OU Legal Studies 3323 FINAL EXAM

Compensatory Damages

intended to compensate or reimburse a plaintiff for actual losses; to make the plaintiff whole and put him or her in the same situation that he or she would have been in if the situation had not occurred

(chapter 6)

Special damages

compensate for quantifiable monetary damages

(chapter 6)

general damages

compensate individuals, not companies, for the non-monetary damages suffered (physical/emotional pain and suffering

(chapter 6)

Punitive Damages

punish the wrongdoer and deter others from similar wrongdoing, appropriate only when the defendant's conduct was particularly egregious or reprehensible

(chapter 6)

Class Action Fairness Act (CAFA)

shifted jurisdiction over large interstate tort and product liability class-action lawsuits from the state courts to federal courts to prevent attorneys from forum shopping

(chapter 6)

Intentional Tort

a tort where the tortfeasor must intend to commit an act, the consequences of which interfere with the personal or business interests of another not permitted by law

(chapter 6)

Assault

any intentional and unexcused threat of immediate harmful or offensive conduct, including words or acts that create another person a reasonable apprehension of harmful contact; can be completed even if there is no actual contact with the plaintiff provided that the defense proves a reasonable apprehension of imminent harm

(chapter 6)

Battery

An unexcused and harmful or offensive physical conduct intentionally performed; the completion of the act that caused the apprehension, if it results in harm to the plaintiff. *Determined by the Reasonable Person Standard*

(chapter 6)

False Imprisonment

the intentional confinement or restraint of another person's activities without justification

(chapter 6)

Intentional Infliction of Emotional Distress (IIED)

The tort of intentional infliction of emotional distress is an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

(chapter 6)

Defamation of character

involves wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others.

(chapter 6)

Libel

tort that results from breaching the duty of refraining from making defamatory statements of fact in writing or other permanent form (such as digital recording)

(chapter 6)

Slander

tort that results from breaching the duty of refraining from making defamatory statements of fact orally

(chapter 6)

Slander per se

Does not have to prove special damages:

1. A statement that another has a particular type of disease

2. A statement that another has committed improprieties while engaging in a profession or trade

3. A statement that another has committed or has been imprisoned for a serious crime

4. A statement that a person is unchaste or has engaged in serious sexual misconduct

(chapter 6)

Defenses to Defamation

o Truth is an absolute defense to defamation

o Privileged speech: absolute, judicial and government personnel dealing with matters that are so much in the public eye that parties involved should be able to speak freely, and qualified if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication

o Public figures: any persons in the public limelight are considered "fair game" and false defamatory statements about them published in the media will not constitute defamation unless they are made with actual malice

(chapter 6)

4 Invasion of Privacy acts

1. Appropriation of identity: using a person's name, picture, or likeness for commercial purposes without permission

2. Intrusion to an individuals affairs or seclusion (ex. Invading someone's home or searching a personal computer)

3. False Light: The publication of information that is only partially accurate that reflects the person in a false light

4. Public disclosure of Private facts: a person publically discloses information that an ordinary person would find objectionable and embarrassing

(chapter 6)

Torts of appropriation (sometimes called the right of publicity)

- occur when someone uses another person's name, likeness, or other identifying characteristic, without permission and for the benefit of the user

- Courts look at degree of likeness

- Exception: impersonators (the Elvis impersonator in Vegas)

Right aimed at protecting an individuals financial interest in the commercial exploitation of his or her identity

(chapter 6)

Tort of fraudulent misrepresentation

involves the intentional deceit for personal gain

(chapter 6)

Elements of fraudulent misrepresentation

1 - misrepresentation of material facts

2 - intent

3 - justifiable reliance

4 - damages suffered

5 - casual

(chapter 6)

2 categories of Business Torts

1 - wrongful interference with a CONTRACTUAL relationship

2 - wrongful interference with a BUSINESS relationship

(chapter 6)

Intentional torts against property

Torts that are wrongful actions that interfere with individuals' legally recognized rights with regard to their land or personal property

- Real property is land and things permanently attached to land (ex. A house)

- Personal property consists of all other items, which are basically movable (ex. Furniture)

(chapter 6)

Trespass to land

occurs any time a person, without permission, enters onto, above, or below the surface of land that is owned by another, causes anything to enter the land, or remains on the land or permits anything to remain on it

(chapter 6)

Trespass to personal property

whenever an individual wrongfully takes or harms (anything that diminishes the value, quality, or condition) the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property

(chapter 6)

Conversion

Any act that deprives an owner of personal property or the use of that property without the owner's permission and without just cause can be conversion

(chapter 6)

Disparagement of Property

Occurs when economically injurious falsehoods are made about another person's product or property

(chapter 6)

to succeed in a NEGLIGENT action, the plaintiff must prove:

1 - Duty

2 - Breach

3 - Causation

4 - Damages

1. That the defendant owed a duty of care to the plaintiff

2. That the defendant breached this duty

3. That the defendant's breach caused the plaintiff's injury

4. The plaintiff suffered a legally recognizable injury

(chapter 7)

duty of care

people are free to act so long as their actions do not infringe on the interest of others

(chapter 7)

What are obvious risks?

Don't be a dumb@$$. some risks are so obvious that an owner does not need to warn of them (ex. A business owner doesn't have to warn customers to open a door before attempting to walk through it)

(chapter 7)

Causation

The person's act must have caused the harm for it to constitute the tort of negligence

(chapter 7)

Proximate Clause

or legal cause exists when the connection between the act and injury is strong enough to justify imposing liability

(chapter 7)

3 defenses to negligence

1 - assumption of risk

2 - superseding cause

3 - contributory and comparative negligence

Assumption of Risk

● A plaintiff who voluntary enters into a risky situation, knowing the risk involved, will not be allowed to recover

● The requirements of this defense is (1) knowledge of the risk and (2) voluntary assumption of the risk

● Frequently used when the plaintiff is injured performing activities such as skiing or sporting events

● Assumption of risk can be express or implied

● Courts do not apply assumption of risk in emergency situations or when a statue protects a class from harm and a member of that class is harmed (ex. Employees do not assume risks associated with the work place)

Superseding Cause

● An unforeseeable intervening event may break the causal connect between a wrongful act and an injury to another

● Superseding cause- relieves a defendant of liability for injuries caused by the intervening event (ex. If I hit Julie with my bike causing her to fall and while she is on the ground she gets hit by a car, I am not liable for her getting hit by the car)

Contributory and Comparative Negligence

● Contributory Negligence: a plaintiff who was also negligent could not recover (only few jurisdictions still hold this doctrine)

● Comparative Negligence: allows both the plaintiff and the defendants negligence to be computed and the liability to for damages to be distributed accordingly

o Pure comparative negligence: allows the plaintiff to recover damages even if her fault is greater than the defendant

o Modified comparative negligence: Plaintiffs who are largely responsible for their own injuries are not allowed to recover damages -> 50 percent rule and 51 percent rule, if they are 50 or 51 percent responsible respectively they cannot recover damages

(chapter 7)

Res Ispa Laquiter (translated: "the facts speak for themselves")

The plaintiff has the burden of proving that the defendant was negligent, however in certain situations when the event creating the damage could not have occurred in the absence of negligence, the courts may presume that negligence has occurred -> the defendant must prove that he or she was not negligent.

(chapter 7)

Negligence "Per se"

May occur if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured (ex. Statute against inattentive driving)

(chapter 7)

"Danger Invites Rescue" Doctrine

If a person who is trying to avoid harm ends up causing harm to another as a result, the original wrongdoer is liable to anyone who is injured, even if the injury results from another person's attempt to avoid harm (ex. Swerves to avoid a drunk driver and hits another car)

(chapter 7)

2 types of SPECIAL NEGLIGENCE

"Good Samaritan Statutes": someone who is aided voluntarily cannot turn around and sue the "good Samaritan" for negligence, made largely to protect physicians and medical personnel who volunteer in emergency situations

Dram Shop Acts: A tavern owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar or who were already intoxicated when served by the bartender; it is unnecessary to prove that the host was negligent

(chapter 7)

Strict Liability

liability without fault, a person who engages in certain activities can be held liable for any harm that results to others even if the person used the utmost care; liability is imposed for reasons other than fault

"Prima Facie" means "at first sight" and legally refers to a fact that is presumed to be true unless contradicted by evidence

(chapter 7)

Abnormally Dangerous Activities

Courts apply the doctrine of strict liability in situations of extreme risk of an activity (ex. blasting explosives)

(chapter 7)

Product Liability

(1) the manufacturing company can better bear the cost of injury because it can spread the cost throughout society by raising the cost of goods, and (2) the manuf. company is making a profit from its activities and therefore should bear the cost of injury as an operation expense

(chapter 7)

Fiduciary

● a person having a duty created by his or her understanding to act for another's benefit in matters connected with the understanding

● Fiduciary (adj.): means a relationship involves trust and confidence

(chapter 32)

Employer-Employee relationships

Employment laws apply only to the employee-employer relationship -> statutes governing social security, withholding taxes, worker's compensation, work place safety, employment discrimination, etc. are only applicable when the employee-employer relationship exists

(chapter 32)

Employer-Ind. Contractor relationship

● ICs are not employees because by definition, those who hire them have no control over the details of their work performance

● Independent Contractor: a person who contracts with another to do something for him or her but who is not controlled by the other nor subject to the other's right to control with respect to his or her physical conduct in the performance of the undertaking. (ex. Building Contractor)

(chapter 32)

Determining Employee/IC Status

1. How much control does the employer exercise over the details at work?

2. Is the worker engaged in an occupation or business distinct from that employer?

3. Is the work usually done under the employer's direction or by a specialist without supervision?

4. Does the employer supply the tools at the place of work?

5. For how long is the person employed?

6. What is the method of payment—by time period or at the time of job completion?

7. What degree of skill is required of the worker?

(chapter 32)

4 ways to form an AGENCY RELATIONSHIP

1. Agency by AGREEMENT- based on the expressed or implied agreement that the agent will act for the principal and that the principal agrees to have the agent so act

2. Agency by RATIFICATION- a person who is not an agent or is an agent that is acting outside the scope of his or her authority may make a contract on behalf of he principle. If the principal approves or affirms this action, an agency relationship is created

3. Agency by ESTOPPEL- when a principal causes a third person to believe that another person is the principal's agent, and the third party acts to his or her detriment in reasonable reliance on that belief, the principal is "estopped to deny" the principle relationship; the principles actions have created the appearance of an agency that does not exist

Agency by OPERATION OF LAW- The agency relationship is based on a social or legal duty or formed in emergency situations when the agent is unable to contact the principal and failure to act outside the scope of the agent's authority would cause the principal substantial loss

(chapter 32)

Agents duties to the principle (5 duties)

● Performance: an implied condition in every agency contract is the agent's agreement to use reasonable diligence and skill in performing work

● Notification: An agent is required to notify the principal of all matters that come to his or her attention concerning the subject matter of the agency

● Loyalty: the agent has the duty to act solely for the benefit of the principal and not in the interest of the agent or a third party

● Obedience: an agent has the duty to follow all lawful and clearly stated instructions of the principal

● Accounting: the agent has the duty to keep and make available to the principal an account of all property and funds received and paid out on behalf of the principal

(chapter 32)

Principles duties to the agent (4 duties)

● Compensation: principal has a duty to pay the agent for services rendered

● Reimbursement and Indemnification: Whenever an agent disburses funds to fulfill the request of the principal or to pay for necessary expenses in the course of reasonable performance of her or his agency duties, the principal has the duty to reimburse the agent for these payments. The principal also has the duty to indemnify (compensate) an agent for liabilities incurred because of lawful acts and transactions.

● Cooperation: A principal has a duty to cooperate with the agent and to assist the agent in performing his or her duties

● Safe Working Conditions: The common law requires the principal to provide safe working premises, equipment, and conditions for all agents and employees

(chapter 32)

Express Authority

authority declared in clear, direct, and definite terms (orally or in writing)

(chapter 33)

Implied Authority

● An agent has the implied authority to do what is necessary to carry out express authority and accomplish the objectives of the agency

Implied authority CANNOT contradict Express authority

(chapter 33)

Apparent Authority

arises when a principal, by either word or action, causes a 3rd party to reasonably believe that the agent has authority to act, even though the agent has no express or implied authority

(chapter 33)

Emergency Power

When an unforeseen emergency demands action by the agent to protect and preserve the property and rights of the principal, but the agent is unable to communicate with the principal, the agent has emergency power

(chapter 33)

What's the difference between Disclosed, Partially Disclosed, and Undisclosed Principles?

● Disclosed Principal: a principal who is known by the 3rd party at the time the contract is made by the agent

● Partially Disclosed Principal: a principal whose identity is not known by the 3rd party, but the 3rd party knows that the agent is or may be acting for a principal at the time the contract is made

Undisclosed Principal: is a principal whose identity is totally unknown by the 3rd party, and the 3rd party has no knowledge that the agent is acting in an agency capacity at the time the contract is made

(chapter 33)

Authorized Acts

If an agent acts within the scope of authority, normally the principal is obligated to perform the contract regardless of whether the principal was disclosed, partially disclosed, or undisclosed

(chapter 33)

Unauthorized Acts

If the agent has not authority but nevertheless contacts with a 3rd party, the principal cannot be held liable on the contract

(chapter 33)

Principals Tortious Crime

A principal may be liable if he or she gives improper instructions, authorizes the use of improper materials or tools, or establishes improper rules that result in the agents committing a tort

(chapter 33)

Respondent Superior

the principal-employer is liable for any harm caused to a 3rd party by an agent-employee within the scope of the employment

(chapter 33)

Vicarious Liability

indirect liability- liability without regard to the personal fault of the employer for torts committed by an employee in course or scope of employment

(chapter 33)

determining SCOPE OF EMPLOYMENT

1. Whether the employer's act was authorized by the employer

2. The time, place, and purpose of the act

3. Whether the act was one commonly performed by employees on behalf of employers

4. The extent to which the private interests of the employee was involved

5. The extent to which the employers interest was advanced by the act

6. Whether the employer furnished the means or instrumentality by which an injury was inflicted

7. Whether the employer had reason to know that the employee would perform the act in question

Whether the act involved the commission of a serious crime

(chapter 33)

"detour" and "frolic"

if a servant merely takes a detour from his master's business, the master is responsible but if the servant was on a "frolic of his own" and not in any way "on his master's business" the master will not be liable (ex. Sales man driving employer's car drops off a package at the post office on his way to an appointment -> detour. Sales man takes employer's car to pick up friends for cocktails -> frolic).

(chapter 33)

Liability for Agents Intentional Torts

Most intentional torts that employees commit have no relation to their employment. Nevertheless due to Respondeat superior, the employer can be held liable for intentional torts of the employee that are committed within the course or scope of employment (ex. Bouncer committing a tort of assault and battery or false imprisonment)

(chapter 33)

Liability for IC's

● Generally, an employer is not liable for physical harm caused to a 3rd party by the negligent act of an IC in the performance of a K because the employer does not have the right to control the details of the IC's performance

● Exception: Ks that involve unusually hazardous activities b/c of strict liability (ex. K for blasting operations)

(chapter 33)

Liability for Agents Crimes

An agent is liable for his or her own crimes, a principal or employer is not liable simply because the agent or employee committed the crime while otherwise acting within the scope of employment

(chapter 33)

Termination of an Agency by Act of the Parties

1. Lapse of Time - automatic at end of the stated time

2. Purpose Achieved - automatic on the completion of the purpose

3. Occurrence of a specific event - Normally automatic on the happening of the event

4. Mutual Agreement - parties can agree to rescind the K by mutually agreeing to terminate the relationship

5. Termination by one party - as a general rule, any party has the power terminate the agency relationship because agency is a consensual relationship thus neither party can be compelled to stay in the relationship

(chapter 33)

Wrongful Termination

can subject the canceling party to a lawsuit for breach of K, you have the power to end the emergency you do not have the right to breach the K

(chapter 33)

Agency Termination by Operation of Law

1. Death or insanity - automatic on the death or insanity of either the principal or the agent (except when the agency is coupled with an interest

2. Impossibility - destruction of the specified subject matter, applies at any time the agency cannot be performed because of an event beyond the party's control

3. Changed Circumstances - Events so unusual that it would be inequitable to allow the agency to continue to exist

4. Bankruptcy - bankruptcy petition (not mere insolvency) usually terminates the agency

5. War - Automatically suspends or terminates agency—no way to enforce legal rights

(chapter 33)

Employment At-Will

Either party may terminate the employment relationship at any time for any legal reason

(chapter 34)

Exceptions to the Employment At-Will Doctrine:

● Because of the harsh effects of the employment at will doctrine, courts have created various exceptions based on contract theory, tort theory, and public policy

1. Contract theory: some courts have held than an implied K exists and if an employee is fired outside the terms of the implied K, he or she may succeed in an action for breach of K even though no written K exists

2. Tort theory: in some cases the discharge of an employee may give rise to an action for wrongful discharge and in rare cases infliction of emotional distress and fraudulent misrepresentation

3. Public policy: courts may apply when an employer fires a worker for reasons that violate a fundamental public policy of jurisdiction (ex. Family and Medical Leave Act, whistleblowing)

Wrongful Discharge

Whenever an employer discharges an employee in violation of an employment contract or statutory law protecting employees—any illegal reason: whistle blowing, jury duty or military service, family and medical leave, filing a worker's comp claim, against public policy, K claims)

(chapter 34)

Fair Labor Standards Act (FSLA)

was designed to protect against harsh or oppressive labor

FLSA prohibits oppressive child labor:

o Under 14- only allowed to do certain types of work and restrictions on hours they can work

o 14 and 15- cannot perform hazardous jobs and restrictions on hours they can work

o 16 and 17- cannot perform hazardous jobs but no restrictions on hours they can work

● FLSA provides that a minimum wage of $7.25 per hour must be paid to employees in covered industries

● FLSA says any employee who works more than 40 hours per week must be paid no less than 1.5 times his or her regular pay for all hours over 40

(chapter 34)

Family and Medical Leave Act (FMLA)

allows employees to take time off work for family or medical reasons

● FMLA requires employers who have 50 or more employees to provide an employee with up to 12 weeks of unpaid family or medical leave during any 12 month period

● Employee must have worked for employer for at least a year

● An employee caring for a family member with a serious injury or illness incurred as a result of military duty can now take up to 26 weeks in a 12 month period of military caregiver leave

● An employee can take 12 weeks of qualifying exigency leave within a 12 month period to handle specific nonmedical emergencies when a spouse, parent, or child is on or called to active military duty

(chapter 34)

Occupational Safety and Health Agency (OSHA)

● Ensures safe and healthful working conditions for practically every employee in the country by imposing a general duty on employers to keep the workplace safe

● Established specific safety standards that employers must follow

● Employers with 11 or more employees are required to keep occupational injury and illness records for each employee that are always available for inspection by an OSHA compliance officer

● An OSHA officer may enter and inspect the facilities of an establishment covered by the occupational safety and health act at any time

● An employer cannot discharge an employee who files a complaint or who, in good faith, refuses to work in a high-risk area if bodily harm or death can result

● Criminal penalties for willful violation are possible and employers may be prosecuted under state law

(chapter 34)

State Workers Compensation Laws

● Establish an administrative procedure for compensating workers injured on the job

● Instead of suing, an injured worker files a claim with the AA or board that administers local worker's comp claims

● Requirements to recover benefits under state workers' compensation laws are:

1. The existence of an employment relationship

2. An accidental injury that occurred on the job or in the course of employment, regardless of fault

● Employer should be notified promptly and file a worker's comp claim

● An employee who accepts workers' comp benefit cannot sue for injuries caused by the employer's negligence

● A worker can sue an employer who intentionally injures the worker

(chapter 34)

Consolidated Omnibus Budget Reconciliation Act (COBRA)

● prohibits an employer from eliminating a worker's medical, optical, and dental insurance on the voluntary and involuntary termination of a worker's employment, only workers fired for gross misconduct are excluded

● Allows employees who were covered by health insurance to continue coverage at their own cost

● Employer has to allow for 18 months

● Applied to employers with 20 or more employees but can be relieved if they totally do away with benefit plan or if worker is eligible for medicare, falls under spouse's plan or is eligible for a new plan

● Failure to comply is huge- 10% of the cost of the group plan or $500,000

(chapter 34)

Health Insurance Portability and Accountability Act (HIPAA)

● HIPAA does not require employers to provide health insurance, but it does establish requirements for those who do provide such converge

● HIPAA restricts the manner in which covered employers collect, use, and disclose the health information of employees and their families

● Failure to comply can result in civil penalties (up to $100 per person per violation) and criminal prosecution for certain HIPAA violations

(chapter 34)

Electronic Monitering

● Surveillance of employee's e-mails, blogs, instant messages, tweets, internet use, and computer files; video recording employee job performance; and recording and reviewing telephone conversations, voice mail, and text messages—can monitor anything BUSINESS RELATED

● Private employers can use filtering software to block access to certain web sites because the First Amendment's protection of free speech only prevents government employers from restraining speech by blocking web sites

(chapter 34)

Electronic Communications Privacy Act (ECPA)

● prohibits wire tapping, employers cannot monitor personal communications made on personal devices with no connection to the workplace.

EXCEPTIONS: the ECPA allows an employer to monitor employee's electronic communications in the course of business, and if an employee consents to having their electronics communications intercepted

(chapter 34)

Stored Communications Act (SCA)

prohibits internal and unauthorized access to stored electronic communications and sets forth criminal and civil sanctions for violators, must prove person lacked the authority to access stored information

(chapter 34)

Employee Polygraph Protection Act (EPPA)

prohibits employers from requiring or requesting lie detector tests, asking about the results of any lie detector tests, or to take action based on lie-detector test results

(chapter 34)

Drug Tests

employers can require a pre-employment drug test but must offer a job conditional on the test, private employers can require a drug test at any time but the 4th amendment constrains government (public) companies in drug testing, exception: when drug use in a particular job may threaten public safety (ex. Transportation workers)

(chapter 34)

TITLE VII of the Civil Rights Act of 1964

● Prohibits job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender at any stage of employment

● Prohibits discrimination in the hiring process, discipline procedures, discharge, promotion, and benefits

● Applied to employers with 15 or more employees, labor unions, employment agencies, and state and local governing units or agencies (note: those with less than 15 employees are not necessarily shielded)

● Title VII prohibits both intentional and unintentional discrimination

● Title VII protects against reverse discrimination-discrimination against majority group individuals (white males)

(chapter 35)

Equal Employment Opportunity Commission (EEOC)

● monitors compliance with Title VII

● A victim of alleged discrimination must first file a claim with the EEOC before a lawsuit can be brought against the employer, if the EEOC decides not to investigate a claim the victim may bring his or her own lawsuit

(chapter 35)

Disparate-Treatment Discrimination

intentional discrimination by an employer against and employee

● To sue on the basis of disparate-treatment discrimination, you must show that:

1. You are a member of a protected class

2. You applied and were qualified for the job in question

3. You were rejected by the employer

4. The employer continued to seek applicants for the position or filled the position with a person not in a protected class

(chapter 35)

Prima Facie Case

the plaintiff has met her initial burden of proof and will win unless the employer can present a legally acceptable defense, defense has the burden of proof

(chapter 35)

Disparate-Impact Discrimination

occurs when a protected group of people is adversely affected by an employer's practices, procedures, or tests, even if they do not appear to be discriminatory

(chapter 35)

Pool of applicant test

used by plaintiff to prove Disparate-Impact discrimination:

showing that a percentage of a protected class in the employer's workforce does not reflect the percentage of the group in the pool of qualified individuals located in the local labor market

(chapter 35)

Constructive Discharge

occurs when the employer causes the employee's working conditions to be so intolerable that a reasonable person in the employee's position would feel compelled to quit

(chapter 35)

2 types of sexual harassment

● Quid Pro Quo: "Something in exchange for something else", occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits

● Hostile work environment: occurs when "the workplace is so permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment

(chapter 35)

Tangible Employment Action

a significant change in employment status or benefits, such as when an employee is fired, refused a promotion, demoted, or reassigned to a position with significantly different responsibilities

(chapter 35)

Americans with Disabilities Act (ADA)

● designed to eliminate discriminatory employment practices that prevent otherwise qualified workers with disabilities from fully participating in the national labor force

● ADA requires that employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship"

(chapter 35)

● A plaintiff must show that he or she: (1) has a disability, (2) is otherwise qualified for the job, (3) was excluded from the employment solely because of the disability

● Must first file action with the EEOC

● Employers who do not accommodate the needs of persons with disabilities must prove that the accommodations would cause undue hardship in terms of being sufficiently difficult or expensive for the employer

● ADA protects those with former drug addictions—those who have completed or are now in a supervised drug-rehabilitation program

● Workers with disabilities must be given equal access to any health insurance provided to other employees

Business Necessity

An employer may defend against a claim of disparate impact discrimination by asserting that a practice that has a discriminatory effect is a business necessity (ex. A high school diploma is necessary to perform a job at a required level of competence)

(chapter 35)

Bona Fide Occupational Qualification (BFOQ)

when a discrimination against a protected class is essential to a job. (ex. Hiring women to work in the dressing room of victoria's secret)

(chapter 35)

Seniority Systems

● If promotions or other job benefits are distributed according to a fair seniority system (in which workers with more years of service are promoted first or laid off last), the employer has a good defense

(chapter 35)

After-Acquired Evidence of Employee Misconduct

● Employers have attempted to avoid liability for employment discrimination on the basis of "after-acquired evidence" -evidence that is discovered after a lawsuit is filed—of an employee's misconduct

According to US supreme court, after acquired evident of wrongdoing cannot be used to shield an employer entirely

(chapter 35)

Affirmative Action

attempt to "make up" for past patterns of discrimination by giving members of protected classes preferential treatment in hiring or promoting

(chapter 35)