

Only visible physical disabilities

Physiological disorder condition disfigurement affecting one of the body systems OR Any mental or psychological disorder
Original ADA: strict interpADA Amend: favor coverage

Exclusively severe mental illnesses

Any normal bodily function or temporary ailment

The correct definition under ADA includes physiological disorders, conditions, disfigurements affecting body systems, as well as any mental or psychological disorders. It is not limited to normal bodily functions, only visible physical disabilities, or severe mental illnesses.

Explanation

The correct definition under ADA includes physiological disorders, conditions, disfigurements affecting body systems, as well as any mental or psychological disorders. It is not limited to normal bodily functions, only visible physical disabilities, or severe mental illnesses.

15. What is the definition of life activity in ADA?

Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; reproduction included in Bragdon case; performance of manual "taskS" (must be more than one)

Eating healthy food

Watching television

Engaging in recreational activities

In ADA, life activity refers to specific functions that are essential for daily living and functioning in society, not recreational activities, dietary habits, or leisurely pursuits.

Explanation

In ADA, life activity refers to specific functions that are essential for daily living and functioning in society, not recreational activities, dietary habits, or leisurely pursuits.

16. What is the specialized definition of work as a Major Life Activity (MLA) under the Americans with Disabilities Act (ADA) and what factors should be considered?

Original: Must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person with comparable training, skills, and abilitiesAmendments: Seems to still be "type of work" (ie law enforcement, commercial driver) or range of duties in work (heavy lifting, etc)Factors to consider: geography and reasonable access to jobs utilizing similar training, knowledge, skills, or abilities

Geography and reasonable access to jobs should not be considered when determining work as a Major Life Activity.

Specialized definition of work under the ADA only focuses on physical abilities and not on skills and abilities.

The definition of work under the ADA is identical to the general definition of work.

17. What is the difference in the use of mitigation under the ADA before and after Amendments?

Original: use mitigation to determine disabilityAmend: no mitigation (except for glasses/contacts)

Original: mitigation for all cases. Amend: mitigation only for physical disabilities.

Original: only mitigation for glasses/contacts. Amend: no mitigation at all.

Original: no mitigation. Amend: use mitigation to determine disability.

Before the ADA Amendments, mitigation was used to determine disability, while after the Amendments, there is no longer a consideration for mitigation except for cases involving glasses/contacts.

Explanation

Before the ADA Amendments, mitigation was used to determine disability, while after the Amendments, there is no longer a consideration for mitigation except for cases involving glasses/contacts.

18. What are the regarded rules for ADA definition of disability pre and post Amendment?

Pre: employer must correctly identify substantial limitations post: any perceived limitation qualifies as a disability

Pre: employer perceives impairment that causes any limitation post: no limitations are considered disabilities

Pre: employer mistakenly believes an impairment does not limit post: any mistake regarding limitations does not qualify

Pre: either ER perceives impairment that substantially limits AND no impairment OR ER mistakenly believes an impairment subs limitspost: mistake but no substantial limits; this could be huge, but (1) there still has to be a mistake (2) no transitory (6mos or less) or minor impairments

The correct answer explains that for pre-Amendment, the employer must perceive an impairment that substantially limits a major life activity but not necessarily the actual impairment, whereas for post-Amendment, the mistake can be significant but it must not result in substantial limits. The incorrect answers misinterpret the rules pre and post Amendment.

Explanation

The correct answer explains that for pre-Amendment, the employer must perceive an impairment that substantially limits a major life activity but not necessarily the actual impairment, whereas for post-Amendment, the mistake can be significant but it must not result in substantial limits. The incorrect answers misinterpret the rules pre and post Amendment.

19. What are the basics of a Reasonable Accommodation claim according to QIWD?

QIWD: 1. Must be disabled AND qualified for the job in question 2. Qualified must be determined with or without reasonable accommodation
Discriminates includes not making reasonable accommodation to the known limitations of an otherwise QIWD UNLESS this accommodation would constitute an undue hardship EE must make ER aware EE's burden to show reasonable accommodation in general ER's burden to show undue hardship in the specific case of that ER

1. Being disabled automatically guarantees qualification for the job

2. Employers are not required to make reasonable accommodations for qualified individuals with disabilities

3. Employees are not obligated to inform their employers of their limitations

20. How does an employer show an accommodation is reasonable under the ADA?

Must have the accommodation approved by a medical professional.

Must only consider how the accommodation affects the employer's bottom line.

Must show reasonable in sense of both "efficaciousness" (effectiveness) and in proportion to cost *CBA not required, but relevant *Look to how the change acc the EE *Look to how it affects work

Must show that the accommodation is the cheapest option available.

In order to show that an accommodation is reasonable under the ADA, an employer must consider both the effectiveness of the accommodation and the cost proportionality. It is not required to be the cheapest option available, only reasonable in relation to effectiveness and cost. Additionally, the focus should be on how the accommodation benefits the employee and impacts their ability to perform their work duties.

Explanation

In order to show that an accommodation is reasonable under the ADA, an employer must consider both the effectiveness of the accommodation and the cost proportionality. It is not required to be the cheapest option available, only reasonable in relation to effectiveness and cost. Additionally, the focus should be on how the accommodation benefits the employee and impacts their ability to perform their work duties.

21. What is the rule for changing seniority systems as a reasonable accommodation under the ADA?

The burden of proof falls on the employer to justify any changes to the seniority system.

Special circumstances do not need to be shown for an exception to the seniority system to be reasonable.

In general, an exception to a seniority plan will not be deemed to be a reasonable accommodationHOWEVER, if the ER has the ability to make changes to the plan, the P bears the burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case

An exception to a seniority plan will always be considered a reasonable accommodation under the ADA.

Under the ADA, changing seniority systems as a reasonable accommodation is a complex issue. Generally, exceptions to seniority plans are not automatically considered reasonable accommodations. If changes are made, the burden of proof falls on the employee to demonstrate special circumstances that justify the exception.

Explanation

Under the ADA, changing seniority systems as a reasonable accommodation is a complex issue. Generally, exceptions to seniority plans are not automatically considered reasonable accommodations. If changes are made, the burden of proof falls on the employee to demonstrate special circumstances that justify the exception.

22. How do you determine if someone is a Qualified Individual with a Disability (QIWD)?

1. Simply rely on the individual's self-assessment of their abilities.

3. Disregard the need for reasonable accommodations when assessing qualifications.

2. Base the determination solely on the individual's educational background.

1. First consider whether the individual can perform the essential functions of the job without acc OR with reasonable acc: if so, the individual is qualified2. In determining whether something is essential, courts look at the job description AND the actual practice of the job; very case by case

The correct way to determine if someone is a QIWD involves assessing their ability to perform essential job functions and considering the need for reasonable accommodations, taking into account both the job description and the actual practice of the job.

Explanation

The correct way to determine if someone is a QIWD involves assessing their ability to perform essential job functions and considering the need for reasonable accommodations, taking into account both the job description and the actual practice of the job.