Agency and Employment Law

Agency and Employment Law

Employees

• Employees are hired by and work for an employer.
• The employer controls what the employee does, when, and how.
• Employees are typically paid hourly wages, a salary, or on commission and may be eligible for overtime.
• Employees pay taxes on their income, with federal, state, and social security taxes withheld.
• The employer pays unemployment, workers’ comp, and tax payments on behalf of employees.

At-Will Employees

• About 74% of US workers are “at will.”
  • An employer can fire an employee for any reason or no reason, with or without warning; there is no requirement that the employer show “just cause.”
  • Termination cannot be for an unlawful reason (e.g., based on race or religion in violation of Title VII).
• Limitations on at-will employment:
  • Contract for a term (teachers), collective bargaining agreement (may require cause), public employee statutes, public policy (jury service).
  • Eight states, including GA, recognize no public policy exceptions.

Independent Contractors

• Independent contractors are:
  • Professionals in a trade or owners of a business who offer their services to the public.
    • Examples include a business owner hiring contractors, electricians, etc., to build an office, or a freelancer to design a webpage.
  • Considered self-employed, so:
    • They pay self-employment taxes for social security & medicare, currently $15.3\%$ ($12.4+2.9$).
  • Not protected by worker protection statutes.

IRS Standard to Determine Independent Contractor Status

• Nature of relationship:
  • What is the type of work? Is it related to the company’s core work?
• Financial control:
  • How is the worker paid? Can they also work for others? Can they incur a profit or loss?
• Behavioral control:
  • Who controls when and how work is done? Who furnishes the tools to do the work – the employer or the worker?

Economic Realities Test to Determine Independent Contractors

DOL & many courts apply "economic realities" test:

• Is the work an integral part of employer’s business?
• Does the worker’s managerial skill affect his/her opportunity for profit or loss?
• What is the worker’s investment compared to the employer’s?
• Does the work require special skills and initiative?
• Is the employment relationship permanent or indefinite?
• What is the nature and degree of the employer’s control over the worker?

Standards for Independent Contractors

Under these standards, independent contractors typically:

• are engaged in business separate from that of the person hiring them,
• have complete control over the manner in which the work will be done,
• use their own tools and supplies,
• are paid by the project, not the hour,
• set their own hours to complete the project.

Alberty-Velez v Corporacion de Puerto Rico

• Alberty-Velez hosted a TV series in Puerto Rico.
  • She signed a separate contract for each episode that obligated her to work a certain number of days.
  • During filming, she was responsible for providing her own wardrobe, hairstylist, and materials.

Alberty-Velez: Employee or Independent Contractor?

• Alberty-Velez was paid a lump sum (from $400$ to $550$) for each episode.
  • The station did not withhold taxes or social security, nor did it provide her with any benefits.
• After she became pregnant in 1994, the station stopped contracting with her.
• She sued the station for discrimination based on pregnancy.
• Is Alberty-Velez an employee or an independent contractor? Why does it matter?

Employee or Independent Contractor?

• Employers may prefer to classify workers as independent contractors instead of employees.
  • No liability for taxes, workers’ comp, etc.
  • Not covered by laws that protect employees.
• DOL may challenge employer’s classification of workers as independent contractors.
  • The court disregards the label the parties use.
• Uber and Lyft drivers? Long-haul truckers?

Worker Protection Statutes

• Fair Labor Standards Act
• Family and Medical Leave Act
• OSHA - Occupational Safety and Health Act
• Workers Compensation
• Unemployment Compensation
• ERISA - Employee Retirement Income Security Act
• COBRA - Consolidated Omnibus Budget Reconciliation Act

Fair Labor Standards Act: Wages and Hours

• Regulates child labor.
  • Imposes limitations on types of work children under 16 can perform.
  • Also imposes restrictions on the number of hours children can work daily and weekly.
• Children between 16 and 18 are not subject to time and hour restrictions but can’t work in “hazardous” jobs.
• Covers all employers engaged in interstate commerce or in producing goods for interstate commerce.

Fair Labor Standards Act: Minimum Wage

• Set minimum wage:
  • $25¢$ in 1938.
  • $5.15 from 1997 to 2008.
  • Increased to $7.25 in 2009.
• In 2023, 434,000 workers earned $7.25 per hour, while 1.6 million had wages below the minimum wage.
  • 55% of workers are paid hourly.
  • Nearly 44.3% of all workers at or below minimum wage are under age 25.

Minimum Wage for Restaurant Wait Staff

• Currently $2.13 plus tips to guarantee $7.25/hour.
• FLSA amendments passed in 2018:
  • Prohibits employers from pocketing any portion of tips diners leave for workers.
  • Allows employers to pool tips and distribute them among staff IF the employer also pays workers $7.25/hour.

Fair Labor Standards Act: Overtime Laws

• Normal FLSA work period is 40 hours per week.
  • Eligible for OT if earnings are less than $43,888 per year.
• Some employees are exempt from overtime, e.g.,
  • Executive, Administrative, and Professional employees.
  • Farm workers, seasonal and recreational workers.
  • Many commissioned sales employees.

Family and Medical Leave Act

• Provides covered workers with up to 12 weeks of unpaid leave for specified reasons (birth, adoption, serious health condition requiring care).
• May be taken intermittently or as a block.
• Of 41 OECD countries, the US is the only one NOT offering paid maternity leave.
• Paid paternity leave (state law) in 11 states.

Paid Parental Leave in Other Countries

• Norwegian mothers and fathers can receive 59 weeks of paid leave at 80% of salary (or 49 weeks at full salary). Leave can begin 3 to 12 weeks before birth.
• Sweden provides 480 days for new moms & dads. 80% of salary, capped at roughly $3,700 per month.

OHSA Safety Standards

• General duty standards.
  • Provide a safe work environment.
• Specific duty standards.
  • Impose more specific safety requirements.
  • Examples: maximum exposure levels to hazardous chemicals, notice to workers re their exposure to hazardous substances in the workplace, safety procedures.

OHSA Violations Top 10 Most Cited Standards FY 2023

1. Fall Protection: General Requirements - 7,188 violations
2. Hazard Communication - 3,227 violations
3. Ladders - 2,950 violations
4. Scaffolding - 2,835 violations
5. Powered Industrial Trucks - 2,550 violations
6. Control of Hazardous Energy (Lockout/Tagout) - 2,539 violations
7. Respiratory Protection - 2,493 violations
8. Fall Protection: Training Requirements - 2,109 violations
9. Personal Protective and Lifesaving Equipment: Eye and Face Protection - 2,064 violations
10. Machine Guarding - 1,635 violations

State Workers Compensation Laws

• Purpose:
  • Compensate workers and their families if workers are injured in connection with their jobs.
• Exclusions:
  • Domestic and agricultural workers.
  • Temporary employees.

Workers’ Compensation: No Fault System

• Workers receive benefits if injuries or illnesses are job-related and the employer carries workers’ compensation insurance.
  • Workers don’t need to prove employer fault, and
  • Contributory negligence is not a defense, but can’t recover for intentional self-injury.
• No-fault system reduces court costs, attorney and expert witness fees.
  • Encourages employers to reduce workplace dangers as premiums are tied to claims.

Income Security and Health Plans

• Social Security
  • Provides benefits to retirees and some disabled.
  • Financed by FICA contributions of $6.2\%$ of wages (up to $102K) by employees & employers; payments by self-employed.
• Medicare
  • Pays some hospital and other medical costs if over 65 years of age.
  • Employer and employee each contribute $1.45\%$ with no earnings cap.
  • Self-employed pay the full $2.9\%$.

Unemployment Insurance

• Established by US government in 1935.
• Administered by states who determine:
  • Eligibility for benefits.
  • Amount and duration of benefits.
• Workers who quit or are discharged for cause are ineligible for benefits.

Private Pensions and ERISA

• Sets minimum standards for pension plans in private industry:
  • Vesting rules.
  • Investment rules.
  • Disclosure & reporting.
  • Accountability of plan fiduciaries.
  • Regulates benefit plans.

COBRA & ACA

• COBRA gives qualified workers who lose health benefits the right to continue group health benefits for themselves and/or family provided under the employer’s group health plan.
  • Qualifying events include dismissal and layoffs.
  • Generally limited to 18 months.
  • Worker pays the entire premium + $2\%$ fee.
• Affordable Care Act
  • Increased options for uninsured through the creation of insurance exchanges.

Electronic Monitoring

• More than half of employers engage in some form of electronic monitoring of their employees.
• Many employers:
  • Review their employees’ e-mail, social media posts, and other Internet messages.
  • Make video recordings of their employees at work.
  • Record their employees’ telephone conversations.
  • Listen to their employees’ voice mail.
• Employers do have considerable leeway to monitor employees in the workplace.

Agents

• Agents arise in an agency relationship.
  • The principal delegates authority to the Agent to act on his/her behalf and subject to his/her control.
  • The agent has a fiduciary duty to act on the principal’s behalf.
  • May be gratuitous (unpaid) or for compensation.
• Both employees and independent contractors may be agents, depending on circumstances.

Employees as Agents

• Employers grant employees the authority to enter into contracts with others on the employer’s behalf.
  • The employee acts as employer’s agent.
  • The employee owes the employer a fiduciary duty to act for the employer’s benefit.
• Examples - servers, retail employees, or any employee who deals with third parties.
• The employer is liable for injuries caused by the employee acting within the scope of employment.

Independent Contractor as Agent

• The employer contracts with (hires) IC to perform a specific task as the employer’s agent, e.g.
  • The owner hires a realtor as an agent to sell her house.
  • Musicians or athletes hire an agent to represent them in contract negotiations.
  • A business owner hires an attorney to negotiate a transaction.
• Generally, the employer is not liable for injuries caused by the independent contractor’s negligence.

Authority to Act

The employee’s authority may be based on:

• An express agreement (written or oral),
• An implied agreement that arises from the conduct of the parties,
• Apparent authority, or
• Ratification of the agent’s conduct.

Express and Implied Authority

• As manager of Ridge Apartments, Danny is expressly authorized to:
  • Show apartments & sign leases for the owner.
  • Order $100 of food & drink for monthly “socials,” billed to the Ridge Apts. account.
  • Manage the complex.
• A tenant reports a major plumbing leak while the Ridge maintenance person is out sick:
  • Danny has implied authority to call a plumber to fix the leak.

Express Authority - Power of Attorney

• Authorization to act as another’s agent.
• The power of attorney is a written document and is usually notarized.
• A power of attorney can be either:
  • Special (permitting the agent to perform specified acts only), or
  • General (permitting the agent to transact all business for the principal) - should be used with great caution and usually only in exceptional circumstances.
• Ordinarily, a power of attorney terminates on the incapacity or death of the person giving the power.

Apparent Authority

• For the past year, Keisha has ordered $100 of appetizers and beverages from Costco for the Ridge Apts monthly socials.
  • Last week, she was fired from her position.
• Today, she charged $100 to Costco for purchases consistent with her monthly orders for Ridge Apts.
• As Ridge had not informed Costco of her termination, she had apparent authority to make these purchases.

Ratification

• Assume Keisha is still working for Ridge.
  • She saw a large refrigerator-freezer on sale for $850 that would hold food & beverages for the monthly socials, so she contracted to buy it on behalf of Ridge.
• Although she had no authority to purchase it for Ridge, the owner realized that it was a good deal and ‘ratified’ the contract.
  • Ratification requires that the P know all facts and affirm the entire act by the A; if P doesn’t ratify, Keisha owns the appliance!

Duties of Principal to Agent

• Comply with terms of the agency agreement.
• Other duties:
  • Compensate agent for services.
  • Reimburse agent for expenses.
  • Indemnify agent for losses caused by the P.
  • Cooperate with the agent in the performance of the A’s duties.

Fiduciary Duties of Agent to Principal

• Performance
• Loyalty
• Obedience
• Notification
  • A’s knowledge is imputed to P. Why?
• Accounting for funds and property

Imputed Knowledge?

• Iota Management Corp entered into a contract to buy the Bel Air West Motor Hotel in St. Louis from Boulevard Investment Company.
• The agreement contained this warranty: “Seller has no actual notice of any substantial defect in the structure of the Hotel or in any of its plumbing, heating, air-conditioning, electrical or utility systems.”

Bel Air Plumbing Leaks

• When Iota inspected the premises, no leaks in the pipes were visible.
• Iota purchased the hotel for $2 million.
• During remodeling, Iota removed some of the ceiling and discovered evidence of prior repairs to leaking pipes, as well as devices for catching water (milk cartons, cookie sheets, and buckets).

Bel Air: Is Seller Liable?

• The estimate to repair the leaks was $500,000. Iota sued to rescind the contract.
• At trial, Boulevard’s maintenance supervisor from 1975 to 1981 testified that he had actual knowledge of the leaks and had repaired some of the pipes.
• Is Boulevard liable? Why or why not?

Duty of Loyalty

Duty of loyalty prohibits agents from:

• Self-dealing.
• Taking advantage of corporate opportunity.
• Competing with the principal.
• Misusing or disclosing confidential information.
• Dual agency (unless all consent).

Duty of Accounting

• No commingling of principal and agent assets.
• The agent must provide the principal with an accounting of all property and funds received and paid.

Vicarious or Indirect Liability

• The principal can be indirectly or vicariously liable for the agent’s torts if:
  • The principal authorized the agent’s improper conduct.
  • The agent made misrepresentations within the scope of the agency.
  • The agent’s negligence was within the scope of employment and harmed a third party - Doctrine of Respondeat Superior.
• Rationale for imposing vicarious liability?
  • Allocates the risk of doing business to those who stand to profit from the undertaking.

Vicarious Liability - Examples

• Bob hires John as a forklift operator. While moving a large crate to the loading zone, John hits and damages a customer’s car. Because John was acting within the scope of employment, Bob can be held vicariously liable for the damages.
  • John is also directly liable for his own tort.
• An employee (Jill) mops up a spill at your café but forgets to put out a “Wet Floor” sign. A customer slips on the wet patch and is severely injured. The café is vicariously liable for the employee’s negligence.
  • Jill is also directly liable for her own negligence.

Factors Courts Consider in Defining “Scope of Employment”

• Did the employer authorize the employee’s act?
• Where and when did the act occur? What was its purpose?
• Did the employee’s act advance the employer’s interests, or did it promote the private interests of the employee?
• Did the employer furnish the instrumentality or means used by the employee to cause the injury?
• Was the employee’s act foreseeable? Had the employee engaged in such conduct before?

Considerations for Scope of Employment

• The principal is not vicariously liable if the agent was acting outside the scope of employment when the tort was committed
• Agent’s acts are usually outside the scope of employment if:
  • The agent is on a “frolic and detour.”
  • The agent is on the way to or from work.
• The principal is liable if the agent is on a “dual purpose” mission.

“Frolic and Detour” Rule

• The agent does something during the course of employment to further his own interests rather than the principal’s.
• Unless the agent’s “detour” is a minor deviation, the principal won’t be liable.
• Decided on a case-by-case basis.

Does Frolic and Detour Rule Apply?

• A is driving from ATL to Savannah to deliver merchandise for P.
  • Stops at a convenience store ½ mile off Highway 16 for gas and lunch.
  • On way back to Hwy 16, A’s car hits a pedestrian.
  • P will be vicariously liable.
• A is driving from ATL to Savannah to deliver merchandise for P.
  • A meets a friend for lunch (and drinks) 20 miles off Highway 16.
  • On way back to Hwy 16, A’s car hits a pedestrian.
  • P will NOT be vicariously liable.

“Coming and Going” Rule

• A principal is usually not liable for injuries caused by its agents and employees while they are on their way to or from work but may be
• if A is acting on P’s behalf while en route.
• Rationale?

“Dual Purpose” Mission

• The Coming and Going Rule may not apply if A is on a “dual purpose” mission.
• E.g.: P asks A to stop at the post office on the way home and mail a package for the company.
  • While exiting the post office to drive the rest of the way home, A’s negligence causes an accident.
  • P is vicariously liable.

Tort Liability and Independent Contractors

• General rule: The employer is not liable because there is no principal/agent relationship.
• But, the employer may be liable if:
  • Duties are non-delegable.
  • Activities are inherently dangerous (crop dusting, explosives).
  • P was negligent in selecting the independent contractor.

Employment Discrimination

Protected Classes under Federal EEO Law

• Title VII
  • Race
  • Color
  • National Origin
  • Sex
  • Religion
• Age
• Disability
• Genetic Information

Title VII - Application

Applies to:

• Employers with fifteen or more employees.
• Labor unions with fifteen or more members.
• Labor unions that operate hiring halls (where members go regularly to be assigned jobs).
• Employment agencies.
• State and local governing units or agencies.
• Most federal government employment.

Equal Employment Opportunity Commission (EEOC)

• EEOC monitors compliance with Title VII.
• Victims MUST file a claim with EEOC within 180 days.
  • By filing first with a state fair employment practices commission, the time to file with EEOC extends to 300 days.
  • Each discriminatory act restarts the filing period.
• EEOC investigates “priority” cases:
  • Retaliatory discharge.
  • Types of discrimination that are of particular concern to the EEOC.

EEOC Process

• If the EEOC investigates the dispute, it will attempt to obtain the parties’ voluntary consent to an out-of-court settlement.
• If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee’s behalf.
• If the EEOC decides not to investigate a claim, it will issue a “right to sue” letter that allows the employee to bring his or her own lawsuit against the employer.

Prohibited Employment Discrimination

• It is illegal for employers to discriminate against protected employees in:
  • Recruitment, hiring, demotions, and firing.
  • Compensation and fringe benefits, retirement plans, and disability leave.
  • Transfer, promotion, layoff, or recall.
  • Testing and training.
  • Any term, condition, or privilege of employment.
• Constructive discharge is covered.
  • Employee quit (not fired) because working conditions are so intolerable; treated as if fired.

Retaliation Prohibited

• EEO laws prohibit retaliating against an employee or third party for filing a discrimination complaint or participating in a discrimination investigation/hearing.
  • Includes dismissal, demotion, harassment, etc.
• E.g.: Regaldo and Thompson were engaged.
  • Regaldo filed a sex discrimination complaint against their employer (North American Stainless LP).
  • 3 weeks later NA Stainless fired Thompson, who sued, alleging third-party retaliation.
  • Sup Ct ruled that Title VII’s anti-retaliation provisions applied to fiancé and remanded the case.

Legal Theories used in Title VII Litigation

• Overt Intentional
  • Intentional discrimination by the employer.
• Disparate treatment - Intentional
  • Intentional discrimination against an individual who was treated less favorably because of race, sex, religion, or national origin.
• Disparate Impact - Unintentional
  • Unintentional discrimination against an entire protected class that results when an employer’s use of facially neutral criteria produces a disproportionate impact on a protected class.

Overt Intentional

• A plaintiff must prove open, unlawful discrimination against a member of a protected class.
• Only applies to religion, sex, and national origin.
• The defendant must show a bona fide occupational qualification (“BFOQ”):
  • Must be job-related and a business necessity.
  • Not available for race or color.
  • Gender BFOQ must be based on physical attributes of the job or privacy, NOT stereotype or customer preference.

Disparate Treatment: The McDonnell Douglas Test

• Direct evidence of motive is typically unavailable.
• The plaintiff can establish a prima facie case of discrimination where:
  • S/he is a member of a protected class,
  • S/he applied for and was qualified for a job,
  • The plaintiff’s application was rejected; and
  • The employer continued to seek applicants or hired someone else.
• Burden shifts to employer - Defense: Legitimate, non-discriminatory purpose for not hiring the plaintiff.
• Plaintiff’s rebuttal: Reason is a pretext.

Disparate Impact

• The theory can be used to reach covert or unintentional discrimination.
• The plaintiff can establish a prima facie case of discrimination where:
  • The employer bases decisions on facially neutral criteria, e.g., height & weight, education, testing, or residency.
  • Criteria produces a disproportionate impact on the protected class.
• Burden shifts to employer - Defense: The employer must show the criterion is job-related and required by business necessity.

Defenses Available to Employers

• Merit
  • Employment criterion is job-related, e.g., tests, required degrees.
• Bona Fide Seniority System.
• BFOQ – overt.
• Legitimate, non-discriminatory purpose – disparate treatment.
• Job-related and a business necessity – disparate impact.

Title VII Remedies

• Two years back pay.
• Compensatory damages for non-economic losses (capped) if intentional discrimination.
  • No cap if the suit is based on race discrimination brought under the Civil Rights Act’s Section 1981.
• Punitive damages (capped unless intentional racial or ethnic discrimination).
• Equitable remedies, e.g., reinstatement, retroactive seniority.
• Attorney fees and costs; jury trials available.

Title VII: Race and Color as Protected Classes

• Law distinguishes between race and color.
  • Emerging Issue: Multiracial employees.
• Race Discrimination?
  • A restaurant fired black employees and replaced them with white staff to more accurately reflect the racial composition of its customer base.
  • A swastika-tattooed white male requested that black nurses not care for his newborn son, and the hospital agreed to honor his request (MI, 2013).
  • Tesla factory employees claim supervisors and co-workers call them N-word, tell them to go back to Africa, and make racial threats; filed class action in CA in Nov 2017.

Race Discrimination: Grooming?

• Can grooming standards prohibiting facial hair, natural hair, or dreadlocks discriminate based on race? Do they have a “disparate impact” on a protected group?
  • Courts have ruled for black men with beards who suffer from skin irritation from shaving.
• CROWN Act (Creating a Respectful & Open World for Natural Hair).
  • 22 states and 28 municipalities have signed the CROWN Act or legislation inspired by The CROWN Act into law.

Reverse Discrimination

• Race as a protected class applies to all races, including whites.
• Reverse Discrimination?
  • White instructors at a historically black college in St. Louis were fired by a black dean and replaced with black instructors to teach the same courses at higher pay.
  • A minority employee with a BA and 5 years' experience was promoted over a white employee with an MBA and 10 years' experience.

Racial Harassment

• The EEOC applies “hostile environment” analysis.
• Is this harassment?
  • In 2016, a white foreman of a black welder working on the Bay Bridge toll plaza (Oakland) hung a noose next to him, and another employee told him to wear it around his neck.

Racial Harassment (Nucor Corp)

• Nucor Corp has been sued twice for race discrimination and harassment since 2003 (7 black plaintiffs filed class action in SC in 2003 that was resolved in 2018, and 6 filed similar suit in Arkansas in 2009 that was resolved in 2019).
• Suits alleged a hostile environment based on:
  • Being called the N-word and other racial slurs and ridiculed on the company radio system.
  • Monkey sounds; being called porch monkeys.
  • Racial graffiti was common in restrooms.
  • Display of Confederate flag and noose.
• Is Nucor liable for racial harassment?

National Origin as a Protected Class

• Prohibits discrimination based on:
  • A person’s (or ancestor’s) place of origin.
  • Physical, cultural, linguistic characteristics.
  • Association with a person of a certain national origin.
• If the plaintiff shows prima facie discrimination, the employer can defend with a legitimate business reason.
  • Accent seriously interferes with the employee’s job performance.

Religion as Protected Class

• Title VII requires “reasonable accommodation” of religion unless an “undue hardship”. Examples:
  • Compromises workplace safety.
  • Infringes on other employees.
  • Requires other workers to do more than their share of hazardous or burdensome work.
• Religion can be a Bona Fide Occupational Qualification (BFOQ).

Recognized Religions

• Workers who allege religious discrimination may have to convince the court that their claim is based on a religion.
  • Pastafarian? (Church of the Flying Spaghetti Monster).

Religious Discrimination: Attire?

• When 17-year-old Samantha Elauf applied for a job at Abercrombie & Fitch, she wore a black head scarf.
• She did not mention her religion, nor did A&F ask.
• A&F did not hire her, saying her scarf clashed with the company’s “look policy”.
• She sued for religious discrimination, and the case went to the U.S. Supreme Court.
• Is A&F required to accommodate her hijab?

Sex as a Protected Class: Equal Pay Act of 1963

• Prohibits sex discrimination in pay if jobs are “substantially equal” in terms of effort, skill, responsibility, and working conditions.
• Defenses: Seniority, merit, quality or quantity of production, “any factor other than sex”.

Gender Pay Gap in 2023

• Women make $0.83$for$$1 a man makes (uncontrolled gap).
  • $900,000 lifetime earnings gap over 40 years.
• Compared to $1 a white male earns:
  • Asian women earn $0.97.
  • White women earn $0.83.
  • Black women earn $0.80.
  • Hispanic women earn $0.79.
  • Native American women earn $0.72.
• The gender pay gap widens with career progression.

Race Pay Gap in 2023 (men)

• Compared to $1 a white male earns:
  • Asian men earn $1.15.
  • Native American men earn $0.91.
  • Hispanic men earn $0.91.
  • Black men earn $0.87$$.

Salary History Laws

• To promote pay equity, at least 18 states, Puerto Rico, and many cities (e.g., NYC, SF, Chicago, and Atlanta) prohibit employers from requiring job applicants to provide salary history before they receive a formal job offer.
• WHY would states or cities enact such laws?

Title VII: Sex as a Protected Class

Prohibits discriminating against employees and job applicants in hiring, promotions, etc. based on:

• Sex and sexual stereotypes.
• Sex-plus, e.g., sex plus race or age.
• Sexual orientation or gender identity (transgender).
• Pregnancy (Preg. Discrimination Act of 1978).
• Sexual harassment.

Title VII: Pregnancy

• Pregnancy Discrimination Act.
  • If an employer provides a health and disability plan, it MUST include pregnancy, childbirth, and related conditions in the same manner as other medical conditions.
  • In 2015, the Sup. Ct. ruled employers must provide pregnant workers the same accommodations as disabled.
• Walmart was sued in 2017 for pregnancy discrimination.
• PDA protects nursing mothers against post-pregnancy workplace discrimination.

Title VII: Sexual Harassment

• EEOC defines sexual harassment as:
  • “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature."
• Types of harassment:
  • Quid pro quo.
  • Hostile environment.
• Courts apply the same legal standard to other forms of harassment, e.g., race, age, and disability harassment.
• EEOC received 8,427 sexual harassment charges in FY 2024. 45.6% dismissed for no reasonable cause.

Sexual Harassment (cont’d)

• Hostile environment – Factors:
  • Severity, pervasiveness & frequency of harassing conduct, though a single incident may be enough.
  • Does conduct “unreasonably interfere” with work performance?
• Title VII prohibits same-sex harassment.
• Claims must be arbitrated IF the employee’s contract includes an arbitration clause.

Employer Liability for Harassment by Supervisor

• The victim must first prove harassment by the supervisor by showing a tangible employment action - a