Exam 3 Review

Question 1

Employment Discrimination

Answer 1

limitation or denial of employment opportunity based on or related to the protected class characteristics of persons

Question 2

Adverse Employment Action

Answer 2

discriminatory actions that limit or deny employment opportunities
(Makes it more difficult to perform well and stay on the job)

Question 3

Protected Class

Answer 3

characteristics of people, such as their race, sex, and age, that under anti-discrimination laws are illegal grounds for making employment decisions

Question 4

Disparate Impact

Answer 4

unequal treatment based on one or more protected class characteristics that result in the limitation or denial of employment opportunity

Question 5

Discriminatory Intent

Answer 5

a decision maker based an employment decision, in whole or in part, on a protected class characteristic of the affected employee

Question 6

Discriminatory Effects

Answer 6

the focus in disparate impact cases requires plaintiffs to show, usually through statistics, that some employment requirement or practice affects one protected class group more detrimentally than others

Question 7

Failure to Reasonable Accommodate (Disability)

Answer 7

Type of discrimination in which an employer violates the ADA (or Rehabilitation Act) by failing to be flexible in meeting the needs of qualified disabled employees so that they can participate fully in the hiring process, perform the essential functions of their jobs, and enjoy the same benefits and privileges of employment as other employees. Such assistance is required unless providing it would go beyond the bounds of reasonableness or impose undue hardship on the employer.

Question 8

Retaliation

Answer 8

type of discrimination that occurs when an employee who participates in enforcement actions or engages in more informal opposition to an employer’s discrimination is subjected to a materially adverse action for doing so

Question 9

Facially Discriminatory Policies or Practices

Answer 9

A form of disparate treatment in which an employer overtly limits employment opportunities to persons with specified protected class characteristics or applies different and more burdensome requirements to a protected class group

Question 10

Bona Fide Occupational Qualification (BFQQ)

Answer 10

a narrow legal defense that can be invoked in cases involving facially discriminatory policies or practices

Question 11

Reverse Discrimination

Answer 11

Label used for discrimination claims brought by whites and males, most often challenging employers’ use of preferences in their affirmative action plans

Question 12

Pretext

Answer 12

a false explanation of the reasons for an employment decision that an employer offers in an attempt to cover up the true discriminatory motive

Question 13

Mixed Motives

Answer 13

In disparate treatment claims a plaintiff can prevail by showing that a discriminatory motive played any part in an employment decision, even though a truthful, lawful motive was also present (i.e., there were mixed motives).

Question 14

“But-for” Cause

Answer 14

In age discrimination cases, plaintiffs must show that age was the decisive factor, even if other factors were also considered in taking an adverse employment action.

Question 15

Pattern or Practice

Answer 15

A disparate treatment case where the plaintiffs marshal statistical data showing the systemic effects of an employer’s discrimination and evidence of intentional discrimination against individuals in the larger affected group.

Question 16

Indirect Method

Answer 16

focuses on the showing of pretext and the strong inference of discriminatory motive that can be drawn from the fact that an employer’s explanation for why it made an employment decision is demonstrably false.

Question 17

Prima Facie Case (Discrimination)

Answer 17

a showing by the plaintiff of certain basic facts that point to discrimination as a plausible explanation for an adverse employment action. The defendant employer is then required to articulate a lawful motive for the employment action or to justify the use of requirements with discriminatory effects.

Question 18

Direct Evidence

Answer 18

Verbal or written statements that unequivocally express a discriminatory motive (in contrast to circumstantial evidence)

Question 19

Circumstantial Evidence

Answer 19

evidence that hints at the possibility of discrimination, but by itself is not sufficient to compel that conclusion.

Question 20

Subordinate Bias (“cat’s paw”) Theory

Answer 20

Disparate treatment and retaliation claims can be brought in cases where a biased lower-level employee without decision making authority manipulates a higher-level employee into taking an adverse employment action against another employee.

Question 21

Neutral Requirement

Answer 21

any grounds for making employment decisions other than protected class characteristics

Question 22

Job-related and Consistent with business necessity

Answer 22

When an employee establishes a prima facie case of disparate impact, an employer bears the burden of defending the challenged test or other neutral requirement by showing that the requirement is related to successful performance of the job and is not excessive in relation to that job.

Question 23

Reasonable factor other than age

Answer 23

In disparate impact claims under the ADEA, employers have the burden of defending the reasonableness of challenged requirements or practices that disadvantage older workers. This is a more lenient standard than showing those requirements or practices to be “job related and consistent with business necessity.”

Question 24

Participation

Answer 24

Type of protected activity for purposes of retaliation claims, it entails an employee’s involvement in the enforcement of antidiscrimination laws, such as by filing a charge, bringing a lawsuit, giving testimony, and assisting in the investigation of a discrimination charge.

Question 25

Opposition

Answer 25

Protected activity under Title VII of the Civil Rights Act and other laws prohibiting retaliation, it involves resisting or speaking out against discrimination in a wide variety of ways, apart from participating in formal enforcement procedures.

Question 26

Materially Adverse Impact

Answer 26

In retaliation claims brought under Title VII of the Civil Rights Act, it is sufficient to show that an action was taken that would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination; an adverse employment action need not be shown.

Question 27

Third-Party Retaliation

Answer 27

Type of retaliation case in which an employer gets back at an employee who has challenged the employer’s discriminatory practices by subjecting another employee closely associated with the complaining employee to a materially adverse action.

Question 28

Elements of a claim (Disparate Impact)

Answer 28

Step one:
- a “neutral” employment requirement or practice has the effect of disproportionately limiting the employment opportunities of a protected class group (including plaintiff)
- the difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance

Step two:
-burden shifts to the employer to show that the requirement is: job-related and consistent with business necessity
Under ADEA, the employer needs only to show a “reasonable factor other than age”

Step three: burden shifts to the employee to show that:
- a feasible alternative exists that would have less discriminatory impact and employer nonetheless refuses to adopt it

Question 29

Elements of a claim (retaliation)

Answer 29

Step one: Employee’s initial burden
- employee engaged in protected activity
-employee was subjected to materially adverse action
-a causal connection between the first two

Step two:
-burden shifts to the employer
-legitimate (lawful), no-retaliatory motive for the adverse action

Step three:
-burden shifts back to the employee
-evidence sheds doubt on the credibility of the employer’s claimed motive
-other evidence that supports the claim that retaliation is the most likely explanation for the adverse action

Question 30

Elements of a claim (harassment)

Answer 30

Plaintiffs must show that they:
1. were subjected to harassment based on a protected characteristic
2. the harassment resulted in tangible employment action or was sufficiently severe or pervasive to alter working conditions and create a hostile environment
3. the harassment was unwelcome
4. there is a basis for attributing liability to the employer

Question 31

“Because of sex”

Answer 31

In the context of sexual harassment claims, this refers to the requirement that plaintiffs show that any harassment was discriminatorily motivated (i.e., that a person of another sex would not have been treated in the same manner).

Question 32

EEOC has defined Sexual Harassment as follows:

Answer 32

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when…
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment

Question 33

Harassment that results in tangible employment actions

Answer 33

a type of harassment whereby a manager or supervisor with authority to make or influence employment decisions conditions those decisions on an employee’s submission to or rejection of harassment (e.g., to sexual advances).

Question 34

Hostile Environment

Answer 34

a type of harassment in which an employee is subjected to offensive verbal or physical conduct sufficiently severe or pervasive to create an intimidating, abusive work environment in which it becomes more difficult to perform or remain on the job.

Question 35

Severe or Pervasive

Answer 35

Pertains to the degree of harm posed by harassment (severity) and its frequency and regularity (pervasiveness). Harassment is legally actionable if either or both of these apply.

Question 36

Vicarious Liability

Answer 36

Legal responsibility for damages that is unconditionally placed by the employer, regardless of whether there was any intent, recklessness, or negligence on the employer’s part (such as in tangible employment action harassment cases and when employees harm others while acting within the scope of their employment)

Question 37

Affirmative Defense

Answer 37

The means by which an employer can avoid vicarious liability for hostile environment harassment perpetrated by a supervisor or manager through establishing that reasonable care was exercised to prevent and correct harassment and was not taken advantage of by the plaintiff.

Question 38

Employers can avoid vicarious liability by establishing both “prongs” of the following affirmative defense

Answer 38

• The employer exercised reasonable care to prevent and correct promptly any harassment
• The plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise

Question 39

Negligence Standard

Answer 39

Liability standard applied in cases involving harassment by co-workers or third parties, the standard is met when plaintiffs show that their employer knew or should have known about the harassment and failed to take prompt and appropriate action.

Question 40

The employer is liable under the negligence standard for harassment by coworkers and third parties where the plaintiff can be established both of the following:

Answer 40

-The employer knew or should have known about the harassment
-The employer failed to take prompt and appropriate action to stop the harassment

Question 41

Oppressive Child Labor

Answer 41

Type of FLSA violation for excessive work hours by minors. The FLSA permits minors (14-15 years of age) to be employed in certain services or retail occupations but restricts their daily and weekly hours of work

Question 42

Equal Pay Act (EPA)

Answer 42

A law prohibiting pay discrimination based on sex and upholding the principle of equal pay for equal work

Employers are prohibited from paying a person of one sex at a lower rate of pay than a person of another sex for performing substantially equal work in the same establishment—unless the differential in pay is accounted for by a legitimate “factor other than sex.”

Question 43

Comparator

Answer 43

In Equal Pay Act cases, this is a person of the opposite sex who is in the same workplace and receives a higher rate of pay for performing the same type of work as the plaintiff

Question 44

Job Evaluation

Answer 44

a systematic process for rating jobs in terms of certain compensable facts, that is often used in the setting of pay rates

Question 45

Compensable Factors

Answer 45

factors like skill and effort that are used in job evaluations to rate jobs for compensation purposes

Question 46

Pay Secrecy Policies

Answer 46

An impediment to bringing pay discrimination claims and generally illegal under the NLRA, these are formal or informal policies that discourage employees from sharing information about their pay.

Employers should refrain from establishing and enforcing pay secrecy policies because talking about salary is a protected concerted activity.

Question 46

Working Conditions

Answer 46

Under the Equal Pay Act, this term refers to “hazards” (how dangerous the job is in terms of physical hazards) and “surroundings” (e.g., elements such as fumes, outside work in cold weather). Working conditions need only be “similar,” rather than “substantially equal,” to show that a plaintiff and comparator are performing equal work.

Question 46

Factor other than sex

Answer 46

Reason that an employer can cite in an Equal Pay Act case to justify differential pay to persons of opposite sexes performing substantially equal work in the same establishments.

Question 47

Elements of a claim - pay discrimination

Answer 47

The plaintiff must show the following:
- there is one or more persons of the opposite sex working in the same establishment (i.e., the comparator)
-The comparator receives a higher rate of pay
-The comparator performs work substantially equal to that performed by the plaintiff

If a prima facie case is established the employer must show that the difference in pay is based on
- a seniority system
-a merit pay system
-a system that bases pay on the quality or quantity of production
- some other factor than sex

Question 48

Americans with disabilities act (ADA)

Answer 48

A civil law that prohibits discrimination based on disability, it also requires employers to provide reasonable accommodations to employees with disabilities and establishes accessibility requirements for places of public accommodation

Question 49

Rehabilitation Act

Answer 49

A law that prohibits discrimination against disabled federal government employees and requires affirmative action by government agencies and contractors on behalf of disabled persons

Question 50

ADA Amendments Act (ADAAA)

Answer 50

Amendments to the Americans with Disabilities Act of 1990 (ADA) enacted in 2008 and aimed at making it easier for plaintiffs to prove they are disabled by broadening the definitions of “substantially limited” and “major life activity.”

Question 51

Major Life Activities

Answer 51

To be considered disabled under the ADA, a person must be “substantially limited” in the performance of one or more activities common to daily life (e.g., seeing, hearing, eating, sleeping, walking) or in terms of major bodily functions (e.g., immune, respiratory, circulatory systems).

Question 52

Substantially limited

Answer 52

a part of the definition of disability under the ADA, it means that an employee’s impairment substantially limits the conditions, manner, or amount of time it takes to perform a major life activity as compared to most people in the general population.

Question 53

Record of Disability

Answer 53

One of the “prongs” of the definition of “disability” under the ADA, it extends protection of that law to persons who, even if they are not currently disabled, have their medical history of a prior disability or misclassification held against them.

Question 54

Qualified

Answer 54

Under the ADA and Rehabilitation Act, this is an individual with a disability who satisfies the job-related requirements for the job held or sought; is able, with or without reasonable accommodation, to perform the essential functions of that job; and does not pose a “direct threat” to their own or others’ safety.

Question 55

Essential Functions

Answer 55

Essential Functions: The important parts of jobs that employees with disabilities must be able to perform, with or without reasonable accommodation, in order to be deemed “qualified” under the ADA.

Question 56

Direct Threat

Answer 56

An employee is not a “qualified” individual with a disability protected by the ADA if their condition poses a specific risk of significant harm to themselves or others, based on objective medical evidence.

Question 57

Reasonable Accommodation

Answer 57

Reasonable accommodation means providing extra flexibility and support to employees who need it, either because of a disability or because of a conflict between their religious practices and an employer requirement.

Question 58

Undue Hardship

Answer 58

Under the ADA, this refers to accommodations for disabled employees that are unduly costly, extensive, substantial, or disruptive or that would require fundamental alteration of the nature or operation of the business. Under Title VII of the Civil Rights Act, this is any accommodation of religion that would impose more than a “de minimis” burden on employers.

Question 59

Failure to reasonably accommodate - prima facie elements

Answer 59

• He or she has a disability
• He or she is qualified for the position
• Employer knew or should have known about the need for an accommodation
• A reasonable accommodation exists and the employer failed to provide one

Question 60

Failure to reasonably accommodate religion

Answer 60

Type of discrimination in which an employer violates Title VII by failing to be flexible in helping employees resolve conflicts between their sincere religious beliefs and practices and the employer’s requirements, when means exist to do so that would not impose “undue hardship” on the employer.

Question 61

Religious Advocacy

Answer 61

The act of conveying one’s religious beliefs to others in the workplace with the aim of interesting coworkers in a particular religion.

Question 62

Religious Harassment

Answer 62

Proselytizing or other unwelcome actions related to religion that, when sufficiently severe or pervasive, create a hostile environment for other employees.

Question 63

Free exercise clause

Answer 63

A clause to the First Amendment of the U.S. Constitution that protects the practice of religion from infringement by the government.

Question 64

Establishment Clause

Answer 64

A clause to the First Amendment of the Constitution that prohibits governmental entities from establishing (sponsoring or supporting) religion.

Question 65

Religion Organization Exemption

Answer 65

Religious organizations are absolved of any liability under Title VII for discriminating on the basis of religion.

Question 66

Ministerial Exception

Answer 66

Due to constitutional concerns about infringing on the free exercise of religion, courts do not hear discrimination cases of any kind when they involve employees occupying ministerial positions with distinct religious functions within a church or religious group.

Question 67

Religion

Answer 67

Defined broadly under Title VII and EEOC guidelines to include moral and ethical beliefs sincerely held with the strength of religious views and all aspects of religious observance, practice, and belief. Affiliation with particular denominations is not required.

Question 68

Failure to reasonably accommodate religion - prima facie elements

Answer 68

• The existence of a sincere religious belief or practice that conflicts with an employment requirement
• The employer was informed of the conflicting belief or practice
• The employee suffered an adverse employment outcome due to adhering to the religious belief or practice
• A reasonable accommodation exists and the employer failed to provide one

The burden shifts to the employer to show:
- A reasonable accommodation was offered but not accepted
- No reasonable accommodation without undue hardship was available