PLST 400 Liberty University Employment and Religion Discrimination Paper

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What statutory protections are in place for religious discrimination?

Discuss an employer's duty to reasonably accommodate. How much accommodation is reasonable?

What is a BFOQ? Give an example and discuss.Instructions

The student is required to provide a thread in response to the provided topic for each forum. Each thread must be 300 words in length and demonstrate course-related knowledge. Five points will be deducted for every 25 words short of the minimum—threads under 200 words will receive no credit. The thread must include at least 2 references to the textbook.

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Employment Law for Business page i Ninth Edition Dawn D. BennettAlexander University of Georgia Laura P. Hartman DePaul University page ii EMPLOYMENT LAW FOR BUSINESS, NINTH EDITION Published by McGraw-Hill Education, 2 Penn Plaza, New York, NY 10121. Copyright © 2019 by McGraw-Hill Education. All rights reserved. Printed in the United States of America. Previous editions © 2015, 2012, and 2009. No part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, without the prior written consent of McGraw-Hill Education, including, but not limited to, in any network or other electronic storage or transmission, or broadcast for distance learning. Some ancillaries, including electronic and print components, may not be available to customers outside the United States. This book is printed on acid-free paper. 1 2 3 4 5 6 7 8 9 LCR 21 20 19 18 17 ISBN 978-1-259-72233-2 MHID 1-259-72233-3 Portfolio Manager: Kathleen Klehr Product Developers: Jaroslaw Szymanski and Michael McCormick Marketing Manager: Michelle Williams Content Project Managers: Pat Frederickson and Angela Norris Buyer: Susan K. Culbertson Designer: Egzon Shaqiri Content Licensing Specialist: Carrie Burger Cover Image: ©Diane Labombarbe/iStock/Getty Images Compositor: SPi Global All credits appearing on page or at the end of the book are considered to be an extension of the copyright page. Library of Congress Cataloging-in-Publication Data Names: Bennett-Alexander, Dawn, author. | Hartman, Laura Pincus, author. Title: Employment law for business / Dawn D. Bennett-Alexander, University of Georgia; Laura P. Hartman, DePaul University. Description: Ninth edition. | New York, NY: McGraw-Hill Education, [2018] | Includes bibliographical references and index. Identifiers: LCCN 2017047701| ISBN 9781259722332 (alk. paper) | ISBN 1259722333 (alk. paper) Subjects: LCSH: Labor laws and legislation—United States. | Discrimination in employment—Law and legislation—United States. | LCGFT: Casebooks Classification: LCC KF3455.B46 2018 | DDC 344.7301—dc23 LC record available at https://lccn.loc.gov/2017047701 The Internet addresses listed in the text were accurate at the time of publication. The inclusion of a website does not indicate an endorsement by the authors or McGraw-Hill Education, and McGraw-Hill Education does not guarantee the accuracy of the information presented at these sites. mheducation.com/highered Dedication page iii To my Ancestors who endured the Middle Passage, slavery, and its aftermath, so that I could exist; and my parents, Rev. William H., and Anne P. Liles Bennett, who, by their lives of steadfast hard work, faith, and civic engagement made me and my contributions not only possible, but inevitable. —My progeny: Jenniffer Dawn Bennett Alexander Jones Ann Alexis Bennett Alexander Tess Alexandra Bennett Harrison —and my Grands: Makayla Anne Jones Edward Christian Alexander Jones You are such a big part of why I work so hard to make the world a better place. — The indomitable Lizzie Lou Jackson Thomas (1918–2015) who was one of my first introductions into coming to understand the reality of the dehumanizing invisible lives of difference that we lead and that I needed to work to change it. Lizzie Thomas was a long-time member of the church my father pastored. After the birth of my first daughter, Ms. Thomas insisted on giving me the gift of spotlessly cleaning my heretofore unseen house from top to bottom without asking a single question about what went where. When I asked how in page iv the world she knew what to do, her simple answer opened my eyes to an entirely new reality: she was a maid in the homes of the wealthy in Washington, DC. I was stunned. I had known her all my life and had no idea. I only ever knew her as a tiny, hardworking, generous, dependable church member with a big, kind heart, indefatigable energy, and ready, tinkling laugh. I quickly learned that those she worked for had no idea of who she was outside of being their maid. I, on the other hand, only knew her as a wonderful human being and didn’t even know she was a maid. They had no idea of the lively, lovely Lizzie Thomas I had known and enjoyed all my life. They had no real idea of who she was other than the woman who cooked for them, cleaned for them, and served their needs. That simple exchange spurred me on to a life of fighting for the equality of humanity and a quest to have people viewed as human beings deserving of respect rather than nameless, faceless group members judged on the basis of their socially constructed “place” in society based on race, gender, and other immutable characteristics. RIP, Lizzie Thomas. And thank you. Your exemplary life and simple words had a profound impact far greater than you ever knew. —My sister, Brenda Lynn Bennett Watkins, without whose love, support and devotion my life would be such a different place. Thank you, my sister. What would I do without you? —And last but certainly not least, to Jere W. Morehead, page v 22nd president of the University of Georgia and my 30year colleague. Keep up the good and courageous work and I’ll keep sending the love. Simply put: You. Rock. D D B-A For those whose voices continue to be silenced by others, ours is now and always a responsibility to speak. Kenbe la: stand firm, stay true. LPH About the Authors page vi Dawn D. Bennett-Alexander University of Georgia Courtesy Mike Horn With over forty awards to her credit, Dawn D. Bennett-Alexander, Esq., is a tenured associate professor of Employment Law and Legal Studies at the University of Georgia’s Terry College of Business. An attorney admitted to practice in the District of Columbia and six federal jurisdictions, she is a cum laude graduate of the Howard University School of Law and a magna cum laude graduate of the Federal City College, now the University of the District of Columbia. With her coauthor, she was cofounder and cochair, of the Employment and Labor Law Section of the Academy of Legal Studies in Business and coeditor of the section’s Employment and Labor Law Quarterly; past coeditor of the section’s newsletter; and past president of the Southeastern Academy of Legal Studies in Business. Among other texts, she coauthored, with Linda F. Harrison, McGraw-Hill’s groundbreaking The Legal, Ethical, and Regulatory Environment of Business in a Diverse Society, in 2011. Bennett-Alexander taught Employment Law in the University of North Florida’s MBA program from 1982 to 1987 and has been conducting Employment Law seminars for managers and supervisors since 1985. Prior to teaching, Bennett-Alexander worked in Washington, DC, at the Federal Labor Relations Authority, the White House Domestic Council, the Federal Trade Commission, the Department of Justice Appellate Division, Antioch School of Law, and and as law clerk to the Honorable Julia Cooper Mack as she became the first black female judge to be appointed to a court of last resort in the country, the D.C. Court of Appeals. Bennett-Alexander publishes widely in the Employment Law area; is a noted expert on Employment Law and Diversity and Inclusion issues; was asked to write the first-ever sexual harassment entry for Grolier Encyclopedia; edited the National Employee Rights Institute’s definitive book on federal employment rights; has chapters in several other books including five Employment Law entries in Sage Publications’ first and second editions of the Encyclopedia of Business Ethics and Society; has been widely quoted on TV and radio, and in the print press, including USA Today, The Wall Street Journal, and Fortune magazine; and is founder of Practical Diversity, consultants on Diversity and Inclusion as well as Employment Law issues. Among other accomplishments, Bennett-Alexander was one of only ten winners of the prestigious national award for teaching excellence, the 2015 Elizabeth Hurlock Beckman award, presented an invited diversity paper for the Oxford Roundtable at Oxford University, Oxford, England in 2014, and was a 2000–2001 recipient of the Fulbright Senior Scholar Fellowship under which she taught at the Ghana School of Law in Ghana, West Africa, and conducted research on race and gender in employment. She has also taught in Budapest, Krakow, Austria, Prague, Australia, New Zealand, Italy, and Costa Rica. She is the recipient of the 2011 University of Georgia President’s Martin Luther King, Jr., Fulfilling the Dream Award, her University’s highest diversity award, for her outstanding work in building bridges to understanding and unity; the 2010 recipient of the page vii University of Georgia’s Terry College of Business inaugural Diversity Award; and the 2009 recipient of the Ernst & Young Inclusive Excellence Award for Accounting and Business School faculty. She dedicates all her research and writing to her Ancestors, three daughters, and two grandchildren. Laura P. Hartman DePaul University (Chicago) & The School of Choice/l’Ecole de Choix (Haiti) Courtesy Marketing & Communications Department, Questrom School of Business Laura Pincus Hartman is on extended leave from DePaul University to serve as Executive Director of the School of Choice Education Organization, a U.S.–based nonprofit that she co-founded, which oversees the School of Choice/l’Ecole de Choix, a unique trilingual elementary school in Haiti that provides high-quality leadership development education to children living in extreme conditions of poverty. From 2015–2017, Prof. Hartman also served as the inaugural Director of the Susilo Institute for Ethics in the Global Economy and Clinical Professor of Business Ethics in the Department of Organizational Behavior. She also was an Associated Professor at the Kedge Business School (Marseille, France). At DePaul, Prof. Hartman is Vincent de Paul Professor of Business Ethics at DePaul University’s Driehaus College of Business and has held numerous other positions, such as Associate Vice President for Academic Affairs and Director of its Institute for Business and Professional Ethics. Hartman also has taught at INSEAD (France), HEC (France), the Université Paul Cezanne Aix Marseille III, the University of Toulouse, and at the Grenoble Graduate School of Business. Hartman is past president of the Society for Business Ethics, presently co-chairs its Committee on International Collaborations, and directs its Professional Mentorship Program. In the private sector, concurrent to her academic work, Hartman was Director of External Partnerships for Zynga.Org (2009–2012), through which Zynga players of FarmVille, Words with Friends, and other online games have contributed over $20 million toward both domestic and international social causes. From 2009–2011, she represented DePaul University on the Worldwide Vincentian Family’s Vincentian Board for Haiti, and was instrumental in the hands-on design and implementation of a micro-development, finance, and education system for people living in poverty in Haiti. A thought leader in leadership and ethical decision making, Hartman’s work has resulted in the publication of more than 80 articles, cases, and books, and demonstrates the potential for innovative and profitable partnerships to alleviate poverty while providing measurable value to all stakeholders involved. A winner of the Microsoft CreateGOOD award at Cannes Lions (2015), named one of Ethisphere’s 100 Most Influential People in Business Ethics, and one of Fast Company’s Most Creative People in Business (2014), Hartman serves as an advisor to a number of startups and has consulted with multinational for-profits, non-profits, and educational institutions. She was invited to BAInnovate’s inaugural UnGrounded lab and has been named to Fast Company’s “League of Extraordinary Woman.” Hartman graduated magna cum laude from Tufts University and received her law degree from the University of Chicago Law School. She divides her time between Haiti, Chicago, and Sint Maarten, and has been a mother to two daughters. Prelude to the 9th Edition page viii Cover photo: The cover photo is of a classic and well-known American quilt block called Drunkard’s Path. I am an avid quilter not just because I enjoy it, but because in so many ways for me, quilting is a metaphor for life and so much in this text. Nothing illustrates that more than this quilt block. The quilt block is composed of only two curved pieces, one concave quarter square and one convex quarter circle. While the curves fit together perfectly and look neat and tidy when you look at the finished, quilt, when they are being sewn together, right sides facing, the two pieces look like they will never fit. After all, one is concave and one is convex. Putting them together is not an easy task and looks messy in the process. But, in fact, they do fit together and the result is a lovely quilt block with graceful, beautifully fitting curves. The reason I love Drunkard’s Path so much and enjoy working with it is that it always reminds me of what so much of this text is about. It is one of the reasons I admire it so. People who seem quite different in terms of race, gender, ethnicity, religion, sexual orientation, disabilities, etc., much like the Drunkard’s Path pieces, and may not seem like they will fit together. But, in the end, they actually do end up fitting together quite well when the law is used and applied as intended. In addition, just by using different ways of putting these same two pieces together and using contrasting colors, the quilt can look entirely different including circles, concentric diamonds, and ocean waves. Like people, change a thing here or there like hair, eye color, skin color, etc., and we may look different, but, like the two quilt pieces, we are all actually the same basic thing: a human being. I hope you enjoy this beautiful cover as much as we do. On this day, as I write this, the country has just experienced the election and inauguration of a new president of the United States (see Addendum, below). It is unusual for us to mention politics in our pages. After all, we, as a society, like to think that “the law is the law” so politics does not come into it. Since this is a legal textbook we generally honor that. We do so even though we realize that law does not occur in a vacuum. It is not created in one. It is not interpreted in one, and it is not enforced and executed in one. Other factors greatly impact both what becomes law as well as how laws are imposed, executed, and interpreted. However, like the new president, this presidency and administration is not business as usual. The reason we mention it is not political. Everyone is entitled to their own political beliefs and we absolutely respect and honor that. The reason the recent election must be mentioned is because a great deal of the election cycle focused on issues that are greatly impacted by this text. These issues were portrayed in a very negative light for nearly a year and a half. In the end, the candidate who did so won the election. The impact of the negative portrayal by such a high-profile figure was immediately clear when individual acts of harassment and violence against groups protected by the laws in this text broke out across the country. The perpetrators cited the position advocated by the winner as the basis for their feeling validated in carrying out the violence. Time magazine reported that the Southern Poverty Law Center noted a significant rise in hate crimes in the weeks after the election, with over 200 incidents in just over one month, as white supremacists celebrated the winner’s victory.1 As such, and because the workplace is a microcosm of the greater society, there are bound to be repercussions in the workplace. Since, by the nature of the negativity, many of the groups protected by the laws herein and traditionally the objects of discrimination will form most of those claims, it is worthy of note here. So, politics page ix or no, this we cannot ignore. We choose not to take the head-in-the-sand approach in providing you information on this subject matter. It will also help you to be prepared and have context for what will inevitably find its way into the workplace. This textbook is primarily about workplace discrimination under the American laws providing protection from discrimination against groups traditionally treated less well because of some immutable characteristic having nothing to do with their qualifications for a job. Women, the disabled, racial and ethnic minorities, and religious minorities have all been, at some point or another, marginalized, demeaned, castigated, even mocked by the person now leading the country. Supporters took this as permission to do the same, or as validation of their own previously held positions regarding those groups. For instance, former Ku Klux Klan leader, David Duke, today tweeted out his congratulations on the inauguration, saying “We did it!”2 Tomorrow, the day after the inauguration, Washington, DC, is scheduled to have what has been said to be the largest demonstration in the history of National Mall demonstrations. The Women’s March is bringing together from all over the country, thousands of women as well as men, who are concerned about the way women and others have been treated by the new officeholder and what that portends for the future. Over 600 demonstrations are being held across the rest of the country and world that day for the same reason.3 But, aside from the people themselves, who may be the object of the claims, there is also the issue of the legal changes to come. We are not seers and we have no crystal ball. However, given the promises made by the new officeholder over the past 18 months, and the consistency of those promises regarding issues impacting these same groups, we have every reason to believe that changes will come and that they may greatly impact the groups protected by these laws, including women, immigrants, minorities, the LGBT community, and issues such as equal pay, family leave, and labor unions, among others. In the 24+ years since we first began authoring this text, we have seen presidents come and go. We have watched as presidents either engaged in some version of “benign neglect,” or as the outgoing president (Obama), vigorous enforcement of the laws covered by this text. We rarely mention them outside of the context of saying they signed something into law. We have never given an opinion of them. This time around, given the statements made over the past 18 months of the election cycle by the winner of the election, we must. We must say that we stand steadfastly behind the laws this textbook addresses. We must say that we believe in the worth and dignity of all employees and applicants—all human beings—and believe they are due respect as human beings. Any policies that fly in the face of that are not okay with us. We hope for the best, but given the rhetoric of the past 18 months, we nervously await the fate of these laws. This is in stark contrast to this author’s elation on September 24, 2016, as she stood before the 1964 Civil Rights Act exhibit at the historic dedication and opening ceremony of the Smithsonian’s newest addition, the National Museum of African American History and Culture on the National Mall in Washington, DC. Meanwhile, we will continue to do our part to enlighten, to teach, and to stand in the truth of the U.S. Constitution that all are created equal and endowed with certain inalienable rights. Rights carried out by both the U.S. Constitution as well as the laws reflecting them such as those in this text. As an addenda to that, I invite you to check out my TED Talk on these issues on YouTube. Just put my name and/or Practical Diversity into your search engine or YouTube search and it will show up. Enjoy! As always, we are delighted to receive your page x feedback and we very much appreciate it! Dawn D. Bennett-Alexander Athens, GA January 20, 2017 Addendum: Nearly six months have passed since I wrote the prelude immediately above. It is so interesting to see the changes between then and now. As you are well aware, the Women’s March was, in fact held, and it became an on-going, embarrassing sore spot that the attendance was much larger than that of the inauguration the day before. Despite the fact that EEOC commissioner, Chai Feldblum, said on March 14, 2017, that the agency’s priorities would remain the same under the new administration,4 in the nearly six-month time period since the above, some of our worst fears are being realized.5 There has been a rolling back of several gains made in the law over decades. Among them, there has been an order across the board to federal agencies to scale back civil rights activities, including a proposal to fold the four-decades-old Office of Federal Contract Compliance Programs (OFCCP) into the Equal Employment Opportunity Commission (EEOC).6 Both are extremely important agencies with very different roles in stamping out workplace discrimination. The executive order put in place by President Obama to make federal contractors who supply goods and services to the federal government more accountable for discriminatory employment practices and deter them has been revoked.7 A religious liberty executive order has been instituted that could allow employers to discriminate on the basis of their religious beliefs,8 to name a few things. Just today, again huge demonstrations were held across the country, in part in response to the rise in racist and violent acts toward minorities, most recently the stabbing death of two (and injury of a third) Portland, Oregon, commuter train passengers who tried to intervene when allegedly white supremacists were shouting “hate speech toward a variety of ethnicities and religions” at a young woman wearing a hijab and her friend.9 Things are moving very quickly. All we can say is that the text is as up to date as it could be at the time of publication, but do keep an eye out for changes that may impact what has been the established law you will read within these pages. DDB-A 6/3/2017. With such gratitude to so many, some of our students today page xi come from home environments of political peace and stability. Others come from countries that currently or historically are or were in conflict. Who could have anticipated that ecosystems that were traditionally considered stable would be the source or location of today’s instability? Whether one supports their local systems or opposes them, likely all have been somewhat surprised by the upheaval the world has experienced in recent years. Often, we and our students fall into a sense of complacency surrounding the issues that fill the front pages of newspapers today and do not share the passion represented so poignantly in Dawn’s message, above. That is unfortunate because, without passion, there is inaction and apathy. To the contrary, no matter what issues are important to you, we encourage you to use your voices, inspired by education, to impact your lives and the lives of others in a way that raises the quality of life for all. Dawn might agree that I have not been able to keep quiet in the face of injustice. The responsibility that we now have as educators—or even as mere information sources—is how to transfer not merely the information but also the empathy, the deeply held disquiet in the face of injustice, the grueling sense of indignity even when the affront is not against ourselves. Through this text and our work, we seek to equip others with a strength of voice so that those without a voice can be heard more clearly. Many years may have passed since our first edition was published, and that first edition came out a quarter of a century after Title VII had been passed. It may seem like a great deal of time, and perhaps much has changed, but not enough. Whether one agrees with his politics or not, it seems fitting to begin each edition with past President Obama’s words, “Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we’ve been waiting for. We are the change that we seek.” Be that change. Laura Pincus Hartman Port-au-Prince, Haiti & Chicago, USA June 2017 1Reilly, Katie, “Racist Incidents Are Up Since Donald Trump’s Election. These Are Just a Few of Them,” Time (November 13, 2016), http://time.com/4569129/racistanti-semitic-incidents-donald-trump/. 2Source: http://www.huffingtonpost.com/entry/donald-trump-davidduke_us_58824741e4b0e3a735689f21. 3Wang, Hansi Lo, “Protesters Prepare for Women’s March after Trump’s Inauguration,” NPR (January 20, 2017), http://www.npr.org/sections/thetwoway/2017/01/20/510706246/protesters-prepare-for-womens-march-after-trumpsinauguration. 4Otto, Nic, “EEOC to maintain key priorities under new White House,” Benefit News (March 15, 2017), https://www.benefitnews.com/news/employee-benefitsnews-and-forum-expo 5Beirich, Heidi, “Hatred Is on the Rise in America, But What Caused It?’ Southern Poverty Law Center for HuffPost (June 3, 2017), http://www.huffingtonpost.com/entry/what-caused-increase-hatecrimes_us_593071f5e4b010df62cc7671?ixp 6Eilperin, Juliet, Emma Brown, and Darryl Fears, “Trump Administration Plans to Minimize Civil Rights Efforts in Agencies,” The Washington Post (May 29, 2017), https://www.washingtonpost.com/politics/trump-administration-plans-to-minimizecivil-rights-efforts-in-agencies/2017/05/29/922fc1b2-39a7-11e7-a058ddbb23c75d82_story.html?utm_term=.da1984adb735. 7Presidential Executive Order on the Revocation of Federal Contracting Executive Orders, 4/29/17, https://www.whitehouse.gov/the-pressoffice/2017/03/27/presidential-executive-order-revocation-federal-contractingexecutive. 8Presidential Executive Order Promoting Free Speech and Religious Liberty, 5/4/2017. https://www.whitehouse.gov/the-press-office/2017/05/04/presidentialexecutive-order-promoting-free-speech-and-religious-liberty 9Marco, Tony, Jason Hanna, and Steve Almasy, “Portland train stabbings: FBI looking into possible hate crime charges,” CNN (May 28, 2017), http://www.cnn.com/2017/05/26/us/portland-train-stabbing/ Preface page xii Must an employer provide breaks for a nursing mother to express milk, and a private place in which to do it? Must an employee allow time off to care for a sick child if the employee is gay and is raising a child not his own, with his partner of several years? If a disabled employee could perform the job requirements when hired, but the job has progressed and the employee is no longer able to perform, must the employer keep her on? Is an employer liable when a supervisor sexually harasses an employee, but the employer knew nothing of it? Is an employer liable for racial discrimination because she terminates a black male who refuses to abide by the “no-beard” policy? Can an employer be successfully sued for “reverse discrimination” by an employee who feels harmed by the employer’s affirmative action plan? Can an employer institute a policy prohibiting Muslim women from wearing their hijabs (head scarves)? If an employer has two equally qualified applicants from which to choose and prefers the white one to the black one, is it illegal discrimination for the employer to hire the white applicant, or must the employer hire the black one? Must an employer send to training the employee who is in line to attend, if that employee will retire shortly? Can an employer terminate a female employee because male employees find her pleasing shape too distracting? Is it a violation of wage and hour laws for an employer to hire his 13- year-old daughter to pick strawberries during the summer? Is an ex-employer liable for defamation if he gives a negative recommendation about an ex-employee to a potential employer who inquires? Must an employer disclose to employees that chemicals with which they work are potentially harmful? Can an employer stop employees from forming a union? These types of questions, which are routinely decided in workplaces every day, can have devastating financial and productivity consequences if mishandled by the employer. Yet, few employers or their managers and supervisors are equipped to handle them well. That is why this textbook was created. Between fiscal years 1970, when newly enacted job discrimination legislation cases started to rise, and 2016, the number of federal discrimination suits grew from fewer than 350 per year to its all-time high of just shy of 100,000. A major factor in this statistic is that the groups protected by Title VII of the Civil Rights Act of 1964 and similar legislation, including minorities, women, and employees over 40, now constitute over 70 percent of the total workforce. Add to page xiii that number those protected by laws addressing disability, genetic and family medical history, wages and hours, and unions; workplace environmental right-to-know laws; tort laws; and occupational safety and health laws, and the percentage increases even more. The U.S. Department of Labor alone administers more than 180 federal laws covering about 10 million employers and 125 million workers.1 It is good that employers and employees alike are now getting the benefits derived from having a safer, fairer workplace and one more reflective of the population. However, this is not without its attendant challenges. One of those challenges is reflected in the statistics given above. With the advent of workplace regulation by the government, particularly the Civil Rights Act of 1964, there is more of an expectation by employees of certain basic rights in the workplace. When these expectations are not met, and the affected population constitutes more than 70 percent of the workforce, problems and their attendant litigation will not only arise, but are likely to be numerous. Plaintiffs generally win nearly 50 percent of lawsuits brought for workplace discrimination. The median monetary damage award is $155,000.2 As you will soon see, the good news is that the vast majority of the litigation and liability arising in the area covered by these statistics is completely avoidable. Many times the only difference between an employer being sued or not is a manager or supervisor who recognizes that the decision being made may lead to unnecessary litigation and thus avoids it. When we first began this venture more than 20 years ago, we did not know if we would be able to sell enough copies of the textbook to justify even having a second edition. Luckily, we had a publisher who understood the situation and made a commitment to hang in there with us. The problem was that there was no established market for the text. There were so few classes in this area that they did not even show up as a blip on the radar screen. Actually, we only knew of two. But having worked in this area for years, we knew the need was there, even if the students, faculty, and even employers were not yet aware of it. We convinced the publishers that “if you publish it, they will come.” And come they did. From the minute the book was first released, it was embraced. And just as we thought, classes were developed, students flooded in, and by the time the smoke cleared, the first edition had exceeded all the publisher’s forecasts and expectations. The need that we knew was there really was there, and an entire discipline was created. The textbook spawned other such texts, but remains the leading textbook of its kind in the country. We cannot thank the publishers enough for being so committed to this textbook. Without their commitment, none of this would have happened. And we cannot thank professors and students enough for being there for us, supporting us, believing in the textbook and our voices, and trusting that we will honor the law and our commitment to bring the best to faculty and students. We have seen what types of employment law page xiv problems are most prevalent in the workplace from our extensive experience in the classroom and in our research and writing, as well as in conducting over the years many employment seminars for managers, supervisors, business owners, equal employment opportunity officers, human resources personnel, general counsels, and others. We have seen how management most often strays from appropriate considerations and gets into avoidable legal trouble, exposing it to potential increased liability. We came to realize that many of the mistakes were based on ignorance rather than malice. Often employers simply did not know that a situation was being handled incorrectly. Becoming more aware of potential liability does not mean the employer is not free to make legitimate workplace decisions it deems best. It simply means that those decisions are handled appropriately in ways that lessen or avoid liability. The problem does not lie in not being able to terminate the female who is chronically late for work because the employer thinks she will sue for gender discrimination. Rather, the challenge lies in doing it in a way that precludes her from being able to file a successful gender discrimination claim. It does not mean the employer must retain her, despite her failure to adequately meet workplace requirements. Rather, it means that the employer must make certain the termination is beyond reproach. If the employee has performed in a way that results in termination, this should be documentable and, therefore, defensible. Termination of the employee under such circumstances should present no problem, assuming similarly situated employees consistently have been treated the same way. The employer is free to make the management decisions necessary to run the business, but it simply does so correctly. Knowing how to do so correctly does not just happen. It must be learned. We set out to create a textbook aimed at anyone who would, or presently does, manage people. Knowing what is in this book is a necessity. For those already in the workplace, your day is filled with one awkward situation after another—for which you wish you had the answers. For those in school, you will soon be in the workplace, and in the not-too-distant future you will likely be in a position managing others. We cannot promise answers to every one of your questions, but we can promise that we will provide the information and basic considerations in most areas that will help you arrive at an informed, reasonable, and defensible decision about which you can feel more comfortable. You will not walk away feeling as if you rolled the dice when you made a workplace decision, and then wait with anxiety to see if the decision will backfire in some way. In an effort to best inform employers of the reasoning behind legal requirements and to provide a basis for making decisions in “gray areas,” we often provide background in relevant social or political movements, or both, as well as in legislative history and other relevant considerations. Law is not created in a vacuum, and this information gives the law context so the purpose is more easily understood. Often understanding why a law exists can help a manager make the correct choices in interpreting the law when making workplace decisions with no clear-cut answers. We have found over the years that so few people really understand what any of this is really about. page xv They know they are not supposed to discriminate on the basis of, say, gender, but they don’t always realize (1) when they are doing it, and (2) why the law prohibits it. Understanding the background behind the law can give extremely important insight into areas that help with both of these issues and allow the manager to make better decisions, particularly where no clear-cut answer may be apparent. Legal cases are used to illustrate important concepts; however, we realize that it is the managerial aspects of the concepts with which you must deal. Therefore, we took great pains to try to rid the cases of unnecessary “legalese” and procedural matters that would be more relevant to a lawyer or law student. We also follow each case with questions designed to aid in thinking critically about the issues involved from an employer’s standpoint, rather than from a purely legal standpoint. We understand that how employers make their decisions has a great impact on the decisions made. Therefore, our case-end questions are designed as critical-thinking questions to get the student to go beyond the legal concepts and think critically about management issues. This process of learning to analyze and think critically about issues from different points of view will greatly enhance students’ decision-making abilities as future managers or business owners. Addressing the issues in the way they are likely to arise in life greatly enhances that ability. You may wonder why we ask questions such as whether you agree with the court’s decision or what you would do in the situation. This is important in getting you to think about facts from your perspective as a potential manager or supervisor. Your thoughts matter just as much as anyone else’s and you should begin to think like a manager if you are going to be one. Nothing magic happens once you step into the workplace. You bring an awful lot of your own thoughts, preconceived notions, and prejudgments with you. Sometimes these are at odds with the law, which can lead to liability for the employer. The questions are a way to ferret out your own thoughts, to explore what is in your own head that can serve as the basis of decisions you make in the workplace. You can then make any needed adjustments to avoid liability. It is one thing to know that the law prohibits gender discrimination in employment. It is quite another to recognize such discrimination when it occurs and govern oneself accordingly. For instance, a female employee says she cannot use a “filthy” toilet, which is the only one at the work site. The employer can dismiss the complaint and tell the employee she must use the toilet, and perhaps later be held liable for gender discrimination. Or the employer can think of what implications this may have, given that this is a female employee essentially being denied a right that male employees have in access to a usable toilet. The employer then realizes there may be a problem and is more likely to make the better decision. This seemingly unlikely scenario is based on an actual case, which you will later read. It is a great example of how simple but unexpected decisions can create liability in surprising ways. Knowing the background and intent of a law often can help in situations where the answer to the problem may not be readily apparent. Including the law in your thinking can help the thought process for making well-founded decisions. You may notice that, while many of our cases are page xvi extremely timely and have a “ripped from the headlines” feel to them, others are somewhat older. There are two reasons why we include those older cases. First, some of them are called “seminal” cases that created the foundation for all of the legal decisions that came afterwards, so you need to be aware of them. The other reason is much more practical. Because our goal is to teach you to avoid liability in the workplace, part of our means of reaching the goal is to use fact patterns that we think do the best job of illustrating certain points. Most legal texts try to bring you only the latest cases. Of course, we also do that; but our primary goal is to use those cases that we think best illustrate our point. The clearest, most illustrative fact pattern might be an older case rather than a newer one. We will not include newer cases just because they are new. We provide cases that best illustrate our points for you and, if they happen to be older cases that are still good law, we will use them. We are interested in facts that will help you learn what you need to know, rather than case dates. We look at the cases that have come out between editions and, if none do the job of illustrating our point better, we go with what is best geared to show you how to think through an issue. We have made the decision to limit the number of cases in each chapter to between three and five. Most chapters have three or four. Even though the subject matter from chapter to chapter may lend itself to different numbers of cases, we decided to try for consistency. Hopefully, the carefully chosen cases will still accomplish our purpose. We also have included endnotes and boxed items from easily accessible media sources that you come across every day, such as People magazine, The New York Times, The Wall Street Journal, and USA Today. The intent is to demonstrate how the matters discussed are interesting and integrated into everyday life, yet they can have serious repercussions for employers. In earlier editions, we opted for reading continuity and thus did not include a lot of our research material as endnotes. We have made the conscious decision to include more sources as endnotes. Hopefully, what is lost in seeing the endnote callout as you read will be balanced out with the fact that you now have the resources to do further investigation on your own since you now have the resources to do so. Much of today’s litigation results from workplace decisions arising from unfortunate ideas about various groups and from lack of awareness about what may result in litigation. We do not want to take away anyone’s right to think whatever he or she wants about whomever he or she wants, but we do want to teach that those thoughts may result in legal trouble when they are acted on. Something new and innovative must be done if we are to break the cycle of insensitivity and myopia that results in spiraling numbers of unnecessary workplace lawsuits. Part of breaking this cycle is using language and terminology that more accurately reflects those considerations. We therefore, in writing the text, made a rather unorthodox move and took the offensive, creating a path, rather than following one. For instance, the term sex is generally used in this text to mean sex only in a purely sexual sense—which means we do not use it very much. The term gender is used to distinguish males page xvii from females. With the increasing use of sexual harassment as a cause of action, it became confusing to continue to speak of sex as meaning gender, particularly when it adds to the confusion to understand that sex need not be present in a sexual harassment claim but gender differences are required. For instance, to say that a claim must be based on “a difference in treatment based on sex” leaves it unclear as to whether it means gender or sexual activity. Since it actually means gender, we have made such clarifications. Also, use of the term sex in connection with gender discrimination cases, the majority of which are brought by women, continues to inject sexuality into the equation of women and work. This, in turn, contributes to keeping women and sexuality connected in an inappropriate setting (employment). Further, it does so at a time when there is an attempt to decrease such connections and, instead, concentrate on the applicant’s qualifications for the job. The term is also confusing when a growing number of workplace discrimination claims have been brought by transgenders, for whom gender, sex, and sexuality intersect, and can cause confusion if language is not intentional, accurate, conscious, and thoughtful. We are utterly delighted that for the first time in the 20-year history of the text, we are comfortably using the terms “homosexual” and “sexual orientation.” We are ecstatic that society has come to a place where the negative connotations these terms once had are not as prevalent as they once were. In our last edition, we wrote the following: So, too, with the term homosexuality. In this text, the term affinity orientation is used instead. The traditional term emphasizes, for one group and not others, the highly personal yet generally irrelevant issue of the employee’s sexuality. The use of the term sets up those within that group for consideration as different (usually interpreted to be “less than”), when they may well be qualified for the job and otherwise acceptable. With sexuality being highlighted in referring to them, it becomes difficult to think of them in any other light. The term also continues to pander to the historically more sensational or titillating aspects of the applicant’s personal life and uses it to color her or his entire life when all that should be of interest is ability to do the job. Using more appropriate terminology will hopefully keep the focus on that ability. Being able to see society move so far in 20 years and pass laws of protection in this area that make it easier to deal with the LGBT community as full human beings is heartening. The term disabled is used rather than handicapped to conform to the more enlightened view taken by the Americans with Disabilities Act of 1990. It gets away from the old notion noted by some that those who were differently abled went “cap in hand” looking for handouts. Rather, it recognizes the importance of including in employment these 43 million Americans who can contribute to the workplace despite their physical or mental condition. There is also a diligent effort to use gender-inclusive or neutral terminology—for example, police officers, rather than policemen; firefighters, rather than firemen; servers, rather than waiters or waitresses; and flight attendants, rather than stewards page xviii or stewardesses. We urge you to add to the list and use such language in your conversations. To use different terminology for males and females performing the same job reflects a gender difference when there is no need to do so. If, as the law requires, it is irrelevant because it is the job itself on which we wish to focus, then our language should reflect this. It is not simply a matter of terminology. Words are powerful. They convey ideas to us about the matter spoken of. To the extent we change our language to be more neutral when referring to employees, it will be easier to change our ingrained notions of the “appropriateness” of traditional employment roles based on gender, sexuality, or other largely irrelevant criteria and make employment discrimination laws more effective. This conscious choice of language also is not a reflection of temporal “political correctness” considerations. It goes far beyond what terming something politically correct tends to do. These changes in terminology are substantive and nontrivial ones that attempt to have language reflect reality, rather than have our reality shaped and limited by the language we use. Being sensitive to the matter of language can help make us more sensitive to what stands behind the words. That is an important aid in avoiding liability and obeying the law. The best way to determine what an employer must do to avoid liability for employment decisions is to look at cases to see what courts have used to determine previous liability. This is why we have provided many and varied cases for you to consider. Much care has been taken to make the cases not only relevant, informative, and illustrative but also interesting, and easy to read. There is a good mix of new cases, along with the old standards that still define an area. We have assiduously tried to avoid legalese and intricate legal consideration. Instead, we emphasize the legal managerial aspects of cases—that is, what does the case mean that management should or should not do to be best protected from violating the law? We wanted the textbook to be informative and readable—a resource to encourage critical and creative thinking about workplace issues and to sensitize you to the need for effective workplace management of these issues. We think we have accomplished our goal. We hope the text is as interesting and informative for you to read and use as it was exciting and challenging for us to write. 1https://www.dol.gov/general/aboutdol/majorlaws 2“Valuing your case,” Workplace Fairness (2017), https://www.workplacefairness.org/valuing_your_case (accessed June 5, 2017). Modifications to the Ninth Edition page xix Throughout the text, we have, as necessary, updated statistics and replaced in-text examples, end-of-chapter questions, and cases with the most current ones available. However, where a case represents the seminal case on a matter, we have chosen to leave that case since it is vital for students to be well-versed in the legal precedent. The same is true of chapter-end questions. If they were the best to illustrate a point, we left them in. In addition to the updated statistics and figures throughout, the major changes include the following: Chapter 1: Discusses In connection with the definition of employee, the financial and other implications of the U.S. Department of Labor’s major Misclassification Initiative, which was launched in cooperation with the Internal Revenue Service, to reduce the incidence of employee misclassification and to improve compliance with federal labor laws. The impact of technology on the application process. The requirement to track applicants on the basis of race, gender, and ethnicity. The Seventh Circuit’s seminal decision in PepsiCo, Inc. v. Redmond that illustrates how the advance of technology has caused the Uniform Trade Secrets Act to evolve. Chapter 2: Includes new information on retaliation. Chapter 3: Contains updated information throughout, including Impact of the 2016 election on the work of the EEOC. The EEOC’s new Strategic Enforcement Plan for 2017–2022. The EEOC extension of the Title VII gender category to include discrimination on the basis of sexual orientation and an update on its inclusion of gender as a basis for gender identity claims; and the EEOC’s new emphasis on maintaining employee access to Title VII claims. Chapter 4: Contains The latest data relating to the use of social media and technology in recruitment, selection, and related activities. The most recent statistics on testing and drug and alcohol usage and abuse, along with their case implications. A discussion of myriad assessment tools used by employers as part of the hiring process. A new section on criticisms surrounding drug testing. Chapter 5: Modifications include Clarification of, and more background on, the connection between affirmative action background and present-day vestiges. Update of the Dodd–Frank Wall Street Reform and Consumer Protection Act of requirement of Offices of Minority and Women’s inclusion in the agencies it covers and the businesses they regulate. The NFL’s informal extension of the Rooney Rule to cover some vacancies for offensive and defensive coordinator jobs. Chapter 6: Includes discussion of the page xx Impact of the latest presidential election and other recent events on workplace issues. Increase in Asian-American discrimination. Increase in workplace harassment claims. Chapter 7: Updated data includes The evolving law relating to English-only rules, presented in a comprehensive manner. Additional discussion and clarification on discrimination based on alienage or citizenship status. Increasing national origin discrimination claims since September 11, 2001. Chapter 8: Contains new information on Increasing gender discrimination claims interpretation. 2015 U.S. Supreme Court pregnancy case, Young v. UPS. Discussion of 1/21/2017 and 3/8/2017 demonstrations regarding gender issues and concerns in the country. Updated gender statistics. The new Shriver report on gender issues. Claims by women terminated because they were “too hot” and new concerted individual regional Walmart gender discrimination cases. New EEOC guidance on domestic violence and stalking victims and on family caretakers. Addition of glass cliffs, glass escalators, 2012 repeal of Wisconsin’s Equal Pay Enforcement Act, and additional Pregnancy Discrimination Act and lactation information. Chapter 9: Contains Current cases such as Ball State v. Vance. Claims involving Red Lobster, Merchant Management Resources, Inc., Lakemont Homes Las Vegas real estate developer, International Profit Associates, Inc., Delta Airlines, Best Buy’s Geek Squad, film producer Jon Peters, and New York “kingmaker” Assemblyman Vito Lopez. A discussion of the new Anita Hill documentary, Anita. Chapter 10: Contains updated discussions on sexual orientation and gender identity, including Information on the recent legislative, executive, and judicial LGBT issues including gay marriage and workplace inclusion and benefit policies. Extension of federal benefits to LGBTs. 2017 Executive Order revoking federal protection for LGBT employees of federal contractors. 2015 U.S. Supreme Court Obergefell decisions prohibiting states from banning gay marriage. Expansion of the EEOC’s Macy decision extending to transgenders protection of Title VII based on gender, to lesbians, gays, and bisexuals as well. Recent polls on LGBT issues and the latest HRC Corporate Equality Index figures for corporate adoption of workplace protections and benefits for LGBT employees. page xxi Introduction in Congress of the Equality Act of 2015. More information on understanding transgenders and their workplace issues. Chapter 11: Contains New information on increasingly different manifestations of religious discrimination in the workplace, especially in light of the new religious liberty executive order of May 4, 2017. Discussion of U.S. Supreme Court decision in the Abrcrombie & Fitch Muslim hijab case. New NYPD policy permitting Sikh officers to wear their religiously dictated beards and turbans. Chapter 12: Examines The perception of Silicon Valley and, in fact, the entire tech world as catering to and seeking a younger demographic of employees. On a circuit-by-circuit basis, the yet-to-be-settled question of whether state employees with age discrimination grievances have alternative claims to those provided by the ADEA. The EEOC’s “Final Rule on Disparate Impact and Reasonable Factors Other than Age (RFOA)” and explores the yet-to-be-enacted Protecting Older Workers Against Discrimination Act (POWADA), which was introduced first in 2012 and reintroduced in 2013. The impact of the Gross decision in recent case law, where courts have ruled that the “but for” causation standard applies not only to adverse employment actions in ADEA cases but also to Title VII retaliation plaintiffs, as well. Chapter 13: Examines The impact of the ADAAA. The question of the “bootstrap” theory of ADA coverage with regard to the definition of a “major life activity.” The expansion of the definition of “substantial limitation” under the ADA to include a lower degree of impairment and the partial invalidation of the “mitigating measures” rule. Obesity discrimination, including references to new case law. Chapter 14: Contains Extensive updates based on significant advances in technology, information gathering, social media, monitoring, privacy, and the law that have impacted our world, in general, and the workplace, specifically. New case law, examples, and end-of-chapter questions that allow the reader to have a current understanding of the environment and implications for the employment context. Chapter 15: Discusses various labor issues such as Impact of new presidential administration on labor issues. Outcome of student movement to unionize college athletics. page xxii New state passage of right-to-work laws. Chapter 16: Discusses wage and benefit issues such as The ongoing issue of employee misclassification violations to avoid paying minimum wages and overtime pay. The growing concern over unpaid internships. Increased enforcement and clarification of lactation time for nursing mothers. Increasing FMLA leave challenges. Proposed parental leave under the Trump administration. As we have done with other editions, in this ninth edition we have continued to make updates and improvements that we think will help students understand the material better. We have learning objectives for each chapter, new cases where appropriate, updated background and context information, new boxed information, up-to-the-minute legal issues, more insights, and a modified structure. We have kept the things you tell us you love, and added to them. For instance, a reader suggested that we address the issue of the redundancy of examining certain issues in each chapter where they are raised. Based on this excellent suggestion, which we had considered ourselves over the years, in this edition we continued our “Toolkit” first introduced in our eighth edition that does this. In the Toolkit chapter, Chapter 2, “The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts,” we introduce you to concepts that you will see throughout the text but, rather than repeat them in each chapter, we have added Toolkit icons instead. These icons will be an indication to you that the issue referred to was included in the Toolkit chapter, and you can go back to that chapter and review the issue again if you would like a refresher. In this edition we have made the icon placement even more helpful and specific so you can find what you need even more easily. As always, we truly welcome your feedback. We are the only textbook we know of that actually gets fan letters! Keep them coming! ☺We urge you to email us about any thoughts you have about the text, good or bad, as well as suggestions, unclear items you don’t understand, errata, or anything else you think would be helpful. Our contact information is Dawn D. Bennett-Alexander University of Georgia Terry College of Business A413 Moore-Rooker Hall 610 South Lumpkin Street Athens, GA 30602-6255 Email: dawndba@uga.edu Laura P. Hartman DePaul University Department of Management 1 E. Jackson Blvd., Ste. 7000 Chicago, IL 60604-2787 Email: lhartman@depaul.edu And again as always, we hope you have as much fun reading the book as we did writing it. It really is a pleasure. Enjoy! Dawn D. Bennett-Alexander, Esq. Athens, GA June 3, 2017 Acknowledgments page xxiii The authors would like to honor and thank the following individuals, without whose assistance and support this text would never have been written: McGraw-Hill Higher Education editorial support, including Craig Beytien, for having the insight and courage to sign the first employment law text of its kind before many others were able to see the vast but undeniable merit of doing so; McGraw-Hill Product Developer Jaroslaw Szymanski; Lead Content Project Manager Pat Frederickson; Managing Director Tim Vertovec; Senior Marketing Manager Michelle Williams; and Executive Portfolio Manager Kathleen Klehr. Finally, for their contributions to our ninth edition revisions, we would like to thank the scholars who have class tested and reviewed this manuscript, including the following: Glenda Barrett University of Maryland–University College Walter Bogumil University of Central Florida Olivia Brown West Georgia Technical College Debra Burke Western Carolina University Gerald Calvasina Salisbury University William Carnes University of South Florida—St. Petersburg Carol M. Carnevale SUNY Empire State College Mitchell Crocker Austin State University—Texas Diya Das Bryant College Richard Dibble New York Institute of Technology Anthony DiPrimio Holy Family University Dennis R. Favaro William Rainey Harper College Larry Frazier City University of Seattle Dean Gualco Warren National University Tanya Hubanks Chippewa Valley Technical College Shumon Johnson Columbia Southern University Rhonda Jones University of Maryland Hamid Kazeroony Inver Hills Community College Doug Kennedy University of Wisconsin—Stout Dale F. Krieg Oakland City University Clif Koen University of New Orleans Jonathan Kulaga Spring Arbor University Cheryl Macon Butler County Community College Stan Malos San Jose State University Michael McKinney East Tennessee State University Liliana Meneses University of Maryland University College Jim Morgan California State University, Chico Richard O. Parry California State University—Fullerton John Poirier Bryant University Douglas Reed Milwaukee School of Engineering Mike Rhymes Louisiana Tech Stacey Scroggins Troy University Kathryn Seeberger Kansas State University Stephanie Sipe Georgia Southern University Laura Smagala Carlow University Joanie Sompayrac University of Tennessee Vicki Spivey Southeastern Technical College Lamont Stallworth Loyola University—Chicago page xxiv Dave Stokes MATC—Madison Maris Stella Swift Grand Valley State University Cheryl Thomas Fayetteville Tech Jan Tucker Warren National University Thomas Tudor University of Arkansas—Little Rock Clark Wheeler Santa Fe Community College Glynda White College of Southern Nevada—West Charles Elizabeth Wilson Georgia Southwestern State University Bennett-Alexander: I would like to thank (1) my co-author, Laura Pincus Hartman, for her intellect, energy, support, and hard work. We don’t know exactly how it’s been working for over 25 years but it absolutely does and we love, love, love it. Laura, you are such a wonderful soul in the world and it is an absolute privilege to share this gift and journey with you; (2) our publishers, editors, and other support staff who love this project as much as we do; (3) my daughters Jenniffer Dawn Bennett-Alexander Jones, Anne Alexis BennettAlexander, and Tess Alexandra Bennett Harrison for being my special gifts from above and for knowing that my very favorite thing in the whole world is being their Mama—even though they drive me crazy☺; (4) my grandchildren, Makayla Anne Jones and Edward Christian Alexander Jones, who are such an absolute delight. Thank you for loving Nana so; (5) my siblings, Brenda Bennett Watkins, Dr. Gale C. Bennett-Harris, Rev. Dr. William H. Bennett II, and Barbara Jean Bennett Bethea (1939–2007) for their unwavering confidence, love, support, and laughs; (6) my BFF, linda f. harrison, who can always be counted on for whatever, including smoothing ruffled feathers and a great belly laugh. I don’t know how it works, but it’s been doing it for 38 (!!) years; (7) my incomparable university president, Jere W. Morehead. Where do I even start? I appreciate you more than you know in ways of which you are well aware. You make me laugh so, even as your quiet, steady, unrelenting and total page xxv dedication to making UGA all it can be spurs me to do even more than I thought possible, and for that I thank you; (8) the thousands of managers, supervisors, employers, and employees who have shared their experiences and insights over the years; (9) my colleagues from across the country who have been so incredibly supportive of this text over the years; and, last but certainly not least, (10) my very favorites, my students, who are a never-ending source of utter wonder, insight, information and fun for me. Do we have a good time, or what? This text is immeasurably richer for having the contributions of each of you. DDB-A Hartman: As I have said countless times in the past, this book would not exist without the passionate dedication of my coauthor, Dawn D. Bennett-Alexander. These have not been the easiest past few years and Dawn has been a rock for me. I also am grateful for the contributions of all who have helped to bring this text to fruition. Those individuals include Katie Rowen’s thankless work on our OSHA revisions; and Summer Brown and Katrina Myers’ endless revisions and updates throughout the text! All errors—and, yes, we know they are there, dear readers, so send them in—are completely our own. LPH page xxvi Text Organization Employment Law for Business, Ninth Edition, has been revised and updated to maintain its currency amid a rapidly changing landscape in the area of employment law. Some of its content has also been streamlined to provide a more realistic opportunity for instructors to cover key concepts in one semester. Learning objectives at the start of each chapter alert instructor and students to key concepts within. Cases are found at the end of the chapter to facilitate a smoother read, with case icons inserted into the text where references are appropriate. Part 1 gives the foundations for employment law, covering introductory topics and cases to set the stage for later coverage. This initial section now includes more material to give students a more thorough grounding. Chapter 1 provides an introduction to the employment environment, and explains the freedom to contract and the current regulatory environment for employment. It now includes an expanded discussion of employmentat-will and showcases a recent case, Estrada v. FedEx. Chapter 2 is the Toolkit chapter that provides information on several topics that run throughout the text. Chapters thereafter that mention these issues will use a toolkit icon to notify the reader to go back to the Toolkit chapter if a refresher is needed. Chapter 3 covers Title VII of the Civil Rights Act in order to illustrate the foundational nature this groundbreaking legislation has for employment law. Chapter 4 introduces the reader to the regulation of the employment process, such as recruitment, selection, and hiring. In examining the variety of methods of information gathering through testing and other media, it also explores the issue of employers’ access to extraordinary amounts of information via evolving technology. The chapter has been extensively updated with illustrative and supporting empirical data integrated throughout the chapter, including information relating to corporate use of employee referral programs, workplace violence., employer use of online sources for background investigation, corporate use of personality and integrity tests in the hiring process, and recent legislation regulating genetic testing in employment. Part 2 covers various types of discrimination in employment, with each chapter revised to reflect recent changes. Chapter 5 includes a discussion on recent revisions to affirmative action regulations and misuse of affirmative action, including the famous U.S. Supreme Court decision on the firefighters in New Haven, Connecticut. Chapter 6 presents a historical overview of racism inthe United States, giving students a deeper understanding of how prevalent racial discrimination still is, so managers can better recognize potential liability as it arises. In addition, contemporary race issues and racial harassment are addressed. Chapter 7 directly follows Chapter 6 in order to link and distinguish the concepts of race and national origin in U.S. laws and culture. Chapter 8 features coverage of how gender impacts the workplace, including gender discrimination, pregnancy discrimination, gender stereotyping, workplace grooming codes, fetal protection policies, lactation break requirements, and comparable worth. Chapter 9 explores the law relating to sexual harassment, page xxvii clearly explaining the difference between quid pro quo and hostile environment sexual harassment as well as how to avoid employer liability in this important area. Chapter 10 discusses developments in sexual orientation discrimination and gender identity issues and offers management tips on how to handle this quickly evolving topic. Chapter 11 gives students up-to-date considerations on the many aspects of religious discrimination, including explanations of the legal definition of religion, points on the employer’s duty to reasonably accommodate employees, and information on the correct usage of religion as a BFOQ. Issues of increasing frequency such as Muslim employee workplace conflicts are discussed and methods provided for how to handle these matters. Chapter 12 provides a comprehensive review of age discrimination laws in the workplace and has been updated with current statistical information with regard to age discrimination and also includes comparisons of perceptions of age in the United States and other countries. Additional updates include state age discrimination laws and the legal standard prohibiting an employer from engaging in retaliatory behavior in response to an age discrimination filing. Chapter 13 offers a complete analysis of the legal environment with regard to workers with disabilities with an expanded discussion of the legal history of protection against discrimination on the basis of disability. The chapter is comprehensive in its coverage of both the Genetic Information Non-Discrimination Act and the Americans with Disabilities Amendments Act (ADAAA) and offers examples to managers of ways to create more inclusive working environments. Part 3 lays out additional regulatory processes and dilemmas in employment. Several chapters on various regulatory issues have been merged to form the final chapter. Chapter 14 examines the roles of both the employer and the employee in connection with privacy in the workplace and has been thoroughly updated to keep step with the practically daily changes in technology and how they affect employee privacy. These developments include reference to blogging, social media, RFIDs, GPS, and expanded legal frameworks, both domestic and global; the chapter also includes discussion of new cases such as U.S. v. Ziegler. Chapter 15 addresses collective bargaining and unions in a chapter on labor law. Chapter 16 offers helpful information on the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), including the amendments for military families preparing for active duty or injured in active duty, the Occupational Safety and Health Act (OSHA), and the Employee Retirement Income Security Act (ERISA). About the Authors vi Prelude to the 9th Edition viii Preface xii Modifications to the Ninth Edition xix Acknowledgments xxiii Text Organization xxvi Key Features for the Ninth Edition xxviii Guide to Reading Cases xli PART ONE The Regulation of the Employment Relationship 1 1. The Regulation of Employment 2 2. The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts 48 3. Title VII of the Civil Rights Act of 1964 105 4. Legal Construction of the Employment Environment 145 PART TWO Regulation of Discrimination in Employment 215 5. Affirmative Action 217 6. Race and Color Discrimination 275 7. National Origin Discrimination 323 8. Gender Discrimination 370 9. Sexual Harassment 425 10. Sexual Orientation and Gender Identity Discrimination 472 11. Religious Discrimination 531 12. Age Discrimination 576 13. Disability Discrimination 629 PART THREE Regulation of the Employment Environment 709 14. The Employee’s Right to Privacy and Management of Personal Information 710 15. Labor Law 791 16. Selected Employment Benefits and Protections 835 GLOSSARY 896 SUBJECT INDEX 903 CASE INDEX 929 page xxviii Key Features for the Ninth Edition Learning Objectives Each chapter has active learning objectives, posted before addressing the subject matter, that give a clear picture of specifically what readers should know when they finish studying the chapter. In addition, the learning objectives are noted at the place in the chapter in which the information appears. Opening Scenarios Based on real cases and situations, chapter-opening scenarios introduce topics and material that illustrate the need for chapter concepts. Scenarios are then revisited throughout the chapter text as material pertinent to the opening scenario is discussed. When you encounter the scenario icon in the chapter body, return to the corresponding opening scenario to see if you can now articulate the correct way to solve the problem. Toolkit Icons page xxix Key concepts used in several different chapters have been combined into one chapter to prevent redundancy. That chapter is Chapter 2, “The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts.” Where a toolkit chapter concept arises in a subsequent chapter a notation is made that it can be found in the Toolkit chapter, with an icon placed in the margin. Cases Excerpted cases are placed at the end of the chapter rather than throughout so that reading can be accomplished without interruption. There are reference icons in the chapter when a case is discussed. There is a minimum of legalese and only facts relevant to the employment law issues are included. Each digested case has a short introductory paragraph to explain the facts and issues in the case and is followed by three critical thinking questions created to build and strengthen managerial liability-avoidance skills. Management Tips These boxes, included near the conclusion of each chapter, encapsulate how key concepts relate to managerial concerns. The authors offer concise tips on how to put chapter material into practice in the real world. Key Terms page xxx Key terms are displayed in larger boldface with alternate color. The terms are also listed in the Glossary for quick reference. Exhibits Numerous exhibits are included throughout the text to reinforce concepts visually and to provide students with essential background information. Chapter Summaries Each chapter closes with a summary section, giving students and instructors a tool for checking comprehension. Use this bulleted list as an aide in retaining key chapter points. Guide to Reading Cases This guide gives succinct direction on how to get the most out of text cases. Terminology definitions, case citation explanations, and a walkthrough of the trial process are all included to help facilitate student comprehension. End-of-Chapter Material page xxxi Included at the end of each chapter is a complete set of questions incorporating chapter concepts. Use these as tools to assess your understanding of chapter material. INSTRUCTOR RESOURCES INSTRUCTOR’S MANUAL A package of supplementary materials is included in the instructor’s manual. TEST BANK AND Quizzes Instructors can test students using a vast bank of test and quiz questions divided by chapter. POWERPOINTS This edition’s revised PowerPoints contain an easy-to-follow lecture outline summarizing key points for every chapter. YOU BE THE JUDGE This interactive product features case videos that showcase courtroom arguments of business law cases. These case videos give students the opportunity to watch profile interviews of the plaintiff and defendant; read background information; hear each case; review the evidence; make their decisions; and then access an actual, unscripted judge’s decision and reasoning. BUSINESS LAW NEWSLETTER McGraw-Hill Education’s monthly Business Law newsletter, Proceedings, is designed specifically with the Business Law educator in mind. Proceedings incorporates “hot topics” in business law, video suggestions, an ethical dilemma, teaching tips, and a “chapter key” cross-referencing newsletter topics with the various McGraw-Hill Education business law textbooks. Proceedings is delivered via e-mail to business law instructors each month. McGraw-Hill Connect® is a highly reliable, easy-to-use homework and learning management solution that utilizes learning science and awardwinning adaptive tools to improve student results. page xxxii Homework and Adaptive Learning Connect’s assignments help students contextualize what they’ve learned through application, so they can better understand the material and think critically. Connect will create a personalized study path customized to individual student needs through SmartBook®. SmartBook helps students study more efficiently by delivering an interactive reading experience through adaptive highlighting and review. Over 7 billion questions have been answered, making McGraw-Hill Education products more intelligent, reliable, and precise. Quality Content and Learning Resources Connect content is authored by the world’s best subject matter experts, and is available to your class through a simple and intuitive interface. The Connect eBook makes it easy for students to access their reading material on smartphones and tablets. They can study on the go and don’t need internet access to use the eBook as a reference, with full functionality. Multimedia content such as videos, simulations, and games drive student engagement and critical thinking skills. ©McGraw-Hill Education 73% of instructors who use Connect require it; instructor satisfaction increases by 28% when Connect is required. page xxxiii Robust Analytics and Reporting Connect Insight® generates easy-to-read reports on individual students, the class as a whole, and on specific assignments. The Connect Insight dashboard delivers data on performance, study behavior, and effort. Instructors can quickly identify students who struggle and focus on material that the class has yet to master. Connect automatically grades assignments and quizzes, providing easy-to-read reports on individual and class performance. ©Hero Images/Getty Images More students earn As and Bs when they use Connect. Trusted Service and Support Connect integrates with your LMS to provide single sign-on and automatic syncing of grades. Integration with Blackboard®, D2L®, and Canvas also provides automatic syncing of the course calendar and assignment-level linking. Connect offers comprehensive service, support, and training throughout every phase of your implementation. If you’re looking for some guidance on how to use Connect, or want to learn tips and tricks from super users, you can find tutorials as you work. Our Digital Faculty Consultants and Student Ambassadors offer insight into how to achieve the results you want with Connect. www.mheducation.com/connect Brief Contents page xxxiv About the Authors vi Prelude to the 9th Edition viii Preface xii Modifications to the Ninth Edition xix Acknowledgments xxiii Text Organization xxvi Key Features for the Ninth Edition xxviii Guide to Reading Cases xli PART ONE The Regulation of the Employment Relationship 1 1 The Regulation of Employment 2 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts 48 3 Title VII of the Civil Rights Act of 1964 4 Legal Construction of the Employment Environment 145 105 PART TWO Regulation of Discrimination in Employment 215 5 Affirmative Action 217 6 Race and Color Discrimination 7 National Origin Discrimination 8 Gender Discrimination 9 Sexual Harassment 425 275 323 370 10 Sexual Orientation and Gender Identity Discrimination 11 Religious Discrimination 12 Age Discrimination 13 Disability Discrimination 531 576 629 472 PART THREE Regulation of the Employment Environment 709 14 The Employee’s Right to Privacy and Management of Personal Information 710 15 Labor Law 791 16 Selected Employment Benefits and Protections GLOSSARY 896 SUBJECT INDEX 903 CASE INDEX 929 835 Contents page xxxv About the Authors vi Prelude to the 9th Edition viii Preface xii Modifications to the Ninth Edition xix Acknowledgments xxiii Text Organization xxvi Key Features for the Ninth Edition xxviii Guide to Reading Cases xli PART ONE THE REGULATION OF THE EMPLOYMENT RELATIONSHIP 1 Chapter 1 The Regulation of Employment 2 Introduction to the Regulatory Environment 4 Is Regulation Necessary? 5 Who Is Subject to Regulation? 6 Origins in Agency Law 6 Why Is It Important to Determine Whether a Worker Is an Employee? 7 The Definition of “Employee” 12 Contingent or Temporary Workers 16 Joint Employers and Staffing Firms 16 Defining “Applicant” 18 Management Tips Employee Status 19 The Definition of “Employer” 24 The “Freedom” to Contract in the Regulatory Employment Environment 26 Covenants Not to Compete (Non-Compete Agreements) 27 Management Tips Additional Considerations 30 Chapter Summary 31 Chapter-End Questions 32 End Notes 34 Cases 37 Chapter 2 The Employment Law Toolkit: Resources for Understanding the Law and Recurring Legal Concepts 48 Introduction 49 Guide to Reading Cases 50 Stare Decisis and Precedent 50 Understanding the Case Information 51 Prima Facie Case 54 Employment-At-Will Concepts 54 Wrongful Discharge and the Employment-At-Will Doctrine 54 Exceptions to the At-Will Doctrine 57 Constructive Discharge 67 The Worker Adjustment and Retraining Notification Act 68 Wrongful Discharge Based on Other Tort Liability 68 Employment Discrimination Concepts 69 Disparate Treatment 70 Disparate Impact 75 Other Defenses to Employment Discrimination Claims Accommodation 82 Retaliation 82 Exhaustion of Administrative Remedies 83 Employment Discrimination Remedies 83 Additional Legal Resources 85 Law Libraries 86 The Internet 86 Management Tips 88 Chapter Summary 89 Chapter-End Questions 90 End Notes 92 Cases 93 Chapter 3 80 page xxxvi Title VII of the Civil Rights Act of 1964 105 Statutory Basis 106 A Historic Rights Act 106 Historical Context Leading to the Need for the Civil Rights Act of 1964 107 Title VII: The Legislation 111 The Structure of Title VII 120 What Is Prohibited under Title VII? 120 Who Must Comply? 120 Who Is Covered? 121 Who Is Not Covered? 121 Filing Claims under Title VII 122 The Reconstruction Civil Rights Acts 130 42 U.S.C. Section 1981 132 42 U.S.C. Section 1983 133 An Important Note 134 Management Tips 135 Chapter Summary 135 Chapter-End Questions 136 End Notes 137 Cases 140 Chapter 4 Legal Construction of the Employment Environment 145 Evolution of the Employment Relationship 147 Recruitment 148 Federal Statutory Regulation of Recruitment 148 State Employment Law Regulation 150 Common Law: Misrepresentations and Fraud 150 Application of Regulation to Recruitment Practices 152 Information Gathering and Selection 155 The Application Phase 156 The Interview 157 Background or Reference Check, Negligent Hiring, and Googling Employees 158 Reference Checks: Potential Liability for Providing References? 167 “After-Acquired Evidence” Defense in Wrongful Termination Suits 170 Management Tips The Employment Relationship 172 Testing in the Employment Environment 172 Legality of Eligibility Testing 174 Test Validity – Confirming Capacity to Do a Job 175 Legality of Ineligibility Testing 179 Management Considerations: Testing 191 Performance Appraisals, Evaluation, and Discipline Schemes 191 Legal Implications of Performance Appraisal Systems 192 Management Tips Testing 193 Discipline 197 Chapter Summary 199 Management Tips Performance Management and Evaluation 200 Chapter-End Questions 201 End Notes 203 Cases 209 PART TWO REGULATION OF DISCRIMINATION IN EMPLOYMENT 215 Chapter 5 Affirmative Action 217 Statutory Basis 218 The Design and Unstable History 219 Introduction 219 Affirmative Action’s Misunderstandings Based on Race 220 Clearing the Air 225 What Is Affirmative Action? 228 Affirmative Action under Executive Order 11246 239 E.O. 11246 Provisions 240 Affirmative Action Plans 241 Penalties for Noncompliance 247 Judicial Affirmative Action 248 Voluntary Affirmative Action 250 “Reverse Discrimination” 252 Valuing Diversity/Multiculturalism/Diversity and Inclusion 254 Management Tips 261 Chapter Summary 261 Chapter-End Questions 262 End Notes 263 Cases 266 page xxxvii Chapter 6 Race and Color Discrimination 275 Statutory Basis 276 Surprised? 277 Evolving Definitions of Race 281 Background of Racial Discrimination in the United States Race: Putting It All Together 298 General Considerations 299 Recognizing Race Discrimination 300 Racial Harassment 303 A Word about Color 305 Management Tips 309 Chapter Summary 310 Chapter-End Questions 311 End Notes 312 Cases 317 291 Chapter 7 National Origin Discrimination 323 Statutory Basis 324 Chez/Casa/Fala/Wunderbar Uncle Sam 324 The Changing Workforce 325 Regulatory Overview 327 Member of the Protected Class 327 Qualification/BFOQs 328 Adverse Employment Action and Dissimilar Treatment 332 Harassment on the Basis of National Origin 333 Guidelines on Discrimination Because of Religion or National Origin 335 Middle Eastern Discrimination after September 11, 2001, and in the Era of ISIS 335 Citizenship and the Immigration Reform and Control Act 337 Undocumented Workers 339 Alternate Basis for National Origin or Citizenship Discrimination: Section 1981 347 Management Tips 349 Chapter Summary 349 Chapter-End Questions 350 End Notes 352 Cases 357 Chapter 8 Gender Discrimination 370 Statutory Basis 371 Does It Really Exist? 372 Gender Discrimination in General 387 Recognizing Gender Discrimination 390 “Gender-Plus” Discrimination 391 Gender Issues 392 Gender Stereotyping 393 Grooming Codes 394 Customer or Employee Preferences 396 Logistical Considerations 398 Equal Pay and Comparable Worth 399 Gender as a BFOQ 405 Pregnancy Discrimination 406 Management Tips 408 Fetal Protection Policies 409 Chapter Summary 409 Chapter-End Questions 410 End Notes 411 Cases 419 Chapter 9 Sexual Harassment 425 Statutory Basis 426 Since Eden . . . and Counting 426 Introduction 426 Where Do Sexual Harassment Considerations Leave the Employer? 436 Sexual Harassment in General 440 page xxxviii Quid Pro Quo Sexual Harassment 443 Hostile Environment Sexual Harassment 444 Unwelcome Activity 445 Severe and Pervasive Requirement 448 Perspective Used to Determine Severity 450 “Sexual” Requirement Explained 450 Employer Liability for Sexual Harassment 452 Supervisor toward Employee (Tangible Employment Action) 452 Supervisor toward Employee (No Tangible Employment Action) 453 Co-Worker Harassment or Third-Party Harassment of Employee 453 Other Important Considerations 455 Determining the Truth of Allegations 455 Retaliation and Employee Privacy 456 Corrective Action 456 Damages and Jury Trials 457 Management Tips 458 Tort and Criminal Liability 459 Chapter Summary 459 Chapter-End Questions 460 End Notes 461 Cases 463 Chapter 10 Sexual Orientation and Gender Identity Discrimination 472 Statutory Basis 473 Out of the Closet 474 Sexual Orientation as a Basis for Adverse Employment Decisions 491 A Note about Same-Gender Sexual Harassment 496 Gender Identity Discrimination 497 Employment Benefits 503 Management Considerations 505 Management Tips 507 Chapter Summary 507 Chapter-End Questions 508 End Notes 509 Cases 513 Chapter 11 Religious Discrimination 531 Statutory Basis 532 This Is Not Your Parents’ Religious Discrimination 532 What Is Religion? 543 Religious Conflicts 544 Employer’s Duty to Reasonably Accommodate 546 Employee’s Duty to Cooperate in Accommodation 549 What Constitutes Undue Hardship? 549 Religion as a BFOQ 550 Religious Harassment 551 Union Activity and Religious Discrimination 553 Management Tips 554 Chapter Summary 555 Chapter-End Questions 555 End Notes 557 Cases 562 Chapter 12 Age Discrimination 576 Statutory Basis 577 Oldie . . . but Goldie? 578 Regulation: Age Discrimination in Employment Act 581 Distinctions between ADEA and Title VII 582 State Law Claims 585 Employee’s Options 586 Employee’s Prima Facie Case: Disparate Treatment 587 Burden Shifting No More 590 Employer’s Defenses 592 Employee’s Prima Facie Case: Circumstances Involving Claims of Disparate Impact 594 What Is an RFOA? 597 Reductions in Force (RIFs) 598 Retaliation 602 Employee’s Response: Proof of Pretext 602 Employee’s Prima Facie Case: Hostile Environment Based on Age 604 Waivers under the Older Workers’ Benefit Protection page xxxix Act of 1990 605 The Use of Statistical Evidence 608 Remedies 609 Employee Retirement Income Security Act 610 Management Considerations 611 Management Tips 612 Distinctions among Benefit Plans 613 Chapter Summary 613 Chapter-End Questions 614 End Notes 617 Cases 622 Chapter 13 Disability Discrimination 629 Statutory Basis 630 Removing Old Barriers 631 Regulation 633 Section 503 of the Vocational Rehabilitation Act 633 Americans with Disabilities Act 634 Why Prohibiting Disability Discrimination Is So Difficult 637 The Statutory Structure of the ADA 638 The Prima Facie Case for Disability Discrimination 639 Disability 641 Otherwise Qualified 647 Reasonable Accommodation 652 The Legal Process 659 Burden of Proof 659 Employer Defenses 662 Mental or Emotional Impairments 665 Disability Harassment 667 Additional Responsibilities of Employers in Connection with HealthRelated Issues 669 “No Fault” Liability: Workers’ Compensation 669 Protection of Co-Workers 672 Retaliatory Discharge and Remedies Available 673 Genetic Testing 674 Family and Medical Leave Act and the ADA: Distinctions 676 Management Considerations 677 Management Tips 684 Chapter Summary 685 Chapter-End Questions 686 End Notes 689 Cases 695 PART THREE REGULATION OF THE EMPLOYMENT ENVIRONMENT 709 Chapter 14 The Employee’s Right to Privacy and Management of Personal Information 710 Are There Guarantees in Life? 711 Background 714 Workplace Privacy, Generally 715 Public-Sector Employee Privacy 717 Constitutional Protection 717 The Privacy Act of 1974 720 Privacy Protection Study Commission 722 Federal Wiretapping—Title III 722 Electronic Communications Privacy Act (ECPA) 723 Private-Sector Employee Privacy 724 Legal Framework for Employee Rights in the Private Sector 724 Bases for Right to Privacy in the Private Sector 726 Regulation of Employees’ Off-Work Activities 731 Employer’s Information-Gathering Process/Justified Use/Disclosure of Information 736 Employee Monitoring: An Old Practice with a New Face 739 How Monitoring Works: Practice and Prevalence 743 An Evolving Legal Environment 747 Business Justifications for Monitoring Employees’ Technology Use 750 The Case of Employee Email 753 Developing Computer Use Policies 756 Bring Your Own Device (BYOD) 761 Blogging and Other Social Media (“Web 2.0”) 761 Waivers of Privacy Rights 765 Privacy Rights since September 11, 2001 766 Management Tips 768 Chapter Summary 769 Chapter-End Questions 770 End Notes 772 Cases 781 Chapter 15 Labor Law 791 Statutory Basis 792 Coming Together on Issues 792 A Historical Accounting 795 Out of Necessity Comes Change 798 Labor Laws 800 The Norris–LaGuardia Act of 1932 801 The National Labor Relations Act of 1935 (Wagner Act) 802 The National Labor Relations Act 802 The National Labor Relations Board 803 Concerted Activity 804 Unions 804 The Taft–Hartley Act of 1947 815 The Landrum–Griffin Act of 1959 820 Labor Relations in the Public Sector 821 page xl Federal Employees 821 State, County, and Municipal Public Employees Management Tips 823 Chapter Summary 824 Chapter-End Questions 824 End Notes 825 Cases 826 821 Chapter 16 Selected Employment Benefits and Protections 835 Introduction 836 Fair Labor Standards Act of 1938 836 Statutory Basis 836 Introduction: Show Me the Money! 837 Covered Employees 841 Minimum Wages 842 Overtime Provisions 847 Retaliation 848 Child Labor Laws 848 The Family and Medical Leave Act of 1993 849 Statutory Basis 849 Introduction: It’s All in the Family 849 General Provisions 849 Occupational Safety and Health Act 852 Statutory Basis 852 Introduction: Safety at Work 852 General Provisions 854 Specific Regulations 858 General Duty Clause 859 Intentional Acts 862 Violence in the Workplace 862 Bullying 863 Retaliation 864 Employee Benefits—ERISA, COBRA, and HIPAA 864 Statutory Basis 864 Introduction: Will It Be There When I Retire? 865 General Provisions 866 Fiduciary Duty 867 Reporting and Disclosure 869 Eligibility and Vesting Rules 871 Funding Requirements for Defined Benefit Plans 871 ERISA Litigation 873 Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) 876 The Health Insurance Portability and Accountability Act (HIPAA) 876 Enforcement of ERISA 881 Management Tips 882 Chapter Summary 882 Chapter-End Questions 883 End Notes 884 Cases 889 Glossary 896 Subject Index 903 Case Index 929 Guide to Reading Cases page xli Thank you very much to the several students who have contacted us and asked that we improve your understanding by including a guide to reading and understanding the cases. We consider the cases an important and integral part of the chapters. By viewing the court decisions included in the text, you get to see for yourself what the court considers important when deciding a given issue. This in turn gives you as a decision maker insight into what you need to keep in mind when making decisions on similar issues in the workplace. The more you know about how a court thinks about issues that may end up in litigation, the better you can avoid it. We provide the following in order to help you better understand the cases so that you can use them to their fullest. In order to tell you about how to view the cases, we have to give you a little background on the legal system. Hopefully, it will only be a refresher of your previous law or civics courses. Stare Decisis and Precedent The American legal system is based on stare decisis, a system of using legal precedent. Once a judge renders a decision in a case, the decision is generally written and placed in a book called a law reporter and must be followed in that jurisdiction when other similar cases arise. The case thus becomes precedent for future cases. Most of the decisions in the chapters are from federal courts since most of the topics we discuss are based on federal law. Federal courts consist of trial courts (called the “U.S. District Court” for a particular district), courts of appeal (called the “U.S. Circuit Court” for a particular circuit), and the U.S. Supreme Court. U.S. Supreme Court decisions apply to all jurisdictions, and once there is a U.S. Supreme Court decision, all courts must follow the precedent. Circuit court decisions are mandatory precedent only for the circuit in which the decision is issued. All courts in that circuit must follow the U.S. Circuit Court precedents. District court decisions (precedent) are applicable only to the district in which they were made. When courts that are not in the jurisdiction are faced with a novel issue they have not decided before, they can look to other jurisdictions to see how they handled the issue. If such a court likes the other jurisdiction’s decision, it can use the approach taken by that jurisdiction’s court. However, it is not bound to follow the other court’s decision if that court is not in its jurisdiction. Understanding the Case Information With this in mind, let’s take a look at a typical case included in this book. Each of the cases is an actual decision written by a judge. The first thing you will see is the case name. This is derived from the parties involved—the one suing (called plaintiff at the district court level) and the one being sued (called defendant at the district court level). At the court of appeals or Supreme Court level, the first name generally reflects who appealed the case to that court. It may or may not be the party who initially brought the case at the district page xlii court level. At the court of appeals level, the person who appealed the case to the court of appeals is known as the appellant and the other party is known as the appellee. At the Supreme Court level they are known as the petitioner and the respondent. Under the case name, the next line will have several numbers and a few letters. This is called a case citation. A case citation is the means by which the full case can be located in a law reporter if you want to find the case for yourself in a law library or a legal database such as LEXIS/NEXIS or Westlaw. Reporters are books in which judges’ case decisions are kept for later retrieval by lawyers, law students, judges, and others. Law reporters can be found in any law library, and many cases can be found on the Internet for free on websites such as Public Library of Law (plol.org) or FindLaw.com. Take a minute and turn to one of the cases in the text. Any case will do. A typical citation would be “72 U.S. 544 (2002).” This means that you can find the decision in volume 72 of the U.S. Supreme Court Reporter at page 544 and that it is a 2002 decision. The U.S. reporters contain U.S. Supreme Court decisions. Reporters have different names based on the court decisions contained in them; thus, their citations are different. The citation “43 F.3d 762 (9th Cir. 2002)” means that you can find the case decision in volume 43 of the Federal Reporter third series, at page 762 and that the decision came out of the U.S. Circuit Court of Appeals for the Ninth Circuit in the year 2002. The federal reporters contain the cases of the U.S. Circuit Courts of Appeal from across the country. Similarly, the citation “750 F. Supp. 234 (S.D. N.Y. 2002)” means that you can find the case decision in volume 750 of the Federal Supplement Reporters, which contain U.S. district court cases, at page 234. The case was decided in the year 2002 by the U.S. District Court in the Southern District of New York. In looking at the chapter cases, after the citation we include a short blurb on the case to let you know before you read it what the case is about, what the main issues are, and what the court decided. This is designed to give you a “heads up,” rather than just dumping you into the case cold, with no background on what you are about to read. The next line you see will have a last name and then a comma followed by “J.” This is the name of the judge who wrote the decision you are reading. The “J” stands for “judge” or “justice.” Judges oversee lower courts, while the term for them used in higher courts is “justices.” “C. J.” stands for “chief justice.” The next thing you see in looking at the chapter case is the body of the decision. Judges write for lawyers and judges, not for the public at large. As such, they use a lot of legal terms (which we call “legalese”) that can make the decisions difficult for a nonlawyer to read. There are also many procedural issues included in cases, which have little or nothing to do with the issues we are providing the case to illustrate. There also may be many other issues in the case that are not relevant for our purposes. Therefore, rather than give you the entire decision of the court, we instead usually give you a shortened, excerpted version of the case containing only the information relevant for the issue being discussed. If you want to see the entire case for yourself, you can find it by using the citation provided just below the name of the case, as page xliii explained above. By not bogging you down in legalese, procedural matters, and other issues irrelevant to our point, we make the cases more accessible and understandable and much less confusing, while still giving you all you need to illustrate our point. The last thing you will see in the chapter cases is the final decision of the court itself. If the case is a trial court decision by the district court, it will provide relief either for the plaintiff bringing the case or for the defendant against whom the case is brought. If a defendant makes a motion to dismiss, the court will decide that issue and say either that the motion to dismiss is granted or that it is denied. A defendant will make a motion to dismiss when he or she thinks there is not enough evidence to constitute a violation of law. If the motion to dismiss is granted, the decision favors the defendant in that the court throws the case out. If the motion to dismiss is denied, it means the plaintiff’s case can proceed to trial. The parties also may ask the court to ...
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Running head: DISCRIMINATION

1

Employment and religion Discrimination
Student’s Name:
Institution:
Course:
Due date:
Date

DISCRIMINATION

2

What statutory protections are in place for religious discrimination?
The civil rights act of 1964 stipulates that employees should protect employees from
religious discrimination in their respective workstations. The law indicates that all employees
should be given equal access without focusing on their religious beliefs meaning that they cannot
be fired or their contracts terminated because of their religion (Cantone & Wiener, 2017).
Additionally, Title VII al...


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