14 Flashcards
what’s an agency
- consensual relationship created by contract or by law where one party ( we call principal) grants authority for another party(we call the agent) to act on behalf of and under the control of the principal with a 3rd party
-(one party gives authority and makes them act on their behalf)
-(principal controls agent ,agent interacts with 3rd party)
-( ex of agency relationship: husband is sent to pick up dry cleaning and prof gave him money/slip. her=principal, husband=agent, dry cleaner=3rd party)
Employer-Employee Relationshps
vs
Employer-Independent Contractor Relationship
Employer-Employee Relationshps : Employees who deal with 3rd parties on employer behalf are agents
Employer-Independent Contractor Relationships: Not an employee,but may be an agent
-(not an employee but with type of authority an control)
-(employers use independent contractors instead of employee to lessen liabilities)
-(a lot of employers try to call employees independent contractors so courts try to find it)
Determining Employee Status (Factors courts consider to decide if one is employee OR independent contractor) 5 things
- (courts look at various things to determine if they’re employee or independent contractor)
-How much control the employer over the work( most important factor to consider,the more control the employer has the more person is considered an employee)
-Whether the worker engages in other business( do they take other clients/business,if yes they’re independent)
-Whether the employer supplies the tools place of work(are they giving u desk laptop,supplies vs do u buy ur own)
-Length of employment and method of payment( is it expected that you’ll show up everyday until told otherwise? vs project by project basis)(are you paid on reg schedules OR by work done)
-Degree of skill required for the work(the more skill required,more likely to be independent as you’ll use ur expertise to work on ur own)
why might employers title employees as independent contractors
-(employers say independent so they can save money and not provide employment benefits to ppl)
-(miss classification are done often)
profs examples of what’s considered employee v independent contractor
-works on her own time (I)
-has supplied laptop and monitors(E)
-gets paid 2 times a month (E)
-skilled lawyer (I) but can be (E) since many employees there are lawyers and skilled
*she considers herself an employee and so does her employer
what are the 3 statutes we went over + what do each cover
(1) Title 7 Civil Rights Act- Race Sex Religion
(2) Age Discrimination Employment Act
(3)American Disabilities Act
What’s are the 5 protected statuses under the Title 7 Of The Civil Rights Act
-race
-sex(including pregnancy)
-color
-religion
-national origin
What’s Title 7 Of The Civil Rights Act ; if violated who do u report it to
-1st statute going over
-Prohibits discrimination in employment (not all forms of discrimination are illegal,like freckles and glasses)
-“applies to employers involved with interstate commerce with 15 or more employees (cuz commerce clause)
-most states have parallel(if not,stricter,like including sexual orientation)laws. not all tho
-also protects against reverse racial discrimination (its illegal to discriminate groups that’s considered the majority,either side can’t get discriminated)
-recent (2020) supreme court cass interpreted “sex” to include LGBTQ & gender identity but recent political changes make this uncertain (any form of affirmative action is discrimination)
-violations reported to EEOC for investigation (must exhaust administrative remedies before suing)
what’s intentional discrimination
Intentional: Disparate- treatment discrimination test
for this test applicant must prove:
-They’re a member of a protected class
-They applied,is qualified,& was rejected for a job( easy to prove with submission and resume to prove u had met qualifications)
-Employer continued to seek applicants
-Burden then shifts to employer who must articulate a legal reason for not hiring ( would have to find a smoking gun that said like they wouldn’t hire a woman,hard to find evidence)
what’s Unintentional Discrimination ;what are the 2 tests used
unintentional: Disparate-impact discrimination test
-occurs when a protected group of ppl is adversely affected by an employers practices, procedures, or tests, even though they don’t appear to be discriminatory
(maybe they’re not intentional but their actions have a discriminatory affect using statistical tests)
(look at the # of protected class vs not protected.)
-Pools of applicants test: plaintiff shows % of the protected class in employers workforce doesn’t reflect % in local labor market(ex: there was 25 attorneys but only 3 are women,even if it was not on purpose labor market say 50% can be women but firm only having 12% )(ratio composed of workforce vs labor market)
-Rate of hiring test : plaintiff compares rate of members of protected class with nonmembers in employers workforce. Less than 80% may show disparate impact (may not be accurate,keep it internally on how many are in the protected class)
Discrimination Based on Religion
-Employers must Reasonably accommodate sincerely held religious practices, unless to do so would cause Undue Hardship to employers business
(in the US religion can be organized or unorganized or atheism or agnostic, having dif beliefs is a religion,not having beliefs is no religion)
(can lead to some confusion,like what if you’re the only follower and spending multiple hrs a day doing the practice VS those who say they have a religion but go to church once a yr)
(2nd ex: she’s on board to work for after school program, had to physically be there for it,employee said their religious belief said to not get covid vaccine,however the district passed a written law & contract saying you can’t work unvaccinated on campus,there was no way to accommodate)
Discrimination Based on Sex
-Employers are prohibited from classifying jobs based on sex, unless employer can prove sex is essential to the job (firefighters can’t exclude women from applying but can require qualifications exams to demonstrate skills,if there’s more men than women its still legal.illegal is only hired men.
(ex: Ross and Rachel from friends mentioned a Penis model which in that case requires a male employee, nanny’s don’t require to always be women tho)
-Women impacted by pregnancy must be treated the same as other employee s
Sexual Harassment + what are the 2 types of sexual harassment
-determined to be a type of sex based discrimination (including same sex harassment)
- Quid pro quo harassment:sexual favors are demanded in return for job opportunities, promotions, salary increases etc( “this for that”,sex is demanded for the job or fulfill sexual favors for benefits)
2.Hostile environment harassment: workplace has discriminatory intimidation,ridicule, or insults so severe as to alter the conditions of the victims employment & create an abusive working environment. must be sufficiently pervasive
(in rare circumstances, one extreme incident must be enough)
(must happen repeatedly;boss making sexual explicit jokes/comments,locker room talk happens everyday,sending sexually explicit pervasive emails)
Employer Liability for Sexual Harassment
-when can employer be liable for sexual harassment
Employer liability for harassment by supervisors
-a supervisor must have taken a tangible employment action against the employee
Affirmative defense:
—employer must have taken reasonable care to prevent & promptly correct any sexually harassing behavior, & Plaintiff-employee must have unreasonably failed to take advantage of preventative or corrective opportunities to avoid harm
—If an employer can prove both elements,it will not be liable for supervisor’s harassment
