Agency Employment Employment Discrimination 01 01 2021 Grelecki BUSA 2106 1 Employment 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 2 Employment Liability If an employee is an agent when is the Employer principal liable for Employee s agent actions Respondeat Superior i e vicarious liability requires 1 Employer Employee Relationship exists NOT an independent contractor AND 2 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 act 01 01 2021 BUSA 2106 3 Employment Employment 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 BUSA 2106 4 Employment Discrimination What is it Prohibited inequitable treatment of employees or job applicants Based on race color national origin gender religion age or disability Requirements 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 disability 01 01 2021 Grelecki BUSA 2106 5 Employment Discrimination Claims 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 01 01 2021 Grelecki BUSA 2106 6 Employment Discrimination Equal 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 notice 01 01 2021 Grelecki BUSA 2106 7 Employment Discrimination Title 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 VII 01 01 2021 Grelecki BUSA 2106 8 Employment Discrimination Title 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 analysis 01 01 2021 Grelecki BUSA 2106 9 Employment Discrimination Title VII Disparate Treatment Burden Shifting Analysis 1 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 01 01 2021 Grelecki BUSA 2106 10 Employment Discrimination Title VII Disparate Treatment Burden Shifting Analysis con t 2 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 intent 01 01 2021 Grelecki BUSA 2106 11 Employment Discrimination Title 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 impact 01 01 2021 Grelecki BUSA 2106 12 Employment Discrimination Title VII Special Considerations Religion 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 sincerely held by employee Gender Cannot classify jobs as male or female unless can prove gender is essential to job BFOQ Pregnancy Discrimination Act cannot discriminate due to pregnancy but do not have to provide special accommodations National Origin No English only job classifications Cannot discriminate based on accents unless job requires call center 01 01 2021 Grelecki BUSA 2106 13 Employment Discrimination Title VII Constructive Discharge What if an employee leaves job voluntarily so there s no overt adverse