Employment Law

Case One: A. Ms. Riyadh is employed as an account executive with ABC Advertising (“ABC”). ABC is a national marketing and advertising firm specializing in domestic and international advertising. ABC has its corporate headquarters in this state and represents many major public and private corporations throughout the United States. Ms. Riyadh began working with ABC as a summer intern during her senior year in business school, and was hired as a full-time employee after receiving her M.B.A., with honors, from the University of Michigan in 1978. Ms. Riyadh has been employed with ABC at its office in the state capital since 1978. During her employment, she has won three national awards for her work. For several reasons, Ms. Riyadh believes ABC has illegally discriminated against her and she now wants to sue the company. She says the company’s practice has been to promote employees from within. Ms. Riyadh states that despite receiving “outstanding” performance evaluation ratings each year she has worked there, she has never been promoted since she was hired and has been repeatedly passed over for any promotions. She also says that all of the male employees who were hired between 1978 and 1988 in the same classification as hers have been promoted from one to four times and earn significantly higher salaries. In addition, none of these employees has won any national awards, and a few of these individuals are marginal employees. She notes that three women have been promoted since she was hired, but points out that men greatly outnumber women in all positions at ABC. ABC responded to a preliminary inquiry by asserting that Ms. Riyadh was not promoted because she doesn’t “fit the image” that is right for the higher positions. ABC claims the higher positions have high visibility, require extensive travel, and have greatly increased client contact, including presentations before corporate and professional groups. ABC argues that Ms. Riyadh is a very plain woman, that she refuses to wear make up or adornments of any kind, other than a head scarf, that she is very religious and takes a daily “prayer and meditation” break during her lunch break, and that her religious beliefs prohibit certain types of “fraternizing,” such as drinking alcoholic beverages and eating certain foods. ABC officials state that while Ms. Riyadh is a good employee, they do not believe she is “qualified” to represent ABC in certain capacities. ABC argues that in the advertising field, it is essential that higher “administrative” employees project a polished appearance and engage in social and fraternal activities in order to obtain and conduct business. Ms. Riyadh states that ABC is discriminating against her. She argues that these factors are not relevant to her ability to perform in any of the higher positions, and that ABC is simply using other rationales as a ploy to justify discriminating against her. She further states that when ABC hired her, she was advised that if she did a good job, she could expect to be promoted to the position of account vice-president within two years. Ms. Riyadh seeks damages for lost wages and benefits. She also wants a court order directing ABC to promote her to a higher position. Analyze Ms. Riyadh’s case. Identify all potential claims and any defenses available to ABC.

Answer

There are several federal employment discrimination laws, including the following laws:

(1) Title VII of the Civil Rights Act of 1964 prohibits discrimination based on color, gender, national origin, pregnancy, race, religion, and sex, including sexual harassment;

(2) The Civil Rights Act of 1991 provides for monetary damages in cases where there is intentional employment discrimination;

(3) The Age Discrimination in Employment Act (ADEA) helps protects employees who are 40 years of age or older;

(4) The Americans with Disabilities Act (ADA) and Rehabilitation Act disallows discrimination against qualified individuals with disabilities;

(5) The Equal Pay Act addresses unequal pay related to gender;

(6) The Family and Medical Leave Act (FMLA) guarantees time off for specific health conditions, without putting the worker’s employment in jeopardy; and (7) Title II of the Genetic Information Nondiscrimination Act (GINA) makes it illegal to discriminate based on genetic information about an applicant, employee, or former employee. ( )

In the case of the employee Ms. Riyadh, Title VII is at issue or the possibility that the company for whom Ms. Riyadh works may have discriminated against her on the basis of religion. The company cited the failure to promote Ms. Riyadh to be for the reason of her not fitting the ‘image’ that the company held for its higher level employees due to the manner in which Ms. Riyadh dressed since she dressed very plainly, did not wear jewelry or adornments and because she wore a head scarf and did not drink alcoholic beverages or fraternize as did other high level employees in the company. The failure of the company to promote Ms. Riyadh on this basis likely constitutes discrimination against an employee on the basis of her religion. Ms. Riyadh’s manner of dress, observance of prayer, failure to drink alcohol and not wearing adornments and the wearing of a headscarf are not indications of her fitness to perform the higher-level jobs in the organization. The wearing of clothing of one’s native country is an expression of their national origin, race, or religion and discrimination for any of these reasons is unlawful. The refusal to hire someone “…because customers or co-workers may be “uncomfortable” with that person’s religion or national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place. Similarly, an employer may not fire someone because of religion and/or national origin. This applies to other employment decisions as well, including promotion, transfers, work assignments, and wages.” ( ) The only reason that the employer can lawfully prevent the wearing of this type clothing would be a showing that it would “pose an undue hardship on the business.” ( ) To win such a case there must be harmed suffered in addition to the employer’s discriminatory acts.

Case Two

Martha has applied for a job as a stock clerk, at Good Food Supermarket. During her interview, she reveals to the interviewer that at some point in the next ten months she will need to undergo surgery to remove a tumor in one of her vertebrae, and that even if the surgery is successful, her post-operative range of movement could be severely limited. The job requires a good deal of lifting and a wide range of movement, in order to place goods on the shelves. The interviewer decides not to hire Martha because she may not be able to perform the job after the surgery. Martha files a claim against Good Food Supermarket. Does she have a valid claim? Explain your answer.

Answer

Martha did not have a valid claim, as she was not able to perform the work-related tasks associated with this specific job. While the employer has the responsibility of hiring disabled workers and making reasonable accommodations for their disability, the fact is that this employee was not actually disabled at the time she was interviewed and according to the laws on discrimination against employees with disabilities “temporary ailments are not disabilities.” (NOLO Law, 2013) It is reported that only qualified workers with disabilities are protected by the ADA. A qualified worker with a disability “is someone who is capable of performing the essential duties of the job, with or without reasonable accommodation.” (NOLO Law, 2013) Private employers of at least 15 employees are required to follow the ADA law.

Case Three

Muhammad, an Arab-American high school student, had a job after school in a fast-food restaurant, Eddy’s BBQ. A few co-workers started asking him why his “cousins” bombed the World Trade Center. Muhammed ignored their taunts. Then a manager began to add comments such as, “Hey, Muhammed, we’re going to have to check you for bombs.” Muhammed felt humiliated and angry. Soon after, he was terminated for accidentally throwing away a paper cup that the manager was using. Muhammed suspects that his religious and ethnic background was the reason he was fired. Muhammed has filed a claim with the EEOC. What will be the result in this case?

Answer

The first issue in this case is the teasing and taunting that was allowed to be perpetrated on Muhammed at his place of employment due to his country of origin and his religious background. The fact that Muhammed felt humiliated and angered by the taunting is enough to constitute discrimination on the basis of Muhammed’s origin. The firing of Muhammed for throwing away a paper cup was an extremely harsh reaction of the manager to Muhammed’s placing the paper cup in the trash. According to laws on employee discrimination, national origin discrimination is “treating an individual differently in their employment because of the country that the individual or his or her ancestors came from.” (Workplace Fairness, 2013) Employee discrimination laws are also effective violated if the employee is discriminated against due to their:

(1) Marriage to, or association with, persons of a national origin group;

(2) Membership in, or association with, ethnic promotion groups;

(3) Attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or (4) A family name associated with a national origin group. (Workplace Fairness, 2013)

Examples of unlawful national origin discrimination are the following stated types of discrimination based on national origin:

(1) Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group.

(2) Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. Height and weight requirements can also be evidence that an employer discriminates against a specific national origin, if the requirements do not relate to the job.

(3) Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group, even if the person is not.

(4) Association: Harassing or otherwise discriminating because of an individual’s association with a person or organization of a particular religion or ethnicity. (Workplace Fairness, 2013)

Laws protecting individuals from discrimination based on national origin include the following stated laws:

(1) Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin.

(2) The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others. (Workplace Fairness, 2013)

Individuals protected under IRCA’s anti-discrimination provision are reported to be inclusive of “citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.” (Workplace Fairness, 2013) Title VII covers workplaces with more than 15 employees however, INA/IRCA is reported to prohibit “discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees.” (Workplace Fairness, 2013) Additionally reported is that the protection of these laws is applicable to”…both current workers and job applicants. If you are a current employee and are fired or not promoted due to your national origin, you are protected under the law. If you are not hired due to your national origin, you are also protected under the law.” (Workplace Fairness, 2013) In regards to whether ethnic jokes or slurs are considered a type of harassment, federal law does not make it unlawful to make teasing offhand remarks or isolated non-serious issues. The conduct “must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion.” (Workplace Fairness, 2013) These laws are enforced by the Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces with 4 to 14 employees.” (Workplace Fairness, 2013) As well, the Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees.” (Workplace Fairness, 2013) Individuals who are victims of discrimination based on their national origin in workplaces with 15 or more employees may recover back pay, hiring, promotion, reinstatement, front pay, compensatory damages (emotional pain and suffering), punitive damages (damages to punish the employer) and other actions that will make an individual “whole” (in the condition he or she would have been but for the discrimination).” (Workplace Fairness, 2013) The individual may also recover monies spent on attorney fees, expert witness fees, and court costs. Statues of limitations are applicable. Filing a complaint with the OSC must be done within 180 days from the alleged violation. Individuals in workplaces with more than 15 employees are required by law to file a complaint with the EEOC or cooperating state agency prior to filing a private lawsuit.

Case Four

Patsy is a waitress at Tom’s Irish Pub. She complains to her boss, Tom, that Simon, a frequent patron of the restaurant, has been making comments to her with sexual innuendos. Patsy details Simon’s activities to Tom, and requests that Simon be asked to stop. She also requests that another waitress be assigned to Simon’s table. Tom, the restaurant owner, says he will look into the matter. Tom is afraid to upset Simon, who is one of the restaurant’s best customers. Tom puts the matter off for a few weeks. When he finally gets around to dealing with Simon, he politely asks Simon if he can “…go a little easier on Patsy.” Tom ignores Patsy’s request to be relieved of any obligation to wait on Simon. Does Patsy have a claim against Tom’s Irish Pub? Explain your answer.

Answer

The employer has a responsibility to protect its employees for sexual harassment perpetrated by supervisors. According to the work of Schlinker and Payok (2005) the EEOC ‘Guidelines on Discrimination Because of Sex” addresses the issue of on-employee sexual harassment and states that the employer “may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer, or its agent or supervisory employees, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission will consider the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees.” (Schlinker and Payok, 2005) While the issues of non-employee harassment has never been addressed by the Supreme Court, evidence of the negligence of the employer to address such cases of harassment may provide evidence in establishing the liability of the employer.

Case Five

Sam has been turned down for a job as an ambulance driver because he is age 65. The rationale is that most individuals his age have certain health related characteristics that legitimately exclude them from effective service as ambulance drivers. Sam was never individually evaluated to determine whether he possessed the disqualifying characteristics. Does Sam have a claim against the hiring company? Explain why or why not.

Answer

All aspects of employment or prospective employment are under the protection of discrimination based on age including: (1) recruitment; (2) employment terms and conditions; (3) promotions and transfers; (4) training; and (5) dismissals. (NCI Direct, 2013) The law states that individuals must be allowed to work until the age of 65 years of age. It is lawful for employers to request employees to retire at age 65. However, it is unlawful for an age limit to be imposed when recruiting unless “it can be objectively justified or is imposed by law. Objective justification is established if the nature of the work results in no reasonable alternative on the part of the employer other than to introduce an age-based practice.” (NCI Direct, 2013)

Case Six

A video camera aimed at the factory floor where U.S. Postage stamps are printed records what appears to be Murray, a line employee, stealing sheets of stamps from the production line. Based on the tape, factory officials search Murray’s locker and find the stolen stamps. Murray challenges the search as unconstitutional. Is the search legal? Why or why not?

Answer

In the case of a search by the employer who is a private employer and not a government agency and if the employee conducting the search conducted the search with no involvement of police, then the evidence obtained during the search will be admissible into court. (United States v. Jacobsen (1984) 466 U.S. 109, 113 ALSO SEE People v. Baker (1970) 12 Cal.App.3d 826, 834; People v. Wharton (1991) 53 Cal.3d 522, 579; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120; People v. Leighton (1981) 124 Cal.App.3d 497, 501.

References

Age Discrimination: Who Is Protected? (2014) NCI Direct. Retrieved from: http://www.nidirect.gov.uk/age-discrimination

Disability Discrimination in the Workplace: An Overview of the ADA (2013) NOLO Law. Retrieved from: http://www.nolo.com/legal-encyclopedia/disability-discrimination-workplace-overview-of-30123.html

National Origin Discrimination (2013) Workplace Fairness. Retrieved from: http://www.workplacefairness.org/nationalorigin?agree=yes#1

Schlinker, JC and Payok, MK (2005) The Customer is Not Always Right. Michigan Bar Journal. Jan 2005. Retrieved from: http://www.michbar.org/journal/pdf/pdf4article830.pdf

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