Employment Law Module 2 Test

What does the Equal Pay Act of 1963 require?

Men and women performing substantially the same work in the same company must receive substantially the same pay.

What statue was amended by the Equal Pay Act?

Fair Labor Standards Act

Can an employer lower male wages to comply with the Equal Pay Act?

No. Employer must increase wages of affected female employees.

What employers are covered by the Equal Pay Act?

Virtually all employers

What does Title VII of the Civil Rights Act of 1964 prohibit?

Employment discrimination based on:
Race, Color, Religion, Sex, National Origin

Why was Title VII enacted?

Congressional response to widespread discrimination, primarily against African-Americans

What employers are covered by Title VII?

Employers with 15 or more employees

What does the Age Discrimination in Employment Act of 1967 protect?

Workers age 40 and older from age discrimination

What employers are covered by the Age Discrimination in Employment Act?

Employers with 20 or more employees

What does the Pregnancy Discrimination Act of 1978 establish?

Pregnancy, childbirth, and related medical condition discrimination is unlawful sex discrimination

What statue did the Pregnancy Discrimination Act amend?

Title VII of the Civil Rights Act

What employers are covered by the Pregnancy Discrimination Act?

Employers with 15 or more employees

What does the Immigration Reform Control Act of 1986 prohibit?

Discrimination based on national origin or citizenship status if the employee is lawfully present and authorized to work in the United States

What form originated from the Immigration Reform Control Act?

I-9 Form

What employers are covered by the Immigration Reform Control Act?

All employers regardless of size

Is authorization to work in the United States the same as employee consent?

No, Authorization is required by law.

What does the Americans with Disabilities Act of 1990 prohibit?

Discrimination against qualified individuals with disabilities

To be protected under the ADA, an employee must

Be disabled or regarded as disabled
Be able to perform essential job functions with or without accommodation

When must an employer provide accommodation?

When accommodation allows the employee to perform essential functions and is not an undue burden

ADA accommodation process required?

Interactive process bewteen employer and employee

What employers are covered by the ADA?

Employers with 15 or more employees

Does ADA protect employees because a family member has a disability?

Yes

What does ADA Title III require?

Accessible premises for disabled individuals

Does the ADA protect employees currently using illegal drugs?

No

What did the Civil Rights Act of 1991 do?

Enhanced penalties
Allowed punitive damages
Allowed attorney fee awards

What does the Genetic Information Nondiscrimination Act of 2008 prohibit?

Using genetic information in employment decisions
Requesting genetic information
Requiring genetic information
Purchasing genetic information

Does GINA apply to military personnel?

No

What is disparate treatment?

Treating protected employees adversely because of a protected characteristic

What is an example of disparate treatment?

Refusing to hire women because the supervisor doesn’t like working with women

What is disparate impact?

Seemingly neutral employment action that has a material adverse effect on a protected class

What is an example of disparate impact?

Requiring ability to lift 100 pounds when the job only requires lifting 20 pounds
Requiring a college degree for bookkeeping when only good math skills are needed

What is a BFOQ?

Bona Fide Occupational Qualification
A lawful requirement that would otherwise appear discriminatory

What is retaliation?

Taking adverse action against someone for filing a discrimination complaint or participating in a discrimination proceding

What is an example of retaliation?

Firing, Demotion, Ostracizing, Encouraging coworker contempt, Piling on work, withholding work, changing work environment intentionally

What are remeides for unlawful discrimination?

Back pay, Front pay, Reinstatement, Forced hire, Forced promotion, Forced accommodation, Punitive damages, Attorney fees, Court costs

Kansas Mini-FMLA for pregnancy applies to whom?

All employers regardless of size

Under Kansas Mini-FMLA, pregnancy and childbirth are treated as what?

Temporary Disabilities

What employers are covered under GINA?

All employers with 15+ employees

What is undue hardship?

Accommodation that is unduly burdensome, difficult, or expensive for the employer

Courts expanded Title VII to cover:

Discrimination against men
Sexual orientation discrimination
Transgender discrimination

Discrimination against non-minorities
Gender stereotyping

What are some possible accommodations that the Pregnant Workers Fairness Act require require?

Sit while working, Drink water, Closer parking, Flexible hours, Additional breaks, Recovery leave, Avoid strenuous activity

What are the three components of retaliation?

Protected activity
Adverse action
Covered individual

What is a protected activity?

Filing discrimination complaint
Threatening to file complaint
Participating in investigation
Serving as witness
Requesting accommodation

What is NOT protected activity?

Violence
Threats of violence
Conduct that prevents employee from doing the job

Sexual harassment is a form of what?

Sexual discrimination

What statute is the foundation for sexual harassment law?

Title VII of the Civil Rights Act of 1964

Title VII applies to employers with how many employees?

15 or more employees

Can a customer or vendor create sexual harassment liability?

Yes. Nonemployees can create liability.

What are the two categories of sexual harassment?

Quid Pro Quo
Hostile Environment

What must be true in both types of sexual harassment?

The conduct must be unwelcome

Quid Pro Quo

Something for something

What is quid pro quo sexual harassment?

Employment decisions are based on whether the employee submits to or rejetcs unwelcome conduct

Who usually commits quid pro duo harassment?

Supervisor or person with authority over employment decisions

Is coworker harassment usually quid pro duo?

No, rarely

Is one incident enough to create quid pro quo liability?

Yes. One incident is generally enough

Must the employer know about the conduct to be liable for quid pro quo?

No. Employer may still be liable

Classic example of quid pro quo?

“Have sex with me or you’re fired”

What is a sexual advance?

Any invitation, blatant or subtle, intended to result in a sexual or intimate liaison

Can a sexual advance occur outside the workplace?

Yes

What is hostile environment sexual harassment?

Severe or unwelcoming working conditions that unreasonably intefrere with work performance or create an intimidating, hostile, or offensive working environment

Must a victim suffer firing or demotion to prove hostile environment harassment?

No. Economic damage is not required

To prevail on a hostile environment claim, what must the victim prove?

Pattern and practice of harassment; OR
Sustained and nontrivial harassment; OR
Concerted, excessive, pervasive, or regular harassment

Can nonsexual conduct still create a sexual harassment claim?

Yes

Example of nonsexual conduct that can create a sexual harassment claim?

Male supervisor yells and throws things at female employees but not male employees

What do courts say about severity versus frequency?

The more serious the harassment, the less pervasive it must be to be actionable

What is vicarious liability?

Liability imposed on employers for unlawful actions of supervisory employees acting within the scope of employment

Can an employer be liable even if it did not know harassment occurred?

No

When is an employer automatically liable?

Supervisor harassment resulting in a tangible employment action

What is a tangible employment action?

Hiring, Firing, Promotion, Demotion, Compensation decisions, Transfers, Job reassignments, Discipline

What is the Failure to Avail Affirmative Defense?

Employer can avoid hostile environment liability if:
Employer established, distributed, and enforced an antiharassment policy
Employee unreasonably failed to use the complaint process

Is the Failure to Avail Defense available in quid pro quo cases?

No. Only hostile environment cases

Is the Failure to Avail Defense available if there was a tangible employment action?

No

What should an effective anti-harassment policy include?

Plain English, Definition of harassment, No retaliation provision, Covers email/internet/electronic communications, Meaningful complaint process, Prompt investigation, Confidentiality, Discipline procedures, Training, Reference checks, Periodic audits

Investigations should be:

Prompt, Thorough, Impartial

Who should be interviewed in investigations?

Complainant
Alleged harasser
Witnesses

Can the alleged harasser control the investigation?

No

Can an employer retaliate against an employee for filing a harassment complaint?

No

T/F - All sexual talk in the workplace is unlawful

False

What types of harassment are prohibited under federal law?

Race, Color, Religion, Sex, National Origin, Age, Disability, Genetic Information, Retaliation for participating in an investigation or complaint

Does sexual harassment require sexual motivation?

No, conduct can be based on gender and still constitute sexual harassment

What is tangible employment action?

Hiring, Firing, Promotion, Demotion, Compensation decisions, Disciple, Transfer, Job reassignment

Do unfulfilled threats qualify as tangible employment actions?

Generally no

When is an employer always liable?

When a supervisor harassment results in tangible employment action

What are other legal claims that may arise from sexual harassment?

Wrongful discharge, Emotional distress, Defamation, Negligent hiring, Negligent supervision, Civil assault, Civil battery, Family and Medical Leave Act claims, Workers’ compensation claims, Tort of Outrage

What is interception?

Acquiring the contents of a wire, oral, or electronic communication through an electronic, mechanical, or other device

What is workplace privacy?

The extent to which an employee has an expectation of privacy regarding communications, property, or activity in the workplace

What is the general rule regarding employee privacy in the workplace?

Employees have a reduced expectation of privacy in the workplace. Employers may monitor workplace activities in many situations

If you want to keep something private, what must you do?

Keep it private

What happens if you consent?

You waive any claim to a privacy violation

What employee information receives an unequivocal privacy right?

Medical Information under the Family and Medical Leave Act

Can employers require employees to disclose private social media passwords?

No, it is unlawful

Can employers review publicly available internet information

Yes. It is lawful and may even be their duty.

Can employers lawfully monitor employer-owned equipment?

Yes

Can employers prohibit employees from discussing wages?

No. The National Labor Relations Act protects such discussions

Can employers prohibit employees from discussing wages?

No. The National Labor Relations Act protects such discussions.

Does the Fourth Amendment generally apply to private employers?

No. It limits government action, not private employers.

What statute is commonly called the Wiretap Act?

Omnibus Crime Control and Safe Streets Act of 1968

What does the Wiretap Act prohibit?

Interception of communications
Disclosure of unlawfully obtained communications
Use of unlawfully obtained communications

What communications are covered by the Wiretap Act?

Oral Communications
Wire Communications
Electronic Communications
Telephone calls
Email

What does the Electronic Communications Privacy Act prohibit?

Unauthorized interception of electronic communications
Unauthorized access to electronic communication systems