Slide 1Slide 2Slide 3Slide 4Slide 5Slide 6Slide 7Slide 8Slide 9Slide 10Slide 11Slide 12Slide 13Slide 14Slide 15Slide 16Slide 17Slide 18Slide 19Slide 20Slide 21Slide 22Slide 23Agency, Employment &Employment Discrimination01/01/2021 Grelecki BUSA 2106 101/01/2021 BUSA 2106 2Employment - Agency•Most prolific example of an agency (agent/principal) relationship•How we define employee (v. independent contractor) important because an employee is an agent of the employer, but an independent contractor is not•Look to the Time, Method, and Manner in which “worker” does the work•How much control does the “boss” have?•Consider things like:•Characterization by parties (What did they say?)•Understanding of the parties (What did they think?)•Distinct businesses (“worker” is separate entity)•Level of supervision by “boss”•Level of specialized skill required of “worker”•Tools and facilities utilized (Who owns them?)•Period of employment (definite/indefinite)•Basis of compensation (salary/lump sum)01/01/2021 BUSA 2106 3Employment - LiabilityIf an employee is an agent, when is the Employer (principal) liable for Employee’s (agent) actions?Respondeat Superior (i.e., vicarious liability) requires1. Employer-Employee Relationship exists (NOT an independent contractor), AND2. Conduct within Scope of Employment•Not require specific authorization•Motivation to serve employer, do their job•Frolic (major deviation) and detour (minor deviation)•Liability for intentional torts depends on motivation of intentional act01/01/2021 BUSA 2106 4EmploymentEmployment At Will•Employees typically presumed to be employed “at will,” so . . .•Employers can fire employees without cause at any time (limited by anti-discrimination laws)•Employees can quit at any time•Unless . . .•An employment contract exists setting forth terms different from employment-at-will•Employer indicates some other way that it will fire only “for cause”01/01/2021 Grelecki BUSA 2106 5What is it?•Prohibited, inequitable treatment of employees (or job applicants) •Based on race, color, national origin, gender, religion, age, or disabilityRequirements to Claim?•Employer must be subject to the specific law(s)•Plaintiff MUST be a member of a Protected Class•Protected Class is a group of persons protected by particular laws based on the group’s defining characteristics•Plaintiff must have a race, color, religion, national origin, gender, age, or disabilityEmployment Discrimination01/01/2021 Grelecki BUSA 2106 6Claims exist under:•Title VII of the Civil Rights Act of 1964 (covers race, color, national origin, religion, gender, sexual harassment)•Age Discrimination in Employment Act (ADEA)•Americans with Disabilities Act (ADA)•State/Local Law equivalents•Federal laws have state and local counterparts•State/local laws may apply to more employers or broaden the categories of discrimination (i.e., sexual orientation, marital status and political affiliation)Employment Discrimination01/01/2021 Grelecki BUSA 2106 7Equal Employment Opportunity Commission (EEOC)•Alleged victim must file initial claim (Charge of Discrimination) with EEOC •before suing employer; AND•within 180 days of alleged discriminatory conduct •EEOC can decide not to investigate the claim •EEOC can investigate the claim and decide:•There is no violation and sends a Right-to-Sue notice; OR•There is a violation and attempt to settle the matter with the employer•If the EEOC cannot settle a matter, the EEOC legal staff determines whether a lawsuit is necessary•If the EEOC does not file a lawsuit, EEOC sends the alleged victim a Right-to-Sue noticeEmployment Discrimination01/01/2021 Grelecki BUSA 2106 8Title VII•Prohibits job discrimination on the basis of race, color, national origin, religion, or gender•Prohibits job discrimination at any stage of employment (incl. application)•Prohibits both intentional (disparate treatment) and unintentional (disparate impact) discrimination•Applies to employers with fifteen (15) or more employees•The Equal Employment Opportunity Commission (EEOC) monitors compliance with Title VIIEmployment Discrimination01/01/2021 Grelecki BUSA 2106 9Title VII: Disparate Treatment•Individual (s) intentionally singled out•Can be established by direct evidence of discrimination, but very rarely see “smoking gun” discrimination or an openly discriminatory policy •Most often proven by indirect/circumstantial evidence, which requires a “burden shifting” analysisEmployment Discrimination01/01/2021 Grelecki BUSA 2106 10Title VII: Disparate Treatment Burden-Shifting Analysis1. Plaintiff (P) must establish prima facie case:•P is member of protected class•P applied and was qualified for the position at issue•P was rejected by employer (an adverse action)•Employer continued to seek applicants and filled the position with lesser-qualified person not in the protected class (non-member treated more favorably)Employment Discrimination01/01/2021 Grelecki BUSA 2106 11Title VII: Disparate Treatment Burden-Shifting Analysis, con’t2. Employer must then articulate legally defensible, non-discriminatory reason for the action (typically, BFOQ, discussed below)3. P must then show that employer’s reason is “pretext” •Not true•Offered to cover true intentEmployment Discrimination01/01/2021 Grelecki BUSA 2106 12Title VII: Disparate Impact•Employer has a facially-neutral employment policy AND Application of the policy has a discriminatory impact on an entire group, even without specific intent to discriminate•Alleged victim must prove that the policy significantly & adversely impacts a protected class•Requires statistical evidence (which employer can rebut) regarding employer’s workforce, as compared to the relevant labor force•To defend, employer must prove a manifest relationship between the employment practice and a business need (business necessity)•Alleged victim must then prove that an alternative employment policy would accomplish the same goal without a discriminatory impactEmployment Discrimination01/01/2021 Grelecki BUSA 2106 13Title VII: Special ConsiderationsReligion•Cannot require (or forbid) employees to participate in any religious activity•Must “reasonably accommodate” religious practices of employees (change schedules), unless it creates undue hardship (build altar)•“Religious belief” need only be