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Question 1
You are a woman who has been working at the same company for 10 years and came right out of college as a financial analyst. Men who were hired at the same time, in the same position, with the same credentials, were paid 25% more on average. You discover this in conversation with a male co-worker today. You go to HR and explain that this violates the Equal Pay Act. HR tells you that since the original lower pay happened 10 years ago it is too late to do anything. Is HR correct and explain why or why not?
Legal Issue
:
Is there a case for violation of the Equal Pay Act (EPA)
Requirements of the Law
:
Under the EPA and specifically the Lily Ledbetter case, while the time is limited to file under the act, each pay period that unequal pay is made, starts the clock again. This means that even if the unequal pay started 10 years ago, if it is continuing today, than there still is a valid claim under the Equal Pay Act.
Analysis/Decision: HR is not correct and you can bring a lawsuit.
Question 2
You work in an investment bank and there is a lot of sexual talk and jokes that people (both men and women) send via email to everyone in the department via a distribution list. It happens on a daily basis. You basically try to ignore it and don’t open the emails up, but still find it offensive. One day you decide that you have had enough and forward one of the emails to your supervisor. He immediately calls a department meeting to tell everyone to stop this practice or they may be fired. He also reminds everyone that they have been through sexual harassment training twice this year and this was specifically addressed. The emails continue to circulate (you supervisor is not on the distribution list). You decide you can not work here any longer and quit but file a sexual harassment suit for a hostile work environment with the EEOC (your employer has 15 or more employees). Are you likely to win and does the company have a valid defense?
Legal Issue:
Will you win a lawsuit for sexual harassment?
Requirements of Law:
Repeated instances of unwanted sexual talk, images, or behavior that make it difficult or uncomfortable for you to work there (a hostile work environment). The employer defense is that the employer took precautions and had a process in place to handle such claims, and did so quickly, and that the employee failed to use the process.
Analysis/Decision: While the employer did have a process in place and appears to have quickly tried to address the problems, it still hasn’t been resolved. The key here is that the employee did use the employer process, which negates the employer defense under Faragher/Ellerth. You will likely win.
Question 1
2 PointsYou work in a production facility that is very “blue collar”. It is a bit of a rough environment but you knew that when you accepted the position. In the area of the factory that you work, there is a group of employees (both woman and men) who make comments back and forth to each other about who is the “hottest”, who has the best body, and who “sleeps around” the most. So far none of the comments have been directed at you personally, but it makes you very uncomfortable at work. You got to HR and report the situation but they don’t take action because the comments aren’t targeted at you and none of the other employees have complained. If you bring an action for a hostile work environment, will you succeed?
Legal Issue:Requirements of the Law:
Analysis and Decision
:
Question 2
2 Points1.Sacred Heart has an issue. Due to the popularity of the Nursing program, there are significantly more women than men at the school. In an effort to achieve a better balance, Sacred Heart is launching a number of programs intended to increase enrollment for men. You are a woman who is not accepted at the school, even though you have higher grades and better overall qualifications than many of the men who were accepted. You sue based on a claim of gender discrimination. Will you win?
Legal Issue:Requirements of the Law:
Analysis and Decision:
Question 3
2 PointsYou have been put in charge of hiring for new positions in your company. The job requires the ability to code in Python (programming language) and a degree in computer science. Since the client for this project is based in Japan, you decide to require the individuals to also speak Japanese. Several individuals from different ethnic backgrounds sue based on disparate impact. Will they wil?
Legal Issue:Requirements of the Law:Analysis and Decision:
Question 4
2 PointsYou take a job as a salesman for a software company in Florida. Your territory is limited to the state of Florida and part of Alabama. You do not have an employment contract but are still asked to sign a non-compete. The non-compete prohibits you from accepting another sales job in the states of Florida and Alabama for 3 months. Your brother runs a beer distributor and hires you to manage sales for the southern region which includes Georgia, Alabama, Louisiana, and Florida. Your old company finds out about this and sues to prevent you from taking the position. Is the non-compete enforceable and explain why or why not.Legal Issue:Requirements of the Law:Analysis and Decision:
Question 5
2 PointsI’m an independent contract working on the hockey rink here at Sacred Heart. I was contracted by the company doing the construction but I’m a carpenter who does other work beside this project. I think it’s funny to yell sexual insults at students when they walk by. You report this activity to Sacred Heart. They tell you that since I’m an independent contractor there is nothing Sacred Heart can do to stop it. Is that correct?
Legal Issue:Requirements of the Law:Analysis and Decision:
Question 6
2 PointsRichard is an employee of ABC Corporation and is called for jury duty in Wayne County, Michigan. His immediate supervisor, lets him know that he “must” avoid jury duty at all costs. Richard tells the judge of his circumstances and his need to be at work, but the judge refuses to let him avoid jury duty. He spends the next two weeks at trial. He sends regular e-mails and texts to his supervisor during this time, but on the fourth day gets a text message that says, “Don’t bother to come back.” When he does return, he is told he is fired. Does Richard have a cause of action for the tort of wrongful discharge?
Legal IssueRequirements of the LawAnalysis and Decision
Question 7
2 Points1.I am a manager at your company and supervise 25 people. I am considered rude and abrasive but my division has the highest per person revenue numbers in the company. I do not believe in religion so I make fun of all religions (Catholic, Jewish, Muslim, etc.). I also make fun of everyone’s appearance and rate employees on their looks, their masculinity (if they identify as men) and their feminine traits (if they identify as women). I defend my behavior by stating that I’m rude to everyone, so I’m not engaging in discrimination. Is that correct?
Legal Issue:Requirements of Law:Analysis and Decision:
Question 8
Question 9
2 PointsYou are an employee at will and work in marketing at a major company. You completely disagree with the way that the company spends its advertising dollars (they still put advertisements in newspapers and don’t put any money into online advertisements or social media) and company sales are starting to go down considerably. You find this completely unacceptable and in meetings you criticize this, call it incompetence, etc. You are fired. You then bring a lawsuit for wrongful discharge. Will you win?Legal Issue:Requirements of the Law:Analysis and Decision:
Question 10
2 PointsYou are a person from a very conservative religion, which does not permit members to where anything other than a white shirt (or blouse), black pants, and black shoes when out in a public place. You apply for a job at a fast food restaurant where everyone is required to where a uniform. You request an accommodation for your religious belief and part of your argument is that what you where has nothing to do with how good of a server you are. Will you win a religious discrimination lawsuit? Why or why not?Legal Issue:Requirements of the Law:Analysis and Decision:
The
LEGAL
ENVIRONMENT
of BUSINESS
TEXT AND CASES
Tenth Edition
CROSS MILLER
◆
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ The Restatement (Third) of Agency defines
agency as “the fiduciary relation [that] results
from the manifestation of consent by one person
to another that the other shall act in his [or her]
behalf and subject to his [or her] control, and
consent by the other so to act.”
◆ Fiduciary: A person who undertakes to act on
behalf of—and primarily for the benefit of—
another. A fiduciary relationship involves trust
and confidence. →
2
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Agency relationships are common
between employers and employees. They
may also exist between employers and
independent contractors.
◆ Employer-Employee Relationships: All
employees who deal with third parties are
usually deemed to be agents. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
3
◆ Employer-Employee Relationships:
Employment laws (state and federal) apply
only to the employer-employee
relationship but not to employer–
independent contractors relationships. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
4
◆ Employer–Independent Contractor
Relationships: Independent contractors
are not employees because those who
hire them have no control over the
details of their work performance.
▪ The contractor may or may not have
an agency relationship with the
principal. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
5
◆ Determination of Employee Status:
▪ Employers are required to pay certain
taxes for employees but not for
independent contractors.
▪ Criteria Used by the Courts: To decide
whether a worker is an employee or an
independent contractor, courts often
consider the following questions: →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
6
◆ Determination of Employee Status:
▪ Criteria Used by the Courts:
• How much control does the employer
exercise over the details of the work?
• Is the worker engaged in an
occupation or business distinct from
that of the employer? →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
7
◆ Determination of Employee Status:
▪ Criteria Used by the Courts:
• Is the work usually done under the
employer’s direction or by a specialist
without supervision?
• Does the employer supply the tools at the
place of work?
• For how long is the person employed? →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
8
◆ Determination of Employee Status:
▪ Criteria Used by the Courts:
• What is the method of payment—by
time period or at the completion of
the job?
• What degree of skill is required of the
worker? →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
9
◆ Determination of Employee Status:
▪ Criteria Used by the Courts: Whether a
worker is an employee or an
independent contractor affects the
employer’s liability for the worker’s
actions. →
• SEE CASE IN POINT 19.1 COKER V. PERSHAD (2013).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
10
◆ Determination of Employee Status:
▪ Criteria Used by the IRS: Most important
factor is the degree of control the business
exercises over the worker.
▪ The IRS closely scrutinizes categorization of
workers since employers can avoid certain
tax liabilities by hiring independent
contractors instead of employees. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
11
◆ Determination of Employee Status:
▪ Employee Status and “Works for Hire”:
• Copyrighted work created by an employee
is owned by the employer.
• Copyrighted work created by an
independent contractor is normally owned
by the contractor unless the parties agree
in writing that it is a “work for hire” and
the work falls into nine specific categories.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
12
◆ Liability for Contracts:
▪ Unauthorized Acts: If the acts are outside
the agent’s express, implied, or apparent
authority, she/he is liable regardless of the
principal’s classification.
• If third party knows at the time of
contracting that agent has no authority,
the agent is not liable.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
13
◆ Liability for Torts and Crimes: An agent is
liable to third party for his own torts.
▪ The principal may be liable for agent’s
torts if they result from:
• Principal’s Tortious Conduct.
• Principal’s Authorization of Agent’s
Tortious Conduct.
• Liability for Agent’s Misrepresentation. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
14
◆ Liability for Torts and Crimes:
▪ Principal’s Tortious Conduct: Principal who
acts through an agent may be liable for
harm resulting from the principal’s own
negligence or recklessness due to improper
instructions, authorization to use improper
materials or tools, or improper rules that
result in the agent’s committing a tort. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
15
◆ Liability for Torts and Crimes:
▪ Principal’s Authorization of Agent’s
Tortious Conduct: A principal who
authorizes an agent to commit a tort may
be liable to persons or property injured
because the act is considered to be the
principal’s. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
16
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Doctrine of Respondeat Superior: The
employer is vicariously liable for an
agent-employee’s negligent torts
committed within the agent’s “course
and scope of employment.” →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
17
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Determining the Scope of Employment:
Whether a principal is liable under the
doctrine of respondeat superior depends on
whether the torts are committed within the
scope of the agency.
• SEE CASE 19.3 ASPHALT & CONCRETE SERVICES, INC. V.
PERRY (2015). →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
18
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Determining the Scope of Employment:
Whether the employee’s act was authorized
by the employer.
The time, place, and purpose of the act.
Whether the act was commonly performed by
employees on behalf of their employers. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
19
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Determining the Scope of Employment:
The extent to which the employer’s interest
was advanced by the act.
The extent to which the private interests of
the employee were involved.
Whether the employer furnished the
means by which an injury was inflicted. → 20
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Determining the Scope of Employment:
Whether the employer had reason to know
the employee would perform the act and
whether the employee had done it before.
Whether the act involved the commission
of a serious crime.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
21
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Negligence:
• Distinction Between a “Detour” and a
“Frolic”: If a “detour” principal is liable;
if a “frolic” principal is not liable.
• Employee travel time to or from meals is
outside scope of employment unless
traveling is a core part of the position. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
22
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Intentional Torts:
• Under the doctrine of respondeat
superior, the principal is liable for
intentional torts committed within the
scope of employment. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
23
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Intentional Torts:
• Employer is liable for employee’s acts
that employer knew—or should have
known—the employee had a propensity
to commit. An employer is also liable for
permitting an employee to engage in
reckless actions that can injure others.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
24
◆ Liability for Torts and Crimes:
▪ Liability for Independent Contractor’s
Torts: Generally, an employer is not liable
for acts of independent contractors
because employer has no right to control.
• Exceptions: Strict liability for unusually
hazardous activities, transportation of
highly volatile chemicals, or use of
poisonous gases. →
25
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Liability for Torts and Crimes:
▪ Liability for Agent’s Crimes: An agent is
liable for her own crimes. The principal is
not liable, even if the crime was committed
within the scope of employment, unless:
• Principal participated in the crime.
• Principals may be liable for agent
violation of regulations in some
jurisdictions.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
26
The
LEGAL
ENVIRONMENT
of BUSINESS
TEXT AND CASES
Tenth Edition
CROSS MILLER
◆
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Title VII prohibits discrimination in
employment on the basis of race, sex,
color, religion, and national origin.
◆ A class of persons defined by one or
more of these criteria is a protected
class. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
2
◆ Applies to employers involved with
interstate commerce with fifteen or more
employees, labor unions that operate hiring
halls, employment agencies, and state and
local governing units or agencies.
◆ In addition to prohibiting religious
discrimination, employers must reasonably
accommodate an employee’s religious
practices. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
3
◆ Equal Employment Opportunity
Commission:
▪ Monitors compliance with Title VII.
▪ Employee alleging discrimination must
file a claim with EEOC before a lawsuit
can be brought against employer.
▪ The EEOC usually only takes “priority
cases.”
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
4
◆ Limitations on Class Actions: In an important
decision, the U.S. Supreme Court limited the
rights of employees to bring discrimination
claims against their employer as a group, or
class.
▪ The decision did not affect the rights of
individual employees to sue under Title VII.
• SEE CASE IN POINT 21.2 WAL-MART STORES, INC. V. DUKES
(2011).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
5
◆ Intentional and Unintentional Discrimination:
▪ Intentional Discrimination: Intentional
discrimination by an employer against an
employee is disparate-treatment
discrimination. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
6
◆ Intentional and Unintentional Discrimination:
▪ Intentional Discrimination:
• Prima Facie Case:
Plaintiff a member of a protected class;
Applied, qualified for job;
Rejected by employer; and
Employer sought other applicants. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
7
◆ Intentional and Unintentional Discrimination:
▪ Intentional Discrimination:
• Burden-Shifting Procedure: Once prima
facie case proved, burden of proof shifts to
employer who must present defense and
evidence.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
8
◆ Intentional and Unintentional Discrimination:
▪ Unintentional Discrimination:
• Disparate-impact discrimination occurs
when a protected group of people is
adversely affected by an employer’s
practices, procedures, or tests, even
though they do not appear to be
discriminatory. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
9
◆ Intentional and Unintentional Discrimination:
▪ Unintentional Discrimination:
• Pool of Applicants Test: Plaintiff shows
percentage of the protected class in
employer’s workforce does not reflect
percentage in local labor market. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
10
◆ Intentional and Unintentional Discrimination:
▪ Unintentional Discrimination:
• Rate of Hiring: Plaintiff compares selection
rates of members of protected class with
nonmembers in employer’s workforce.
According to EEOC, less than 80 percent
may show disparate impact.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
11
◆ Discrimination Based on Race, Color, and
National Origin: Title VII prohibits
employment policies or intentional/
negligent discrimination on basis of race,
color, or national origin. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
12
◆ Discrimination Based on Race, Color, and
National Origin:
▪ Policies that discriminate are illegal,
unless they have a substantial
demonstrable relationship to realistic
qualifications for job. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
13
◆ Discrimination Based on Race, Color,
and National Origin:
▪ Reverse Discrimination: Title VII also
protects against reverse
discrimination—that is, discrimination
against members of a majority group
such as white males. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
14
◆ Discrimination Based on Race, Color, and
National Origin:
▪ Potential Section 1981 Claims: Victims of
racial or ethnic discrimination may also
have a cause of action under 42 U.S.C.
Section 1981, which prohibits
discrimination on the basis of
race/ethnicity in the formation or
enforcement of contracts.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
15
◆ Discrimination Based on Religion:
Employers must “reasonably
accommodate” the “sincerely held”
religious practices of its employees,
unless to do so would cause “undue
hardship” to employer’s business.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
16
◆ Discrimination Based on Gender:
Employers are prohibited from classifying
jobs based on gender, unless employer can
prove gender is essential to the job.
▪ Pregnancy Discrimination: Pregnancy
Discrimination Act expanded Title VII to
include discrimination based on
pregnancy, childbirth, or related medical
conditions. →
17
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Discrimination Based on Gender:
▪ Wage Discrimination: Equal Pay Act
requires equal pay for male and female
employees working at the same
establishment doing similar work. To
determine violations, courts look to the
primary duties (job content) of the two
jobs. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
18
◆ Discrimination Based on Gender:
▪ Wage Discrimination:
• Lilly Ledbetter Fair Pay Act (2009):
Makes discriminatory wages actionable
under federal law regardless of when
the discrimination began. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
19
◆ Discrimination Based on Gender:
▪ Discrimination against Transgender
Persons: Courts have traditionally held
that federal law (Title VII) does not
protect transgender persons from
discrimination, but a growing number are
interpreting Title VII’s protections against
gender discrimination to apply to
transsexuals.
20
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Discrimination Based on Gender:
▪ Transgender Bathrooms: In 2016, the
Obama administration issued guidance
directing public schools to allow
transgender students to use bathrooms
matching their gender identity. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
21
◆ Discrimination Based on Gender:
▪ Transgender Bathrooms: The federal
government and its agencies now treat
gender identity as the person’s sex for legal
purposes. Some states, schools, and
employers are reluctant to do so.
• Some argue that the access of transgender
persons to bathrooms should be left up to
individual states to address.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
22
◆ Discrimination Based on Gender:
▪ Gender-Neutral Pronouns: People have
traditionally said he/him/his when talking
about a male, or she/her/hers when
discussing a female.
• Some transgender people prefer to be
referred to using corresponding genderneutral pronouns, such as ze/hir/hirs. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
23
◆ Discrimination Based on Gender:
▪ Gender-Neutral Pronouns: Certain cities
now require employers, landlords, and all
businesses and professionals to use a
transgender individual’s preferred name,
pronoun, and title—which allows
transgender individuals to self-identify
their name and gender.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
24
◆ Constructive Discharge:
▪ Plaintiff must present objective proof of
intolerable working conditions which
employer knew about but failed to
correct.
▪ Employee’s resignation must be a
foreseeable result of working
conditions. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
25
◆ Constructive Discharge:
▪ Applies to All Title VII Discrimination:
Plaintiffs can use constructive discharge
to establish any type of discrimination
claim under Title VII.
• It is most commonly asserted in cases
involving sexual harassment.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
26
◆ Sexual Harassment: The Supreme Court has
interpreted Title VII’s prohibition against sex
discrimination to include prohibitions
against sexual harassment.
◆ There are currently two forms of sexual
harassment:
▪ Quid Pro Quo.
▪ Hostile Work Environment. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
27
◆ Sexual Harassment:
▪ Quid Pro Quo: Sexual favors are
demanded in return for job
opportunities, promotions, salary
increases, or other tangible benefits. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
28
◆ Sexual Harassment:
▪ Hostile Work Environment: Occurs
when workplace is permeated with
discriminatory intimidation, ridicule,
and insult so severe as to alter the
conditions of the victim’s employment
and create an abusive working
environment. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
29
◆ Sexual Harassment:
▪ Harassment by Supervisors: For
employer to be liable for a supervisor’s
sexual harassment, a supervisor must
have taken a tangible employment action
against the employee. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
30
◆ Sexual Harassment:
▪ The Ellerth/Faragher Affirmative Defense
has two elements:
• Employer must have taken reasonable
care to prevent and promptly correct
any sexually harassing behavior, and →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
31
◆ Sexual Harassment:
▪ The Ellerth/Faragher Affirmative
Defense has two elements:
▪ Plaintiff-employee must have
unreasonably failed to take advantage
of preventative or corrective
opportunities to avoid harm. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
32
◆ Sexual Harassment:
▪ The Ellerth/Faragher Affirmative
Defense:
• If an employer can prove both
elements, he will not be liable for
supervisor’s harassment.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
33
◆ Sexual Harassment:
▪ Retaliation by Employers: Tangible
employment action (such as firing or
demotion) against employee that
complains about sexual harassment or
other Title VII violations. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
34
◆ Sexual Harassment:
▪ Retaliation by Employers:
• Requirements for Protection: Plaintiff
must have opposed a practice
prohibited by Title VII and suffered an
adverse employment action as a
consequence of the opposition. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
35
◆ Sexual Harassment:
▪ Retaliation by Employers:
• Protection May Extend to Others: In
some cases, the Supreme Court has
ruled that Title VII’s retaliation
protection extended to persons
associated with the plaintiff.
SEE CASE IN POINT 21.11 MORALES-CRUZ V. UNIVERSITY
OF PUERTO RICO (2012).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
36
◆ Sexual Harassment:
▪ Harassment by Coworkers and Others:
• Employer generally liable only if
employer knew or should have known
and failed to take action.
• Notice to supervisor is sufficient under
agency law. Employers may also be liable
for harassment by non-employees.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
37
◆ Sexual Harassment:
▪ Same-Gender Harassment:
• In 1998, Supreme Court held in Oncale v.
Sundowner Offshore Services that Title
VII prohibitions against sexual
harassment extended to same-sex
harassment. Proving this is difficult but
easier when harasser is homosexual.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
38
◆ Sexual Harassment:
▪ Sexual-Orientation Harassment:
• Title VII does not prohibit
discrimination based on sexual
orientation, but a growing number of
states have statutes that prohibit
discrimination in private employers. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
39
◆ Online Harassment: Occurs when a hostile
work environment is created using company
chat, blogs, e-mail, or other electronic means.
▪ Employers can avoid liability with prompt
remedial action.
▪ Employees may be discharged for using
company computers to distribute offensive
material to coworkers. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
40
◆ Remedies under Title VII: Liability may be
extensive. Plaintiff may receive:
▪ Reinstatement.
▪ Back Pay.
▪ Retroactive Promotions.
▪ Damages.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
41
◆ The Age Discrimination in Employment Act
(ADEA) protects individuals over the age of
40 from workplace discrimination that
favors younger workers.
◆ The act also prohibits mandatory retirement
for nonmanagerial workers and protects
federal and private-sector employees from
retaliation based on age-related complaints. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
42
◆ Procedures under the ADEA: Plaintiff
must show discrimination was THE
reason for adverse employment action
and establish but for causation (“but for”
the employee’s age, the action would
not have been taken).
▪ SEE GROSS V. FBL FINANCIAL SERVICES, INC. (2009).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
43
◆ Procedures under the ADEA:
▪ Prima Facie Age Discrimination: To establish
a prima facie case, the plaintiff must show
that she/he was the following:
• A member of the protected age group.
• Qualified for the position from which she or
he was discharged.
• Discharged because of age discrimination. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
44
◆ Procedures under the ADEA:
▪ Pretext: If the employer offers a legitimate
reason for its action, then the plaintiff must
show that the stated reason is only a
pretext and that the plaintiff’s age was the
real reason for the employer’s decision. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
45
◆ Replacing Older Workers with Younger
Workers: Plaintiff must prove that the
discharge was motivated by age bias.
▪ The replacement worker need only be
younger than the plaintiff.
▪ The greater the age gap, the more likely
the plaintiff will succeed in showing age
discrimination. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
46
◆ State Employees Not Covered by the
ADEA: States are usually immune from
lawsuits brought by private individuals in
federal court (unless a state consents to
such a suit).
▪ Immunity stems from the Supreme
Court’s interpretation of the Eleventh
Amendment, though this immunity is not
absolute.
47
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ The Americans with Disability Act (ADA)
requires employers to offer “reasonable
accommodation” to employees or
applicants with a disability who are
otherwise qualified for the job they hold
or seek. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
48
◆ Procedures under the ADA: Plaintiff must
show that he or she (1) has a disability, (2) is
otherwise qualified for the employment in
question, and (3) was excluded from the
employment solely because of the disability.
▪ Plaintiffs in lawsuits brought under the ADA
may seek many of the same remedies that
are available under Title VII. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
49
◆ What Is a “Disability”?
▪ Physical or mental impairment that
substantially limits one or more of major
life activities;
▪ A record of such impairment; or
▪ Being regarded as having such an
impairment. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
50
◆ What Is a “Disability”? Health conditions
that have been considered disabilities
under federal law include alcoholism,
acquired immune deficiency syndrome
(AIDS), blindness, cancer, cerebral palsy,
diabetes, heart disease, muscular
dystrophy, paraplegia, being HIV-positive,
and morbid obesity. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
51
◆ What Is a “Disability”?
▪ Association with Disabled Persons:
Separate provision in the ADA prevents
employers from taking adverse
employment actions based on
stereotypes or assumptions about
individuals who associate with people
who have disabilities. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
52
◆ What Is a “Disability”?
▪ Mitigating Measures: In the past, courts
focused on whether a person had a
disability after the use of corrective
devices/medication. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
53
◆ What Is a “Disability”?
▪ Mitigating Measures: Today, the ADA (as
amended) prohibits employers from
considering mitigating measures when
determining if an individual has a
disability.
• Disability is determined on case-by-case
basis.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
54
◆ What Is a “Disability”?
▪ Disclosure of Confidential Medical
Information: Employers are required to
keep their employees’ medical information
confidential. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
55
◆ What Is a “Disability”?
▪ Disclosure of Confidential Medical
Information: If an employer discloses an
employee’s confidential medical
information, that employee has a right to
sue the employer—even if the employee
was not technically disabled. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
56
◆ What Is a “Disability”?
▪ Disclosure of Confidential Medical
Information: The prohibition against
disclosure also applies to other employees
acting on employer’s behalf.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
57
◆ Reasonable Accommodation:
▪ If an employee with a disability can
perform the job with reasonable
accommodation, without undue hardship
on the employer, the accommodation
must be made. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
58
◆ Reasonable Accommodation:
▪ Undue Hardship: Employers who do not
accommodate the needs of persons with
disabilities must demonstrate that
accommodations would cause undue
hardship due to significant difficulty or
expense.
▪ Courts usually determine an undue
hardship on a case-by-case basis. →
59
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Reasonable Accommodation:
▪ Job Applications and Physical Exams:
• Employers must modify applications and
selection process so those with
disabilities can compete.
• Employers are restricted on pre-hiring
questions and physical exams. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
60
◆ Reasonable Accommodation:
▪ Job Applications and Physical Exams:
• Employer can disqualify the applicant
only if the medical problems discovered
during a preemployment physical would
make it impossible for the applicant to
perform the job.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
61
◆ Reasonable Accommodation:
▪ Health Insurance Plans: Workers with
disabilities must have equal access to
any health insurance provided to other
employees and cannot be excluded
from coverage. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
62
◆ Reasonable Accommodation:
▪ Health Insurance Plans: A group health-
care plan that makes a disability-based
distinction in its benefits violates the
ADA (unless the employer can justify its
actions under the business necessity
defense).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
63
◆ Reasonable Accommodation:
▪ Substance Abusers: Only applies to
FORMER drug users completed or going
through supervised drug rehabilitation.
▪ Employers can fire/refuse to hire a person
who is an alcoholic if (1) the person poses a
substantial risk of harm to him/herself or to
others and (2) the risk cannot be reduced by
reasonable accommodation.
64
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Uniformed Services Employment and
Reemployment Rights Act (USERRA)
protects civilian job rights and benefits for
members of the military, former military
personnel, and reservists. It also provides
additional protections for veterans who are
disabled.
◆ The USERRA prohibits discrimination against
persons who have served in the military. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
65
◆ Broad Application and Provisions: The
USERRA covers all employers (public and
private) and applies to U.S. employers
operating in foreign countries.
▪ Military plaintiffs can sue the employer
AND individual employees who were
acting in an official capacity for the
employer. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
66
◆ Broad Application and Provisions:
▪ Such employees are personally liable for
violations.
▪ There is also no statute of limitations for
bringing a lawsuit.
▪ Veterans can be terminated from their
employment only “for cause.”
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
67
◆ Prima Facie Case of Discrimination under
the USERRA: To establish a prima facie
case under the USERRA, plaintiff must
establish that an employer’s adverse
employment action was based (in part) on
the employee’s military connection. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
68
◆ Prima Facie Case of Discrimination under
the USERRA:
▪ The military connection may be through
the plaintiff ’s membership, service, or
application for service, or it may be
through testimony/statements about the
military service of another. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
69
◆ Prima Facie Case of Discrimination under
the USERRA:
▪ If another similarly situated person with
no military connection was treated more
favorably than the plaintiff, the employer
has violated the USERRA.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
70
◆ Plaintiffs May Be Entitled to Promotions:
Under the USERRA, returning service members
are to be reemployed in the jobs that they
would have attained had they not been absent
for military service.
▪ If a returning service member sues an
employer for USERRA violations and is
successful, she/he could receive damages,
reinstatement, and/or a promotion.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
71
◆ Once a plaintiff succeeds in proving that
discrimination occurred, the burden shifts to
the employer to justify the discriminatory
practice. The four basic types of defenses are:
▪ Business Necessity.
▪ Bona Fide Occupational Qualification.
▪ Seniority Systems.
▪ After-Acquired Evidence. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
72
◆ Business Necessity:
▪ Requires employer to demonstrate a job
qualification is reasonably necessary to
the legitimate conduct of employer’s
business.
▪ Business necessity is a defense to
disparate-impact discrimination.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
73
◆ Bona Fide Occupational Qualification (BFOQ):
Employer must prove that discrimination against
a protected class is essential to a job and a
BFOQ.
▪ Race, color, and national origin can never be
BFOQs.
▪ Courts have generally restricted the BFOQ
defense to situations in which gender or
religion is essential to the job (such as dressing
room attendants).
74
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Seniority Systems:
▪ Such a system conditions distribution of
job benefits on length of time that one
has worked for an employer.
▪ It is a defense only if it is a bona fide
system and not designed to evade effects
of discrimination laws.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
75
◆ After-Acquired Evidence: An employer may
avoid liability for employment
discrimination based on “after-acquired
evidence” of an employee’s misconduct.
▪ After-acquired evidence of wrongdoing
cannot shield an employer entirely from
liability but may be used to limit the
amount of damages for which the
employer is liable. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
76
◆ Affirmative action programs attempt to
“make up” for past patterns of discrimination
by giving preferential treatment to protected
classes.
◆ Title VII of the Civil Rights Act neither requires
nor prohibits affirmative action.
◆ Affirmative action programs have been
controversial since they have sometimes
resulted in reverse discrimination. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
77
◆ Equal Protection Issues: Affirmative action
programs may violate Fourteenth Amendment
because of their inherently discriminatory nature.
▪ A program is constitutional only if it attempts
to remedy past discrimination and does not
use quotas or preferences.
▪ Once a program has succeeded in remedying
past discrimination, it must be changed or
eliminated.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
78
◆ State Laws Prohibiting Affirmative Action
Programs: Some states have enacted laws
that prohibit affirmative action programs at
public institutions (colleges, universities,
state agencies) within their borders.
▪ The Supreme Court recognized that states
have the power to enact such bans in 2014.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
79
The
LEGAL
ENVIRONMENT
of BUSINESS
TEXT AND CASES
Tenth Edition
CROSS MILLER
◆
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Employment relationships have historically
been governed by common law doctrine
of “employment at will.”
▪ Either party may terminate at any time
for any reason, unless contract provides
to the contrary. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
2
◆ Common Law Exceptions to the
Employment-at-Will Doctrine:
▪ Exceptions Based on Contract Theory:
Some courts hold that an implied
employment contract exists between
employer and employee. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
3
◆ Common Law Exceptions to the
Employment-at-Will Doctrine:
▪ Exceptions Based on Contract Theory: If
the employee is fired outside the terms of
the implied contract, she/he may succeed
in an action for breach of contract even
though no written contract exists. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
4
◆ Common Law Exceptions to the
Employment-at-Will Doctrine:
▪ Exceptions Based on Tort Theory:
• Discharge of an employee may give rise to
an action for wrongful discharge under
tort theories.
• Abusive discharge procedures may result
in a lawsuit for intentional infliction of
emotional distress or defamation. →
5
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Common Law Exceptions to the
Employment-at-Will Doctrine:
▪ Exceptions Based on Public Policy: Most
common exception to the employment-atwill doctrine is made on the basis that the
employer’s reason for firing the employee
violates a fundamental public policy of the
jurisdiction. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
6
▪ Exceptions Based on Public Policy:
Generally, courts require that the public
policy involved be expressed clearly in the
statutory law governing the jurisdiction.
▪ This exception may apply to an employee
discharged for whistleblowing.
• SEE CASE IN POINT 20.3 WADDELL V. BOYCE THOMPSON
INSTITUTE FOR PLANT RESEARCH, INC. (2012).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
7
◆ Wrongful Discharge: When an employer
discharges an employee in violation of an
employment contract or a statutory law
protecting employees, the employee may
bring an action for wrongful discharge.
▪ Even if employer’s actions do not violate
any express employment contract or
statute, liability may still attach based on
tort theory or agency.
8
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ The Family and Medical Leave Act (FMLA)
allows employees to take time off work for
family or medical reasons or in certain
situations that arise from military service.
◆ The FMLA does not supersede any state or
local law that provides more generous
protection. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
9
◆ Coverage and Application: The FMLA
requires employers with over fifty
employees to provide up to twelve weeks
of unpaid leave to employees who need to
care for a spouse, child, or parent suffering
with a serious medical condition.
▪ It also covers certain situations that arise
from military service. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
10
◆ Coverage and Application:
▪ An employee may take military caregiver
leave to care for a family member with a
serious injury/illness incurred from
military duty.
▪ The employee may take up to twenty-six
weeks of leave within a twelve-month
period for military caregiver leave. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
11
◆ Benefits and Protections:
▪ Employer must continue worker’s health
care on same terms.
▪ Employees must be restored to their
original (or comparable) position (with
nearly equivalent pay and benefits)
unless they are “key” employees. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
12
◆ Violations: An employer that violates the
FMLA can be required to provide remedies
including:
▪ Damages to compensate the employee for
lost wages and benefits, denied
compensation, and actual monetary losses.
▪ Job reinstatement.
▪ Promotion (if one has been denied).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
13
◆ Electronic Monitoring: More than half of
employers use some sort of electronic
monitoring of employees.
▪ Employee Privacy Protection: Employees
of private employers have some privacy
protection under tort law and state
constitutions. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
14
◆ Electronic Monitoring:
▪ Employee Privacy Protection: State and
federal statutes may also limit an
employer’s conduct in certain respects,
but employers still have considerable
leeway to monitor employees in the
workplace. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
15
◆ Electronic Monitoring:
▪ Reasonable Expectation of Privacy:
• Normally, if employees have been
informed that their communications
are being monitored, they cannot
reasonably expect those interactions to
be private. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
16
◆ Electronic Monitoring:
▪ Reasonable Expectation of Privacy:
• Courts typically hold that employees do not
have a reasonable expectation of privacy when
using an employer-provided communication
system (such as e-mail).
• If employees are not informed that certain
communications are being monitored, the employer may be held liable for privacy invasion. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
17
◆ Other Types of Monitoring: In addition to
monitoring online activities, employers
engage in other types of employee
screening and monitoring. Some practices
have often been challenged as violations
of employee privacy rights. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
18
◆ Other Types of Monitoring:
▪ Lie-Detector Tests: The Employee Polygraph
Protection Act generally prohibits employers
from requiring, suggesting, or requesting
employees and job applicants to take liedetector tests.
▪ It also restricts employers’ ability to use/ask about
any lie-detector test results or to take negative
employment action based on the results. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
19
◆ Other Types of Monitoring:
▪ Lie-Detector Tests: Certain employers are
exempt from these prohibitions including
government employers at all levels,
certain security service firms, and
companies that manufacture and
distribute controlled substances.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
20
◆ Other Types of Monitoring:
▪ Drug Testing: Many employers require their
employees to submit to drug testing in the
interests of public safety and to reduce
unnecessary costs.
• Public Employers: Government (public)
employers are constrained in drug testing by
the Fourth Amendment to the U.S.
Constitution. →
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
21
◆ Other Types of Monitoring:
▪ Drug Testing:
• Public Employers: Testing is allowed by
statute for transportation workers. Courts
normally uphold testing of certain
employees when drug use in a certain job
may threaten public safety OR when there
is a reasonable basis for suspecting the
employees of drug use.
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
22
◆ Other Types of Monitoring:
▪ Drug Testing:
• Private Employers: The Fourth
Amendment does not apply to drug
testing conducted by private employers.
Many states have statutes that allow drug
testing by private employers but restrict
when and how the testing may be
performed. →
23
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
◆ Other Types of Monitoring:
▪ Drug Testing:
• Private Employers: The permissibility of
testing a private employee for drugs
often hinges on whether the employer’s
testing was reasonable. Random drug
tests and even “zero-tolerance” policies
have been held to be reasonable.
SEE CASE NASA V. NELSON (2011).
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
24
