Exam 2 Rules

Question 1

What is Religion?

Answer 1

1. Is the belief sincere and closely held?
2. Does it take the place of religion in the employee’s life?

Question 2

Interactive Process

Answer 2

1. Interactive Process (ER engages with EE)
2. Reasonable Accommodation
3. Undue Hardship

Question 3

1. Interactive Process

Answer 3

Religion: Notice required for religious requests for accommodation
Disability: Notice expected but not always required

Question 4

2. Reasonable Accommodation

Answer 4

Does not have to be the most reasonable
Does not have to be the accommodation the EE prefers
ER must demonstrate a good faith attempt to accommodation

Question 5

3. Undue Hardship

Answer 5

Financial cost of the accommodation
Fundamentally alters the nature or operation of the business
Supervisory / communication requirements
Type of job needing accommodation
Willingness of other EEs to assist in the accommodation

Question 6

Religious Accommodation Analysis

Answer 6

1. Sincere and closely held
2. Takes the place of religion in the EE’s life
3. Interactive process
4. Reasonable Accommodation
5. Undue Hardship

Question 7

Lemon Test

Answer 7

1. The statute must have a Secular legislative purpose
2. The statute must not foster an excessive gov’t Entanglement with religion
3. Its principal or primary effect must be one that neither advances nor inhibits religion (Neutral)

Question 8

Free Exercise Clause

Answer 8

1. Gov’t not “targeting” a particular sect
2. Regulation, infringement, and impingement must be neutral or generally applicable

Question 9

“Justiciability”

Answer 9

Ripeness
Advisory
Mootness
Political Question
Standing

Question 10

Standing

Answer 10

1. Injury-in-fact
2. Causation
3. Remedy

Question 11

Injury-in-fact

Answer 11

Plaintiff must show direct, personal injury by alleged offensive conduct

Question 12

Causation

Answer 12

Causal connection between injury and the offending conduct

Question 13

Remedy

Answer 13

What the court can provide as a remedy for the claim

Question 14

Types of Sexual Harassment

Answer 14

1. Quid Pro Quo
2. Hostile Environment

Question 15

Quid Pro Quo

Answer 15

1. Power differential
2. Exchange

(involves a tangible adverse employment action, ER strictly liable)

Question 16

Hostile Environment

Answer 16

1. Unwelcome
2. Sexual in nature (or directed at a particular sex)
3. Hostile Environment (severe or pervasive)

Question 17

Faragher-Ellerth Affirmative Defense

Answer 17

1. the ER exercised reasonable care to prevent and promptly correct any sexually harassing behavior
2. the EE unreasonably failed to take advantage of any preventative or corrective opportunities provided by the ER or to avoid harm otherwise

Question 18

Hostile Environment Analysis

Answer 18

1. Unwelcome
2. Sexual in nature
3. Hostile Environment

a. Severe or pervasive
b. FE Defense (Policy: prevent/correct/report/train; EE unreasonably fails to use ER policy)

Question 19

Reasonable Factor Other than Age (RFOA)

Answer 19

Plaintiff must show that age was the primary reason for employment action

Defendent wins if a “mixed motives” reason can be established

Question 20

Bona Fide Occupational Qualification (BFOQ)

Answer 20

Like Title VII Disparate Treatment but lower threshold (closer to “business necessity”)

Question 21

Americans with Disabilities Act (ADA)

Answer 21

Enforced by EEOC
15+ EEs

Question 22

ADA Amendments Act (ADAAA)

Answer 22

Broadened the definition of individuals with mental disabilities

Question 23

Disability

Answer 23

1. Physical or mental impairment
2. that substantially limits
3. a major life activity

Question 24

Mental Disability

Answer 24

Mental or psychological disorders

Question 25

ADA and Safety Issues

Answer 25

ERs try to return injured workers to work to reduce workers’ compensation costs (light or restricted duty may undercut essential functions of the job)

HR professionals generally understand ADA guidelines as they affect physical disabilities (difficulty with mental illness)