Week 1 - Instructor Notes.

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Week 1 - Instructor NotesChapter 12: Discrimination Laws Protected Classes underTitle VII and the Constitution; Chapter 13 RemediesThe basic employment law statute is the Civil Rights Act of 1964, as amended (Title VII). The text inChapter 12 walks the reader through the requirements and procedures of Title VII. Chapter 12covers the various "protected classes" under Title VII, as well as the two (2) legal theories uponwhich proof of discrimination is made. Chapter 12 also discusses "sexual harassment", as aspect ofsex discrimination under Title VII, plus the issues of affirmative action and reverse discrimination.Chapter 13 addresses burdens of proof for the various theories of discrimination, affirmative action,reverse discrimination and remedies for violation of the statute. This Chapter discusses the"disparate impact" cases and the proof needed to establish a violation of Title VII based upondisparate impact. These are, for the most part, class action cases where many potential claimantshave been handled in the same way by the Employer. For example, if an Employer required allemployees to be at least six (6) feet tall, females would be screened out of employmentconsideration in disparate numbers. Whether the height requirement is unlawful, however, dependsupon the business reason for requiring this factor. Please also note the "mixed motive" caseanalysis, using the Price Waterhouse v. Hopkins case. These are interesting cases because theEmployer's defense is that the employee would have suffered an adverse employment decision evenif it had not considered the unlawful criteria. For Ms. Hopkins, she showed that her gender was partof the decision not to make her a partner and the Employer established that she would not havemade partner even if she was a male. This analysis was modified by the 1991 Civil Rights Act, andnow an Employer's use of a mixed motive results in a limitation of the remedy against the Employerbut does not validate the employment decision that depended at least in part, on an unlawful criteria.It is important to remember that the nature of these employment discrimination provisions arelimitations on an Employer's otherwise unfettered discretion with regard to employment andemployment relations. The protected classes and the methods of proof of discrimination are veryspecific. Thus, while analyzing a factual situation to determine whether there has been unlawfuldiscrimination, it is important to isolate a few variables. First, was there an adverse employmentdecision made by the Employer that affected the employee? This may be a hiring decision or atermination decision, but it also includes decisions regarding training, hours of work, promotion andany other decision that affects the employee's work environment.Secondly, was the adverse employment decision based on the protected class as claimed by theemployee or applicant for employment. Whether the decision made by the Employer was the correctone, or whether it did not meet a sense of "fairness" is not relevant to this analysis (it may berelevant under certain State common law doctrines). You should come away with the firmunderstanding that proof of a Title VII violation is not the same as making the determination ofwhether a decision was fair; rather, it depends on whether adverse employment action was takenagainst an individual because of his/her race, sex, color, creed, origin, religion or other protectedclass.Week # 2 -Chapter 14 Overview – Instructors NotesChapter 14 includes a discussion of waivers under the Older Workers' Benefit Protection Act(OWBPA). The OWBPA is an amendment to the ADEA. It is important to note that use of a "waiver"
is not a legal requirement; however, if the Employer chooses to use a waiver agreement, it mustcontain those elements found in the textbook. Waiver Agreements are very common in reduction inforce cases. When an employee is offered a severance/benefits package, the requirement thathe/she sign a "Waiver And Release Agreement" is almost universal among Employers of any size.For "non-age" claims (or potential claims), there is no requirement that an employee be given aconsideration period or a revocation period as required under the OWBPA. Thus, an Agreement thatdoes not contain those periods (and assuming it meets all other requirements), is perfectly valid forwaivers of all claims or potential claims EXCEPT age. Question: Should all waivers of discriminationsuch as race and sex have similar consideration and revocation periods?Chapter 14 also discusses the Equal Pay Act in the context of differences in pay based on sex.Please note the case of Corning Glass Works v. Brennan. That case discusses the defensesavailable to Employers for claims made under the EPA. How many of these defenses would also bea defense to a Title VII claim of sex discrimination based on males being paid more than females forthe same job?Chapter 15 Overview -Week 3 - Instructor NotesThis chapter covers disability discrimination and workers' compensation statutes. The RehabilitationAct of 1973 is specifically designed to cover the Federal government as an employer as well asprivate Employers who do business with the federal government. As applied to private employers,the concepts for understanding discrimination under the Rehabilitation Act is the same as those forthe Americans' With Disabilities Act (ADA) that governs virtually all private employers.The ADA requires more than a duty not to discriminate as found for all of the protected classesunder Title VII (with the exception of religious discrimination). The ADA goes further and requiresthat an employer make a "reasonable accommodation" to the needs of a qualified person with adisability so that the disabled person may perform the essential functions of a job. Examples of whatis meant by a "reasonable accommodation" are found in the book. These accommodations do nothave to be made if, by doing so, it would cause "undue hardship" to the Employer. Congress hasenacted specific criteria for what is an undue hardship which include an examination of theprofitability of the employer's specific facility where the issue arose and consideration of theemployer's overall profitability (for those employers who have multiple locations, parent andsubsidiary relationships, etc.).Workers' Compensation laws are also addressed in Chapter 15. Before these laws were passed,injured employees had to sue their employer in state court for negligence if the employee wanted torecover money for their on the job injury. Compensation laws are a compromise. Employees receivecompensation for their injuries without having to go to state court, and the employer is shielded fromlawsuits in state court from its injured employees. Each state has a workers' compensation statutethat itemizes the recovery for each type of injury (i.e., a certain dollar amount for loss of a hand, aneye, etc.), and also has a specific statutory amount the employer must pay for loss of income by theinjured employee (typically about 2/3 of the employee's normal wage).
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