Part 1

Question 1

To establish a Failure to Reasonably Accommodate Disability claim, the plaintiff must prove:

Answer 1

1. He or she has a disability – a physical or mental impairment that substantially limits the performance of one or more major life activities
2. He or she is qualified for the job in question
   a. meets all of the neutral, job-related requirements for the position; and
   b. is able to perform the essential functions of the job with or without reasonable accommodation; and
   c. is not a direct threat to his or her own health and safety or that of others – normally, it is the employer that must establish that the employee is a direct threat, but the burden shifts to the plaintiff for jobs with significant public safety implications
3. the employee’s need for accommodation was made known, or should have been known, to the employer
4. one or more accommodations exist that are reasonable and that the employer did not provide

Question 2

If a plaintiff can establish a Failure to Reasonably Accommodate Disability claim, the defendant will be liable, unless they can prove:

Answer 2

The proposed accommodation(s), although reasonable in general, would pose an undue hardship – “significant difficulty or expense” – given the employer’s resources and operational requirements.

Question 3

What is a disability as defined by the ADA?

Answer 3

1) a physical or mental impairment that substantially limits one or more major life activities; or
2) a record of such an impairment; or
3) being regarded as having such an impairment

(Note: the ADA also prohibits discrimination against a person because of the known disability of someone with whom that person has a relationship or association.

Question 4

What is required to establish a Failure to Reasonably Accommodate Religion prima facie case?

Answer 4

The plaintiff must show:

1) the existence of a sincere religious belief or practice that conflicts with an employment requirement;
2) that the employer was informed of the conflicting belief or practice; and
3) that the employee suffered a loss or limitation of employment opportunity due to adhering to the religious belief or practice.

Question 5

What are the defenses to a Failure to Reasonably Accommodate Religion prima facie case?

Answer 5

1) a reasonable accommodation was offered, but not accepted; or
2) no reasonable accommodation was available that would not impose an undue hardship on the employer.

Question 6

What are the qualifications for FMLA leave?

Answer 6

1) Work for a covered employer (i.e. a government agency or a private company with at least 50 employees at that work site or within a 75 mile radius)
2) have worked for the same employer for at least 12 months prior to taking leave;
3) have worked at least 1,250 hours during the 12 months prior to taking leave;
4) experience a “qualifying event,”
5) provide timely notification of the need for leave to the employer:

Question 7

What is an FMLA “qualifying event”?

Answer 7

• the birth of a child of the employee;
• the adoption or foster care placement of a child with the employee;
• the serious health condition of an employee’s spouse, child, or parent;
• the serious health condition of the employee him or herself
• the serious illness or injury of a family member incurred while he or she was on active military duty (includes both current military members and veterans)
• any “qualifying exigency” arising out of the fact that a family member who is in the military is on active duty or called to active duty status in support of a contingency operation

Question 8

What does the FMLA consider timely notification of the need for leave?

Answer 8

• at least 30 days advance notice when the need for leave is foreseeable;
• notice “as soon as practicable” when the need for leave is not foreseeable, but generally within the time prescribed under and using the employer’s “usual and customary” requirements for requesting leave.

Question 9

What entitlements does the FMLA provide?

Answer 9

1) up to a total of 12 work weeks of leave over a 12 month period (except that up to 26 work weeks of leave is allowed for family members providing care to injured military personnel);
2) maintenance of health insurance under the same conditions as if the employee had not taken leave; and
3) restoration to the same position held before leave commenced or to an equivalent position with the same pay, benefits, and other terms and conditions of employment.

Question 10

What FMLA claims can an employee make?

Answer 10

A) Interference

B) Discrimination (retaliation)

Question 11

What is the Pregnancy Discrimination Act (PDA)?

Answer 11

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by childbirth, pregnancy, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work

Question 12

The FLSA Fair Labor Standards Act mandates that employers:

Answer 12

1) Pay at least the minimum wage for each hour of work in a workweek;
2) Pay at least one and one-half times an employee’s regular rate of pay for each hour worked in excess of forty in a workweek (overtime pay);
3) Refrain from employing “oppressive child labor”

Question 13

What does ERISA (Employee Retirement Income Security Act) require of employers?

Answer 13

Under ERISA, employers must:

1) Inform employees about their benefits
2) Deliver on promised benefits
3) Provide claims and appeals procedures for benefits
4) Manage benefit plans wisely and in employees’ interest – fiduciary duty
5) Refrain from interference with or retaliation against beneficiaries

Question 14

To prove that a standard was violated, OSHA (Occupational Safety and Health Act) must show:

Answer 14

1) An applicable standard exists;
2) the standard was not complied with;
3) one or more employees were exposed or had access to the hazard; and
4) the employer knew or should have known of the hazard.

Question 15

What are the elements of a defamation claim?

Answer 15

1) A statement is made that purports to be “factual” in nature;
2) the statement is false or substantially false;
3) the statement challenges the integrity, character, or ability of another person;
4) the statement is “published” (communicated), either orally (slander) or in writing (libel); and
5) there is harm to the reputation of the person about whom the statement is made.

Question 16

What are the defenses to a defamation claim?

Answer 16

1) consent;
2) truth; or
3) qualified privilege

Question 17

When can an employer require a medical exam?

Answer 17

1. After a conditional offer has been made (unlimited)
2. After hiring (Only if: a) job-related and consistent with business necessity or b) voluntary

Question 18

The results of a medical exam can only be used to deny employment to a disabled person if:

Answer 18

1) cannot perform essential functions of the
job even with reasonable accommodation or
2) is a “direct threat” to self or others

Question 19

What are the criteria for determining if an accommodation is “reasonable”?

Answer 19

Reasonable accommodations are:

1) are effective (i.e., remove or sufficiently reduce the barrier to employment opportunity)
2) need not be the employee’s preferred option
3) are limited to measures that are work-related and not primarily for personal use (e.g., eyeglasses)
4) need not be as far-reaching as accommodations made previously if these exceeded legal requirements
5) need not render the working conditions of disabled persons strictly equal to those of non-disabled persons; effective removal of barriers is sufficient
6) do not include creating new positions or making promotions
7) do not include providing paid leave not available to other employees
8) do not require eliminating essential functions from jobs or lowering production standards
9) do not require excusing or refraining from disciplining misconduct related to a disability
10) generally do not require making exceptions to seniority-based decisions

Question 20

What is required to establish a prima facie case of discrimination under the equal pay act (EPA)?

Answer 20

1) there is someone of the opposite sex;
2) working within the same establishment;
3) who receives a higher rate of pay;
4) for performing work substantially equal to that of the plaintiff.

Question 21

What are the defenses to an equal pay discrimination claim?

Answer 21

1) a seniority system;
2) a merit pay system;
3) a system that bases pay on the quality or quantity of production; or
4) some other factor other than sex

Question 22

What employers are covered under COBRA? How long does an employee have to accept an offer of COBRA coverage?

Answer 22

A) Employers with 20 or more employees
B) Employers that offer group health insurance plans

(Employees have 60 days to accept)

Question 23

When does COBRA require an employer to continue coverage for up to 18 months?

Answer 23

• Voluntary or involuntary termination of employment for reasons other than “gross misconduct”
• Reduced hours of employment

Question 24

When does COBRA require an employer to continue coverage for up to 36 months?

Answer 24

• Divorce or legal separation
• Death of an employee
• Loss of dependent child status under the terms of the health plan
• Covered employee becoming entitled to Medicare

The obligation to provide continuation coverage ceases if the required payments are not made, the employer discontinues the group health plan for all of its employees, or coverage is obtained under another group health plan.

Question 25

According to the Health Insurance Portability and Accountability Act (HIPAA) Group health plans are prohibited from applying pre-existing condition exclusionary periods against plan participants or beneficiaries unless:

Answer 25

1) the exclusionary period is no longer than 12 months (18 months for late enrollees);
2) the exclusionary period is applied to a pre-existing condition for which diagnosis or treatment has been received within the 6 months prior to the date of enrollment (and not at all to pregnancy-related conditions); and
3) the maximum allowable exclusionary period is reduced by prior coverage under another group health plan, provided that no more than 63 days elapsed between the prior coverage and enrollment in the new plan (the existence of prior coverage is documented by a certificate of creditable coverage issued by the former employer).

(These rules only apply if the health plan is from before 2014)

Question 26

What is the PPACA?

Answer 26

Under the PPACA, enforcement of pre-existing condition exclusionary periods against participants and beneficiaries is prohibited under all health plans whose plan year begins on or after January 1, 2014. This supercedes the above-stated provisions of HIPAA. The latter will only become relevant again should the PPACA be repealed or otherwise invalidated by the courts.

Question 27

To prove that the general duty clause was violated, OSHA must show:

Answer 27

1) A workplace hazard was allowed to exist;
2) the hazard was or should have been recognized by the employer;
3) the hazard caused or was likely to cause death or serious physical injury; and
4) feasible means exist to abate the hazard.

Question 28

What is Worker’s Compensation?

Answer 28

1) Workers’ compensation is generally provided for under state laws.
2) It is intended to deal with accidental injuries, illnesses, and deaths that “arise out of and in the course of employment.”
3) Persons receiving workers’ compensation are entitled to cash payments partially replacing any lost wages, payment of medical bills for treatment of their work-related injuries or illnesses, and in some cases, rehabilitation services. Benefit levels are legislatively established.
4) In almost every state, employers are legally required to provide workers’ compensation coverage for their employees; either contributions to state-administered funds, private insurance, or self-insurance.
5) Workers’ compensation is provided on a “no fault” basis. Employees need not show that their employers were negligent in order to receive benefits. Nor can employers avoid financial responsibility for work-related injuries by invoking the common law defenses that employees knowingly assumed risk, contributed to injuries through their own actions, or were harmed by fellow employees.
6) Workers’ compensation is the exclusive remedy for employees who suffer accidental, work-related injuries, illnesses, or death. Employees are barred from suing their employers under these circumstances.

Question 29

What is a BFOQ?

Answer 29

It is a defense for a facially discriminatory policy. It cannot be used to discriminate based on color.

Grounds for recognizing a BFOQ:

a) Authenticity
b) Public Safety
c) Privacy

Question 30

What are the elements of a disparate treatment prima facie case?

Answer 30

1) The protected class characteristic(s) of the plaintiff that are relevant to the case
2) That the employment opportunity was applied for
3) That the employment opportunity was available
4) That the plaintiff was qualified for the employment opportunity
5) That the plaintiff was denied the employment opportunity
6) That the employer continued to consider candidates for the employment opportunity or selected someone with contrasting protected class characteristics

Question 31

What are the elements of a disparate treatment claim?

Answer 31

1) The protected class characteristic(s) relevant to the case;
2) that he or she was qualified for the job (i.e., up to the point of termination, the employee had been meeting the employer’s legitimate expectations);
3) that the employee was disciplined or terminated (formally or constructively); and
4) that the employee was replaced by someone with contrasting protected class characteristics); or
5) a person with contrasting protected class characteristics engaged in similar conduct, but was not terminated.

Question 32

What are the elements of a retaliation prima facie case?

Answer 32

1) the plaintiff engaged in protected activity (i.e., participated in enforcement procedures or otherwise used reasonable means to oppose discrimination);
2) the plaintiff was subjected to a “materially adverse action” by the employer; and
3) there is a causal link between engaging in the protected activity and the materially adverse action.

Question 33

What are the elements of an adverse impact prima facie case?

Answer 33

a) some “neutral” selection criterion or employment requirement has the effect of disproportionately limiting the employment opportunities of a protected class group (e.g., women, Latinos) of which the plaintiff is a part; and
b) the difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance (the 4/5’s rule is often used to provide an initial indication of this)

Question 34

What are the elements of an emotional distress claim?

Answer 34

1. Intent to harm
2. Behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in civilized society
3. Severe emotional harm or distress

Question 35

What does the EPPA (employee polygraph protection act) do?

Answer 35

It prevents employers from requiring a polygraph test for employment, however, they are still allowed to use them in ongoing investigations

Question 36

What are the elements of an intrusion upon seclusion claim?

Answer 36

1. An intentional intrusion occurred
2. The object of the intrusion was truly private
3. The intrusion would be highly offensive to a reasonable person

Question 37

What are the elements of a “public disclosure of private facts” claim?

Answer 37

1. A public disclosure occurred
2. The disclosure involved facts that were truly private
3. The disclosure would be highly offensive to a reasonable person
4. The disclosure was intentional
5. The matter disclosed was not of legitimate concern to the public

Question 38

What are the elements of a USERRA failure to reinstate claim?

Answer 38

1. The employer was informed that the employee needed leave to fulfill military duties.
2. The employee received an honorable discharge from active military service.
3. The employee made a timely request to be reinstated
4. The employer denied or delayed reinstatement or failed to fully reinstate by restoring the employee to the proper position.