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HROB 153 > Exam 1 > Flashcards

Exam 1 Flashcards

1
Q

If you are a private employee, (someone who works for private entity, small business) your relationship per all cases is called

A

AT WILL

You can quit at anytime for any reason/no reason or be fired at any time for any reason/no reason,

JUST NOT THE WRONG REASON (race, gender, etc)

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2
Q

Basic relationship of PRIVATE employees in California is

A

AT WILL (different from public employees)

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3
Q

At will is

A

At whim!

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4
Q

Public employment can’t…

A

take any disciplinary action without just cause, due process.

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5
Q

Due process hearing in CA was provided by the case

A

SKELLY! Entitled to a skelly hearing

Must have opportunity to present witnesses and testimony

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6
Q

Due process is a

A

fair hearing and the opportunity to be heard and present evidence

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7
Q

Some exceptions to “At Will” doctrine:

A

1) Expressed Contract: Written and oral. contract. Always be ENFORCED. Oral contract for more than a year has to be in writing. (Skelly v. state personnel board) We know everything about contract! Terms are expressly stated.

2) Implied Contract: Foley v. Interactive Data
Those that we imply from the surrounding circumstances. Example: because you’ve been with me 10 years, you’ve had history of promotions. Because you’ve never been subject to discipline or corrective action. Gives rise to the relationship being outside “at will”

3) Implied covenant of good faith and fair dealing. Every contract in CA, there is implied covenant that the parties will deal fairly with each other. Similar to implied contract.
4) Public policy: Roho v. Kleiger. Rojo wanted to sue for sexual harassment and discrimination. Blew statute of limitation on fehaw claim (1 year) Was still within 2 years of public policy claim

Supreme Court stated that the statues of state of CA are public policy.

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8
Q

Foley case told us that

A

You can have implied contracts as well as expressed contracts

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9
Q

Foley factors:

A

Length of employment, longer you’ve been an employee, the greater your reasonable expectation of permits?

Employer’s policies, procedures and practices.

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10
Q

Implied contract words:

A

statements of HOPE!

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11
Q

2 ways of showing discrimination

A

Disparate treatment

Disparate impact

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12
Q

Disparate treatment is determined by…

A

McDonnell Douglas test~ shifting burdens test?

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13
Q

McDonnell Douglas v. Green

A

judge said to be able to prove disparate treatment case, plaintiff must show 4 things to create a prima fascia showing

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14
Q

4 Things must be shown to create a prima fascia showing for disparate treatment

A

1) Membership in a protected class
2) Performing adequately/qualified to be hired
3) Adverse job action. Fired, weren’t hired, were demoted, weren’t promoted.
4) Endice for discrimination. Some reason to believe that #3 was because of #1

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15
Q

Once plaintiff shows prima fascia case, burden shifts to…

A

defendant

the defendant has to show there was a some bonafide business purpose. (example: let him go-sales were down)

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16
Q

If defendant can show bonafide business purpose then burden shifts to…

A

plaintiff to show that it’s PRETEXT, that it’s NOT TRUE! (get’s let go from “layoff”..job listing up a week after for same position).

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17
Q

2nd method of proving discrimination is

A

Disparate Impact: can be intentional, can be unintentional

When some protected class is disparately affected by some criterion used in the employment process.

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18
Q

What test do we use to show disparate impact?

A

The 4/5th’s test

Looking at protected class to see if its succeeding at 80% of the general population’s success rate, if not then there’s presumption of disparate impact.

Rebuttable presumption!

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19
Q

2 cases on disparate impact

A

Griggs v. Duke power

UAW v. Johnson control

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20
Q

Griggs v. Duke power

A

Impact case: Griggs v. Duke power (Duke power discriminated against blacks, in 6 of 7 job categories, only allowing them to be in the lowest). (Intentional-tried to find a new way to discriminate against blacks)

Then must be high school graduate

Blacks weren’t graduating at 80% of general population rate

Bonafide occupational qualification

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21
Q

Discuss UAW v. Johnson Control

A

UAW v. Johnson control (unintentional) (concerned about women’s health)

Johnson control found out that lead exposure can be harmful to pregnant moms and fetuses so in order to protect them, we’re going to say you can’t work in position where there is direct exposure when you’re in childbearing age. (Fertile females)

Supreme court said good goal but can be achieved some other way. Not every woman of child bearing age wants to/plans to get pregnant when working there.

Not a reasonable BFOQ to limit all women of childbearing age.

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22
Q

Title 7, civil rights act of 1964, civil rights act

A

All equally valid, synonymous

Federal statute.

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23
Q

Feha predates

A

title 7

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24
Q

Administrative required prior to

A

filing suit.

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25
Q

What is the EEOC

A

Equal employment opportunity commission.

FEDERAL agency that administers Title 7!

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26
Q

What is DFEH

A

Department of fair employment and housing.

An agency of California STATE government charged with the
protection of residents from employment,
housing and public accommodation discrimination, and hate violence

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27
Q

What is FEHA

A

Fair employment and housing act.

Primary law that provides employees with protection from discrimination, retaliation and harassment in employment. All employment provisions of the FEHA anti-discrimination provisions apply to all employers with five or more full-time or part-time employees.

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28
Q

Had FEHA before a

A

Title 7!

Jerry Brown’s dad champion of civil rights, helped pass legislation

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29
Q

Administrative requirement prior to

A

filing suit

Obligation to exhaust your administrative remedy. Must go to EEOC and/or DFEH

30
Q

Right to sue letter:

A

Right to bring a lawsuit!

1 YEAR FROM THAT DAY!!

Statute is 2 ONE YEAR STATUTES.

31
Q

Difference between title 7 and FEHA

A

Title 7 was not amended to include age, disability

FEHA amended to include all of them

Primary difference is in the area of sexual preference, LGBT-you are protected under FEHA but NOT title 7

32
Q

Title 7 was passed to deal..

A

with the issue of race discrimination

as part of civil rights movement

Race can NEVER be a BFOQ

33
Q

NO BFOQ’S for…

A

RACE

34
Q

Original protected classes:

A

Race

National origin

Religion

Gender (always been a protected class) but originally written, it wasn’t, but congress voted and passed it.

35
Q

Do allow some discrimination:

A

BFOQ’s:

Which can include seniority systems (favor older people or males)

Production based system

Merritt pay: allowed but a lot of lawsuits filed about whether meritt pay is carefully assessed.

36
Q

Race is the primary reason we have

A

TITLE 7!

37
Q

Race can include things like

A

Ancestry

Perception

Culture

Race-related disease

38
Q

As a CIVIL MATTER, burden of proof is

A

preponderance of evidence: more likely than not!!!

Not the criminal standard of beyond a reasonable doubt

39
Q

Because discrimination is treated as an intentional tort, the remedies are (3)

A

statutory but they include

Special damages: lost wages and benefits

General damages: emotional distress, pain and suffering

Punitive damages: damages to punish the defendant for committing an intentional act.

40
Q

2 types of sexual harassment

A

1) Quid Pro Quo: THIS FOR THAT. sleep with me and I’ll hire you, don’t sleep with me and I’ll fire you.
- Don’t have to report it

  • don’t have to complain about it prior to bringing the complaint.
  • IMMEDIATELY ACTIONABLE!!!!

2) Hostile work environment.
- far more common
- reasonable victim standard
- conduct is severe and pervasive. Conduct that compromises the terms and conditions of employment.

41
Q

Fischer v. San Pedro hospital

A

Fisher is a nurse, the court found that it was a sexually depraved workplace. Nobody complained. Fisher immediately brought the action.

Court said you never complained! Fisher ultimately lost.

42
Q

To be a truly independent contractor…gotta look at element of

A

CONTROL

Paid lump sum or salary

Set hours or variable

In my industry or in others

bringing own tools or being supplied tools

More factors that show control=employeeeeee!

43
Q

When an employee complains of a hostile work environment…the duty of the employers to investigate and take corrective action, no matter who is making it hostile…

A

Employers HAVE to try and take corrective action!

44
Q

Grooming codes:

A

in the Blockbuster case, when there was clearly a gender discrimination (long hair on women but not men)

Customer preference, BFOQ was tied to management of company

Blockbuster case allowed grooming codes as a BFOQ, up to customer preference

45
Q

Abercrombie and Fitch has gotten away with discrimination by saying that it’s sales people are models

Some waitresses are called performers…

A

Yeah lol

46
Q

PizzaCO. did not allow grooming codes for

A

healthy and safety precautions.

47
Q

Equal Worth:

A

Concept that has been accepted in a few progressive jurisdictions.

Even though you aren’t doing the same job function, you need the same basic skill set.

Not widely accepted

48
Q

Equal pay act:

A

statute that requires that men and women doing the same job get paid the same.

Allowable to have seniority systems, productivity systems, merit pay systems

49
Q

Limited privilege:

A

Going to be protected even if it turns out to be misunderstanding

May be worried about coming forward about sexual harassment.

Can’t get sued for defamation

Don’t want people to be afraid of making claims!!!! (Chilling effect)

50
Q

Absolute privilege:

A

Applies to anything that’s ever said in court.

Can be as defamatory as you want

Court wants people to say anything they want and fee free. Can’t be defamation

However if you lie, it’s perjury.

51
Q

Endice of discrimination means

A

there is some evidence, some reason to believe that the adverse act (#3) has something to do with protected class (#1).

What proof you have, statements….

52
Q

You don’t have to be a good business person

A

As long as you ain’t discriminating!

53
Q

Chilling effect deals mainly with

A

limited privilege.

Want to give people the freedom to come forward with their beliefs

Sued for defamation, chilling effect, won’t want to come forward

As long as you know you’re not lying or doing it in bad faith, then you’re protected!!!!!

54
Q

Turner v. Anheuser Bush

A

CONSTRUCTIVE DISCHARGE

Part of the problem in some discrimination actions where people quit (can’t take it anymore I’m quitting), then they go and bring to action but realize they didn’t satisfy the 3rd prong of the McDonnell test- adverse job action-nothing happened. You chose to leave

Court said that if conditions of employment are so egregious that a reasonable person in a similar position would feel compelled to quit, then it’s constructive discharge!!!!!!

  • reasonable person
  • similar position
  • compelled to quit

Constructive discharge is CONSIDERED AN ADVERSE JOB ACTION!!!!!

Quitting can be an adverse job action if it meets the criterion of Anheuser Bush

55
Q

Richards vs CH2MHill?

A

CONTINUING VIOLATION DOCTRINE!!!!!!

Statutes to bring an administrative claim to DFEH is 1 year.

You have 1 year from the last day of discriminatory harassing to bring a claim to DFEH and one day from the date of the right to sue

DFEH will then issue a right to sue which has its own 1 year statute of limitation

In theory you have 2 years….but not true, it’s 1 year + 1 year because DFEH can investigate and that can take 6 months so it’ll be 2 years and 6 months statute of limitations!!!!!

Because you had the 1 year, you can only look back when you sue 1 year.

If continuing pattern of discriminatory or harassing conduct, all evidence is considered. Can’t be sporadic.

56
Q

As an employer, employers favor

A

Binding arbitration

57
Q

Arbitration clause:

A

A clause in a contract that requires the parties to resolve their disputes through an arbitration process.

Although such a clause may or may not specify that arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution outside of the courts, and is therefore considered a kind of forum selection clause.

58
Q

You can appeal any superior court decision

A

whether by a judge or a jury

Court of appeal has to accept the appeal, take everything

Supreme court does not have to accept it.

59
Q

Arbitration has no ____

A

Appeal, it’s final!

faster, cheaper, all you need to share documents

No depositions, low costs, minimal hearings

60
Q

Only way to appeal arbitration!

A

conflict of interest

type of fraud

61
Q

Plaintiffs win more often with

A

arbitrators than jurors.

62
Q

Mediation is a form

A

of alternative dispute resolution

Informal settlement conferences

63
Q

Skelly hearing is

A

Due process hearing where there are witnesses, witness testimony, evidence and a fair hearing with opportunity to be heard

64
Q

Skelly v. SPB

A

Court ruled that the employee (skelly) had a property interest in continued employment and could not be deprived of his job without due process

65
Q

Foley v. Interactive data

A

Case established there can be implied contracts at a job. Can imply these contracts from surrounding circumstances

66
Q

ADEA:

A

Age Discrimination in Employment act

Applies to those 40 and older

67
Q

ADA

A

Americans with disabilities act

Civil rights law that prohibits discrimination against ppl with disabilities in public life, jobs, schools, transportation and all public and private places open to the general public.

Allows disabled individuals to receive a reasonable accommodation

68
Q

Disparate impact can be

A

intentional or unintentional.

4/5ths rule is used to determine if disparate impact is taking place

69
Q

Binding arbitration

A

is that it replaces the trial process with an arbitration process

70
Q

What is mediation

A

Mediation has proven effective in reducing court dockets and trials, and offers a more efficient, cost-effective option to litigation.

71
Q

Difference between arbitration and mediation

A

Arbitration is like the court process as parties still provide testimony and give evidence similar to a trial but it is usually less formal. In mediation, the process is a negotiation with the assistance of a neutral third party. The parties do not reach a resolution unless all sides agree.

HROB 153 (4 decks)

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