Bogoslavsky Law Firm 111 Center Street, Ste Little Rock, AR

 Under this doctrine, an employer can terminate an employee at any time, for any reason, with or without cause. Likewise, an employee can terminate the relationship at any time, with or without notice.

Disparate treatment refers to a discriminatory situation where one individual is treated differently than similarly situated individuals (usually because of that individual’s race, sex, religion, age, etc.) with regard to a term or condition of employment.

Disparate impact discrimination occurs when a company has a policy or procedure which is neutral on its face, but which has an adverse affect on individuals in a protected category.

Don’t have a blanket prohibition against misdemeanors.

BE CONSISTENT!!! (even if you’re wrong)

 Title VII prohibits discrimination on the basis of race, color, religion, sex, pregnancy or national origin.  Title VII applies to all employers who are engaged in interstate commerce and have 15 or more employees.

 Remedies ◦ Back Pay ◦ Front Pay ◦ Attorney’s Fees ◦ Compensatory and Punitive Damages  Injunctive Relief

 Plaintiffs were entitled to have a jury trial on their claims under this statute.  Plaintiffs had the ability to recover for mental anguish and punitive damages if they could prove intentional acts of discrimination.

 Coverage ◦ Companies with 9 or more employees  Protection ◦ Prohibits discrimination on the basis of race, religion, ancestry, or national origin, gender, or the presence of any sensory, mental or physical disability

 Remedies ◦ Affirmative Relief ◦ Back pay ◦ Interest ◦ Costs ◦ Attorney Fees ◦ Compensatory and punitive damages

 Caps on damages that are correlated to the size of the employer: ◦ 9-14 Employees $15,000 ◦ 15 – 100 Employees $50,000 ◦ 100 – 200 Employees $100,000 ◦ 200 – 500 Employees $200,000 ◦ More than 500 Employees $300,000

 Go directly into Court  No requirement to exhaust administrative remedies  One year to file suit under ACRA vs 90 days under Title VII  Federal – 15 employee minimum vs 9 employee minimum under ACRA  INDIVIDUAL LIABILITY for retaliation under ACRA

Title VII, Civil Rights Act of 1964 prohibits discrimination in terms or conditions of employment due to... Religion. 42 U.S.C. §2000e-2(a). However, religion has an additional requirement for employers.

 Under Title VII, it is an unlawful employment practice for an employer not to make a reasonable accommodation, short of undue hardship, for the religious practices/beliefs of employees.  Different standard than ADA – must only show de minimis cost.

Plaintiff must demonstrate (1) Bona fide religious belief that conflicts with an employer’s requirement; (2) Informed employer of belief; and (3) Suffered adverse employment action for failure to comply with conflicting requirement Once established, employer MUST offer a reasonable accommodation, unless doing so would cause an undue hardship.

 The sincerity of an individual’s religious beliefs is inherently within that individual’s unique purview.  Reasonable accommodation is what most of these cases are decided on.

 Expense  Safety concerns  Violation of other policies  Contradicts Collective Bargaining Agreement

Employee morale is not undue hardship.

HARASSMENT

Courts have determined that harassment is a form of discrimination. Therefore, harassment covers more than just “sex”, it includes any protected category.

Quid Pro Quo (sexual harassment)  Something for something  Usually associated with some “tangible” employment action

Hostile Environment  A pattern of unwelcome conduct based on an individual’s protected category that:  Creates hostile or offensive work environment  Unreasonably interferes with an individual’s work performance

Behavior of such a nature to be “offensive” to a reasonable person. Examples:  Verbal - Derogatory comments, inappropriate jokes  Sexual - Dating pressure (drink and meal invitations)  Visual - Display of offensive materials on walls, screensavers, t-shirts.  Physical – Assault, inappropriate/unwelcome touching

 Behavior not solicited or incited by employee who regarded it as offensive  If originally participated but later chooses not to, the “unwelcomeness” should be communicated

1) Tangible employment action-strictly liable. 2) No tangible employment action – affirmative defense available.

Tangible employment action is a significant charge in employment status:  Hire  Fire  Fail to promote  Transfer

Tangible employment action falls within the special province of the supervisor.

If no tangible employment action, then affirmative defense is available.

 Employer must prove ◦ it exercised reasonable care to prevent and correct any sexually harassing behavior; and ◦ employee unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm otherwise

 In order for behavior to be “harassment” it must be sufficiently severe to alter an individual’s terms and conditions of employment.  Employers can be held liable when they know, or should have known, about harassment!  Incidents reported to management (or other “officials”) must be reported further up the management hierarchy!

All parties involved in a formal, or informal, investigation (advocates, supervisors, witnesses and investigators) are expected to exercise care in protecting the confidentiality of information discovered in the resolution process.

A company’s harassment policy should prohibit retaliation against individuals who bring charges or assist in investigating sexual harassment charges.

RETALIATION

Applies to all categories protected by Title VII. 2 areas protected: 1)oppose unlawful practices; or 2)made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing.

ADEA

 The ADEA prohibits discrimination on the basis of age. It applies to individuals 40 years of age and older.  The ADEA applies to employers engaged in interstate commerce with 20 or more employees.

Under this Act, it is unlawful to force an employee to retire, and it is also unlawful to give preference because of age to one person over another, even if they are both in the protected age group.

 The OWBPA sets forth specific requirements that must be met when an individual over the age of forty will be affected by a mass layoff, or a voluntary early retirement plan.  In addition, the OWBPA sets forth certain requirements which must be contained in any release of an age discrimination claim.

 Must be a written agreement;  Must specifically refer to claims arising under the ADEA;  Must not release any rights or claims that may arise after the date on which the waiver/release is signed;  Must advise the employee to consult with an attorney before signing;  Must give the employee at least twenty-one days within which to make his or her decision concerning the release/waiver;  Must give the employee seven days from the date of execution to revoke the waiver/release; and  Must provide additional consideration for releasing the ADEA claim.

QUESTIONS????