Legal (BA 3010) Innsbruck Final Review Flashcards
(270 cards)
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US Constitution
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every state has their own constitution, they don’t always match up
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Ethics
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system or set of principles and rules governing what constitutes right and wrong behavior. Every state has a code of ethics that workers must abide by. Ethics go beyond the law
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Intellectual Property
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example: software is intellectual property… before it is created and for sale you can purchase the rights to buy it.
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Trademark
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A distinctive mark, motto, logo, etc. printed or stamped on goods by the manufacturer of those goods so that they can be identified in a marketplace. Eliminates confusion for consumers. Protect from dilution. Trademarks can be registered for by the state or federal government. Get an injunction to make sure someone stops using your trademark
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Copyright
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Intangible property right granted by federal statute to the author/ originator of a literary/artistic production of a specified type. Copyright law is a matter of federal law.
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Hold harmless
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two parties to a contract, if party B gets sued by 3rd party in connection with the contract, party A agrees to hold party B harmless, taking the blame
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Indemnification
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if 3rd party sues and it goes through, party A will take all the costs from party B. You never see Hold Harmless without Indemnification
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Indemnification
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if 3rd party sues and it goes through, party A will take all the costs from party B. You never see Hold Harmless without Indemnification. principal pays for any lawsuits that are imposed on the agent
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Rescission / Restitution
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cancellation of a contract. recompense for anything within the contract
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Mitigation Of
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cancellation of a contract. recompense for anything within the contract
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Mitigation of Damages
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making an effort (mitigating) to do everything possible to reduce damages
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Mitigation of Damages
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making an effort (mitigating) to do everything possible to reduce damages
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Mitigation of Damages
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making an effort to do everything possible to reduce damages
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Delegation of Duties
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Assignment of Rights
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Delegation of Duties
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the transfer of contractual duties to a third party
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Delegation of Duties
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the transfer of contractual duties to a third party
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Mistake
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unilateral- mistake made by one party within contract. bilateral-mistakes made by both sides of contract. mistakes of fact can make a contract void
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Mistake
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unilateral- mistake made by one party. bilateral-both parties. mistake of fact makes contract voidable
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Duress requirement
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the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Fraudulent Misrepresentation
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Fraudulent Misrepresentation
as to as material; fact & intent to deceive. false representation has been made knowingly.
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undue influence
when an individual is able to persuade another's decisions due to the relationships of the two parties
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calculating damages in a breach of sales contract
buyer breaches... seller has to go find another buyer. HIGHER CONTRACT PRICE - LOWER MARKET PRICE + COSTS
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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how we calculate damages in breach of sales contract
buyer breaches... seller has to go find another buyer. HIGHER CONTRACT PRICE - LOWER MARKET PRICE + COSTS
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Fraudulent Misrepresentation
as to a material, fact, & intent to deceive. false representation has been made knowingly
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undue influence
when an individual is able to persuade another's decisions due to the relationship between the two parties
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THE UETA
when an email is considered sent... when it leaves control of sender and / or when it lands in recipient's inbox
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Difference between unilateral and bilateral contracts
bilateral- promise for promise contract. contract comes into existence the moment the promise is made.
unilateral- offer can be accepted by offeree by performing his part of the contract. ex: cutting the grass
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What is cause under Louisiana Law
In Louisiana, cause is NOT consideration. Cause is PURPOSE. Cause brings about a result. Louisiana does NOT require consideration
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Offering a gift
when offering a gift, you can back out
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4 things that only shareholders can do in a corporation
amend articles, sell off assets, dissolve corporations, or approve a merger
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law requires corporations to use Inc, Corp, LLC, LLP
to give third parties notice
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preemptive rights
shareholder receives a preference over all other purchasers to subscribe to or purchase a prorated share of a new issue of stock. the shareholder can purchase a percentage of the new shares being issued that is equal to what he currently owns. allows shareholders to maintain proportionate control, voting power, and financial interest
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Board of Directors
overall management of a corporation. members are elected by shareholders. makes policy decisions and hires corporate officers to run day-to-day business.
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Foreign/Domestic Corporation
a corporation is referred to as a domestic corporation by its home state (the state in which it incorporates.) a foreign corporation is a corporation in which is working in another state. an alien corporation is a corporation working in another country.
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primary duties
overriding duties, always deal in good faith, always make decisions in best interest of shareholders
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Fiduciary Duties
Duty of undivided loyalty and the duty to exercise reasonable care
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business judgment rule
corporate director or officer will not be held liable to the corporation or it's shareholders for honest mistakes of judgment or bad business decisions.
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Difference between S Corps and Closely Held Corporations
Most S Corps are closely held corporations, but not every closely held corporation meets IRS requirements to be an S Corp. These closely held corps are subject to double taxation. While S Corps are relieved from Double Taxation.
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Things that corporations do to protect their directors and officers from liability
hold harmless, indemnify, liability insurance (D & O Insurance).
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Main job that a registered agent has
receive service of legal papers on the corporation
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Certain things only members of an LLC can do
taxed like partnerships (no double taxation). they are not liable for debts of a company, except to the extent that the owners put up a capital contribution to become members of the LLC. LLC can have one or more managers (but has to be said so in the articles/operating agreement). if not said so, then members manage the business
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Sole Proprietorships
owner is business and business is owner. he's 100% liable for debts, he makes 100% of the income. If you need to raise money for the business, there's nothing to sell in a sole prop, it's all capital.
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Chain-Style Franchise
franchise operates under a franchisor's trade name (McDonald's). identified as a member of a select group of dealers that engage in the franchisor's business. generally required to follow standardized or prescribed methods of operation. often have to give % monthly sales to franchisor.
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distributorship franchise
manufacturer (franchisor) licenses the dealer (franchisee) to sell its product (car dealerships). oftentimes distributorships cover exclusive territories.
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manufacturing franchise
AKA processing-plant agreement. franchisor transmits to the franchisee the essential ingredients or formula to make a particular product. franchisee then markets product either at wholesale or retail in accordance with franchisor's standards. (ex: Coca-Cola bottling manufacturing franchise)
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Ordinary Partnerships
at least two people, jointly own and operate business for profit, every partner has right to participate in management. ONLY ONE class of partners
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Limited Partnerships
2 tier partnerships. (partnership in commendam). at least 1 GENERAL partner who has all the votes, power, shares in profits/losses. LIMITED partners have limited rights, duties, and liability. They don't generally have liability in company debts unless a limited partner is required to make capital contribution, then technically their money is available to pay company debts. In order to have limited partnership, you must have a written partnership agreement and it must be filed with the Secretary of State.
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Limited Liability partnership
If you register as an LLP, then that means if the partnership doesn't have assets for the debts, the innocent partners are protected from liability.
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Employment at Will Doctrine
either party may terminate the employment relationship at any time and for any reason, unless doing so violates an employee's statutory or contractual rights
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Remedies under Title VII
Back Pay, Compensatory Damages (Capped), Punitive Damages (Capped), Attorney's fees and costs
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Complaining employee has to file charge of discrimination under
EEOC!
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4 elements of a prima facie case of disparate treatment (intentional discrimination)
member of protected class, plaintiff has to show he or she applied for and was qualified for the position/promotion they were seeking, plaintiff was rejected by employer, and that the person who was hired was not a member of the protected classes
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Religious Discrimination
being able to accommodate religious obligations without undue hardship
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USERRA
military statute that protects people who are called out on military duty. employer must: keep your job open for you, keep insurance benefits the same, take you back into same/equivalent position after military service is over. Employee must: notify employer they are ready to come back, be honorably discharged; dishonorable discharged nullifies this statute
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6 protected classes under Title VII
race, religion, gender, sex, color, national origin
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ADA (America's w/ Disabilities Act)
current drug addict is not protected, but drug addict who goes to certified drug rehab facility is protected
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Case of Bostock vs. Clayton County GA
2020 Supreme Court case includes prohibition based on gender identity/sexual orientation
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Equal Pay Act
The Equal Pay Act requires equal pay for male and female employees working at the same establishment doing similar work. To determine whether the Equal Pay Act has been violated, a court looks to the primary duties of the two jobs—the job con-tent rather than the job description controls. If a court finds that the wage differential is due to “any factor other than gender,” such as a seniority or merit system, then it does not violate the Equal Pay Act. Doesn't protect female-female. Only male-female
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employee vs. independent contractor
employer's right to control how, where, when job is done. employer doesn't have to do withholdings for independent contractors, and they aren't protected by employment discrimination laws
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Principal--Agent
Agent who's hired to do a job for a principal, is required to do same level job that the principal is capable of
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Liability of employer-- Doctrine of Respondent Superior
"Let the superior answer for the actions of his employee". Employer is responsible for any injury his employee causes to his third party. Employee was within the course and scope of his employment, causes an action, injures third parties, employers and employee are liable. Employer is not liable if the employee is outside of his course and scope of employment.
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Agent Actions
have express authority to act on principal's behalf if terms of agency have been spelled out to agent.
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Apparent authority
never was formally made an agent, but the principal has always created the impression that you were the agent. 3rd party has the impression that this is the principal's agent even when technically he or she is not
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Principal's Duties to an Agent
compensation, reimbursement and indemnification, cooperation, safe working conditions
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Agent's Duties to Principal
Performance, Notification, Obedience, Loyalty, Accounting
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Undisclosed
agent tells 3rd party he's working for himself and not for a principal
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When can an agent be liable to 3rd parties on a contract the agent negotiated for the principal?
As long as the agent is acting within the course and scope of his position, the principal is always held liable. Agent needs authority from his principal to act on a contract. Agent is held liable if he acts outside of authority.
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Disparate Impact cases
where employer has policy or practice that doesn't look discriminatory, but when it is applied, it has discriminatory impact/effect on certain groups
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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sexual harassment
the demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment
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sexual harassment
the demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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quid pro quo sexual harassment
something for something. demanding sex for a job/ promotion. if denied sex, then denied the job/promotion
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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quid pro quo sexual harassment
something for something. demanding sex for a job/ promotion. if denied sex, then denied the job/promotion
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hostile environment sexual harassment
severe or pervasive… when sexually inappropriate conduct runs rampant in the workplace, and the employer does nothing to stop it.
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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hostile environment sexual harassment
severe or pervasive… when sexually inappropriate conduct runs rampant in the workplace, and the employer does nothing to stop it.
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The Pregnancy Discrimination Act
expands on Title VII's gender discrimination to include pregnant women. women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar to ability in work.
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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Disclosed
An agent could be liable to the third party if he
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Disclosed
An agent tells the 3rd party who his principal is
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Partially Disclosed
An agent tells 3rd party he's not working for himself, but for a principal, but doesn't disclose who his principal is
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Reasonable Person's Standard to determine intent of parties
attempting to interpret liability, the reasonable person standard is the court's way of deciding whether or not somebody is liable
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The Pregnancy Discrimination Act
expands on Title VII's gender discrimination to include pregnant women. women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar to ability in work.
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Disparate Impact cases
where employer has policy or practice that doesn't look discriminatory, but when it is applied, it has discriminatory impact/effect on certain groups
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hostile environment sexual harassment
severe or pervasive… when sexually inappropriate conduct runs rampant in the workplace, and the employer does nothing to stop it.
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Disclosed
An agent tells the 3rd party who his principal is
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Duress requirement
the threat to do something unlawful, something that a reasonable person would fear. economic duress is not sufficient and neither is the threat to sue somebody
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sexual harassment
the demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment
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quid pro quo sexual harassment
something for something. demanding sex for a job/ promotion. if denied sex, then denied the job/promotion
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Partially Disclosed
An agent tells 3rd party he's not working for himself, but for a principal, but doesn't disclose who his principal is
