An introduction to the fundamentals of dynamic business law and business ethics chap024

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.. Five 5 ma

Chapter 24

Employment and Discrimination

Law

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

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 9th 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

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 1964 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

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

• 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

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)

Title VII of the Civil Rights Act (1964, As

Amended by the Civil Rights Act of 1991)

Protects employees against discrimination based on:

“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

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”

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)

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

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

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

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

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

Requirements For Bringing A

Successful Claim Under ADA

Plaintiff must show he/she meets all of the following:

• Has a disability

• Was “otherwise qualified” for the job

• Was excluded from the job because of disability

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

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 other factor(s) other than gender

Additional Laws Governing The

Employment Relationship

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

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)

Federal Unemployment Tax Act

(FUTA)

Created state system that provides unemployment

compensation to qualified employees who lose their jobs

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”

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

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

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

Employee Privacy in the Workplace

• Employer privacy policies should cover matters such as employer

monitoring of telephone conversations and e-mails, 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 1968

-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